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CONFLICT OF LAWS;
OB,
PRIVATE INTERNATIONAL LAW.
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CONFLICT OF LAWS;
OB,
PRIVATE INTERNATIONAL LAW.
BY
RALEIGH C. MINOR, M.A., B.L.,
PROFESSOR OF LAW IN THE UNIVERSITY OF VIRGINIA.
BOSTON
LITTLE, BROWN, AND COMPANY
1901
Copyright, 1901,
Bt Raleigh C. Minor.
AU right* re*erv«i.
T
l9o|
TO
OF
MY FATHER,
WHOSE PURITY AND SIMPLICITY OP HEART, PROFOUND KNOWLEDGE
OF MANKIND, AND ENTHUSIASM IN THE SEARCH FOB
TRUTH WILL EVER BE MY INSPIRATION,
THIS BOOK IS REVERENTLY DEDICATED.
709188
PREFACE.
The arrangement, as well as the theory, of this book departs
materially from that of its predecessors, the offspring of the
great intellects and profound learning of Story, Dicey, and
Wharton. I should feel that some explanation of this is neces-
sary, save for my belief that the reader will find the arrange-
ment its own best defender.
If from the tangled skein of decisions upon this subject it
can be said that a single certain conclusion may be drawn, after
a careful and laborious analysis of the cases I should select as
that conclusion the fact that the great foundation and basic
principle of private international law is Situs. Find the situs
of the particular act, circumstance, or subject under inquiry and
you will know the law which should properly regulate its validity
and effect. This proposition, it is true, is subject to exceptions,
but the exceptions are quite clearly defined, and may in general
be applied without great difficulty. They will be found discussed
in the second chapter.
It is logical therefore to treat the subject under the heads
which follow, each head constituting a separate division or part
of the work: Part I., Introductory. Part II., Situs of the
Person. Part III., Situs of Status. Part IV., Situs of Per-
sonal Property. Part V., Situs of Contracts. Part VI.,
Situs of Torts and Crimes. Part VII., Situs of Remedies.
Part VIII. Pleading and Proof of Foreign Laws.
Vlil PREFACE,
All the principles of private international law (it might more
properly be called The Law of Situs) will be found to group
themselves under one or the other of these heads.
The branch of the law herein discussed, though of daily
growing importance, is at present in a most chaotic condition.
Comparatively few points may be regarded as settled. The
courts too frequently fail to rest their decisions upon sound
foundations of reason and principle ; they are too often
inclined to indulge in vague generalities and dicta, without
analyzing the transaction before them into its elements, and
applying the law of the situs of each element to determine its
effect.
It has been my constant aim to reduce every proposition to
its ultimate principles, for only by this means can order be
brought out of the confusion that now exists. In some in-
stances I have been forced to cite decisions which, while sup-
porting the conclusions to which they are cited, have reached
those conclusions by fallacious courses of reasoning.
If the principles enunciated in this work shall aid in illumi-
nating even a few of the many dark places to be found along
the path, I shall be more than gratified.
R. C. M.
University of Virginia,
January, 1901.
TABLE OF CONTENTS.
PART I.
INTRODUCTORY.
CHAPTER I.
PAOI
Introduction 1
§ 1. Origin of Private International Law 1
2. Public and Private International Law distinguished . . 2
3. Foreign Element essential to Operation of Private Inter-
national Law 4
4. Basis of Private International Law <, . 5
CHAPTER 11.
Exceptions to the Application of a Foreign Law . . 8
§ 5. General Grounds upon which the Exceptions are based . 8
6. First Exception — Policy or Interests of Forum contra-
vened by Enforcement of Proper Law 10
7. Second Exception — Injustice or Detriment to People of
the Forum 12
8. Extent of Second Exception 14
9. Third Exception — Proper Foreign Law Contra Bonos
Mores 17
10. Fourth Exception — Pi'oper Foreign Law Penal in its
Nature 21
11. Fifth Exception — Transactions relating to Immovable
Property 28
12. Same — Application of Lex Situs to Transfers of Land,
and Liens thereon 32
13. Meaning of "Immovable Property" in Private Interna-
tional Law 38
TABLE OF CONTENTS.
§ 14. Application of Lex Situs to Transactions relating to
Movable Property 41
15. Effect of Transactions completed and perfected under
Proper Law not generally altered by Subsequent
Change of Situs 43
16. Value of Precedents in Private International Law . . 48
PART II.
SITUS OF THE PERSON.
CHAPTER IIL
Actual Situs of the Person 51
§ 17. Importance of Situs in Private International Law ... 51
18. Actual Situs of the Person .... 54
CHAPTER IV.
Leoal Situs of the Person, or the Domicil 58
§ 19. Domicil, National, Quasi-National, or Municipal ... 58
20. Domicil distinguished from Mere Residence .... 59
21. Domicil distinguished from Nationality or Citizenship . 60
22. The Legal Situs or Domicil of the Person 61
23. Definition of Domicil of Natural Persons G2
24. Area of Domicil 63
25. Domicil, the Actual Permanent Home 64
26. Domicil, the Constructive Permanent Home .... 05
27. Certain General Principles touching Domicil — I. No
Person without a Domicil 67
28. 11. Only One Domicil at a Time 68
29. ni. Domicil retained until another is acquired ... 70
30. IV. Persons Sui Juris may change Domicil at Pleasure 72
31. Several Kinds of Domicil — I. Domicil of Origin . . 73
32. Original Domicil of Child born Legitimate 74
33. Original Domicil of a Bastard — Of Legitimated Child 75
34. Original Domicil of a Foundling — Of an Adopted
Child 77
TABLE OF CONTENTS. M
VAoa
86. n. Constructive Domicil arising by Operation of Law 78
36. Constructive Domicil of Infant — Legitimate Child . 79
37. Domicil of Legitimate Child — Father Alive .... 80
38. Same — Father Dead, Mother Surviving 82
39. Effect of Remarriage of the Mother 84
40. Constructive Domicil of Orphan . 85
41. Power of Guardian to alter Ward's Domicil .... 87
42. Constructive Domicil of an Illegitimate Child ... 91
43. Constructive Domicil of Child subsequently Legitimated 92
44. Constructive Domicil of an Adopted Child .... 92
45. Domicil of a Married Infant 93
46. Constructive Domicil of Married Woman 94
47. Domicil of a Deserted Wife 96
48. Domicil of Wife who Deserts her Husband .... 98
49. Domicil of Wife whose Husband is Insane or otherwise
incapacitated 100
50. Domicil of Wife contemplating Divorce 101
51. Domicil of Wife whose Husband applies for Divorce . 102
52. Domicil of Divorced Wife 103
53. Domicil of Wife, where the Marriage is Voidable or
Void 105
54. Constructive Domicil of Idiots 105
55. Constructive Domicil of Lunatics 106
56. III. Domicil of Choice — Three Essential Elements . 109
57. Party must be free to choose Domicil 110
58. Same — Invalids compelled to Reside Abroad . . . 112
59. Further Elements of Domicil of Choice — Actual Pres-
ence and Animus Manendi 114
60. Actual Presence 115
61. The Animus Manendi 117
62. Commencement of the Intention . 118
63. Duration of the Intention 120
64. Evidence of Animus Manendi 121
65. Effect of Abandonment of Domicil — Conflicting Views 124
66. Same — A Solution suggested 126
67. Situs (or Domicil) of Corporation 129
XU TABLE OF CONTENTS.
PA JIT III.
SITUS OF STATUS.
rAM
§ 68. Preliminary — Situs of Status follows Situs of the
Person . 131
CHAPTER V.
Status of Personal Capacity 134
§ 69. Capacity in General — Several Sorts of Capacity . . 134
70. Testamentary Capacity 136
71. Business Capacity in General 141
72. Voluntary Transactions — Capacity to Contract . . . 144
73. Same — Capacity to Marry 149
74. Particular Incapacities to Marry — Guilty Party to
Divorce prohibited to Marry again 155
75. Same — Polygamous and Incestuous Marriages . . . 160
CHAPTER VI.
tJTATus OF Marriage 163
§ 76. Dual Nature of Marriage 163
77. The Contract of Marriage — Formal Validity .... 165
78. Substantial Validity of Marriage Contract 169
79. The Marriage Status or Matrimonial Union — Its Com-
mencement and Continuance 172
80. Incidents of the Marriage Status — Marital Rights in
Consort's Property — Lands 173
81. Marital Rights in Personalty of Consort — In Absence
of Express Contract 175
82. Same — Express Contract touching Marital Rights . . 179
83. Rights and Duties of Parents towards Children . . . 180
CHAPTER VII.
Dissolution of Marriage Status by Divorce .... 182
§ 84. Causes for Divorce 182
85. Proceedings in Personam and in Rem distinguished . 184
TABLE OF CONTENTS. Xlii
PAai
§ 86. Exterritorial Effect of Foreign Judgments and Decrees 186
87. Divorce Causes, Proceedings Quasi in Rem .... 190
88. The Res in Divorce Causes 191
89. Exterritorial Effect of Divorce — Both Parties Domiciled
in State of Divorce 195
90. Neither Party Domiciled in State of Divorce .... 197
91. Only one of the Parties Domiciled in State of Divorce . 200
92. First Theory — Jurisdiction over one Party confers
Jurisdiction over the other also 203
93. Second Theory — Divorce, a Proceeding in Personam . 204
94. Third Theory — Divorce neither in Rem nor in Per-
sonam, but Quasi in Rem — Requires Best Notifica-
tion practicable to Non-resident Defendant .... 205
95. Exterritorial Effect of Divorce, as respects Costs and
Alimony 207
96. Exterritorial Effect of Decree for Custody of Minor
Children 208
CHAPTER VIII.
Status op Legitimacy axd Adoption 211
§ 97. Legitimacy and Adoption Instances of Double Status . 211
98. Legitimacy — Child Born in Wedlock 213
99. Subsequent Legitimation — Intermarriage of Parents of
Infant Bastard 215
100. Bastard an Adult when Parents Marry — No Intermar-
riage of Parents 218
101. Legal Status of Adoption 221
CHAPTER IX.
Status of Fiduciaries 224
§ 102. Dual Nature of Fiduciary Status 224
103. Illustrations — Various Classes of Fiduciaries . . . 225
104. Executors and Administrators — Outline of Discussion 228
105. Appointment and Qualification of Administrators and
Executors 229
106. Incidents of Status of Personal Representatires —
Their Rights and Liabilities in Gteneral .... 232
107. Suits by and against Personal Representatives . . . 235
Xiv TABLE OF CONTENTS.
FAU
§ 108. Right of Foreign Representative to Sue for Decedent's
Death by Wrongful Act 238
109. Voluntary Payment of Debts to Foreign Represent-
ative 242
110. Order of Payment of Decedent's Debts — Marshalling
of Assets 243
111. Right of Creditor to Subject Decedent's Land in Hands
of the Heir 245
112. Exoneration of Realty out of Personalty, and vice
versa — Contribution between Heirs or Devisees . 247
113. Termination of Status of Executors or Administrators
— Auxiliary or Ancillary Administrations . . . 253
114. Status of Guardians 257
115. Status of Guardian with respect to Ward's Person . . 258
116. Status of Guardian with respect to Ward's Property . 261
117. Status of Receivers — In General 263
118. Suits by and against Receivers 266
PART IV.
SITUS OF PERSONAL PROPERTY.
§ 119. Preliminary — Outline of Discussion 268
CHAPTER X.
Situs of Chattels and of Debts 270
§ 120. Legal and Actual Situs of Tangible Chattels .... 270
121. Legal and Actual Situs of Debts 274
122. Situs of Debt for Purposes of Voluntary Transfer . . 278
123. Situs of Debt for Purpose of Taxation 281
124. Situs of Debt for Purpose of Administration .... 283
125. Situs of Debt for Purpose of Attachment and Garnish-
ment 285
126. Same — Exemptions 290
TABLE OF CONTENTS. XV
CHAPTER XI.
Pisa
Voluntary Transfers of Personalty Inter Vivos . . 292
§ 127. Preliminary — Various Kinds of Transfer .... 292
128. Absolute Conveyances and Executed Sales of Pei-sonalty 293
129. Same — As to Third Persons 297
130. Sale of Personalty, with Reservation of Title in Vendor 300
131. Donations Mortis Causa 303
132. Chattel Mortgages — Liens upon Personalty .... 304
133. Voluntary Assignments for Benefit of Creditors —
Greneral Principles 309
134. What Creditors may Attack a Voluntary Assignment . 312
135. Policy of the Forum 316
CHAPTER XII.
Involuntary Transfers of Personalty Inter Vivos . 319
§ 136. Transfers by Marriage 319
137. Involuntary Assignments in Bankruptcy or Insolvency 320
138. Creditors for whose Benefit Assigfnment disregarded . 324
CHAPTER Xni.
Transfer by Succession 327
§ 139. Titles of Administrator and Distributee distinguished 327
140. Persons to Take as Distributees — Capacity of Dis-
tributees to Take 328
141. Shares of Distributees 331
CHAPTER XrV.
Transfers of Personalty by Will ........ 332
§ 142. Transfer by Will, Involuntary 332
143. Formal Validity of Wills of Personalty 333
144. Substantial Validity of the Provisions of the Will . . 335
145. Interpretation of the Will 338
146. Same — Beneficiaries — Property Disposed of . . . 341
147. Same — Lapse — Election 343
148. Same — Change of Domicil after Execution of Will . 347
149. Revocation of Wills 349
150. Wills in the Exercise of a Power of Appointment . . 351
Xri TABLE OF CONTENTS.
PART V.
SITUS OF CONTRACTS.
PAGB
§ 151. Contractual Liabilities Transitory — Proper Law to
determine Existence of Contract 355
152. Applications of Greneral Exceptions to Foreigfn Law
somewhat restricted in Case of Executory Contracts 357
CHAPTER XV.
Locus Contractus 360
§ 153. Conflicting Views as to Situs of Contract 360
154. True View — Locus Contractus not necessarily a Single
Place, but may consist of One Place for One Pur-
pose, and Another Place for Another Purpose . . 363
155. Three Leading Elements in every Contract — Each
may have a Separate Situs 367
156. The Various Incidents or Qualities of Contracts . . 369
CHAPTER XVI.
Locus Cklebkationis; Locus Solutionis; and Locus Con-
8IDERATIONIS .... 371
§ 157. Locus Celebrationis — Place where Contract becomes
finally Binding ... 371
158. Same — Contracts of Agents 374
159. Locus Solutionis — Optional with the Parties — No
Place of Performance named 377
160. Same — Several Places of Performance 380
161. Locus Considerationis 382
162. Same — Considerations Executed and Executory . ■ 385
163. Situs of Particular Contracts — Contracts to Pay
Money 388
164. Negotiable Instruments — Contract of Maker or Ac-
ceptor 391
165. Indorser's or Drawer's Contract 392
166. Situs of Insurance Contracts 398
TABIiB OF CONTENTS. Zytt
CHAPTER XVn.
PAOB
Validity of Contracts . 401
§ 167. Preliminary 401
168. Contracts Prohibited to be entered into — In General
— Lex Loci Celebrationis 402
169. Same — Exemptions in BiUs of Lading 405
170. Same — Insurance Contracts 407
171. Capacity to Contract — Lex Loci Celebrationis . . . 409
172. Formal Validity of Contracts — Lex Celebrationis —
Marriages — Stamps 410
173. Same — Contracts in Writing — Statute of Frauds . 413
174. Same — Contracts for the Sale of Land 415
175. Performance of Contract Prohibited — Lex Loci Solu-
tionis 418
176. Validity of Consideration — Lex Loci Considerationis
— Executory Consideration 421
177. Executed Considerations — Sufficiency of Considera-
tion 424
178. Same — Legality of Consideration 427
179. Usurious Considerations 429
CHAPTER XVIII.
Obligation and Interpretation of Contracts .... 438
§ 180. Obligation of a Contract 438
181. Obligation of Contract dependent upon Intention of
Parties « . . ' 440
182. Negotiable Instruments — Maker's or Acceptor's Con-
tract 446
183. Same — Obligation of Drawer's or Indoi'ser's Contract 450
184. Obligation to Pay Interest 454
185. Covenants and Contracts touching Land 457
186. Interpretation of Contracts 459
CHAPTER XIX.
Discharge of Contracts 464
§ 187. Various Sorts of Discharge 464
188. Discharge by Actual Performance or Tender .... 464
b
Cviii TABLE OF CONTENTS.
PASI
§ 189. Discharge by Substituted Agreement ... .467
190. Discharge by Operation of Law — In General ... 469
191. Same — Discharge in Bankruptcy 470
PART VI.
SITUS OF TORTS AND CRIMES.
CHAPTER XX.
5iTU8 OF Torts 475
§ 192. Local and Transitory Actions 475
193. Torts, Common Law and Statutory 477
194. Exceptions to Operation of Lex Loci Delicti .... 479
195. Situs of Tort or Locus Delicti 481
196. Law governing Torts in General 484
197. Defenses to Actions for Tort 485
198. Damages — Compensatory, Punitive, and Penal . . 488
199. Statutory Torts — Death by Wrongful Act .... 490
200. Death by Wrongful Act — Increasing Liberality of the
Courts 491
201. Same — Proper Plaintiff 493
202. Same — Other Conditions of Suit 495
CHAPTER XXI.
Situs of Crimes . . 497
§ 203. Crimes generally Local, not Transitory . . . , 497
204. Situs of Crimes 498
PART VII.
SITUS OF REMEDIES.
CHAPTER XXIL
Situs of Remedies . . 505
§ 205. Nature of the Remedy — Form of the Action . . . 505
206. Modes of Procedure — Parties to the Suit .... 509
TABLE OF CONTENTS. XIX
PAOB
§ 207. Process, Pleadings, and Rules of Practice .... 510
208. Admissibility of Evidence — Presumptions of Law —
Incidents of the Trial 513
209. Exemptions 516
210. Certain Defenses, Matters of Remedy — Statute of
Limitations — Statute of Frauds 521
211. Set-offs and Counter-claims 525
PART VIII.
PLEADING AND PROOF OF FOREIGN LAWS.
CHAPTER XXIIL
Pleading and Pkoof of Foreign Laws . 527
§ 212. Foreign Laws must be Specially Pleaded .... 527
213. Proof of Foreign Laws . 528
214. Presumptions as to Foreign Laws ..... . 530
INDEX 535
TABLE OF CASES.
[beferkmcbs abb to faobs.]
Abbebobr v. Marrin (Mass.) 295, 428
Abington v. N. Bridgewater (Mass.) 62, 64, 67, 69, 70
Abshire v. Corey (Ind.) 467
Abt V. Bank (lU.) 397, 443, 445
Adams v. Adams (Mass.) 183, 197, 212, 213, 340
V. Palmer (Me.) 160, 173
V. People (N. Y.) 499
v. R. R. Co. (Vt.) 24,480,489
Aikman v. Aikman (Eng.) 216, 217
Akers V. Demond (Mass.) . . . 18,368,372,379,388,428,433,434,436
Alabama, etc. R. R. Co. v. CarroU (Ala.) 407, 482, 487
Albee i;. Albee (111.) 499
Alexander v. R. R. Co. (Ohio) 407, 487, 630
Allen V. Allen (La.) 177, 532
V. R. R. Co. (la.) 267
V. Thomason (Tenn.) 83, 84, 128
Alley V. Caspari (Me.) 186, 265
Allgood V. Williams (Ala.) . . 59, 65, 67, 69, 70, 72, 79, 80, 81, 82, 93, 109,
115, 117, 125
AlUhouse V. Ramsav (Penn.) 467
Ambler v. Whipple (lU.) 622
American Coal Co. v. Allegheny Co. (Md.) 282
American Insurance Co. v. Hettler (Neb.) 277, 290
American Mortgage Co. v. Jefferson (Miss.) 18, 379, 380, 431
V. Sewell (Ala.) 363, 431, 434
American Oak Leather Co. v. Bank (Utah) 532
Ames V. McCamber (Mass.) 530
Ames Iron Works v. Warren (Ind.) 44, 271, 272, 304, 307
Anderson v. Anderson (Vt.) 109
V. Laneuville (Eng.) 114
V. R. R. Co. (Wis.) 492
Andrews v. Avory (Va.) 232, 233
V. Herriot (N. Y.) 506, 507
i;. Pond (U. S.) 433
V. Smith (U. S.) 265
Anonymous (1 Bro. Ch. Gas. 376) 465
(9 Mod. 66) 249, 250
Anstruther v. Chalmer (Eng.) 339, 340, 344, 349
Antelope, The (U. S.) 21
Anthony v. Rice (Mo.) 191, 201, 203
Applegate v. Smith (Mo.) 341
Arayo v. Currell (La.) 374, 877
Arbuckle v. Reaume (Mich.) 18, 403, 404
xxil TABLE OF CASES.
[References are to Pages.]
Armistead v. Blytlie (Miss.) 434
Armstrong v. Best (N. C.) .... 10, 13, 49, 133, 144, 146, 147, 148, 372
V. Lear (U. S.) 231
V. Stone (Va.) 93
V. Toler (U. S.) 17, 18
Arndt v. Arndt (Ohio) 187
Arnold v. Potter (la.) 431
Arrington o. Arrington (N. C.) 94, 99, 101, 170, 183, 184
Ash V. K. R. Co. (Md.) 241, 492
Askew V. Bank (Mo.) 279, 312, 31(i
Atchison r. Lindsey (Ivy.) 227,236,328
Atchison, etc. R. R. Co. v. Betts (Colo.) 479, 532
V. Maggard (Colo.) 287, 516
Atherton Co. v. Ives (U. S.) . 8, 13, 16, 16, 49, 254, 310, 314, 315, 316, 317
Atlantic Phosphate Co. v. Ely (Ga.) 373, 429
Attorney General v. Bouvrens (Eng.) . 280
V. Dimond (Eng.) 280
V. Hope (Eng.) 280
Aurora, City of, v. West (Ind.) 443, 447
Ayer v. Tilden (Mass.) 455
r. Weeks (N. H.) 59,64,67,60,71
Aymar v. Sheldon (N. Y.) 892, 396, 397, 398, 444, 448, 453
Backhouse v. Selden (Va.) 434
Bacon v. Home (Penn.) 16, 314
Baetjer v. La Compagnie (U. S.) 381, 406
Bagby v. R. R. Co. (Penn.) 16
Bailey v. Maguire (U. S.) 529
Baldwin v. Gray (La.) 13, 375, 446
V. Hale (U. S.) 471, 473, 474
Balfour u. Davis (Or.) 430
V. Scott (Eng.> 346
Balme v. Wombough (N. Y.) 434
Baltimore v. Hussey (Md.) 281
Baltimore & Ohio R. R. Co. v. Glenn (Md.) 130, 318
V. Koontz (U. S.) 1.30
Bank v. Balcom (Conn.) 71, 128
v. Bleecker (Minn.) 288
V. Davidson (Or.) 362
V. Dillingham (N. Y.) 26
V. Donnally (U. S.) 605, 506, 513, 522
V. Earle (U. S.) 1.30, 510
V. Ellis (Mass.) 26
r. Griswold (N. Y.) 377, .391, 392
V. Hall (Penn.) 419, 445
V. Hartwell (Ala.) 39, 145, 272, 298
f. Hill (Tenn.) 44, 45, .304, 307
V. Howell (N. C.) 145, 147
r. Hubbard (U. S.) 392
V. Indiana Banking Co. (III.) 397, 445
V. Lacombe (N. Y.) . 15, 16, 17, 254, 315, 322, 326, 326, 368, 396, 397,
443, 449
». Lee (U. S.) 43, 44, 299, 307
w. Low(N. Y.) 371, 373, 389, 434, 4.S6
V. Motherwell Co. (Tenn.) ,326
V. National Bank (U. S.) 280, 297
TABLE OP CASES. XXlll
[References are to Pages.]
Bank v. Nav. Co. (Eng.) 863
V. Norwalk (Conn.) 467
r. Porter (Conn.) 466,467,513,526
V. Price (Md.) 22
f. K. R. Co. (Wis.) 616
». Richmond (Va.) 281,283
V. Rindge (Mass.) 27
V. Rindge (U. S.) 27
V. Robinson (Conn.) 475, 476
V. Shaw (N. Y.) 462
V. Spalding (12 Barb. (N. Y.) 302) 17, 18
V. Spalding (9 N. Y. 63) 294, 419
V. State (Tenn.) 282
t>. Steliings (S. C.) 31,311,314,317
V. Sutton (U. S.) 391
V. Talbot (Mass.) 414, 451, 506. 614, 626
V. Trimble (Ky.) 526
V. Walker (Conn.) 16, 279, 314, 316
i;. Wells (Mass.) 392
r. Williams (Miss.) 17,38,247
V. Wood (Mass.) 371
Barber v. Barber (U. S.) 94, 96, 96, 97, 98, 99, 104, 207
V. Root (Mass.) 38, 195, 198
Barker v. Brown (Ky.) 516
V. Stacy (Miss.) 43, 44, 304, 307
Barnett v. Kinney (U. S.) .... 10, 13, 16, 49, 271, 310, 313, 314, 317
Barney v. Patterson (Md.) 188
Barnum v. Barnum (Md.) 136
Barrera v. Alpuente (La.) 141, 143
Barretts. Dodge (R.L) 371,378,389,444,447
Barter v. Wheeler (N. H.) 381
Barth v. Backus (N. Y.) . . 16, 272, 310, 311, 314, 315, 320, 322, 324, 826
V. Furnace Co. (111.) 610
Barton v. Barbour (U. S.) 267
Bartsch v. Atwater (Conn.) 469
Bascom r. Zediker (Neb.) 434,437
Bath Gaslight Co. v. ClafEy (N. Y.) 632
Baum V. Birchall (Penn.) 146, 147, 372, 373, 374, 388, 443
Bauserman v. Charlott (Kan.) 190, 522
Baxter 2;. Willey (Vt.) 36,37
Baxter, etc. Bank v. Talbot (Mass.) 414,451,506,614,525
Beach r. R. R. Co. (N. Y.) 491
Beal V. State (Ind.) 603
Bearce v. Barstow (Mass.) 430
Belirensmeyer u. Kreitz (111.) 120
Belknap Sav. Bank v. Robinson (Conn.) 475, 476
Bell V. Kennedy (Eng.) 119, 124
V. Morrison (U. S.) 522
V. Packard (Me.) . . . 144, 146, 147, 363, 371, 372, 373, 378, 380, 388
Belt V. R. R. Co. (Tex.) 487, 492
Bempde v. Johnstone (Eng.) 73, 109, 124
Benbow v. Moore (N. C.) 531
Bennett v. B & L. Association (Penn.) 433
Bentiey v. Whittemore (N. J.) 13, 14, 15, 311, 312, 313, 316, 317
Berrien v. Wright (N. Y.) 434, 436
Berry v. Davis (Tex.) 277. 288
XXiv TABLE OP CASES.
[References are to Pages.]
Besse v. Pellochoux (III.) 176, 177
Bethell i;. Bethell (Ind.) 32,33,87,377,457
Bettys V. R. R Co. (Wis.) 490
Beverwyck Brewing Co. v. Oliver (Vt.) 294, 296, 372
Bevierr. CoveIl(N. Y.) 430
Bible Society v. Pendleton (W. Va) 40, 336, 337
Bigelow V. Bumham (la.) 432
Bingham's Appeal (Penn.) 236,362,364
Birdseye v. Underbill (Ga.) 279, 318
Birtwhistle v. Vardill (Eng.) 33, 34, 36, 133, 216
Black V. Zacharie {U.S.) 272, 278, 280, 293, 312
Blackinton v. Blackinton (Mass.) . . . . 8, 97, 98, 101, 173, 180, 191, 207
Blackwell v. Webster (U. S.) 404, 420, 422
Blake v. Williams (Mass.) 280, 322, 325
Bloomer r. Bloomer (N. Y.) 349
Blythe v. Ayres (Cal.) 76, 76, 84, 86, 91, 92, 133, 216, 220
Boehme v. Rail (N. J.) 32, 130, 300, 304
Booth V. Clark (U. S.) 263, 264, 266, 267, 321, 322
Boothby v. Plaisted (N. H.) 294, 296, 384, 428
Borden v. Fitch (N. Y.) . 103, 104
Borland v. Boston (Mass.) 67, 70, 71, 118, 281
Boston Investment Co. v. Boston (Mass.) 130
Botany Worsted Mills v. Knott (U. S.) 366, 406
Boulware v. Davis (Ala.) 264, 266, 267
Bowditch V. Saltyk (Mass.) 340
Bowen v. Newell (N. Y.) 448
Bowersox v. Gill (Penn.) 190
Bowles V. Field (U. S.) 10, 11, 31, 49, 147, 411, 428, 514
Bowman v. Miller (Va.) 433, 484, 436
Boyce v. R. R. Co. (la.) 22
Boyd V. Selma (Ala.) 283
Boykin v. Edwards (Ala.) 516
Boyle V. Zacharie (U. S.) 389
Brabston v. Gibson (U. S.) 893, 443, 447
Bradlaugh v. De Rin (Eng.) 393,' 394
Bradley v. Bander (Ohio) 281, 282
Bragg V. Gaynor (Wis.) 288^ 289
Brantford City, The (U. S.) 356, 362, 366, 406, 428, 484
Brauer v. Compagnia (U. S.) 363
Breitung, Inre (Wis.) 39ft 400
Bridger r. R. R. Co. (S. C.) 486
Bridges v. GriflBn (Ga.) 282
Briggs V. Latham (Kan.) 378, 394, 897, 442, 462
Brockway v. Express Co. (Mass.) 406
Brodie v. Barry (Eng.) 248, 257, 346
Bronson v. Lumber Co. (Minn) 29 33 515
Brook 17. Brook (Eng.) 149, 162, W. 163
V. Van Nest (N. J.) 393^ 394
Brooke v. R. R. Co. (Penn.) 375
Brown v. Bank (la.) ! . ! '. 430
V. Bank (Ohio) ! '. 36 37
V. Brown (Eng.) *.'.'. 342
V. Browning (R. L) 21, 403
V. Finance Co. (U. S.) 365, 433
». Jones (Ind.) 448,462
V. Lynch (N. Y.) 84 86
TABLE OF CASES. XXV
[Beferencea an to Fagao.]
Brown v. R. R. Co. (Penn.) , ... 881
V. Richardson (La.) 247
V. Wright (Ark.) 531, 632
Bruce ». Bruce (Eng.) 68, 73, 119, 120, 124, 328, 331
V. U. R. Co. (Ky.) 25, 241
Brunei v. Brunei (Eng.) 118
Bryan v. Brisbin (Mo.) 316
Bryant u. Edson (Vt.) 373,378,389,448
Buchanan v. Bank (U. S.) 872, 433, 436
V. Hubbard (Ind.) 631, 632
Bucher ». B. R. Co. (U. S.) 529
Buck V. Miller (Ind.) 281
Bucy V. R. R. Co. (Miss.) 287
Building & L. Ass'n v. Logan (U. S.) 431
Bull V. Conroe (Wis.) 517
Bullock V. Bullock (N. J.) 207, 512
Burbank U.Payne (La.) 226,233
Burchard v. Dunbar (111.) 605, 506. 507
Burgett V. Williford (Ark.) 522
Burlen v. Shannon (Mass.) 99, 103, 195, 206
Burlington, etc. R. R. Co. v. Thompson (K«n.) 290, 516, 519
Burlington University v. Barrett (la.) 334
Burnett v. R. R. Co. (Penn.) 381, 406, 411
Burns v. R. R. Co. (Ind.) 25, 241, 492
Burtis V. Burtis (Mass.) 94, 95, 97, 101
Butler V. Washington (La.) 190, 201
V. Wendell (Mich.) 10, 271, 279, 810, 312, 318, 320, 324
Byers v. McAuley (U. S.) 228, 265, 274
Caoill v. Woodridge (Tenn.) 44, 45, 264, 265, 268
Caledonia Insurance Co. v. Wenar (Tex.) 287
Calloway i;. Bryan (N. C.) 156
Cameron v. Watson (Miss.) 40, 137, 139, 334
Campbell v. Coon (N. Y.) 459
V. Crampton (U. S.) 146, 148, 149, 150, 160, 163, 166, 169, 410, 411, 412
V. Tousey (N. Y.) 229, 231, 232, 243
Canadian Pac. R. R. Co. v. Johnson (U. S.) 524
Capper's Will, In re (la.) 628
CarUsle v. Chambers (Ky.) 394, 454
Carnegie v. Morrison (Mass.) . . 32, 857, 376, 392, 411, 412, 417, 419, 458
Carnegie Steel Co. v. Construction Co. (Tenn.) . . 372, 388, 394, .396, 452
Carpenter v. Bell (Tenn.) 29, 32, 136, 333
V. R. R. Co. (Me.) 532
V. Strange (U. S.) 188
Carr, Ex parte (Kan.) 601
Carson v. R. R. Co. (Tenn.) 519, 520
U.Smith (Mo.) 484,488,489,515
Carter v. Goode (Ark.) 479, 480
Case V. Dodge (R. L) 10, 11, 147
Cassidy, Succession of (La.) 30, 33, 37, 457, 458
Castro V. Dlies (Tex.) 175, 177, 178, 179, 180
Catlin V. Silver Plate Co. (Ind.) ... 13, 16, 46, 263, 264, 266, 267, 268
Caulfield v. Sullivan (N. Y.) 340, 341
Cavanaugh u. Nav. Co. (N. Y.) 481,495,624
Central Trust Co. v. Burton (Wis.) 390, 431, 434
». R. R. Co. (U. S.) 287
XXVI TABLE OF CASES.
[References are to Pages.]
Chafee v. Bank (Me.; .... 13, 15, 31, 130, 311, 312, 314, 316, 317, 325
Chamberlain v. Chamberlain (N. Y.) 40, 130, 137, 189, 140, 334, 335, 387, 338
V. Napier (Eng.) 340
Chambers v. Church (R. I.) 419, 420
Champon u. Champon (La.) 94,98,177,201
Chapman v. Chapman (111.) 96, 98, 99, 100, 101, 184
V. Chapman (Kan.) 198
V. Robertson (N. Y.) . . . . 31, 39, 362, 363, 378, 389, 390, 431, 432
Charlestown v. Boston (Mass.) 87, 93
Chartered Bank of India v. Nav. Co. (Eng.) 363
Chase v. Chase (Mass.) 170, 198
V. Henry (Mass.) 472
Cheelyr. Clayton (U. S.) 94,99,195
Cheever v. Wilson (U. S.) 96, 96, 99, 101, 190, 196
Chenery v. Waltham (Mass.) 123
Chicago, etc. R. R. Co. v. Ferry Co. (U. S.) 628
V. Moore (Neb.) 520
V. Packet Co. (III.) 44, 45, 264, 265, 266
0. Sturm (U. S.) 289, 290, 521
China Mutual Ins. Co. v. Force (N. Y.) 187
Chipman y. Peabody (Mass.) 29,30,321
Chitty V. Chitty (N. C.) 59, 72, 111, 112
Cincinnati, H. & D. R. R. Co. v. McMuUen (Ind.) 482, 486, 492
City of Aurora v. West (Ind.) 443, 447
City of Carlisle, The (U. S.) 514
City of Hartford »;. Champion (Conn.) 115,117,121,125
Claflin V. Meyer (La.) 294, 295, 296, 372, 377
Clark t;. Child (Mass.) 456
V. Clark (N. J.) 167, 168
V. Clark (Mass.) 172, 195
V. Graham (U. S.) 28, 33
V. Peat Co. (Conn.) 279
V. Searight (Penn.) 378
Clarke v. Bank (Ark.) 529
Coad V. Home Cattle Co. (Neb.) 437
Cochran v. Benton (Ind.) 32, 38, 247
V. Ward (Ind.) 416, 418, 457, 525
Cockle V. Flack (U. S.) 431
Codmanv. Krell (Mass.) 296,330,340
Coffinj; V. Dodge (Mass.) 21, 26
Coffman v. Bank (Miss.) 392, 397, 439
Coghlan y. R. R. Co. (U. S.) 363, 390, 455, 456
Colburn v. Colburn (Mich.) 111. 183, 184
V. Holland (S. C.) 73, 95, 96, 120
Cole V. Cunningiiam (U. S.) . . . .13, 16, 49, 267, 311, 314, 324, 325, 326
Collins V. Collins (N. Y.) 160, 204
Columbian Government v. Rothschild (Eng.) 510
Commercial Bank v. Davidson (Or.) 362
V. Motherwell Co. (Tenn.) 326
V. R. R. Co. (Wis.) 516
Commonwealtli v. Andrews (Mass.) 502
V. Avcs (Mass.) 21
V. Bassford (N. Y.) 47, 423, 424, 428
V. Blanding (Mass.) 502
i;. Chiovaro (Mass.) 501
V. Gaines (Ky.) 281
TABLE OP CASES. XXVll
[References are to Pages.]
Commonwealth v. Graham (Mass.) 87, 98, 167, 531
i;. Green (Mass.) 21,22,24
V. Kunzmann (Penn.) 497, 498
t;. Lane (Mass.) 10, 18, 19, 20, 21, 26, 161, 164, 167, 159, 160, Itil, 171
V. Linton (Va.) 500
V. Macloon (Mass.) 499,500,502,503
V. Pettes (Mass.) 501
V. Putnam (Mass.) 19, 159
r. R. R. Co.(Va.) 281,282
r. Uprichard(Ma8s.) 502,503
V. Van Tuyl (Ky.) 502
V. White (Mass.) 502
Compton V. Bearcroft (Eng.) 167
Concord v. Ruraney (N. H.) 105, 106, 107, 108
Connor v. Donnell (Tex.) 432
Consequa v. Fanning (N. Y.) 455
Cook V. Cook ( Wis.) 8, 96, 96, 101, 102, 163, 164, 165, 172, 201
V. Litchfield (N. Y.) 372, 394
V. Moffat (U. S.) 471, 473, 474
V. Van Horn (Wis.) 45, 316, 318
Cooper y. Beers (111.) 64,71,120,121,328
V. Earl of Waldegrave (Eng.) 455
V. Reynolds (U. S.) 207
V. Sandford (Tenn.> 455
Corbett u. Littlefield (Mich.) 44. 307, 309
Cottins y. De Sartiges (R.L) 352,353,354
Cottrell V. Cottrell (Eng.) 350
Cox i;. Cox (Ohio) 196,201,203
V. United States (U. S.) 390, 443
Craig V. Gunn (Vt.) 289
i;. Williams (Va.) 44,307,308
Crapo V. Kelly (U. S.) . 14, 15, 44, 45, 271, 273, 274, 310, 311, 322, 324, 325
Crawford v. Bank (Ala.) - 397, 455
i;. State (Miss.) 157, 158, 159
V. Wilson (N. Y.) 69, 64, 67, 69, 74
Cromwell v. County of Sac (U. S.) 431, 456
Cronan V. Fox (N. J.) 44,271,272,274,304,307
Cross V. Brown (R. I.) 277, 289
V. Cross (N. Y.) 197, 204
V. Trust Co. (N. Y.) . 11, 12, 137, 140, 253, 272, 333, 335, 337, 338, 347
Crouch V. Dabney (Va.) 285
Crowley y. R. R. Co. (N. Y.) 491
Crumlish v. Improvement Co. (W. Va.) 357, 391
Crusoe v. Butler (Miss.) 341
Culver's Appeal (Conn.) 106,109
Cummington v. Belchertown (Mass.) . 44, 47, 98, 150, 151, 154, 162, 171,
196, 19T
Curran v. Craig (U. S.) 265
Curtis ;;. Hutton (Eng.) 40, 140
V. Leavitt (N. Y.) 378, 390, 434
r. R. R. Co. (N. Y.) 362, 380, 381
Cutter V. Davenport (Mass.) 232, 235
Cutts V. Haskins ( Mass.) 93
Da Cunha, In re (Eng.) .141
Dale V. Irwin (111.) . . . ,- 60
jcxviii TABLE OF CASES.
[Beferencea are to Pages.]
Dale V. R. R. Co. (Kan.) 22, 24, 480, 489
Dalhousie v. M'Douall (Eng.) 86, 216, 217
Dalpay, In re (Minn.) 16,273,294,310,312,314
Dalrymple v. Dalrymple (Eng.) 6, 167
Dammert v. Osborn (N. Y.) 11, 140, 336, 337, 340
Daniel v. HUl (Ala.) 88, 89
Darby D.Mayer (U.S.) 28,333
D'Arcy v. Ketchum (U. S.) 189, 190
Darden v. Wyatt (Ga.) 86, 88
Davidow r. R. R. Co. (U. S.) 494
Dayifl v. Estey (Mass.) 263, 266
r. Gray (U. S.) 267
r. Morton (Ky.) 625
V. R. R. Co. (Wis.) 406
V. Williams (Miss.) 299
Davison r. Gibson (U. S.) 531,532
Dawes v. Boylston (Mass.) 255, 285
V. Head (Mass.) 225, 227, 231, 243, 253, 264, 25ti
Dawson v. Jay (Eng.) 259
Dealy v. United States (U. S.) 601
Debevoise v. R. R. Co. (N. Y.) 490, 491
De Bonneval v. De Bonneval (Eng.) Ill
De Brimont v. Penniman (U. S.) 180, 188
Decouche v. Savetier (N. Y.) 180, 331
Dedham v. Natick (Mass.) 83, 95
De Haber v. Queen of Portugal (Eng.) 610
De Ham v. R. R. Co. (Tex.) 482, 483
Dehon ». Foster (Mass.) 326
De Jarnett v. Harper (Mo.) 81, 82, 83, 93
De La Montanya v. De La Montanya (Cal.) . 67, 69, 70, 131, 191, 207, 209
De La Vega v. Vianna (Eng.) 512
DeMeli t;. DeMeli (N. Y.) 116,124,190,191
Dennick v. R. R. Co. (U. S.) 25, 240, 475, 480, 492, 494
Denny r. Bennett (U. 8.) 471, 472
V. Williams (Mass.) 465
Depasw. Mayo (Mo.) 37,174
Depeau v. Humphreys (La.) 434
Derringer v. Derringer (Del.) 243
Desesbats v. Berquier (Penn.) 334
Desmare v. United States (U. S.) 62, 67, 70, 72, 109, 126
De Sobry v. De Laistre (Md.) 226, 243, 254
Despard v. Churchill (N. Y.) 10, 39, 253, 254, 255, 328, 338
De Witt p. Buchanan (N. Y.) 475,476
De Wolf ». Johnson (U. S.) 389, 390, 431, 433, 436
Dial V. Gary (S. C.) . . 13, 225, 227, 229, 281, 232, 233, 234, 242, 271, 275,
277, 278, 279, 280, 284
Dickinson v. Edwards (N. Y.) 362, 363, 380, 419, 432, 436
r. Hoomes (Va.) 37,245,246
Dickinson. Ex parte (S. C.) 10, 11, 314, 317
Dickson v. Dickson (Tenn.) 19, 21, 25, 160, 167, 158
Dike f. R. R. Co. (N. Y.) 380, 489
Ditson V. Ditson (R. L) 201, 203
Dixon V. State (Tex.) 502
Doerr v. Forsythe (Ohio) , . 98, 203
DofTlioni v. Crispin (Eng.) 330
Dolan V. Green (Mass.) 296, 373, 428
TABLE OP CASES. XXIX
[References are to Pages.]
Dolphin V. Robins (Eng.) 96, 97, 99, 104, 199
Don V. Lippmann (Eng.) 618, 623
Don's Estate (Eng.) 216
Donald v. Hewitt (Ala.) 46
Donovan v. Pitcher (Ala.) 17, 21
Doolittle V. Lewis (N. Y.) 242, 277
Dord V. BonafEee (La.) 372, 377
Dorsey v. Dorsey (Penn.) 199
V. Maury (Miss.) 188
Doty V. Hendrix (N. Y.) 837
Dougherty v. Snyder (Penn.) 61, 94, 96, 146
Doughty i;. Doughty (N. J.) 191, 201, 204, 206
Douglas V. Bank (Tenn.) 16, 317, 818, 394, 896, 453
i;. Douglas (Eng.) 79, 89, 90, 127, 129
V. Insurance Co. (N. Y.) 130, 287
Dow V. Blake (111.) 207
V. Sudbury (Mass.) . . • 281
Downer v. Chesebrough (Conn.) .... 414, 415, 451, 605, 506, 514, 525
Drake v. R. R. Co. (Mich.) 518
V. Rice (Mass.) 507
Dresser v. Illuminating Co. (U. S.) 80, 88, 93
Drummond v. Drummond (Eng.) 248, 261
Dugan V. Lewis (Tex.) 431
Duke of Brunswick v. King of Hanover (Eng.) 510
Dumaresly v. Fishly (Ky.) 167, 168
Duncan v. United States (U. S.) 890
Dunham y. Dunham (111.) 101,164,191,199,203,205
Dunn V. Adams (Ala.) 531
Dunscomb v. Bunker (Mass.) 894
Dupont V. Quebec S. S. Co. (Canada) 481
Dupuy V. Wurtz (N. Y.) . . 65, 67, 69, 70, 71, 72, 109, 114, 115, 117, 121,
122, 124, 334
Dutcher v. Dutcher (Wis.) 95, 98
Dwight V. Boston (Mass.) 282
Dyer v. Osborne (R. I.) 282
Dykes V. Lockwood (Kan.) 281
Earl r. Dresser (Ind.) 258,261
Earl of Winchelsea v. Garetty (Eng.) 248, 249, 250
East Tenn. R. R. Co, v. Kennedy (Ala.) 277, 519, 620
V. Lewis (Tenn.) 486
Edgerly *;. Bush (N. Y.) . . . . 10, 14, 15, 48, 44, 272, 300, 304, 307, 484
Edwards v. Jones (N. C.) 188
V. Kearzey (U. S.) 439, 517
Egbert v. Baker (Conn.) 13, 279, 310, 312, 313, 317, 820, 324
Elbers v. Insurance Co. (N. Y.) 122, 124
Elder o. Reel (Penn.) 204
Elliott u. Elliott (Md.) 156
f. Lord Minto (Eng.) 248
Ellis i;. Ellis (Minn.) 8,164,196,198
V. White (la.) 198
Elsasser v. Haines (N. J.) 188
Emanuel r. White (Miss.) 443,447
Embry v. Millar (Ky.) 233, 236
Emery v. Berry (N. H.) 629
V. Clough (N. H.) 271. 804
XXX TABLE OF CASES.
[References are to Pages.]
Energia, The (U. S.) 379, 406
Ennisi-. Smith (U. S.) 72,79,111,122,124,328,329,331
Enoliin D. Wylie (Eng.) 339,340,342
Equitable, etc. Society v. Clements (U. S.) 399
V. Nixon (U. S.) 398, 408
V. Trimble (U. S.) 398, 409
Erman ?;. Lehman (La.) 294,295,296,309
Eureka Springs Co. v. Timmons (Ark.) 530
Evans v. Cleary (Penn ) 508, 510
V. Tatem (Penn.) 233. 236
Everett r. Vendryes (N. Y.) 392,394,396,397,398,449
Evey tJ. R. R. Co. (U. S.) 475,477,480,485,488,490,515
Ex parte Carr (Kan.) 501
Dickinson (S. C.) 10, 11, 314, 317
Kinney (U. S.) 11, 152, 153, 497, 498
McNeely (W. Va.) 500
Picquet (Mass.) 231,235
Rogers (Tex.) 501
Smith (U. S.) 504
Exchange Bank i;. Hubbard (U. S.) 3G2
Fairchild v. Fairchild (N. J.) 197
Falls V. Sav. & L. Co. (Ala.) 434
Fanning v. Consequa (N. Y.) 455
Fantr. Miller (Va.) 388,394,412.434
Farmers' Loan & T. Co. v. Tel. Co. (N. Y.) 264, 266, 267
Farmers' Nat. Bank v. Sutton (U. S.) 391
Faulkner v. Hyman (Mass.) ... 15, 16, 46, 61, 130, 313, 314, 315, 318
Fatiton V. Middlebrook (Conn.) 522
Faxton v. McCosh (la.) 282
Fay r. Haven (Mass.) 225,227,231,233,236,243,253,255
Felch V. Bugbee (Me.) 392
Fellows V. Miner (Mass.) 11, 139, 336, .337
Felt 0. Felt (N. J.) 170, 191, 206
Ferguson v. Crawford (N. Y.) 197
Ferris v. Kimble (Tex.) 281
Fessenden v. Taft (N. II.) 31, 390, 428
Finch V. York Co. (Neb.) 282
Findley v. Hall (Ohio) 374, 377, 434
First Nat. Bank v. Balcom (Conn.) 71, 128
u. Dillingham (N. Y.) . 26
V. Hall (Penn.) 419,445
r. Price (Md.) 22
V. Shaw (N. Y.) 462
V. Walker (Conn.) 16, 279, 314, 316
Firth v. Firth (N. J.) 61,70,74,109,117,118,133
Fislier v. Parry (Ind.) 457
Fithian v. R. R. Co. ( Penn.) 290
Flagg V. Baldwin (N. J.) 384, 424, 428, 536
Flannery's Will (Penn.) 231, 2-32, 334
Fletcher v. Insurance Co. (U. S.) 379, 398, 409
Flood V. Growney (Mo.) 124
Florance's Will (N. Y.) 96, 98
Flower v. Flower (N. J.) 99, 206
Flukes, In re (Mo.) 521
Foley's Estate (Penn ) 82,93
TABLE OP CASES. XXXi
[References are to Pages.]
Fonsecar. Cunard S. S. Co. (Mass.) 406
Ford V. Ford (Mich.) 40, 3o9, 341
D.Ford (La.) 177,178
V. Ford (Wis.) . . 30, 32, 33, 137, 333, 334, 385, 337, 339, 840, 341, 348
r. Insurance Co. (Ky.) 398,399,408,421
Forepaugh v. R. R. Co. (Penn.) 400
Fosdick V. Fosdick (U. I.) Ill, 199
Foss u. Nutting (Mass.) 510
Foster v. Waterman (Mass.) 92, 189, 192, 221, 223
Foute V. State (Tenn.) 501
Fowler, Appeal of (Penn.) 271, 279, 293
Fowler v. Bell (Tex.) 304
Fox V. Adams (Me.) 315
Frank v. Bobbitt (Mass.) ... 10, 13, 14, 16, 271, 310, 313, 317, 318, 324
Frazier v. Boggs (Fla.) 30, 32, 33, 136, 3-33
Fred Miller Brewing Co. v. De France (la.) 294, 428
Freeman, Appeal of (Conn.) . 10, 11, 17, 131, 141, 145, 146, 147, 372, 374
Freeman v. Alderson (U. S.) 185
Freese V. Brownell (N. J.) 392,397,432
Freetown v. Taunton (Mass.) 83, 84
Frost V. Brisbin (N. Y.) 59
Fry's Case (Penn.) 60
Fulham v. Howe (Vt.) 122
Fuller V. Fuller (Ala.) 158
V. Steiglitz (Ohio) 13, 16, 279, 310, 311, 316, 525, 526
Furgeson v. Jones (Or.) 221, 222, 223
Fuss r. Fuss (Wis.) 175,177,178,179,180
Gaiwes, In re (La.) 189
Ganer v. Lanesborough (Eng.) 529
Garden City Sand Co. v. Miller (lU.) 458
Gardner r. Lewis (Md.) 11,18,318,529,5.30
Garner v. Garner (Md.) 157
V. Wright (Ark.) 531
Garr v. Stokes (N. J.) 512
Garrettson v. Bank (U. S.) 373, 392, 411
Gay V. Ralney (III.) 394, 452
Gelstonr. Hoyt (U. S.) 187
Geoghegan v. Atlas S. S. Co. (N. Y.) 481
Gettys y.Gettys (Tenn.) 198,199
Gibbs V. Fremont (Eng.) 455
Gibson v. Insurance Co. (U. S.) 898, 399, 417, 443
V. Sublett (Ky.) 508
Gilchrist v. Oil Co. (W. Va.) 529
Gilman n. Oilman (Me.) 62, 65, 67, 69, 70, 79, 117, 123, 840
y. Ketchum (Wis.) 13,16,264,265,206,267
V. Lockwood (U. S.) 471
V. Stevens (N. H.) 469
Gist V. Tel. Co. (S. C.) 424, 428, 532
Glaser v. Priest (Mo.) 262
(ilenmavis, The (U. S.) 363, 406
Glenn r. Smith (Md.) 232,23.3,243
V. Thistle (Miss.) 30, 32, 426
Glenny Glass Co. v. Taylor (Ky.) 374
Glidden v. Cliamberlain (Mass.) 484
Goddard v. Foster (U. S.) 515
XXXil TABLE OP CASES.
[References are to Pages.]
Golson r.Ebert (Mo.) 377
Goodall y. Marshall (N. H.) 226,264,328
Goodman, Trusts of (Eng.) 85, 216
Goodman v. Goodman (Eng.) 35, 216
Goodricli v. Houghton (N. Y.) 405
Goods of Reid (Eng.) 351
Goodwin v. Jones (Mass.) 23.5
Graham v. Bank (N. Y.) 177, 272, 466
Grand Lodge v. New Orleans (U. S.) 617
Grant v. Healy (U. S.) 391
Graveley v. Graveley (S. C.) . . . 227, 229, 230, 232. 253, 254, 265, 256
Gravest'. Johnson (Mass.) 294
V. Roy (La.) 318
Gravillon v. Richards (La.) 328
Gray r. Holmes (Kan.) 33,34,36,133,222
Great Western Tel. Co. v. Purdy (U. S.) 622
Green r. Iron Works (N. J.) 313,316
V. Van Buskirk (6 Wall. 307) . 8, 11, 13, 46, 49, 272, 304, 305, 316, 521
V. Van Buskirk (7 Wall. 139) 8, 10, 187
Greene v. Greene (Mass.) 69, 96, 102, 129
Greenhow v. James (Va.) 149, 213
Greenwald v. Freese (Cal.) 443, 457, 462
Greenwoodv. Curtis (Mass.) 17,20,21,47,419,424,429
Gregory v. Gregory (Me.) 133, 164, 196, 197, 198
Grimmett v. Witherington (Ark.) 258, 259, 261
Griswold v. Golding (Ky.) 444
V. Waddington (N. Y.) 18
Gross V. Jordan (Me.) 366, 444
Grove, In re (Eng.) 216
Grover & B. M. Co. v. RadclifEe (U. S.) 190
Guarantee Co. r. Bank (Va.) Ill
Guerney v. Moore (Mo.) 21, 26, 27
Guier v. O'Daniel (Penn.) 62, 65, 73, 74, 79, 116, 120, 124, 328
Guildhall, The (U. S.) 400
Guillander i-. Howell (N. Y.) . . . 29, 39, 42, 46, 271, 272, 273, 300, 31 1
Gulick r. Gulick (N. Y.) 233, 230
Gunnr. Barry (U. S.) 517
Guthrie i;. Lo wry (Penn.) 188
Haogin v. Haggin (Neb.) 632
Hairston V. Hairston (Miss.) 62,65,115,117,177,178,272,331
Hale 7'. Nav. Co. (Conn.) 881,382,407
HalU. Cordell (U. S.) 363,391,392,414,525
V. Harrison (Mo.) 236, 242, 284, 285
Hallett V. Bassett (Mass.) 65, 69, 70, 79, 118, 124
Halley v. Ball (111.) 510
Halsted v. Straus (U. S.) 62
Hamilton v. Chouteau (U. S.) 266
Hancock Nat. Bank v. Ellis (Mass.) 26
Handley v. Harris (Kan.) 44, 304, 307
Hanks v. State (Tex.) 497, 501
Hanley v. Donoghue (U. S.) 529
Hanna v. R. R. Co. (111.) 489
Hanover v. Turner (Mass.) 198
Hanover Nat. Bank r. Howell (N, C.) 145,147
Harding r. Alden (Me.) . 88,94,95,96,97,98,183,184,196,201,203.208
TABLE OF CASES. ZXXlll
[Beferencea are to Pages.]
Hardware M'fg Co. v. Lang (Mo.) 277, 290
Harford v. Morris (Eng.) 16»
Harper v. Butler (U. S.) 232, 284
Harral v. Harral (N. J.) . 60, 72, 94, 107, 108, 109, 117, 118, 150, 169, 177
Harris v. Hardeman (U. S.) 190
V. Harris (N. C.) 204
Harrisburg, The (U. S.) 495
Harrison v. Edwards ( Vt.) 447, 513, 626
V. Harrison (Ala.) 94, 95, 96, 173, 195, 198
w. Nixon (U. S.) 339,340,342,347,348
V. Sterry (U. S.) 243, 280, 309, 322, 324, 325, 515
Hart w. Bostwick (Fla.) 522
V. Lindsey (N. H.) 60, 62, 70, 115, 116, 118
V. Wills (la.) 371, 388, 389, 434
Harteau v. Harteau (Mass.) 95, 96, 97, 101, 103, 170, 183. 184
Hartford v. Champion (Conn.) 115, 117, 121, 126
Hartman «;. Aveline (Ind.) 504
V. R. R. Co. (Mo.) 356
Harvard College v. Gore (Mass.) 79, 119, 122, 124, 126
Harvey o. Merrill (Mass.) 531
V. Richards (U. S.) 227, 230, 244, 253, 254, 255, 284, 285
Harwell «. Sharp (Ga. ) 277,516,521
Hatch V. Hansom (Mo.) 405
Hausman v. Nye (Ind.) 377
Haviland v. Halstead (N. Y.) 166
Hawkins v. Ragsdale (Ky.) 203
Hawley v. Bibb (Ala.) 423
V. James (N. Y.) 29, 33, 87, 40
Haymond v. Haymond (Tex.) . 60
Hazelr. R. R. Co. (la.) 406
Healy i;. Reed (Mass.) 138, 139, 140, 337
Heath v. Heath (La.) 99, 100
Hedenberg v. Hedenberg (Conn.) 233, 236
Heebner v. Insurance Co. (Mass.) 399, 444, 464
Hegeman v. Fox (N. Y.) ... 72, 111, 113, 114, 118, 177, 199, 328, 331
Heine i'. Insurance Co. (La.) 29, 175
Helleman's Will (Eng.) 141
Helton V. R. R. Co. (Ala.) 475, 486, 487
Hemmaker V. State (Mo.) 502
Henry v. Sansom (Tex.) 430
V. Sargeant (N. H.) 499
Hernandez, Succession of (La.) 21, 25, 150, 157, 158, 177
Herrick v. R. R. Co (Minn.) 475, 480, 485, 487, 490, 493
Herron v. Keran (Ind.) 281
Hervev «. Edens (Tex.) . . . . 31,310,311,314,317,320,321,322,324
V. Locomotive Works (U. S.) 8, 302, 307, 309
Hewit, In re (Eng.) 249
Hiatt V. Griswold (U. S.) 433
Hibernia Nat. Bank v. Lacombe (N. Y.) 15, 16, 17, 254, 315, 322, 325, 326,
368, .396, 397, 443, 449
Hickox r. Elliott (U. S.) 389, 390, 404, 419, 420
Hicks r. Brown (N. Y.) 396,397
r. Insurance Co. (U. S.) 372,377,399,408
V. Pope (La.) 178
Hiestandr. Kun8(Ind.) 74,80,88,109,141,142,143
Higgins V. R. R. Co. (Mass.) , 25, 448
XXXIV TABLE OF CASES.
[References are to Pagea.]
Hilbish V. Hattel (Ind.) 38, 203
Hill V. Bank (N. H.) 144
V. Chase (Mass.) 371
V. Hill (111.) 94, 101, 115, 117, 196, 197, 199
V. Spear (N. H.) 47, 294
V. Tucker (U. S.) 230, 231, 237
Hilton w. Guyot (U. S.) 6,17,188
Hinds V. Brazealle (Misa.) 18
Hoadley r. Transportation Co. (Mass.) 356,505,506,514
Hobson V. Hale (N. Y.) 40
Hoffman v. Carow (N. Y.) 484
V. Hoffman (N. Y.) 197, 198, 204
Hohner v. Gratz (U. S.) 188
Hollis V. Seminary (N. Y.) 12, 140
Holmes v. Green (Mass.) 118
V. Holmes (Eng.) 348
t'. Manning (Mass.) 434
V. Remsen (20 Johns. 229) 243, 318
V. Remsen (4 Johns. Ch. 460) 280,321,322
Holy oke r. Haskins (Mass.) 85,88,90,106
Homestead Cases, The (Va.) 517
Hood's Estate (Penn.) 71, 72, 117, 125
Hood i;. Harrington (Eng.) 235
V. Hood (11 Allen, 196) 96, 97, 99, 103, 184, 190, 195, 196
V. Hood (110 Mass. 463) 198
V. State (Ind.) 3, 164, 198
Hooker v. Olmstead (Mass.) 228, 236
Hope w. Brewer (N. Y.) 40,139,334,337
Home V. Rouquette (Eng.) 392, 393, 394, 39(3, 452
Homthall v. Burwell (N. C.) 13, 14, 43, 44, 187, 271, 272, 300, 304, 307, 308.
521
Hosford V. Nichols (N. Y.) 432
Hoskins r. Matthews (Eng.) 113,114,118
Houghtaling r. Ball (Mo.) 413,531,532
Howlandr. R. R. Co. (Mo.) 277,290
Hoyt V. Sprague (U. S.) 259, 261
V. Thompson (N. Y.) 277, 279, 299, 306
Hubbard v. Bank (U. S.) 392,413
Hubbell V. Land & Imp. Co. (Tenn.) 372, 434, 437, 513
Hugo, The (U. S.) 365, 406
Hull V. Blake (Mass.) 447
HuUett V. King of Spain (Eng.) 509
Humphreys y. Hopkins (Cal.) 264,266
Hunt i;. Hunt (N. Y.) 94, 95, 96. 97, 99, 101, 103, 104, 170, 183, 184. 195,
196, 529
r. Jones (R. I.) 370, 413, 431
V. Perry (Mass.) 281
«. Standart (Ind.) 392,396,397,443,453,454
Huntington v. Attrill (U. S.) 21, 22, 24,26, 26, 151, 157, 189, 476, 478, 480.
485, 490. 492
Huntley v. Merrill (N. Y.) 408
Hurst V. Mut. L. Ass'n (Md.) 409
Huse «;. Hamblin (la.) 462
Hutchings V. Kimmell (Mich.) 160,161,167,168
Hyde v. Goodnow (N. Y.) 372, 398, 408
TABLE OF CASES. XXXV
[References axe to Pages.]
Illinois Cbntkal R. R. Co. v. Ihlenberg (U. S.) 480, 487
V. Smith (Miss.) 277,287,618,521
In re BrcltungJ Wis.) 399, 400
Capper's Will (la.) 528
Da Cunha (Eng.) 141
Dalpay (Minn.) 16, 273, 294, 810, 312, 314
Flukes (Mo.) 621
Gaines (La.) 189
Grove (Eng.) 216
Helleman's Will (Eng.) 141
Hewit (Eng.) 240
Johnson (la.) 82, 93
Kimball (N. Y.) 204
Mohr (Ala.) 504
Olson's Will (la.) 69, 71, 125
Rice (Mich.) 124, 128, 259
Robert's Will (N. Y.) 137, 334
Steer (Eng.) 74
Ingraham i;. Geyer (Mass.) 312, 315
Insurance Co. v. Assessors (La.) 281
V. Brinkley Co. (Ark.) 871, 377, 398, 399, 408
V. Chambers (N. J.) 277, 288
V.Clements (U.S.) 39!*
V. Companhia de Moagens (U. S.) 461
r. Corbett (111.) 288
V. Force (N. Y.) 187
V. Hardware Co. (Tex.) 188
V. Hettler (Neb.) 277, 290
V. Nixon (U. S.) 898, 408
V. Portsmouth (Mass.) 277
r. Robison (U. S.) 371,375,399
V. Russell (U. S.) 375
V. Sawyer (Mass.) 408
r. Trimble (U.S.) 398,409
17. Trust Co. (U. S.) 409, 443
V. Wenar (Tex.) 287
Iowa, The (U. S.) 406
Irvine v. Barrett (Penn.) 389
Isham V. Gibbons (N. Y.) 114
Ives V. McNicoU (Ohio) 76, 221
Ivey V. LoUand (Miss.) 18, 362
Jacks v. Nichols (N. Y.) 436
Jackson v. Com. (Ky.) 600
r. Green (Ind.) 457
v. Jackson (80 Md. 176) 167,168
i;. Jackson (82 Md. 17) 10,152,153,160,161,167
V. Jackson (1 Johns. 424) 198
V. Johnson (Ga.) 233, 236
V. Mortgage Co. (Ga.) 377, 431
Jacobs V. Credit Lyonnais (Eng.) 363, 442, 443
Jacquette v. Huguiron (U. S.) 190
James' Estate (Cal.) 197
James v. James (Tex.) .... 532
Jenness v. Jenness (Ind.) 94, 95, 101, 102, 103
Jennings v. Jennings (Ohio) 36, 341, 344
XXXVl TABLE OP CASES.
[Eeferences are to Pages.]
Jennison v. Hapgood (Mass.) 117, 121, 124, 281, 253
Jessup V. Carnegie (N. Y.) 629
Johns V. State (Ind.) 498. 501
Johnson, In re (la.) 82, 93
Johnson v. Hunt (N. Y.) 323
V. Jackson (Ga.) 233, 2;i6
V. Powers (U. S.) 230, 231, 235, 237
Johnston v. Gawtry (Mo.) 38, 147, 247
V. R. R. Co. (U. S.) . 495, 622, 624
Johnstone v. Beattie (Eng.) 82, 114, 268, 259, 261
Jones V. Jones (Miss.) 133, 183, 196
V. Jones (N. Y.) 163, 191, 204, 512
V. Leonard (la.) 504
V. Rice (Ga.) 531
Jopp V.Wood (Eng.) 62,68,122
Jordon v. Thornton (Ark.) 393, 610
Joslyn i;. Miller (Neb.) 434
Judy V. Kelley (111.) 235
Juillard v. May (111.) 81, 311, 313
Kahl v. R. R. Co. (Ala.) 478, 487
Kanaga v. Taylor (Ohio) 48, 44, 304, 307
Kansas City R. R. Co. v. Cunningham (Kan.) 518
Kansas Pac. R. R. Co. v. Cutter (Kan.) 241
Kavanaugh v. Day (R. I.) 465
Keegan v. Geraghty (111.) 35, 86, 222
Keith V. Keith (Mo.) 29
Keiwert v. Meyer (Ind.) 371, 377, 384, 413, 428
Kelley v. Kelley (Mass.) 528, 530, 531, 532
Kellogg V. Miller (U. S.) . . • 373, 380, 390, 431, 432
Kelly V. Garrett (Ala.) 60
Kelsey v. Green (Conn.) 80, 81, 100, 259, 260
Kennebrew v. Machine Co. (Ala.) 444, 532
Kennedy v. Knight (Wis.) 434
w. R. R. Co. (U. S.) 267
Kennett v. Chambers (U. S.) 18
Kentucky v. Bassford (N. Y.) 47, 423, 424, 428
Kern v. Field (Minn.) 199
Kerr v. Dougherty (N. Y.) 10, 137, 139, 334
V. Kerr (N. Y.) 198
V. Moon (U. S.) 28, 33, 235, 333
r. Urie(Md.) 145,293
Kershaw v. Kershaw (Cal.) 200
Kidd V. State (Ala.) 502
Kiefer y. R. R. Co. (N. Y.) 488 489
Kilcrease v. Johnson (Ga.) 433, 434, 436
Kilgore v. Dempsey (Ohio) 431, 434
Kimball, In re (N. Y.) 204
King V. Cross (U. S.) 289
r. Sarria (N. Y.) 375
Kinnev, Ex parte (U. S.) 11,152,153,447,448
Kinney v. Com. (Va.) 18, 20, 133, 149, 162, 153, 163, 167, 411
i;. Crocker (Wis.) 267
Kinnier v. Kinnier (N. Y.) 184, 198
Kirkland v. Lowe (Miss.) 322, 324
V. Whately (Mass.) 88, 90. 91
TABLE OF CASES. XXXVH
[References are to Pages.]
Klinck V. Price (W. Va.) 31, 434
Kline v. Kline (la.) 80, 94, 97, 191, 201, 203, 207, 209
Kling V. Fries (Mich.) 377
V. Sejour (La.) 467
Knapp V. Knapp (Mich.) 681
Kneeland v. Enslev (Tenn.) 38, 39, 169, 174, 177
Knight V. R. R. Co. (Penn.) 480
Knights Templar Ass'n v. Greene (U. S.) 340, 398, 443, 460
Knights Templar Indemnity Co. v. Berry (U. S.) 372, 399, 408
Knowlton v. Doherty (Me.) 294
V. Knowlton (III.) 199
V. R. R. Co. (Ohio) 406
Knox V. Jones (N. Y.) 29, 333
Kohn's Estate (Penn.) 141
Koshkonongr. Burton (U. S.) 622
Kraft V. Wickey (Md.) 259, 261, 262
Kritzer v. Woodson (Mo.) 26
Kuenzi v. Elvers (La.) 396, 397, 582
Kuhn V. Morrison (U. S.) 433
Kyle i; Montgomery (Ga.) 516
Lact v. Palmer (Va.) 501
Lamar v. Micou (112 U. S. 452) 79, 80, 82, 83, 84, 85, 88, 89, 90, 133, 141,
226, 254, 257, 258, 261, 262, 628
V. Micou (114 U. S. 214) 80, 82, 86, 88, 90, 93, 528
V. Scott (S. C.) 29, 38, 39, 174
Lancashire Insurance Co. v. Corbett (HI.) 288
Lane v. Watson (N. J.) 434
Lanesborough v. Berkshire Co. (Mass.) 283
Langdon o. Doud (Mass.) 59
r. R. R. Co. (N. Y.) 490
Langworthy v. Little (Mass.) 43, 44, 271, 304, 307
Lanusse v. Barker (U. S.) 389, 391, 455
Larendon, Succession of (La.) 33
Larquie u. Larquie (La.) 60,99,118,177
La Sella v. Woolery (Wash.) 38, 247, 518
Law r. Mills (Penn.) 310,316,317
«.R. R. Co. (U. S.) 480,485,493
Lawrence v. Bassett (Mass.) 372, 388, 488
V. Kitteridge (Conn.) 331
17. Smith (N. H.) 289, 290
Leach v. Buckner (W. Va.) 238, 255
V. Greene (Mass.) 510
Lebel i;. Tucker (Eng.) 392,394,449,450
Le Breton y. Miles (N. Y.) 109,180
V. Nouchet (La.) 177, 179
Lee V. Selleck (N. Y.) 394
V. State (Ga.) 603
Le Forest i;. Tolman (Mass.) 24, 479, 483, 486
Lehman v. Feld (U. S.) 419
Le Messurier w. Le Messurier (Eng.) 178
Lennig v. Ralston (Penn.) 391
Leonard r.Nav. Co. (N. Y.) 25,241,485,490,492,632
V. New Bedford (Mass.) 281
Xierkin v. Wilson (Mass.) , . . . . 289
Leroux v. Brown (Eng.) 414, 415, 625
XXXviii TABLE OF CASES.
[References are to Pages.]
Le Rov V. Beard (U. S.) 506
Levy V. Levy (Penn.) 393, 510
Lewi8, Succession of (La.) 83, 84, 85
Lewis «. Adams (Cal.) .... 236
V. Headley (111.) 362, 378, 389, Ui
Lewisohn v. Nat. etc. Co. (U. S.) 406
Limekiller v. R. R. Co. (Kan.) 241, 494
Lincoln v. Perry (Mass.) 339, 340, 341, 342, 347, 349
Lindsay v. Hill (Me.) 362
Lindsey v. State (Ohio) 499, 501
Lingen v. Lingen (Ala.) 230
Litowich V. Litowich (Kan.) 198
Livermore v. Jenckes (U. S.) 318, 326
Liverpool Steam Co. r. Insurance Co. (U.S.) 363, 380, 381, 406, 527, 528, 529
Lloyd V. Guibert (Eng.) 363
V. Scott (U. S.) 430
Lockwood V. Mitchell (Ohio) 434
Loker v. Gerald (Mass.) 96, 99, 103, 195, 201, 203, 206
LoUey's Case (Eng.) 170, 183
London Assurance v. Companhia de Moagens (U. S.) 461
Long V. Girdwood (Penn.) .... 13, 31, 62, 271, 279, 310, 325, 326
V. Ryan (Va.) 59
Loring «. Thorndike (Mass.) 36,167,216,629
Loud V. Loud (Mass.) 198
Louisville & N. R, R. Co. v. Williams (Ala.) .... 478, 482, 483
Lovejoy r. Albee (Me.) 287
Loving •». Pairo (la.) 311,317
Lower r. Segal (N. J.) 494
Lowryi). Bradley (S. C.) . . . .64,67,70,115,116,117,125,337
Ludlow V. Van Rensselaer (N. Y.) 412
Ludwig V. Steward (Mich.) 622
Lyman v. Campbell (Mo.) 523
t;. R. R. Co. (U. S.) 480, 489
Lynch v. Postlethwaite (La.) 513
Lyon V. Callopy (I».) 516, 619
V. Lyon (Mass.) 99, 183, 184
Lyons v. R. R. Co. (Tex.) 513
Macdonald v. Macdonald (Sc.) 180
Machado v. Fontes (Eng.) 476, 479, 481, 486, 493, 532
Mack V. People (N. Y.) 502
Mackey v. Coxe (U. S.) 225, 242
r. Petti John (Kan.) 10,271,304
Maddoxr. State (Ind.) 82
Madrazo r. Willes (Eng.) 17
Magowan v. Magowan (N. J.) 195, 196, 197, 198, 199, 206
Maguire v. Maguire (Ky.) 94, 96, 167, 173, 195, 198
Maillard v. Nihoul (La.) 296
Majestic, The (U. S.) 406, 407
Male V. Roberts (Eng.) 148
Malpica v. McKeown (La.) 378
Manley v. People (N. Y.) 497, 498
Manufacturing Co. v. Lang (Mo.) . . 277, 290
Marden v. Insurance Co. (la.) 399
Marheineke v. Grothaus (Mo.) 86
Marina, The (U. S.) 302, 303
TABLE OP CASES. XXXIX
[References are to Pages.]
Marshall v. Marshall (N. Y.) 159
V. Sherman (N. Y.) 13, 21, 26, 27
Martin r. Hill (N. Y.) 44,300,304,807,308,484
V. Johnson (Ga.) 390,433,434,436
Marvin Safe Co. v. Norton (N. J.) 271, 293, 301, 302
Mashassuck Felt Mills v. Blanding (R. I.) 277
Mason r. Beebee (U. S.) 43,387,618,619,621
V. Dousay (111.) 443
V. Homer (Mass.) 95, 169, 177
Masonic Ass'n v. Jones (Penn.) 461
Massey v. Womble (Miss.) 517
Matthews y. Lloyd (Ky.) 11,13,15,299
v. Murchison (U. S.) 146,411
v. Paine (Ark.) 433
May .'. Bank (111.) . . . 10, 13, 14, 15, 31, 310, 311, 313, 317. 324, 325, 326
V. Breed (Mass.) 465
i;. Smith (N. B.) 485, 486
V. Wannemacher (Mass.) 16, 46, 272,279, 310, 312, 314, 318, 320, 324, 326
Maynard v. Hall (Wis.) 434
Mayo V. Equitable, etc. Society (Miss.) . 114, 115, 118, 225, 285, 328, 329
Maxwell v. Hyslop (Eng.) 252, 341, 346
V. Maxwell (Eng.) 340, 341, 346
McAllister v. Smith (111.) 24, 513, 614
McBee v. Bank (Ind. Ter.) 290
McCallum u. Smith (Tenn.) 39
McCarthy v. De Caix (Eng.) 170
V. n. R. Co. (Kan.) 482, 483, 492
McCartney «. Osburn (111.) 36,37,341
McCleesy. Burt (Mass,) 506,507
McClurev. Campbell (Wis.) 322
McCormick y. SuUivant (U. S.) . 28
McCune v. House (Ohio) 334
McDonald v. Mallory (N. Y.) 481
McElfatrick u. Hicks (Penn.) 430
McElmoyle v. Cohen (U. S.) 188, 189, 190, 243
McGill V. Deming (Ohio) 38, 191, 195
McGoon V. Scales ( U. S.) 33
Mcllvaine V. Legare (La.) 296
Mclntyre f. Parks (Mass.) 47,294,384,428
AIcKee e. Jones (Miss.) 21, 403
McKeen v. Northampton Co. (Penn.) 282
McKenzie v. State (Tex.) 502
McLean v. Hardin (N. C.) 178, 179
r. Meek (U. S.) 225,230,237,254
McMaster v. Insurance Co. (la.) 376
McNamara v. Dwyer (N. Y.) 233, 235, 2-36, 238, 255
McNeely, Ex parte (W. Va.) 500
McPherson v. Housel (N. J.) 98, 100
McShane v. McShane (N. J.) 199
Mears v. Sinclair (W. Va.) 75, 79, 80, 83, 84, 88, 89
Medway v. Needham (Mass.) 19, 20, 151, 153, 161
Melan w. Fitz-James (Eng.) 511, 512
Melendy »>. Barbour (Va.) 267
Melvin v. Martin (R. I.) 36, 133, 222
Memphis, etc. R. R. Co. v. Alabama (U. S.) 130
Merchants' Bank v. Griswold (N. Y.) 377, 391, 392, 434
Xl TABLE OP CASES.
[References are to Pages.]
Merchants' Bank v. Spalding (12 Barb. 302) 17, 18
i;. Spalding (9 N. Y. 63) 294, 419
Meroney v. B. & L. Ass'n (N. C.) 434
Merrill v. Insurance Co. (Mass.) . 229, 230, 232, 233, 285, 237, 253. 255, :^85
V. Preston (Mass.) 339, 340, 342, 348
Meuer r. R. R. Co. (S. D.) 406
Mexican Nat. R. R. Co. i;. Jackson (Tex.) 480,488,489
Mever v. Richards (U. S.) 296, 444
Middleborough v. Rochester (Mass.) 105
Midland Co. v. Broat (Minn.) 21, 525, 526
Miles V. Oden (La.) 304, 305
Miller, Estate of (Penn.) 243
Miller v. Campbell (N. Y.) 133, 145, 400
V. Miller (N. Y.) 33,36,48,46,133,212,216
V. Tiffany (U. S ) 430
V. Wilson (111.) 413, 417. 418, 626
Milliken v. Pratt (Mass.) 11, 146, 147, 148, 362, 371, 373, 376
Mills V. HopkinsviUe (Ky.) 64, 88, 90, 91
V. Thornton (111.) 281
Milne v. Moreton (Penn.) ... 11, 16, 272, 279, 280, 310, 321, 322, 326
MineralPoint R. R. Co. v. Barron (111.) 516
Minor v. Cardwell (Mo.) 39
Missouri Pac. R. R. Co. v. Lewis (Neb.) 241
V. Sharritt (Kan.) 287, 290, 518, 521, 532
Mitchell I'. Harmony (U. S.) 476
V. United States (U. S.) .... 62, 70, 72, 109, 116, 121, 122, 126
Mohr, In re (Ala.) 504
Mohr V. Miesen (Minn.) 531
Monroe v. Douglas (N. Y.) 532
Montalvan v. Clover (N. Y.) 238
Montgomery v. Millikin (Miss.) 137, 138, 337
Mooney v. Buford (U. S.) 288
V. Manufacturing Co. (U. S.) 290
V. R. R. Co. (la.) 290, 519
Moore v. Church (la.) 16, 31, 311, 315, 317
V. Hegeman (N. Y.) 151, 157, 159
r. Jordan (Kan.) 236
V. Mayor (N. Y.) 174
r. Title & Trust Co. (Md.) 8,31,311
V. Willett (N. Y.) 273, 310, 312
Moorehouse ». Lord (Eng.) 72,114
Morawetz v. Sun Insurance Office (Wis.) 288
Morey V. Morey (Minn.) 197,203
Morgan v. Morgan (Tex.) 196
i;. NeviUe (Penn.) 290, 516, 519, 520
Morrell v. Dickey (N. Y.) 231, 232, 261
Morris v. Hockaday (N. C.) 379, 4.^.1
V. R. R. Co. (la.) 26, 241, 485, 492
V. Wibaux (111.) 465
Mortgage Co. v. JeflFerson (Miss.) 18, 879, 380, 431
o. McLaughlin (Ga.) 363, 390, 432, 434
V. Sewell (Ala.) 363, 390, 431, 434
V. Vaden (U. S.) 389, 431
Moreton v. Hull (Tex.) 621
Mott V. Rowland (Mich.) 431, 437
Moultrie v. Hunt (N. Y.) 133, 141, 333, 347
TABLE OP CASES. xll
[References are to Pages.]
Mowryt;. Latham (R. I.) 73,107,108,109,122,124
Mullen V. Morris (Penn.) 455
i;. Reed (Conn.) 37, 340, 461
Mumford v. Canty (111.) 307, 508
Munn V. Illinois (U. S.) 522
Munos ». R. R. Co. (U. S.) 495, 524
Munro v. Munro (Eng.) 73, 76, 216, 217
V. Saunders (Eng.) 216
Munroe v. Douglas (Eng.) 119
Murphy v. Collins (Mass.) 403, 404, 582
V. Murphy (La.) 178
Musson V. Lake (U. S.) 396,453
Mutual Ben. Ins. Co. v. Robison (U. S.) 371, 376, 399
Nashville v. Thomas (Tenn.) 282
Nat V. Coons (Mo.) 334
National, etc. Ass'n v. Ash worth (Va.) 432
National Bank v. Indiana Banking Co. (111.) 397, 445
National Insurance Co. r. Chambers (N.J.) 277,288,290
National Union v. Marlow (U. S.) 408
Needham v. R. R. Co. (Vt.) 482, 483
NefE V. Beauchamp (la.) 198, 199
Neil V. Bank (Ohio) 466
Nelson v. R. R. Co. (Va.) 26, 241, 476, 485, 493
Neufelder v. Insurance Co. (Wash.) 277, 290
Newcomer v. Orem (Md.) 39, 40, 174, 177
Newell V. Haden (la.) 516
New England Mortgage Co. v. McLaughlin (Ga.) ... 363, 390, 432, 434
.;. Vaden (U. S.) 389, 431
Newlandv. Reilly (Mich.) 289
Newman v. Cannon (La.) 296, 296, 309, 377
New Orleans v. Insurance Co. (La.) 283
New York L. Ins. Co. v. Aitkin (N. Y.) 507
V. Russell (U. S.) 375
Niblett V. Scott (La.) 188
Niboyet v. Niboyet (Eng.) 131
Nichols V. Bank (W. Va.) 392
V. Mase (N. Y.) 304, 307
r. Porter (W. Va.) 445,454
Nickels v. Association (Va.) 419, 431, 432
Njus V. R. R. Co. (Minn.) 487
Noble V. OU Co. (Penn.) 187
Nonce r. R. R. Co. (U. S.) . . . .' 495
Norman v. Norman (Cal.) 168
Norris v. Atkinson (N. H.) 472
V. Norris (N. H.) 170, 183, 184, 196
North Pacific Lumber Co. v. Lang (Or.) 480
Northern Pac. R. R. Co. v. Babcock (U. S.) 487
Northwestern Association r. Jones (Penn.) 460
Noyes v. Wyckoff (N. Y.) 467
Nugent V. Vetzera (Eng.) 259
Oaklet v. Bennett (U. S.) 321
Obear v. Bank (Ga.) 522
Ochiltree v. Contracting Co. (Mo.) 26
Ockerman v. Cross (N. Y.) 311, 316, 317
Xlii TABLE OF CASES.
[References are to Pages.]
O'Dear. 0'Dea(N. Y.) 96,99,164,191,204
O'Dell V. Gray (Mo.) 443, 447
Odom r. Mortgage Co. (Ga.) 390,431,432
Ogden V. Saunders (U. S.) 471
Oliver V. Washington (Mass.) 282
Olivier v. Townes (La.) 274, 298
Olmstead v. Mortgage Co. (Neb.) 434
Olson's Will (la.) 69, 71, 125
Opinion of Judges (Mass.) 60
Oranmore, The (U. S.) 408
O'Regan v. Cunard S. S. Co. (Mass.) 406
O'Reilly V. R. R. Co. (R. L) 480, 485, 489, 491, 492
Orr V. Armory (Mass.) 610
Osborn i». Nicholson (U. S.) 21,47
Oseanvonr. ArmsCo. (U. S.) 18,48,424
Osgood r. Maguire (N. Y.) 265,277
O'Shields v. R. R. Co. (Ga.) 524
Otis V. Boston (Mass ) 64, 65, 67, 69, 79, 118, 119, 129
V. Gregory (Ind.) 29, 32, 83
Overseers of Alexandria r. Bethlehem (N. J.) 106
Overton v. Bolton (Tenn.) 434
Owen V. Miller (Ohio) 277
Packer v. Thompson (Neb.) 190
Packwood, Succession of (La.) 178,232,349,351
Paine !.-. Lester (Conn.) 16,272,279,320,321,322,324,325
Parkr. Kelley AxeCo. (U. S.) 376
V. Manufacturing Co. (U. S.) 411
V. Rose Bank (Ind.) 396
Parsons v. Lyman (N. Y.) 230, 243, 253, 254, 255, 256, 328, 340
V. Trask (Mass. ) 378
Patterson v. Gaines (U. S.) 167
Pattison v. Mills (Eng.) 376
Pawling V. Bird (N. Y.) 198, 209
Pealer. Phipps (U. S.) 267
Pearce v. State (Tenn.) 62
Pearl p. Hansbrough (Tenn.) 146
Pearsall v. Dwight (Mass.) 510
Peck u. Mayo (Vt.) 396,443,455,457,515
Pedan v. Robb (Ohio) 91
Peet V. Hatcher (Ala.) 384, 422, 531, 632
Penfieldy. Tower (N.D.) 30,33,37,40,333,335
Peninsula, etc. Co. v. Shand (Eng.) 363
Fenn Mut. L. Ins. Co. y. TrustCo. (U. S.) 409,443
Pennegar v. State (Tenn.) 10, 11, 12, 18, 20, 25, 152, 153, 154, 159, 160, 167
Pennoyer v. Neff (U. S.) . . 8, 13, 184, 187, 188, 196, 197, 201, 207, 208, 286
People r. Adams (N. Y.) 499
V. Baker (N. Y.) 191, 204, 259
V. Burke (N. Y.) 502
V. Commissioners (N. Y.) 281
V. Dawell (Mich.) 133, 164, 184, 196, 197, 198
V. Hovey (N. Y.) 1.50
V. Staples (Cal.) 502
People's Bank v. Norwalk (Conn.) 467
Perkins v. Guy (Miss.) 523
Ferry i\ Insurance Co. (N. H.) 399. 409
TABLE OP CASES. xliii
[References are to Pages.]
Perry r. Iron Co. (R. I.) 373, 413
V. R. R. Co. (Kan.) 241
Petersen v. Chemical Bank (N. Y.) 3, 8, 227, 231,232, 233, 234, 236, 266, 272,
284, 285, 328
Petit, Succession of (La.) 328, 331
Phillips V. Eyre (Eng.) 486
r. Gregg (Penn.) 43, 167, 168, 529, 530
Phinney i>. Insurance Co. (U. S.) 381,409,411,413
Phippsy. Harding (U. S.) 372,-388,448
Picquet, Ex parte (Mass.) 231,236
Pierce i;. Indseth (U. S.) 396, 443, 448, 452
Pioneer Sav. & L. Co. i>. Cannon (Tenn.) 432
Plestoro V. Abraham (N. Y.) 324, 326
Plummer v. Hatton (Minn.) 195
Poison «. Stewart (Mass.) 29,32,144,175,352,416,417,459
Pomeroy v. Ains worth (N. Y.) 434
V. Rand (111.) 277
Pond V. Cooke (Conn.) 44, 45, 264, 265, 266
Pope V. Nickerson (U. S.) 362, 374, 380, 381, 401, 411, 419
Poppleton V. Yamhill Co. (Or.) 283
Porter r. Price (U. S.) 382,391
Post i;. Bank (111.) 30
V. R. R. Co. (Mass.) 26, 27
Potinger v. Wightman (Eng.) 82. 83
Powell V. State (Wis.) 502
V. Stratton (Va.) 255
Powers f. Lynch (Mass.) 60,396,398,453
Pratt V. Adams (N. Y.) 294, 428, 433, 434
Preston v. Melville (Eng.) 242
Price V. Campbell (Va.) 480
V. Dewhurst (Eng.) 133, 349, 350
V. Price (Penn.) 62, 65, 69, 70, 72, 73, 74, 79, 109, 115, 117, 121, 124, 125
Pritchard v. Norton (U. S.) 378, 380, 383, 389, 390, 411, 414, 425, 426, 466,
605, 506, 513, 514, 515, 522, 526
Proctor V. Clark (Mass.) 341, 342
Prosser i-. Warner (Vt.) 133, 164, 170, 173, 183, 184, 191, 207
Pry se i>. Association (Ky.) 434
Public Parks Amusement Co. v. Carriage Co. (Ark.) .... 301, 302, 303
Pugh i>. Cameron (W. Va.) 374,377,433
PuUen V. Hillman (Me.) 471, 472
Pullman Car Co. v. Lawrence (Miss.) 476, 488, 499
Putnam v. Johnson (Mass.) 65
0. Putnam (Mass.) 19,25,151,159
Railroad Co. v. Alabama (U. S.) 130
V. Babcock (U. S.) .487
V. Baker (Kan.) 277
V. Barnhill (Tenn.) 130
f. Barron (111.) 516
r. Betts (Colo.) 479, 532
V. Brown (Ark.) 476
D. Carroll (Ala.) 407,482,487
V. Churaley (Ala.) 287
V. Collector (U. S.) 282
' r. Cotton Mills (Ga.) 406,407
». Cox (U. S.) 26, 492
xliv TABLE OF CASES.
[References are to Pages.]
Railroad Co. v. Crane (Dl.) 296
V. Cunniagham (Kan.) 518
V. Cutler (Kan.) 241
V. Dougan (111.) 516, 519
V. Doyle (Miss.) 482
V. Ferry Co. (U. S.) 527
i;. Glenn (Md.) 130, 318
V. Ihlenberg (U. S.) 480, 487
V. Jackson (Tex.) 480, 488, 489
». Johnson (U. S.) 624
V. Kennedy (Ala.) 277, 519, 620
V. Koontz (U. S.) 130
r. Lewis (Neb.) 241
V. Lewis (Tenn.) 400, 486
V. Maggard (Colo.) 287, 616
V. McCormick (Tex.) 480, 485, 492, 493
r. McMullen (Ind.) 482,485,492
V. Moore (Neb.) 520
V. Nash (Ala.) 287, 288
V. Packet Co. (111.) 44, 45, 264, 266, 266
V. Sharritt (Kan.) 287,290,518,521,532
V. Smith (Kan.) 267
V. Smith (Miss.) 277, 281, 518, 521
V. Sturm (U. S.) 289, 290, 521
V. Thompson (Kan.) 290, 516
V. Whitlow (Ky.) 486
V. Williams (Ala,) 478, 482, 483
Ramsay v. Stevenson (La.) 314, 816, 318
Rand i;. Hubbard (Mass.) 232
Rankin v. Goddard (Me.) 188
Rathbone v. Coe (Dak.) 524
Reddick v. Jones (N. C.) 394
Redmond i-. Rutherford (N. C.) 283
Reed v. Reed (Mich.) Ill, 112, 146, 197, 198
V. Tel. Co. (Mo.) 407
Reid, Goods of (Eng.) 351
Reimer v. Manufacturing Co. (U. S.) 277, 288
Reliance Insurance Co. v. Sawyer (Mass.) 408
Renaud v. Abbott (U. S.)', 529
Renierr. Hurlbut (Wis.) 288
Reynolds V. Adden (U. S.) 267,325
V. Stockton (U. S.) 190, 228, 229, 236, 263, 266, 274
Rhawn v. Peters (111.) .326
Rice, In re (Mich.) 124, 128, 269
Rice r. Courtis (Vt.) 318
V. Harbeson (N. Y.) 29, 244, 249, 260, 346
V. Moore ( Kan.) 622
Richards V. Dutch (Mass.) 231,236,256
Richardson v. De Giverville (Mo.) 29, 36, 38, 175, 341
V. Leavitt (La.) 314
V. R. R. Co. (Mass.) 25, 241, 492
f. Rowland (Conn.) 420, 422
V. Shelby (Okl.) 44, 304, 307
Richmond v. R. R. Co. (Va.) 608
Riley v. Burroughs (Neb.) 467, 458
Ringgold V. Barley (Md.) 115, 118
TABLE OP OASES. xlv
[References are to Pages.]
Rio Grande, The (U. S.) 18T
Ritchie v. McMullen (U. S.) 188
Roberts, Will of (N. Y.) 187, 334
Roberts v. Appleton (Vt.) 72
V. Mc'Neely (N. C.) 4ci3
Robinson v. Bland (Eng.) 363, 384, 428
V. Nav. Co. (U. S.) 481
i;. Queen (Tenn.) 5, 13, 14, 49, 145, 146, 147, 443, 509, 510
Rockwell V. Bradshavr (Conn.) 228, 229, 256, 274, 340, 344
Rodgers u. Rodgers (Kaa.) 29,30,107,108,109,203,207,209
Rogers, Ex parte (Tex.) 501
Rogers v. McLean (N. Y.) 259, 261, 262
V. State (Tex.) 501
Rose V. Bank (Ind.) 394, 443, 447, 454
Rosenheim v. Morrow (Fla.) 471
Ross V. Ross (103 Mass. 576) 118
V. Ross (129 Mass. 243) 28, 29, 33, 34, 35, 36, 38, 46, 57, 82, 92, 131, 133,
134, 136, 146, 150, 151, 160, 161, 212, 217, 222, 329, 333
Roth V. Roth (111.) 8, 60, 150, 170, 191
Roundtree v. Baker (111.) 21, 47, 424, 428, 429
Rouquette v. Overmann (Eng.) 397, 462
Routh V. Routh (La.) 177
Rudiger v. R. R. Co. (Wis.) 482, 483
Ruding V. Smith (Eng.) 169
Ruggles V. Kisler (N. Y.) 526
Ruhe V. Buck (Mo.) 605, 506, 507, 508, 510
Ruse V. Insurance Co. (N. Y.) 409
Russell V. Hooker (Conn.) 137, 233, 254, 272
V. R. R. Co. (Cal.) 26, 27
Safe Co. v. Norton (N. J.) 271, 293, 301, 302
Sanders v. Gatchell (Me.) 60
Sandidge v. Hunt (La.) 531, 632
Sands v. Smith (Neb.) 433
Sapphire, The (U. S) 509
Satterthwaite v. Doughty (N. C.) 411, 412
Saul V. His Creditors (La.) 11, 12, 13, 146, 148
Savings Bank v. National Bank (U. S.) 280, 297
Scheflferling v. HuflEman (Ohio) 180
Schluter v. Bank (N. Y.) 47, 141, 142
Schneller v. Vance (La.) 262
School Directors v. James (Penn.) . . 64, 74, 80, 83, 84, 85, 88, 89, 90, 91
Schuler v. Israel (U. S.) 310, 314
Scofield V. Day (N. Y.) 456
Scotland, The (U. S.) 481
Scotland Co. v. Hill (U. S.) 465, 466
Scott V. Key (La.) 219, 221
V. Perlee (Ohio) 380, 431, 437
Scoville V. Canfield (N. Y.) 24, 280, 297, 306
Scrimshire V. Scrimshire (Eng.) 167
Scudder v. Bank (U. S.) 362, 368, 377, 391, 392, 411, 413, 414, 419, 448, 454,
465, 514
Sea Grove, etc. Ass'n v. Stockton (Penn.) 624
Seamans v. Knapp Co. (Wis.) 368, 398, 408
Searight v. Calbraith (U. S ) 466
Seiter r. Straub (N. Y.) 90
xlvi TABLE OF GASBS.
[References are to Pages.]
Selectmen of Boston v. Boylston (Mass.) 290
Senac's Will (La.) 349
Sevier v. Douglass (La.) 334
Sewall V. Sewall (Mass.) 197, 198
V. Wilmer (Mass.) 340, 352, 350, 354
Seward v. Rising Sun (Ind.) 282
Shannon v. Shannon (Mass.) 198
y. White (Mass) 230,328
Sharper. Crispin (Eng.) 73,74,80,82,83,106,129,328,330
Shattuck V. Chandler (Kan.) 532
Shaw V. Gould (Eng.) 149, 170, 21t>
V. Shaw (Mass.) . . 67, 70, 71, 96, 99, 116, 118, 119, 121, 124, 125, 196
Sheddon v. Patrick (Eng.) 216
Sheldon?;. Haxtun (N. Y.) 372,373,389,433,434,436,437
V. Hice (Mich.) 231, 232, 236
r. Wlieeler (U. S.) 40,314
Shelton y. Tiffin (U. S.) 62,122
Siiepherd v. Cassidy (Tex.) 64, 70
Shields V. Coleman (U. S.) 265
Shoe & Leather Bank v. Wood (Mass.) 371, 443
Short V. Galway (Ky.) 246
Shreck v. Shreck (Tex.) 94, 99, 169, 183, 184, 196
Shuenfeldt v. Junkermann (U. S.) 377
Shultz V. Pulver (3 Pai. Ch. 182) 229, 328
r. Pulver (11 Wend. 361) 234,328
Sickles V. New Orleans (U. S.) 137, 139, 272, 328, 334, 340
Sill V. Worswick (Eng.) 270
Silverman v. Lessor (Me.) .... 472
Simmons v. Commonwealth (Penn.) 503
Simonin v. Mallac (Eng.) 167
Simpson r. State (Ga.) 482,600,601,502
V. State (Tenn.) 503
Sims V. Sims (N. Y.) 21, 24
Singer Manufacturing Co. v. Fleming (Neb.) 187, 618, 520
Skinner v. Tinker (N. Y.) 412
Skottowe V. Young (Eng.) 35, 133
Slack V. Perrine (U. S.) 188
Slaughter v. Garland (Miss.) 343, 344, 345
Slocum V. Pomery (U. S.) 463
Smith, Ex parte (U. S.) 504
Smith V. Derr (Penn.) 33, 35, 216
V. Eton (Me.) 287, 324
V. Kelly (Miss.) 36, 212, 213, 216, 217
V. McAtee (Md.) 179
V. Mead (Conn.) 389
V. Parsons (Minn.) 418, 431
V. People (III.) 118
V. Smith (Neb.) 94, 95, 96, 198
r. Smith (La.) 96, 98, 99, 101, 177, 201, 203, 206
r. Smith (Mass.) 134, 198
V. Smith (Va.) .305
V. Taber (Tex.) 277
V. Union Bank (U. S.) . . . . 10, 49, 226, 227, 230, 235, 243, 257, 272
Smythe i». Allen (Miss.) 504
Sneed v. Ewing (Ky.) 29, 39, 328, 349, 357
Sohier r. Burr (Mass.) 887
TABLE OF CASES. xlvii
[References are to Pages.]
SomerTillet;. Soraerville (Eng.) 69,70,71,72,74,79,328
Sondheim v. Gilbert (Ind.) 384, 428
Sorrey v. Bright (N. C.) 337
Sottomayor v. DeBarros (Eng.) 149, 160, 154
Soutli African Breweries v. King (Eng.) 421
Southern B. etc. Ass'n v. Harris (Ky.) 434
Southern Ins. Co. v. Hardware Co. (Tex.) 188
Southern Pacific Co. y. Graham (Tex.) 476,484
Spearman t>. Ward (Penn.) 38,247,508
Speed r. May (Penn.) 226,272,278,280,310,311,312,318,325
Stacy i;. Tliraslier (U. S.) 228,230,237,274
Staigg V. Atkinson (Mass.) .... 29, 36, 37, 38, 251, 252, 341. 344, 348
Stanford v. Pruet (Ga.) 394
Staples V. Nott (N. Y.) 389, 434, 43b
Starbuck v. Murray (N. Y.) 197
State V. Barrow (Tex.) 177, 178
V. Bowen (Kan.) 600
V. Brown (N. C.) 603
I'. Carl (Ark.) 296, 373
V. Carter (N. J.) 600
V. Chapin (Ark.) 499, 601
V. Foster (La.) 500
V. Gessert (Minn.) 600
V. Grady (Conn.) 601
V. Hall (N. C.) 447, 498, 600, 604
V. Kelly (Me.) 500
r. Kennedy (N. C.) ... 11, 18, 20, 183, 149, 162, 153, 160, 163, 167
V. Mitchell (N. 0.) 497, 498
V. Moore (N. H.) 601
V. Newman (Neb.) 603
v. 0'Neil(Vt.) 271,295,296,373
o. Palmer (N. H.) 117
V. Ross (N. C.) 10, 46, 111, 149, 160, 164, 160, 161
V. SchaefEer (Mo.) 602
V. Tutty (U. S.) 152, 163, 163, 167, 173
V. Weatherby (Me.) 167, 169
V. Wyckoff (N. J.) 601
State Bank v. Richmond (Va.) 281, 283
State Mut, Ins. Co. v. Brinkley Co. (Ark.) . . . 371, 377, 398, 399, 408
State Tax on Foreign Held Bond (U. S.) 281, 282, 283
Steams v. Burnham (Me) 284
Stebbins V. Leowolf (Mass.) 404,448
Steele v. Braddell (Irish) 167
Steer, In re (Eng.) 74
Steer, Succession of (La.) ... 62, 65, 72, 73, 79, 109, 115, 118, 128, 176
Stephens v. James (Eng.) 262
Stepp V. Association (S. C.) 455
Stevens v. Brown (W. Va.) 616, 619
V. Gay lord (Mass.) 229, 230, 253, 264, 285
V. Gregg (Ky.) 443, 447, 626
Stevenson r. Gray (Ky.) 19, 20, 151, 162, 154
Stewart v. Jessup (Ind.) ... 502
V. R. R. Co. (U. S.) 26, 26, 27, 239, 240, 241, 242, 475, 477, 478, 479,
480, 492, 493, 494
' r. Stewart (W. Va.) 207
Sticknej' ^'. Jordan (Me.) . 455
rlviii TABLE OP CASES.
[References are to Pages.]
Still V. Woodville (Miss.) 114
Btirk V. Hamilton (Me.) 441
St. Joseph, etc. R. R. Co. v. Smith (Kan.) 267
St. Louis, etc. R. R. Co. v. Brown (Ark.) 476
i;. McCormick (Tex.) 480,485,492,493
St. Rureu. Lind8felt(Wi8.) 21,24,199
Stoddard v. Harrington (Mass.) 472
Stoneman u. R. R. Co. (N. y.) 608
Stout V. State (Md.) 600
Strathmore Peerage (Eng.) 216
Strawbridge v. Robinson (111.) 879, 397, 441
Street v. Insurance Co. (S. C.) 187
Strouther v. Commonwealth (Va.) 602, 503
Stubbs V. Colt (U. S.) 392, 394, 462
Sturdivant v. Bank (U. S.) 433, 443
Sturges V. Crowninshield (U. S.) 471
Sturtevant v. Armsby Co. (N. H.) .... 13, 15, 46, 264, 322, 325, 326
V. Robinson (Mass.) 277
Succession of Cassidy (La.) 30, 33, 37, 457, 468
Succession of Hernandez (U.) 21,26,150,167,168,177
Succession of Larendon (La.) 33
Succession of Lewis (La. ) 83, 84, 86
Succession of Packwood (La.) 178, 232, 349, 354
Succession of Petit (La.) 328, 331
Succession of Steer (La.) ... 62, 66, 72, 73, 79. 109, 115, 118, 128, 176
Succession of Wilder (La.) 146,148,179
Suit V. Woodhall (Mass.) 294, 295, 372, 377, 384, 428
Sullivan v. Sullivan (Mich.) 271, 294, 296, 413
Supervisors v. Galbraith (U. S.) 443, 447
Suter o. Suter (Miss.) 94, 99
Sutro Tunnel Co. v. Mining Co. (Nev.) 466
Sutton V. Warren (Mass.) 20, 160, 154, 161, 171
Swank v. Hufnagle (Ind.) 29, 38
Swann r. Swann (U. S.) 21,49,403
Swedish- American Bank v. Bleecker (Minn.) 288
Talbot v. Chamberlain (Mass.) 68, 72, 88, 107, 108, 109
Talbott V. Transportation Co. (la.) 381, 406, 407
Talmage v. Chapel (Mass.) 230, 236, 238
Tappan v. Bank (U. S.) 282
Tarbox v. Childs (Mass.) 294, 469
Tax on Foreign Held Bonds (U. S.) 281, 282,' 283
Taylor v. Badoux (Tenn.) . 326
V. Pennsylvania Co. (Ky.) 241, 480, 492
t>. Sharp (N. C.) .... 47,124,145,146,362,411
Tegler v. Shipman (la.) 47, 296, 296, 377, 384, 428
Tenant v. Tenant (Penn.) 378, 444, 629
Texas, etc. R. R. Co. v. Cox (U. S.) 26, 492
Thatcher ». Morris (N. Y.) 384,424,428,527
Thayer v. Boston (Mass.) 123
The Antelope (U. S.) 21
The Brantford City (U. S.) 356, 362, 366, 406, 428, 481
The City of Carlisle (U. S.) 514
The Energia (U. S.) 379, 406
The Glenmavis (U.S.) 363, 406
The Guildhall (U. S.) 406
TABLE OP CASES. xlix
[References are to Pages.]
The HaiTJ8burg (U. S.) 496
The Homestead Cases (Va.) 517
The Hugo (U. S.) 365, 406
The Iowa (U. S.) 406
The Majestic (U.S.) 406,407
The Marina (U. S.) 302, 303
The Oranmore (U. 8.) 406
The Kio Grande (U. S.) 1«7
The Sapphire (U. S.) 609
The Scotland (U. S.) 481
The Venus (U. S.) 125
Therouxt-. R. R. Co. (U. S.) 624
Thomas v. Morrissett (Ga.) 189
Thompson v. Ketcham (N. Y.) 148, 378, 532
V. Thompson (Ala.) 203
■y. Whitman (U. S.) 190,197
Thomson-Houston Electric Co. v. Palmer (Minn.) . . . 362, 411, 469, 505,
527, 630
Thorn v. Weatherly (Ark.) 530
Thorndike v. Boston (Mass.) 281
Thornton v. Curling (Eng.) 344
V. Dean (S. C) 363, 434
Thorp V. Thorp (N. Y.) 19, 151, 159, 160
Thuret v. Jenkins (La.) 43, 44, 273, 299
Thurston v. Fercival (Mass.) 478
i;. Rosenfield (Mo.) 31, 311, 314, 317
V. Thurston (Minn.) 191, 195, 196, 199, 203, 207, 208
Tilden v. Blair (U. S.) 372, 391, 438, 436
Tiilotsonv. Prichard (Vt.) 457,476
Tingley v. Bateman (Mass.) 289
Tipton V. Tipton (Ky.) 59, 67
Tooey v. Lindsay (U. S.) 170
Toof 17. Miller (la.) 272
Toronto, etc. Trust Co. v. R. R. Co. (N. Y.) 266
Touro V. Cassin (S. C.) 428, 429
Townes v. Durbin (Ky.) 177
Townsend v. Coxe (111.) 31
V. Kendall (Minn.) 86, 88, 89, 225, 259, 261
Train v. Kendall (Mass.) 316
Trasher v. Everhart (Md.) 507
Trevor r. Wood (N.Y.) 372
Trimbey v. Vignier (Eng.) . 393, 394, 449
Trotter r. Trotter (Eng.) 341,343
True V. Ranney (N. H.) 10, 152, 160
TuUer v. Arnold (Cal.) 290
Tunstall v. Pollard (Va.) 233
Tyler i;. People (Mich.) 500
V. Strang (N. Y.) . . . 279
Udnt v. Udny (Eng.) 72, 76, 114, 120, 125, 126, 128, 149, 216
Ufford V. Spaulding (Mass.) 628, 529, 530
Underwood v. Mortgage Co. (Ga.) 434
Union Bank v. Hartwell (Ala.) 89, 145, 272, 298
V. State (Tenn.) 282
Union Pacific R. R. Co. v. Baker (Kan.) 277
United States v. Britton (U. S.) 501
d ^
1 TABLE OF CASES.
[References are to Pages.]
United States v. Crosby (U. S.) 28
i;. Guiteau (U. S.) 600
V. Howell (U. S.) 601
V. Plimpton (U. S.) 602
f. R. K. Co. (U. S.) 282
i;. Wagner (Eng.) 609
United States Investment Co. v. Windmill Co. (Kan.) 459
United States Sav. and L. Ass'n v. Scott (Ky.) 379, 434
Upton u. Nortlibridge (Mass.) 73, 106
Usher r. R. R. Co. (Penn.) 25,239,242,493
Valk v. Valk (R. I.) 199, 200
Van Buskirk v. Warren (N. Y.) 305
Van Cleef i;. Therasson (Mass.) 469
Van Fossen v. State (Ohio) 101, 133, 170, 184, 196, 198
Van Matre v. Sankey (111.) 36, 87, 74, 75, 79, 80, 82, 83, 85, 93, 131, 189, 192,
221 222 629
VanOrsdalu. Van Orsdal (la.) 203,' 206,' 208
VanRaden f. R. R. Co. (N. Y.) 487
Van Steenwyk v. Washburn (Wis.) 341, 344, 345
Van Storch i;. Griffin (Penn.) 157
Van Vleet v. Sledge (U. S.) 433
Van Voorhis v. Brintnall (N. Y.) . 10, 11, 19, 21, 26, 151, 152, 164, 157, 169,
160, 161, 166
Van Wyckr. Read (U. S.) 278
Vander Donk w. Thelusson (Eng.) 630
Vanderpoel v. O'Hanlon (la.) 60
Vansant v. Roberts (Md.) 139
Varnum u. Camp (N.J.) 312,313,315,316,317
Vassar U.Camp (N.Y.) 872,373
Vaughn u. Barret (Vt.) 233
i;. Northup (U. S.) 226,231,232,235,286,264,265
Vawteru. R. R. Co. (Mo.) 241,480,492
Venus, The (U. S.) 126
Vermilya v. Beatty (N. Y.) 232, 236
Vermont Bank v. Porter (Conn.) 466, 467, 613, 526
Vidal V. Thompson (La.) 411, 412
Vischer v. Vischer (N. Y.) .... 103, 104, 115, 117, 125, 167, 169, 196
Voorheisy. Society (Mioh.) 371,398.409
Vroora V. Van Home (N. Y.) ... 227, 229, 231, 232, 235, 277, 284, 328
Wabash R. R. Co. v. Dougan (111.) 516, 619
Waldo «;. Waldo (Mich.) 19T
Waldron v. Ritchings (N. Y.) 372
Walker I'. Marseilles (Miss.) 299
Wall V. Equitable, etc. Society (U.S.) 379,409
Walsh V. Mayer (U. S.) 522
Walters r.Whitlock(Fla.) 310,313,316
Walworth t). Harris (U.S.) 46,307,309
Warder v. Arell (Va.) 466, 467
Ware v. Wisner (U. S.) 333, 349
Warner v. Jaffray (N. Y.) 316, 318, 326
Warren v. Lynch (N. Y.) 441, 606, 507
V. Prescott (Me.) 33
Warrender t;. Warrender (Eng.) ... 5, 94, 95, 96, 104, 106, 167, 169, 199
Washburn r. Van Steenwyk (Minn.) 29,341,344,345,346
TABLE OP CASES. B
[References are to Pages.]
Washburn v. White (Mass.) 82, 92
Washington w. Beaver (Penn.) 77,87,93,106
Watkins v. Holman (U. S.) 29, 236
V. Watkins (Mass.) . 94, 99, 100, 103, 133, 170, 183, 184, 198, 199, 200
u. Watkins (Ind.) 196,198
Watson V. Brewster (Penn.) „ 507
i;. Campbell (N. Y.) 306,318
y. Lane (N.J.) 372,433
WayneCounty Bank V. Low (N.Y.) 371,373,389,434,436
Webb's Estate (N. Y.) 168
Webber v, Howe (Mich.) 294, 373, 377, 384, 428
Webster r. Howe Machine Co. (Conn.) 447
V. Munger (Mass.) 294
WeiU. Golden (Mass.) 294,295,384.428
Weinstein v. Freyer (Ala.) 271, 293, 302
Welch r. Adams (Mass.) 231,340
Welles' Estate (Penn.) ^7, 263, 264, 265, 328, 329, 331
Wells, Fargo, & Co. U.Davis (N.Y.) 456
Wesner w. O'Brien (Kan.) 208
West Cambridge ». Lexington (Mass.) . . 11, 18, 25, 150, 164, 167, 168, 159
Western v. Insurance Co. (N. Y.) 408
Western, etc., R. R. Co. v. Cotton Mills (Ga.) 406, 407
Western Transfer Co. v. Kilderhouse (N. Y.) 371
Western Union Tel. Co. v. Phillips (Tex.) 356
V. Way (Ala.) ; 404, 419
Wheeler v. HolUs (Tex.) 83, 86, 88, 89, 91
r. Jackson (U.S.) 522
Whicker v. Hume (Eng.) 72
Whipple V. Thayer (Mass.) 314
Whiston V. Stodder (La.) 372
White V. Brown (U. S.) Ill
V. Howard (Conn.) 32
V. Howard (52 Barb. 294) 81, 88, 89
V. Howard (46 N. Y. 144) 141, 334
V. Tennant (W. Va.) 62, 65, 67, 69, 70, 109, 115, 117, 118, 119, 120, 176,
328 331
Whitford r. R. R. Co. (N. Y.) 478, 49l', 532
Whitney v. Sherborn (Mass.) 64, 65, 118
Wick u. Dawson (W.Va.) 29,38,247,505
Wightman v. Wightman (N. Y.) 20, 161
Wilcox r. Ellis (Kan.) 281,283
Wilder, Succession of (La.) 146, 148, 179, 411
Wilkins v. EUett (9 Wall. 740) 225, 227, 2.30, 242, 253, 328
V. EUett (108 U. S. 256) 234, 242
Willettsi^.Waite (N. Y.) 264,265,322,323,324,325,326
Williams v. Armroyd (U. S.) 187
V. Dry Goods Co. (Okl.) 10, 13, 31, 62, 271, 310, 311, 313, 314, 316, 317,
318, 321
V. Haines (la.) 425
r. IngersoU (N.Y.) 287
V. Kimball (Fla.) 36
V. Mans (Penn.) 234
V. Gates (N. C.) 162, 156, 159
V. Saunders (Tenn.) 29, 32, 33, 70, 94, 98, 118, 126, 136, 137, 272, 333,
334.335
». Storrs (N. Y.) 242
In TABLE OF CASES.
[References are to Pages.]
Williams v. Wade (Mass.) 396, 454
V. Williams (N. Y.) 100, 191, 204
Williamson v. Parisien (N. Y.) 198
1-. Smart (N. C.) , 331
Wilson V. Cox (Miss.) 341
V. Holt (Ala.) 157, 158
r. Lazier (Va.) . 389,444,526
V. Mills Co. (N.Y.) 413
V. Tootle (U. S.) 494
v, Wilson (Eng.) 170
Winchelsea t;. Garetty (Eng.) 248, 249, 250
Winswall v. Sampson (U.S.) 267
Wolf, Appeal of (Penn.) 216
Wolfy. Burke (Colo.) 370,41.3,414,415,417,418,625,531
Wood r. Insurance Co. (Wash.) 371,398,399,408
V. Malin (N. J.) 512
V. Roeder (Neb.) 59
V. Watkinson (Conn.) 189
r. Wheeler (N.C.) 30,44,144,146
V. Wood (N. Y.) 40, 88, 89, 90, 259, 387
V. Wood (Ark.) 102, 200
Woodard v. R. R. Co. (Ohio) 492
Wooden v. R. R. Co. (N. Y.) 25, 239, 242, 489, 492, 494
Woodruff V. Hill (Mass.) 447
Woodsen v. Owens (Miss.) 447
Woodward v. Brooks (III.) .... 10, 16, 266, 279, 312, 313, 314, 315, 318
V. Woodward (Tenn.) 33, 35, 80, 81, 82, 83, 84, 85, 88, 92, 93, 133, 141,
143 216 222
Woodworth r. Spring (Mass.) 17, 88, 180, 258,' 259,' 260
Wooley «;. Lyon (111.) 396,397,452
Worcester Bank v. Wells (Mass.) 392
Worley v. Hineman (Ind.) 457, 476
Worth V. Ashe County (N. C.) 282
Wright's Trusts (Eng.) 35, 75, 216
Wrigley, Inre (N. Y.) 59
Wunstan v. Higgins (N. Y.) 188
Wyman v. Halstead (U. S.) 272, 283
Wynne v. Wynne (Miss) 333, 341, 347, 348, 349
Yates v. Thompson (Eng.) 834, 339, 341
Yelverton v. Yelverton (Eng.) 97, 99
Young i;. Harris (Ky.) 378,394,454
I'. PoUak (Ala.) 72, 111, 112, 117
r. Templeton(La.) 180
ZiFCBTv. Thompson (Mass.) 813,316
u^
CONFLICT OF LAWS.
PART I.
INTRODUCTORY.
CHAPTER I.
INTRODUCTION.
§1. Origin of Private International Law. — Of the exist
ence among the ancients of the branch of municipal law known
as Private International Law, or The Conflict of Laws, we
have no authentic record. If there were any such cases, they
have left no impress behind them, and were probably decided as
they arose, upon no definite principles.
Nor during the Middle Ages was there any material advance.
The nations of mediaeval Europe had little intercourse with one
another, save for warlike purposes. Commerce was as yet but
scantily developed, traveling much impeded. With but small
occasion for such codes of rules, little attempt was made to
establish them.
But with the revival of commerce, the surer guaranties offered
for the safety of travelers by reason of the more orderly con-
dition of the European States, the more frequent intercourse
between nations, and the advancement of conceptions of justice
and order, the need of such rules began to be experienced, just
as, at an earlier period, the necessity for tlie regulations of
■public international law had been felt.
Only within the past century however has any regular form
been imparted to the subject. In recent years it has been much
discussed both by English and American writers and judges, as
well as by continental jurists, until it has finally assumed the
1
2 PUBLIC AND PRIVATE INTERNATIONAL LAW. § 5
proportions of a distinct branch of legal science, though many
of its leading principles still remain remarkably obscure and
unsettled.^
§ 2. Public and Private International Law disting^shed.
— Private international law may be distinguished from the
public in three important particulars.
I. As to the persons on whom it operates.
Private citizens arethe_^hjpc.ts oUhigbranch of the law,
while public internationaJLJasg— doalo foi
nations as suchi
Itis"true that occasionally, under the latter law, individuals
are interested in the questions raised, and are sometimes even
the cause of international complications, perhaps of war ; but it
is not as individuals that public international law interferes in
their behalf or condemns them. It is because individuals neces-
sarily form a constituent part of every State, parts of which the
nation as a whole is made up ; and as no injury can be iiu
flicted on one part of the body or by one member without the par-
ticipation of the whole, so no member of the body politic can be
injured without damage to the material interests, the dignity,
and the honor of the whole. It is because of this blow to or
by the State that public international law interferes in such
matters.
Private international law, on the other hand, is a part of the
municipal law of each State. It deals with individuals as in-
dividuals, as persons asking for justice at the hands of judges
who are striving to give it, regardless of nationality or locality.
II. As to the transactions to which it relates.
The la^v^ofnations recognizes in general only transactions in
which sovereign Htates are interested. Not so with private in-
toHi^tional law. ine transactions over which it assumes control
are strictly private in their nature, in which the State as such
has generally no interest. The private contract of the citizen
of one State with the citizen of another, or a conveyance or will
made by the citizen of one State transferring property in an-
other, are subjects of private international law, with which pul>
lie international law has no concern.
1 For the contents of this section, cf. Story, Confl. L., ch. L
§ 2 PUBLIC AND PBIVATB INTBRNATIONAL, LAW. 8
III. As to the remedies applied.
In cases to which private international law is applicable,
recourse is had to judicial tribunals acting under the authority
and in accordance with the rules of procedure of the country in
which they sit. They are asked to hear the evidence and ad-
minister justice as though the case were one of purely domestic
concern. But in a contest between sovereign States arising
under the law of nations, no such recourse is ordinarily practi-
cable. No State would consent to have its disputes decided by
the courts of another power, nor to appear before them, a suppli-
ant for the justice it demands as a right.
Yet this general principle is not altogether free from excep-
tions or apparent exceptions, the most pronounced of which,
perhaps, arises from the peculiar form of government existing
in the United States.
The States of this Union are sovereign States, save in so far
as they have by solemn compact yielded their sovereignty to the
federal government. They have surrendered their sovereignty
only with respect to their public relations with other nations,
and with respect to the few other matters named in the federal
constitution. In all other respects they are sovereign, having
exclusive control over persons and things within their terri-
tories.* Hence, though the federal government is the only
sovereign in the United States subject to public international
law, every State and Territory in the Union may be the subject
of private international law.
But sovereign as the States are, in most matters of local con-
cern, it is provided by the federal constitution ' that the Supreme
Court shall have jurisdiction to decide all disputes arising be-
tween the States. Thus is presented with us the extraordinary
spectacle of two or more sovereign or quasi-sovereign States
submitting their differences to a learned and illustrious tri-
bunal for an orderly and peaceful solution, anticipating the
dream of a universal Court of Appeal for all nations.
Meanwhile, in the absence of such an exalted tribunal, to
^ Hood V. State, 56 Ind. 263, 26 Am. Rep. 21, 22; Petersen v. Chemicaj
Bank, 32 N. Y. 21, 40-41, 88 Am. Dec 2»8.
» U. S. Conat, Art 3, § 8.
4 FOREIGN ELEMENT ESSENTIAL. § h
which all nations may resort, the only remedies for the infringe-
ment of a nation's rights are a recourse to diplomatic channels ;
should that fail, to retorsion, reprisal, and other means short of
war; and finally to the arbitrament of arms, — that last dread-
ful resort of an insulted or injured people.
§ 3. Foreign Element essential to Operation of Private
International Law. — Private international law embraces those
universal principles of right and justice which govern the
courts of one State having before them cases involving the
operation and effect of the laws of another State or country.
Such cases arise whenever a foreign element is introduced into
a transaction.
If the transaction in question arises wholly within a single
State, all the parties interested having been, and continuing to
be, domiciled and actually present there, the question being
raised there also, no foreign element exists to cause any inter-
ference with the usual and regular enforcement of the domestic
municipal law by the domestic tribunals. There is no room in
such case for the application of the rules of private international
law.
But if we suppose one or more of the parties to live in an-
other State, or the transaction or some part thereof to have
arisen elsewhere, a foreign element is at once imported into the
case, and it may be asked whether the court is to be governed
in its decision by the domestic law, by the law of the place
where the parties, or some of them, live (or, in technical phrase,
are domiciled), by the law of the place where the transaction or
part thereof arises, or by the law of the place where property
affected thereby may be situated ?
Thus, if A, a citizen of New York, should there mortgage to
B, a citizen of Maryland, personal property situated in Virginia,
which property A afterwards removes to Illinois and sells to C,
where B brings suit to recover it, a prominent question before
the Illinois court might be: Shall we decide upon the valid-
ity of B's title according to the law of New York, where the
owner lived and the transfer was made ; or according to the law
of Maryland, where the vendee lives; or according to the law of
Virginia, where the property happened to be at the time of the
§ 4 BASIS OP PRIVATE INTERNATIONAL LAW. 5
transfer ; or shall we discard all these foreign elements entirely,
and let the domestic law — the law of Illinois — control ?
It is the aim of the branch of law with which we are now en-
gaged to determine, in cases of this character, which law should
be followed.
§ 4. Basis of Private International Law. — Effect is given
to a foreign law, not through any convention or agreement of
nations, but merely because justice and policy often demand
that, in the enforcement and interpretation of contracts and
other transactions possessing a foreign element, the court should
be governed by some other than the domestic law.
When one voluntarily does an act in a particular country, it
is, as a general rule, just and proper that the effect of the act
should be measured by the law under which it is done. The
party need not do the act there unless he chooses, and if he elects
to do it there, the just measure of its operation is the law to
which he has thus voluntarily submitted himself. In other
words, the situs or locality of the act in question furnishes the
law which will govern it. And the same general principle, as
we shall hereafter see, applies to transactions and circumstances
which are not the result of voluntary action. The law of the
situs of the particular matter will control.
It is often said that a court, in enforcing a foreign law, acts
ex comitate, and if care is observed to note the meaning of the
term "comity," the expression is not erroneous. The basis of
private international law may be said to be comity, but it is
as much a comity shown to the litigants in referring to the
law of the situs, as above explained, as a comity to the State
whose law is thus enforced. In truth, it is something more
even than comity to the litigants. It is in answer to the de-
mands of justice and an enlightened policy.^
It is to be observed that the rules of private international
law do not derive force from a power superior to the sovereign
States which recognize and enforce them. On the contrary, the
very essence of a sovereign State is that it has no superior. It
is one of the fundamental principles of this branch of the law
1 Robinson w- Queen, 87 Tenn. 445, 11 S. W. 38, 39 ; Warrender v. Wax-
tender, 2 CI. & F. 488, 530. See Whart. Confl. L. §§ 1 a, 2, 3.
6 BASIS OF PEIVATE INTERNATIONAL LAW. § 4
that each sovereign State is supreme within its own limits. It
is therefore within the power of such a State at any time to ex-
clude any or all foreign laws from operation within its borders.
To the extent that it cannot do this, it is not sovereign. Hence,
when effect is given to a foreign law in any territory, it is only
because the municipal law of that State temporarily abdicates
its supreme authority in favor of the foreign law, which, for
the time being, with reference to that particular matter, be-
comes itself, by the will of that State, its municipal law.'
There are however some cases in which the courts will not
permit a foreign law to supplant the domestic law. These
exceptional cases will be considered more at large hereafter."
These principles have been recognized by the United States
Supreme Court, as entering into the definition of the "comity"
which governs the courts in enforcing foreign laws. In Hilton
V. Guyot* it is said: "Comity is neither matter of absolute
obligation nor of mere courtesy and good will. It is the recog-
nition which one nation allows within its territory to the legis-
lative, 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 the laws."
It is of the utmost importance to observe at the outset that
every point that may come up before a court for its decision
must have a situs somewhere, and each point that arises will in
general be governed by the law of the State where that situs is
ascertained to be. Whether the interest before the court be one
arising from the voluntary action of the individual, or whether
it be created, without voluntary action, merely by the law itself,
is immaterial. It must have its situs, assigned by the indi-
vidual or by the law. Numerous instances of this principle
will appear later. A tort, a contract, a conveyance of property,
the devise or descent of land or personalty, marriages, all have
their situs, whose law will generally govern with respect to
2 See Whart. Confl. L. §§ 1, 2, 8 ; Dalrymple v. Dalrymple, 2 Hagg.
Cons. 58.
» Post, Chapter II.
* 159 U. S. lis-
§ 4 BASIS OF PRIVATE INTERNATIONAL LAW. 7
tbem. To ascertain the situs in such cases and others is in
large measure the purpose of this work.
In the future discussion therefore we will examine (1) The
situs of the person ; (2) The situs of status ; (3) The situs of
personal property ; (4) The situs of contracts ; (5) The situs of
torts ; (6) The situs of crimes ; and (7) The situs of remedies.
But before entering into the discussion of these heads, a chapter
will be devoted to the consideration of certain exceptional cases
wherein it is held that neither the claims of situs nor the dc'
mands of comity are strong enough to induce the substitution
of a foreign for the domestic law.
GBOUNDS OF EXCEPTIONS.
§5
CHAPTER II.
EXCEPTIONS TO TELE APPLICATION OF A FOREIGN LAW.
§ 5. General Orounds upon which t±ie Exceptions are
based. — In the jtrecedingsection it hagbeen shown that^the
basis of private international law is ^*internation^_i:Qmity,"
whichin reality is nothing more than an enlightened sentiment
of justice and policy.
But-lt must never be fnrgntt:pn fhaf, P-mwy anvftgfeign^Sfglft haS
abfrftljltg WT'^*'"^ "^*"' *^'^ persons and property within its bor-
ders, and may_ regulate tb^TT^ ^ i*^« rivtrn iM»frmT1ft"hf -prnprifti-y
and-poljgy dictate.^ The question in all ouch caooo ia. ahall it
exercise the_right t" ^nntrnl ^^^QgQ ""^<"tftrff J2Z^° own law, or
shall it yiftld tn tbe_jaw of another State? IfiF~Choo8efr--the
latter course, it does so not because the foreign legislation or
instrEution8""^ve an exterritorial force within its limit8."'but
8 imply, J)ecanBe~piQiicy and justicft HprnaruT it.'
It may be that the legislature of the State in which the ques-
tion arises has foreseen and provided for the contingency, and
has expressly laid down the rule that shall govern its courts
should a foreign element creep into a particular case. In such
event the legislature may enact that the foreign law is to control,
or that, notwithstanding the foreign element, the domestic law
shall still govern. This is a matter of policy wholly in the
discretion of the legislaturft, irttfl wbifih tb^^^jMirrrLH i-iiiiimt in-
I See Blackinton v. Blackinton, 141 Mass. 432, 436 ; ElUs v. Ellis,
55 Minn. 401, 56 N. W. 1056, 1058 ; Roth v. Roth, 104 111. 35, 44 Am. Rep.
81, 82, 83 ; Cook r. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 35 ;
Green r. Van Buskirk, 5 Wall. 307 ; s. c. 7 Wall. 139 ; Hervey v. Locomo-
tive Works, 93 U. S, 664 ; Pennoyer r.Neff, 95 U. S. 714, 722; Atherton Co.
r. Ivee, 20 Fed. 894, 896; Moore v. Title & Trust Co., 82 Md. 288, 33 AU
641, 642.
• PetersMi v. Chemical Bank, 32 N. Y. 21, 44, 88 Am. Dec. 298.
^
■
§ 6 GROUNDS OF EXCEPTIONS. 9 '
quire. In the latter case, there would be no room for the opera-
tiono? the rules of private international law. It is merely a
question of the courts' obedience to the mandates of the State's
municipal law.
But it rarely happens that the legislature, in enacting J
statute, expressly deals with cases involving a foreign element.
Primarily the legislature enacts laws for its own citizens, touch-
ing property and transactions within the State, and does not
usually notice expressly those cases in which the person, the
property, or the transaction affected may be without the State, in
whole or in part. Under these circumstances therefore the duty
devolves upon the courts to determine whether the municipal
law, by its silence, means to include or to exclude these cases.
Here it is that the rules of private international law come into
play, and guide the courts in the solution of problems that are
often intricate. ^^
There may be said to be five instances wherein it is generally ^i/y^
considered that the municipal law of the State where the ques- r-
tion is raised (lex fori) forbids the enforcement of a forei^n-las^./^
(1) Where the enforcement of the foreign law would contraven^ 1
some established and important policy of the State of th^-fortim^f'^ ^
(2) where the enforcement of such foreign law would involve
injustice and injury to the people of the forum; (3) where such
enforcement would contravene the canons of morality established A") '
by civilized society; (4) where the foreign law is penal in its -X
nature; and (5) where the question relates to real property. ' ^''»'^■^vl
These exceptions are of supreme importance in the study of ^V-
this subject, and must be constantly borne in mind, for they xj^^j^
constitute standing exceptions to almost every proposition that ^
can be laid down. Yet they are often lost sight of by the-»_^
courts, or are confounded with the principles themselves. The /)
unnoticed existence and enforcement of them in many of the 4^^
cases is one main cause of the confusion that envelops the sub-
ject. The reader must therefore pardon a constant recurrence
to them in the course of the discussion which is to follow.
In view of these frequently recurring exceptions, and to avoid
a lengthy periphrasis, we will in future designate as *'Thb
VsoPEK Law " that law which, upon general principles, is th«
10 PIRST EXCEPTION — POLICY. § 6
proper law to govern the case. If it is one of the exceptional
cases above mentioned, the law governing it will be designated
The Domestic Law or Lex Fori.
§ 6. First Exception — Policy or Interests of Forum con-
travened by Enforcement of Proper Law. — Few general prin-
ciples of private international law are so well settled as the rule
that no foreign law (even though, under ordinary circumstances,
it be the *' proper law ") will be enforced in a sovereign State,
if to enforce it will contravene the express statute law or an
established policy of the forum, or is injurious to its interests.^
If the policy of the forum has been expressed in a statute
which in terms covers even transactions having a foreign ele-
ment, no difficulty will be apt to arise. There can be no ques-
tion then as to what is the pronounced policy of the forum, a
'policy deemed so important as to be expressly extended by the
legislature to foreign transactions. If the forum retains a ves-
tige of sovereignty, the lex fori will prevail.^
It is in cases where the domestic law is not statutory but un-
written, or, if statutory, where the statute does not in terms
apply to matters involving a foreign element, that the difficulty
arises. It is not in every case of this kind that the domestic
law is applicable. If this were so, there could never be any
1 May V. Bank, 122 lU. 551, 13 N. K 806, 808 ; Frank v. Babbitt,
155 Mass. 112, 115 ; Mackey v. Pettijohn, 6 Kan. App. 57, 49 Pac. 636, 637 ;
Bowles r. Field, 78 Fed. 742, 743 ; Case v. Dodge, 18 R. I. 661, 29 AH. 785,
786 ; Despard v. Churchill, 53 N. Y. 192, 200 ; Van Voorhis v. Brintnall,
86 N. Y. 18, 26, 40 Am. Rep. 505 ; Freeman's Appeal, 68 Conn. 533, 37 Atl.
420 ; Armstrong r. Best, 112 N. C. 59, 17 S. E. 14, 15 ; Com. v. Lane, 113 Mass.
458, 463, 18 Am. Rep. 509 ; Tme v. Ranney, 21 N. H. 52, 53 Am. Dec. 164 ;
Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319 ; Pennegar v. State, 87 Tenn.
244, 2 L. R. A. 703, 704-5 ; State v. Ross, 76 N. C. 242, 22 Am. Rep. 678 ;
Edgerly v. Bush, 81 N. Y. 199 ; Woodward v. Brooks, 128 III. 222, 20 X. E.
685, 686 ; Ex parte Dickinson, 29 S. C, 453, 7 S. E. 593, 594-5 ; Green i;.
Van Buskirk, 7 Wall. 139 ; Smith v. Union Bank, 5 Pet. 518, 527.
2 See WiUiams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; May v. Bank,
122 111. 551, 13 N. E. 806, 808 ; Frank v. Babbitt, 155 Mass. IH; Com. r.
Lane, 113 Mass. 458, 463, 18 Am, Rep. 509 ; Bamett v. Kinney, 147 U. S.
476 ; Butler v. Wendell, 57 Mich. 62, 23 N. W. 460, 462 ; Pennegar v. State,
87 Tenn. 244, 2 L. R. A. 703, 704-5 ; Kerr r. Dougherty, 78 N. Y. 327, 541 j
Case V. Dodge, 18 R. I. 661, 29 Atl. 785, 786.
§ 6 FIRST EXCEPTION — POLICY. 11
practical question of a conflict of laws. The law which will be
applied depends upon the importance attached to the policy
advocated by the lex fori. The legislature is primarily the
judge of questions of policy, and if it has spoken plainly either
for or against the enforcement of a foreign law in a given case,
the courts must obey.' If the legislature has not indicated
expressly its will that a particular domestic policy should con-
trol in all cases, it then devolves upon the courts to determine
in what cases it shall control.*
In deciding cases of this kind therefore each court has to pass
upon the importance of the domestic policy maintained by its
laws. They are generally loath to deny the enforcement of a
proper foreign law, and will not, if they consider the domestic
policy of minor importance. But where it is a fundamental and
important policy of the State, established after careful consider-
ation of the supposed needs and wants of its people, no foreign
law will be permitted to supersede it.
If however there is an irreconcilable conflict between the two
systems of law, the courts will usually lean towards the lex
fori.* Ultimately this question must be decided in each case as
it arises, and as the solution of it must depend upon the judg-
ment of each court, great conflicts of decision may be expected,
and indeed have sometimes resulted. A particular policy,
regarded in one State as of the gravest importance, will be
8 Green v. Van Buskirk, 5 Wall. 307, 312 ; Matthews v. Lloyd, 89 Ky.
625, 13 S. W. 106, 107 ; Bowles v. Field, 78 Fed. 742, 743; Cross v. U. S.
Trust Co., 131 N. Y. 330 ; Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep.
505 ; Pennegar v. State, 87 Tenn. 244, 5J L. R. A. 703, 705 ; Ex parte Dick-
inson, 29 S. C. 453, 7 S. E. 593, 594-5 ; State v. Kennedy, 76 N. C. 251,
22 Am. Rep. 683, 684 ; Milne v. Moreton, 6 Binn. (Penn.) 353, 6 Am. Dec.
466; West Cambridge v. Lexington, 1 Pick. (Mass.) 506, 512, 11 Am. Dec.
231 ; Ex parte Kinney, 3 Hughes, C. C. 1, 20.
* Legislation subsequent to the transaction in dispute may be looked to in
order to determine what importance the legislature attaches to the policy of
the State at the time of the transaction. See Milliken v. Pratt, 125 Mass.
374, 28 Am. Rep. 241 ; Case v. Dodge, 18 R. I. 661, 29 Atl. 785, 786 ;
Fellows V. Miner, 119 Mass. 541; Freeman's Appeal, 68 Conn. 533, 87 Atl.
420 ; Dammert v. Osborn, 140 N. Y. 30, 44.
* Gardner v. Lewis, 7 Gill (Md.), 378, 396 ; Saul v. His Creditors, 5 Mart
N. s. (La.) 569, 16 Am. Dec. 213 ; Story, Confl. L. § 28,
12 SECOND EXCEPTION — RESIDENTS. §7
relegated to the background in another, where the needs of the
people are different. Moreover, in the same State, the opinions
of men will often differ as to the relative importance of certain
lines of policy, or perhaps even the opinion of the same man at
different times. Hence, while recognizing and applying the
same general principles, the courts of different States may
readily reach different conclusions in the same class of cases,
and neither violate the rules of private international law." As
has been well said by a learned judge,'' speaking of the con-
flicting authorities upon a point in the conflict of laws: " They
have attempted to go too far; to define and fix that which in the
nature of things cannot 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 upon a variety of
circumstances, which cannot be reduced within any certain
rule. That no nation will suffer the laws of another to inter-
fere with her own to the injury of her citizens; that whether
they do or not must depend upon the condition of the country
in which the foreign law is sought to be enforced; the particular
nature of her legislation, her policy, and the character of her
institutions. That in the conflict of laws it must be often a
matter of doubt which should prevail ; and that whenever that
doubt does exist, the court which decides will prefer the law of
its own country to that of the stranger."
§ 7. Second Exception — Injustice or Detriment to People
of the Forum. — This exception, like most of the others, is but
a branch of the first, but, by reason of its frequency and impor-
tance, is treated separately.
It is natural, and not at all to be reprobated, that the courts of
the forum should refuse to enforce a foreign law, if to do so would
result in injustice to their own people. The object of the enforce-
ment of a foreign law in any case is to mete out, as far as possible,
exact justice to all concerned, as well as to give due effect to the
« Pemiegart;. State, 87 Tenii. 244, 2 L. R. A. 703, 706 ; Cross v. U. S.
Trust Co., 131 N. Y. 330, 343 ; HolJis r. Seminary, 95 N. Y. 166.
"> Porter, J., in Saul v His Creditors, 5 Mart. K. s. (La.) 560, 16 An
Dec. 212, 225.
§ 7 SECOND EXCEPTION — RESIDENTS. 13
laws of other States. But the first and most important of these
objects fails altogether when the enforcement of the proper law
would result in injustice and loss to innocent citizens of the
forum. As between the latter and strangers, it is not remark-
able that the courts should elect in a close case to decide the
matter in accordance with the lex fori, thus giving their fellow
citizens the advantages conferred upon them by the law under
which they live and ordinarily transact their business. The
observance of comity towards other States cannot reasonably be
expected at the expense of injustice to residents of the forum,
for whose benefit the courts and the law are primarily insti-
tuted. The existence of this exception to the enforcement of
the "proper law" is beyond dispute, though its limits are not
yet precisely defined.^
A dictum in a leading Louisiana case*^ will serve to illustrate
the operation of this exception. In that case the court, argv^
endo, supposes a person domiciled in Spain to enter into a con-
tract with a citizen of Louisiana, the Spanish citizen being
twenty-three years old. By the law of Spain (lex domicilii) he
does not become of age until he is twenty-five. By the law of
Louisiana he is of age at twenty-one, and can make a binding
contract. Suit is brought on the contract in Louisiana by the
1 Green v. Van Buskirk, 5 Wall. 307, 312 ; Pennoyer r. NeflF, 95 U. S.
714, 723; Cole v, Cnnningham, 133 U. S. 107, 126 ; Bamett v. Kinney, 147
U. S. 476 ; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Robinson
V. Queen, 87 Tenn. 445, 3 L. R. A. 214 ; Bentley r. Whittemore, 19 N. J. Eq.
462, 97 Am. Dec. 671 ; May v. Bank, ]22 111. 551, 13 N. E. 806 ; Matthews
V. Lloyd, 89 Ky. 625, 13 S. W. 106, 107; Marshall r. Sherman, 148 N. Y.
9, 10, 29, 42 N. E. 419 ; Armstrong v. Best, 112 N, C. 59, 17 S. E. 14, 15;
Homthall v. Burwell, 109 N. C. 10, 13 S. E. 721, 722; Frank v. Bobbitt,
155 Mass. 112, 29 N. E. 209; Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 377,
738; Catlin v. Plate Co., 123 Ind. 477, 24 K E. 250, 8 L. R. A. 62, 63;
Gilman t;. Ketcham, 84 Wis. 60, 54 N. W. 395; Egbert v. Baker, 58 Conn.
319, 20 Atl. 466, 467; Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368 ;
Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345, 347-8 ; Fuller v. Steiglitz,
27 Ohio St. 355, 22 Am. Rep. 312, 318; Long v. Girdwood, 150 Penn. St.
413, 24 Atl. 711, 712, 23 L. R. A. 33, note. But see Atherton Co. v. Ives,
20 Fed. 894, 897.
2 Saul V. His Creditors, 17 Mart. 569, 16 Am. Dec. 212, 226. See aHat
Baldwin v. Gray, 4 Mart. N. s. (La.) 192, 16 Am. Dec. 169, 170.
14 EXTENT OF SECOND EXCEPTION. § 8
Louisiana citizen. The defendant urges the law of his domicil
as fixing his age of majority (which is a status) and his conse-
quent capacity to make a binding contract.^ The court, while
alleging (erroneously) the general operation of the lex domicilii
in such cases, insists that the foreign law must yield in this
instance to the lex fori, as its enforcement would work an in-
justice to the Louisiana citizen who could not be supposed to
be acquainted with the laws of Spain.
But in order for this exception to operate, the enforcement of
the_£roper law TTvnRt__rpgiilt in injtistire tft thft citizen of the
foruBU—Tho more fact that nuch unfufCbiiieuL would aubj«ct him
fri !i jirt liability; vvhirh hr might escnpp w^ra thfi_[ftY fori to
operate^will not suffice.
Again, it is a generally accepted principle that a transfer of
personalty situated abroad is governed as to its validity and
effect by the law of the place Avhere the transfer is made (lex
loci contractus).* But this rule will not usually be permitted
to operate in the State where the personalty is situated in cases
where an injustice will thereby be done the people of the latter
State; for example, attaching creditors of the assignor. The
lex fori will be substituted.*
So, in a Tennessee case,' a married woman, domiciled in Ken-
tucky, made there a note as surety for her husband, which note
was also payable there. Suit was brought against her on the
note in Tennessee. By the law of Kentucky a married woman
could bind herself by such a contract ; by the law of Tennessee
she could not. The court refused to apply the Tennessee law,
saying: ''If this were a suit against a married woman, a citizen
of this State, on a contract made out of the State, there would
be much force in the insistence of the defendant."
§ 8. Extent of Second Exception. — The limits of this ex«
ception are not as yet very definitely settled. If there be only
« See post, §§ 71, 72. « Post, §§ 128 et seq.
6 Post, § 129 ; May v. Bank, 122 111. 551, 13 N. E. 806 ; Bentley v.
Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671 ; Frank t>. Bobbitt, 155 Mass.
112, 29 N. E. 209; Edgerly v. Bush, 81 N. Y. 199; Hornthall v. Burwell,
109 N. C. 10, 13 S. E. 721, 722 ; Crapo v. Kelly, 16 Wall. 610, 622.
« Robinson v. Queen, 87 Tenn. 445, H S. W. 38, 3 L. R. A. 214.
§ 8 EXTENT OF SECOND EXCEPTION. 15
one party who complains of the injustice done him by the en-
forcement of a proper foreign law, and he is a citizen of the
forum, the lex fori will generally be substituted in the place of
the foreign law.^ And the same is true where there are several
who thus complain, all being citizens of the forum.'
And it has been held, where the complaining parties were
partners^ some of whom were citizens of the forum and some
citizens of another State, that the privileges of the lex fori ac-
cruing to the citizens of the forum will enure also to the
benefit of those partners who were citizens of other States, be-
cause they were jointly interested and their interests could not
be separated.'
It has been suggested that, as between the States of this
Union, to so discriminate against the citizens of other States
and in favor of the citizens of the forum contravenes the pro-
vision of the federal constitution which declares that the citizens
of each State shall be entitled to all privileges and immunities
of citizens of the several States.* But the opposite is too well
established to be disputed. This constitutional provision applies
to fundamental and universal rights, not to special privileges.
There seems to be a tendency in some of the decisions to ex-
tend the principle of comity, as between the several States of
the Union, beyond the limits marked out by strict international
law. These decisions make the distinction already adverted to
between citizens of the forum and citizens of foreign countries,
but place the citizens of other States of the Union upon the
same footing as residents of the forum, giving them also the
benefit of the domestic law.' But the weight of opinion and
1 May V. Bank, 122 111. 551, 13 N. E. 806 ; Matthews v. Lloyd, 89 Ky.
625, 13 S. W. 106; Frank v. Bobbitt, 155 Mass. 112 ; Edgerly v. Bush, 81
N. Y. 199 ; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345, 349 ; Crapo v.
Kelly, 16 Wall. 610, 622.
2 Faulkner v. Hyman, 142 Mass. 53, 55.
3 Faulkner v. Hyman, 142 Mass. 53, 55-56. See Bentley v. "Whittemore,
19 N. J. Eq. 462, 97 Am. Dee. 671, 672, 674.
* Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345, 349. This case itsell
:jerely makes the suggestion to refute it. See also Athertou Co. v. Ives, 20
Fed. 894, 897 ; Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368.
6 Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368; Hibernia Bank
16 EXTENT OF SECOND EXCEPTION. § 8
reason seems to be in favor of confining the privilege of the lex
fori to citizens of the forum, so far as the operation of this ex-
ception is concerned.®
However it may be as to putting citizens of the forum and of
third States (within the Union) on an equal footing, opinion
has been divided as to whether it is proper to exclude citizens
of the State whose law is properly applicable ; it being said
that in their favor their own law should not be set aside and
substituted by the lex fori,^ unless the settled policy of the
forum (independently of citizenship) requires its substitution.*
Another question arises which involves the scope of this ex-
ception. Does it apply only to citizens of the forum, or should
it be extended to those, not citizens, who are domiciled there,
or even to those who are casually present there ? As between
the States of this Union, if the party upon whom the foreign
law operates injuriously is a citizen of the United States, he
must be held a citizen of the forum if he is domiciled there.'
But if he be not domiciled there, or if he be an alien, or if the
r. Lacombe, 84 N. Y. 367; Catlin v. Silver Plate Co., 123 Ind. 477, 24 X. E.
250, 8 L. R. A. 62, 65 ; First Nat Bank v. Walker, 61 Conn. 154, 23 Atl,
696 ; Oilman v. Ketchum, 84 Wis. 60, 54 N. W. 395 ; Fuller v. Steiglitz, 27
Ohio St. 355, 22 Am. Rep. 312, 318, 319; Milne v. Moreton, 6 Binn. (Penn.)
353, 6 Am. Dec. 466. See Atherton Co. v. Ives, 20 Fed. 894, 897, in which
the court seems inclined to place even citizens of foreign countries upon the
same footing with citizens of the forum.
« The first exception operates, regardless of citizenship. See Douglas v.
Bank, 97 Tenn. 133, 36 S. W. 874, 876 ; Moore v. Church, 70 la. 208, 59 Am.
Rep. 439, 441 ; Barth v. Backus, 140 N. Y. 230 ; Paine v. Lester, 44 Conn.
196, 26 Am. Rep, 442. The last two are cases of involuntary assignments
under insolvency laws. Such assignments have no exterritorial effect. See
post, § 137.
T Barnett v. Kinney, 147 U. S. 476, 481 ; Cole v. Cunningham, 133 U. S.
107, 129 ; Bagby v. R. R. Co., 86 Penn. St. 291 ; Bacon v. Home, 123 Penn.
St. 452, 453, 16 Atl. 794; Oilman v. Ketchum, 84 Wis. 60, 54 N. W. 395 ;
Faulkner r. Hyman, 142 Mass. 53, 55; May v. Wannemacher, 111 Mass.
202, 209 ; Woodward v. Brooks, 128 111. 222, 20 N. E. 685; In re Dalpay, 41
Minn. 532, 43 N. W. 564, 566. But see Barth «;. Backus, 140 N. Y. 230, 29
N. E. 209 ; Hibemia Nat. Bank v. Lacombe, 84 N. Y. 367.
« See Moore v. Church, 70 la. 208, 59 Am. Rep. 439, 441. See post,
§S 134, 138, where this question is more fully discussed.
• U. S. Const. Amendment XIV.
§ 9 THIRD EXCEPTION — CONTRA BONOS MORES. 17
suit be instituted in a foreign country, the point becomes
important.
It is believed that the exception comprises within its scope
all those for whose protection and benefit the lex fori is enacted,
including not only citizens, but aliens domiciled there, and
sometimes persons resident there for a temporary purpose.^®
§ 9. Third Exception — Proper Foreign Law Contra Bonos
Mores. — This exception also is merely a particular application
of the first. There are certain things which are inherently
vicious, demoralizing, and antagonistic to the general principles
of morality which form the basis of civilized societies. It is
a most important part of the policy of every civilized State that
the law should prohibit or discourage such things as far as
practicable. They are generally condemned by every system
of municipal law.
When we come to examine this principle, as it applies in
private international law, we find that there are certain trans-
actions which, though valid in some barbarous or semi-civilized
States, and perhaps even in one or two that are civilized, are
reprobated by the municipal law of most countries, as immoral ''0 '
in fact or in tendency. Such, for example, are polygamous mar- }
riages; marriages between parent and child, grandparent and
grandchild, or brother and sister; contracts to reward crime;
contracts for the price of illicit intercourse ; contracts to corrupt
or evade the due administration of justice, to defraud or corrupt
public agents; and in general all transactions which in their
nature are founded in moral turpitude, and are inconsistent
with the good order and substantial interests of the forum.
Such transactions will always be discountenanced by the lex
fori, regardless of the character stamped upon them by the law
which should properly govern them.^
1" Woodworth V. Spring, 4 Allen (Mass.), 321; Bank v. Williams, 46 Miss.
618 ; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367 ; Freeman's Appeal, 68
Conn. 533, 37 Atl. 420. See Donovan v. Pitcher, .53 Ala. 411, 25 Am. Rep.
634 ; Hilton v. Guyot, 159 U. S. 113.
1 Story, Confl. L. § 258; Oscanyon v. Arms Co., 103 U. S. 261; Green-
wood V. Curtis, 6 Mass. 358, 4 Am. Dec. 145, 147-9 ; Armstrong v. Toler, 11
Wheat. 258 ; Merchants' Bank v. Spalding, 12 Barb, (N. Y.) 302 ; Madrazzo v.
Willes, 3 Barn. & Aid. 353.
2
18 THIRD EXCEPTION — CONTRA BONOS MORES. § 9
The same principle will also apply where a contract is made
for the purpose of giving aid to the enemies of a country with
which the forum is in amity ; ' or to a contract tending to the
bribery and corruption of the officers of a foreign government.'
Under this head may likewise be placed those transactions
which are so detrimental to the interests of the forum itself,
and disclose such a disregard for the public weal as to amount
to immorality. Of this character are contracts with alien ene-
mies, contracts to smuggle goods into the forum, or to evade
or violate its revenue laws.* Yet, strange to say, the rule has
been laid down otherwise in cases where the transaction is a
fraud upon the revenue laws of another State, upon the paltry
and shortsighted theory that one State has no concern with the
revenue laws of another, and that the latter must enforce its own
laws. " Sound morals would seem to point to a very different
conclusion." '
So also, if an attempt be made to evade the "proper law,"
a fraud upon that law is committed, which the courts of that
State at least will not in general tolerate. They will substitute
the law which should have governed had there been no such
fraud. The validity of a transaction cannot be secured by ap-
parently subjecting it to a law by which it is not properly
governed.'
Thus, in Mortg. Co. v. Jefferson,^ the plaintiffs, who resided
' Eennett v. Chambers, 14 How. 38 (a contract to famish aid to Texans
against Mexicans).
» Oscanyon v. Arms Co., 103 U. S. 261,
* Armstrong v. Toler, 11 Wheat. 258 ; Griswold v. Waddington, 16 Johns.
(N. Y.) 438; Ivey i;. Lolland, 42 Miss. 444, 2 Am. Rep. 606.
6 Story, Confl, L. §§ 245 et seq. ; Ivey v. Lolland, 42 Miss. 444, 448,
2 Am. Rep. 606 ; Merchants' Bank v. Spalding, 9 N. Y. 53, 63.
• See Story, Confl. L. § 106 ; Mortg. Co. v. Jefferson, 69 Miss. 770, 12
So. 464, 465 ; Hinds v. Brazealle, 2 How. (Miss.) 837, 32 Am. Dec. 307 ;
Gardner v. Lewis, 7 Gill (Md.), 378, 392 ; Arhuckle v. Reaume, 96 Mich. 243,
55 N. W. 808 ; Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703, 704 ; Com.
V. Lane, 113 Mass. 458, 471, 18 Am. Rep. 509; "West Cambridge i-. Lexing-
ton, 1 Pick. (Mass.) 506, 11 Am. Dec. 231 ; Akers v. Demond, 103 Mass. 318,
324; Kinney v. Com., 30 Gratt. (Va.) 858; SUte v. Kennedy, 76 N. C. 251,
22 Am. Rep. 683.
7 69 Miss. 770, 12 So. 464, 465.
§ 9 THIRD EXCEPTION — CONTRA BONOS MORES. 19
in Tennessee, borrowed money of the defendant, a New York
corporation, securing the loan by a deed of trust upon land in
Mississippi. The notes were made in Tennessee and payable in
New York, and were usurious by the laws of both States, but
not by the law of Mississippi. The deed of trust recited (con-
trary to the fact) that it and the notes were made in Mississippi,
where they were not usurious, and that they were to be con-
strued according to the laws of that State. But the Mississippi
court disregarded this recital altogether, holding that the laws
of a State and access to its courts are not the subject of contract.
There is an exception, however, to this last principle in the
case of marriage. It is of the utmost importance to the very
existence of society that its well-spring, the marriage relation,
should be kept pure and unpolluted. The courts strain every
nerve to uphold a marriage, not in itself immoral. Hence, if
citizens of a State leave it to contract elsewhere a marriage, for-
bidden by the law of their domicil but valid where contracted,
and afterwards return to their domicil, though this is an evasion
of the domiciliary law, the marriage will be upheld in all States
other than their domicil.^
Upon the question whether the courts of the domicil will up-
hold such a marriage, the authorities are much divided. Many
influential courts stand in favor of upholding the marriage at
all hazards, even though it be contracted in fraud and evasion of
the home law, deeming this general policy superior to all special
policies of the domicil and forum.' Others, as influential, make
the question turn upon the relative importance of the policies
involved. While not lightly setting aside a marriage valid
where contracted, neither will they lightly set aside important
domestic policies closely relating to the moral life of the people.
Under this line of cases the relative importance of the policies
' See post, § 73 ; Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 24 Am. Dec.
444.
• Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131 ; Com. v. Putnam,
1 Pick. (Mass.) 136; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509 ; Put-
nam V. Putnam, 8 Pick. (Mass.) 433; Van Voorhis v. Briutnall, 86 N. Y. 18.
40 Am. Rep. 505; Stevenson v. Gray, 17 B. Mon. (Ky.) 193; Thorp w. Thorp,
90 N. Y. 602.
20 THIRD EXCEPTION — CONTRA BONOS MORES. § 9
involved is the criterion, and the result in a particular case will
depend upon the weight attached by the particular court, in a
sound judicial discretion, to the policy indicated by the domi-
ciliary legislation. And this, it is believed, is the better
view.^°
There are some transactions which, though deemed immoral
in some States, cannot be said to be immoral by the laws of
nature, this being evidenced by the fact that some fully civil-
ized nations do not so consider them. To this head belong
marriages between persons related to each other by ties of con-
sanguinity or affinity.
All civilized States reprobate marriages between persons in
the direct lineal line of consanguinity, and those contracted be-
tween brother and sister. ^^ Such marriages therefore, though
celebrated in a barbarous country where they are valid, will gen-
erally be adjudged void in all civilized States, as being contra
bonos mores.^^ But when we proceed further than this, to mar-
riages between uncle or aunt and niece or nephew, between
brother-in-law and sister-in-law, between first cousins, etc., we
find there is no common opinion in Christendom upon the mo-
rality of such marriages. Some States prohibit them while
others permit them. It cannot then be said in such case that
the marriage is universally or even generally deemed immoral
throughout the civilized world. The fact is otherwise. Hence
in these latter cases the courts will not feel at liberty to depart
from the " proper law," even though by the lex fori such a mar-
riage would be disapproved and declared void. If valid by its
proper law, it will be valid everywhere.^*
w Pennegar r. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 704, 705 ;
Kinney v. Cora., 30 Gratt. (Va.) 858; State v. Kennedy, 76 N. C. 251, 22
Am. Rep. 683. See post, § 73, where this whole topic is examined at large.
" Story, Confl. L. § 114 ; Wightman v. Wightman, 4 Johns. Ch. (N. Y.)
343, 349; Sutton «;. Warren, 10 Met. (Mass.) 451, 452.
12 Story, Confl. L. § 114.
^ Story, Confl. L. § 114 ; Greenwood v. Curtis, 6 Mass. 358, 379, 4 km
Dec. 145 ; Med way v. Needham, 16 Mass. 157, 6 Am. Dec. 131 ; Com.
V. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509; Wightman v. Wightman,
4 Johns. Ch. (N. Y.) 343, 349; Kinney v. Com., 30 Gratt. (Va.) 858 ; State
V. Kennedy, 76 N. C. 251, 22 Am. Rep. 683 ; Stevenson v. Gray, 17 B. Mon.
f 10 FOURTH EXCEPTION — PENAL LAWS. 21
Another illustration of the principle that private international
law will not condemn as immoral transactions which are not so
considered by all, or at least the great majority, of the civilized
States of the world, is to be found in transactions based upon
the institution of slavery. Thus a note given in payment for
slaves or for slave hire, payable in States where slavery is law-
ful, will be enforced even in States which condemn or do not
recognize the institution."
Neither are Sunday laws treated as rules of positive morality,
certainly not by all civilized nations. Hence contracts entered
into, or to be performed, on Sunday, and valid by their proper
law, will be enforced even in States whose laws prohibit and in-
validate Sunday contracts.^*
§ 10. Fourth Bzception — Proper Foreign Iiaw Penal in its
Nature. — It is a well-settled principle of private international
law that the penal laws of one State will have no exterritorial
effect in other States. Each State must look after the punish-
ment of its own people for offences against its laws. Other
States cannot and will not undertake to aid it in these matters
further than to surrender a fugitive from justice under extra-
dition treaties or laws. This general principle is universally
admitted.^
(Ky. ) 193. The proper law governing the validity of marriages will be dis-
cussed hereafter. Post, §§ 75, 76 et seq.
^* Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145 ; Bouudtree v. Baker,
52 111. 241, 4 Am. Rep. 597 ; Osbom v. Nicholson, 13 Wall. 654. It is other-
wise as to the status of the slave himself. See Com. v. Aves, 18 Pick. (Mass.)
193; Donovan v. Pitcher, 53 Ala. 411, 25 Am. Rep. 634.
" McKee v. Jones, 67 Miss. 405, 7 So. 348 ; Brown v. Browning, 15 R. I.
422, 7 Atl. 403 ; Swann v. Swann, 21 Fed. 299. For the proper law governing
the validity of Sunday contracts, see post, §§ 168, 175.
1 The Antelope, 10 Wheat. 66, 123 ; Huntington v. Attrill, 146 U. S. 657,
666 ; Com. v. Green, 17 Mass. 515, 539-540 ; Com. v. Lane, 113 Mass. 458,
470, 18 Am. Rep. 509 ; Coffing v. Dodge, 167 Mass. 231, 232, 45 N. E. 928 ;
Van Voorhia v. Brintnall, 86 N. Y. 18, 28, 36, 40 Am. Rep. 505 ; Sims v.
Sims, 75 N. Y. 466; Succession of Hernandez, 46 La. Ann. 962, 15 So. 461,
24 L. R. A. 831, 842; Marshall v. Sherman, 148 N. Y. 9, 20, 42 N, E. 419,
Guerney v. Moore, 131 Mo. 650, 32 S, W. 1132, 1138 ; Dickson v. Dickson,
1 Yerg. (Tenn.) 110, 24 Am, Dec. 444 ; St. Sure v. Lindsfelt, 82 Wis. 346y
19 L. R. A. 515, 519; Midland Co. v. Broat, 50 Minn. 562, 52 N. W. 972
22 FOUBTH EXCEPTION — PENAL LAWS. § 10
But the authorities by no means agree as to the meaning to
be attached to the term ''penal," in the international sense of
the word. In Huntington v. Attrill,* the Supreme Court of the
United States has laid down the following criterion: ''The
question whether a statute of one State, which in some ^spects
may beTcalleT^jSi^j is a pelial law in the international sense,
so that it cannot be enforced in the courts of another State,"3e-
peiids upon the question whether its purpose is to punish_^JL.
offence against t\iQ public justice of the State, or to afford a pri=_
vate remedy to a person injured by the wrongful act," the court
holding that, in the first case, the law has no extraterritorial
effect, being penal, while in the second case, being remedial,
it may be given exterritorial operation.'
First Nat. Bank v. Price, 33 Md. 487, 3 Am. Rep. 204 ; Dale v. R. R. Co., 57
Kan. 601, 47 Pac. 521. Sufficient reasons for the principle may be found in
the divergent notions of right and justice current in different countries, the
differences existing in the forms of administering justice, and the inherent
right of a sovereign State to control all persons within its limits and to judge
them by its own laws. See Com. v. Green, 17 Mass. 515, 539.
« 146 U. S. 657, 666, 673. See also Boyce v. Railway Co., 63 la. 70, 18
N. W. 673.
• The ruling in this case is of such importance that it is deemed wise to
bestow more than a passing glance upon it. The decision, in so far as it
discusses the general nature of penal laws and their exterritorial effect, is a
dictwn. The only question before the court was whe£RefT~Judgment ren-
dered in one State upon a statute of that State giving a private punitive
remedy, could be enforced in another State, it being denied enforcement on
the ground that the statute under which the judgment was recovered was
penal, and not remedial. There is a great difference between the enforcement
in one State of a judgment obtained in another, though under a penal statute,
and the enforcement in one State of an outstanding claim (not reduced to a
judgment) arising under the penal statute of another State. The reduction of
the claim to a judgment deprives it in large measure of its penal character.
The general eflfect of a foreign penal statute therefore was not before the
court.
The facts of the case were as follows : A New York statute made the offi-
cers of a corporation, who signed and recorded false certificates of the amount
of its capital stock, liable for all its debts. The statute was violated by an
officer of a certain New York corporation, and a judgment was recovered in
New York against him thereunder. Action being brought upon the judgment
in Maryland, its courts held that the New York statute was a penal statute,
and refused to enforce the judgment. On appeal to the Supreme Court of the
§ 10 FOURTH EXCEPTION — PENAL LAWS. 23
A better test, however, would seem to be that indicated
by the_ordi.Dary meaning attached to the phrase "penal '^ or
" penalty." A person who unlawfully injures anotner is justly"
bound to reimburse him to the extent of the damage inflicted;
and in a case not provided for by the common law, it may be
provided for by statute. K the law places any additional burden
upon the wrongdoer by reason of his wrongful act, to this extent
United States, under the "fall faith and credit" clause of the federal consti-
tution, that court held that it had jurisdiction to determine whether full faith
and credit had been given in Maryland to the New York judgment, and, in
order to determine that question, that it had the right to decide whether the
statute in dispute was of a penal character. As we have seen, it was not
necessary to decide this question. As a matter of fact, the court was clearly
correct in deciding that the particular statute in question was not penal, but
remedial, as will be shown presently. But the criterion proposed for the de«
termination of the question whether a statute is penal, with all respect, seems
to be the result of fallacious reasoning.
The court's argument is based upon the fact that municipal law distin-
guishes between a crime and a civil wrong (even where the law gives punitive
damages to the party injured by the prohibited act). It is submitted that to
thus reason from the rules of municipal law to those of private international
law is apt to lead to erroneous conclusions. The two systems are based on
different principles. The former is founded in positive regiilation ; the latter,
in international comity. In enforcing the rules of municipal law, the courts
seek to carry out the intention of the legislature ; in enforcing the rules of
private international law, the courts seek merely to proceed upon broad lines
of justice. It is natural and proper that the former should distinguish be-
tween crimes, offences against its own majesty, and civil wrongs inflicted upon
a private citizen. But in private international law, the ground of the enforce-
ment of a foreign law is international comity, which is nothing more than the
enlightened sentiment that exact justice may best be meted out by requiring
that a man's acts should be governed by the law under which he acts, pro-
vided the enforcement of that law will not conduce to injustice nor affect the
interests of the forum. But if to hold a wrongdoer liable in double or treble
damages to the party injured is not punishment to the former, it is certainly
more than justice to the latter. Justice to him is satisfied by compensatory
damages. Hence the forum, in endeavoring to mete out exact justice to the
parties by enforcing a foreign law rather than its own, will find itself, undei
this view, rendering to the injured party more than justice requires, and at
the expense of the other litigant. He has a right to demand this under the
municipal law, not because justice, but because the positive law, requires or
permits it. But where he seeks to enforce his claim in another State, what
right has he to ask this of the forum whose policy may be entirely different ?
24 FOURTH EXCEPTION — PENAL LAWS. § 10
the purpose is to inflict punishment upon him, not merely to
save the injured party harmless. The purpose of the law is, by
means of the penalty, to deter the wrongdoer from perpetrating
the wrong, and this is the object of all punishment. So far as
private international law is concerned, it matters not whether
that punishment is inflicted through the instrumentality of an
ordinary prosecution by the state's officers for a fine, or through
the medium of a civil action by the party injured for penal dam-
ages. In substance it is an act of punishment; it is punitive in
either case. On the other hand, the right given the injured
party to recover single damages of the wrongdoer is not by way
of punishment to the latter, but merely by way of reimburse-
ment or compensation to the former. It is strictly remedial.*
Under either view, all laws punishing crime in the strict
sense of the word, or imposing disabilities as the consequence
thereof, are penal, and will be given no exterritorial effect.
Hence disqualifications to testify by reason of conviction of
felony will not follow the convict into another State.*
So it is, according to the weight of authority, with regard
to the disability, imposed by the law of many States upon the
* McAllister v. Smith, 17 111. 328, 65 Am. Dec. 651 ; Le Forest v. Tolman,
117 Mass. 109 ; Scoville v. Caufield, 14 Johns. (N. Y.) 388; Dale v. R. R.
Co., 57 Kan. 601, 47 Pac. 521, 523 ; Adams v. R. R. Co., 67 Vt. 76, 30 Atl.
6gZ^In Dale v. R. R, Co., suit was brought in Kansas for death occurring ia
New Mexico by wrongful act. The statute of New Mexico, under which the
action was brought, provided that in case of death resulting from the negli-
gence of the servants of a railroad company, the corporation should "forfeit
and pay for every person so dying the sum of $5,000," to be recovered by the
husband, wife, or child. This statute, though remedial from the standpoint
of the municipal law of New Mexico, was held by the Kansas court to be
penal from the standpoint of private international law, because the amount of
damages recoverable was absolute. So, in Adams v. R. R. Co., where death
was caused in Massachusetts, whose statute provided for a recovery not ex-
ceeding $5,000 nor less than $500, to be assessed with reference to the degree
of culpability of the company, it was held that the statute was penal, and not
enforceable in Vermont. Both of these cases were decided after Huntington
V. Attrill.
6 Huntington v. Attrill, 146 XT. S. 657, 673 ; Com. v. Green, 17 Maas.
515, 539 ; Sims v. Sims, 75 N. Y. 466; St. Sure v. Lindsfelt, 82 Wis. 346, 18
L. R. A. 515, 519. With respect to the situs of crimes, see post, § 204.
§ 10 FOURTH EXCEPTION — PENAL LAWS. 25
guilty party to a divorce suit, to marry again during the life ol
the consort. Such a disability is generally regarded as penal in
its nature, and will uot invalidate a marriage celebrated else-
where, even where the marriage takes place in evasion of the
law of the prohibiting State, and the parties immediately return
thither.'
At one time it was thought that statutes giving the right to
recover for the death of a person by wrongful act were penal,
and not enforceable in other States;' but this view has long
since been rightly overruled, and it is now universally held that
such stat#tes are remedial, conferring a special remedy and
therefore enforceable abroad.*
So, also, difficulty has been found in the past in determining
the nature of statutes existing in some jurisdictions, which im-
pose liabilities upon stockholders, officers, and directors of cor-
porations, unknown to the common law, with respect to the
creditors of the corporation. Such are statutes making the
stockholders liable to creditors of the corporation for an amount
equal to the amount of their stock ; statutes providing that,
upon the return of an execution against a corporation unsat-
isfied, execution may at once issue against any stockholder, or
that the stockholders may be charged by action with the amount
of the judgment ; statutes authorizing suits to be brought
against stockholders of corporations dissolved; statutes making
« Huntington r. Attrill, 146 U. S. 651, 673 ; Dickson v. Dickson, 1 Yerg.
(Tenn.) 110, 24 Am. Dec. 444; Com. v. Lane, 113 Mass. 458, 470, 18 Am.
Rep. 509 ; Putnam v. Putnam, 8 Pick. (Mass.) 433 ; West Cambridge v. Lex-
ington, 1 Pick. (Mass.) 506, 510, 11 Am. Dec. 231 ; Van Voorhis r. Brint-
nall, 86 N. Y. 18, 28, 36, 40 Am. Rep. 505 ; Succession of Hernandez, 46 La
Ann. 962, 24 L. R. A. 831, 842, note. But see Pennegar v. State, 87 Tenn.
244, 10 S. W. 305, 2 L. R. A. 703. See post, § 74.
7 Richardson w. R. R. Co., 98 Mass. 85, 89 ; Burns ». R. R. Co., 113 Ind.
169, 15 N. E. 230, 231.
8 Stewart v. R. R. Co., 168 U. S. 445 ; Texas, etc. R. R. Co. v. Cox,
145 U. S. 593 ; Dennick v. R. R. Co., 103 U. S. 11 ; Higgins v. R. R. Co.,
155 Mass. 176, 29 N. E. 534 ; Wooden v. R. R. Co., 126 N. Y. 10 : Leonard
». Nav. Co., 84 N, Y. 48, 38 Am. Rep. 491 ; Usher v. R. R. Co., 126 Penn.
St. 207, 17 Atl. 597 ; Bruce v. R. R. Co., 83 Ky. 174 ; Morris v. R. R. Co.,
65 la. 727, 54 Am. R^p. 39 ; Nelson v. R. R. Co., 88 Ya. 971, 14 S- R. 838.
See post, §§ 200 et seq.
26 FOURTH EXCEPTION — PENAL LAWS. § 10
the oflScers of a corporation who sign and record false certificates
of the amount of its capital stock liable for all its debts, etc.
Here too it was at one time thought that such statutes were
penal and for this reason not enforceable in other States.' But
it is now settled that such statutes are not penal. Their pur-
pose is not to punish, but to give creditors additional security
for their debts. ^° Such liabilities are quasi-contractual, the situs
of which is the situs of the corporation, not of the corporators,
and if precise and definite in character, and no special remedy
to enforce them is provided by the law creating them, they may
be enforced in other States. The general rule has been thus
accurately laid down by the California court : " *' Where a
sta^te creates "a right and prescribes a remedy for its enforce-
ment, that remedy is exclusive. Where a liability is created
which is not penal, andTno remedy is prescribfrl^ thn liability
may be enforced whereverthe person isfound. The procedure
however will be entirely governed by the law of the forumTTi
the "law'creafing the liability~~pfovi3e8ior"arparticular mode
of enforcing it, the mode limits the liability. If it be a con-
tract, the parties contracted with the understanding that they
can be held liable in no other way. And such liability cannot
be enforced in another State. Here a special remedy is pro-
vided, and not only so, but plainly it was intended that it
should be the only remedy."
The main question in these cases is not whether there exists
a liability in other States than the one enacting the statute, foi
it seems to be universally conceded that the liability does exist
even in States which refuse to enforce it,^* but whether there is
• Kritzer v. Woodson, 19 Mo. 329; Ochiltree r. Contracting Co., 54 Ma
113.
10 Huntington v. Attrill, 146 IT. S. 657, 666, 676 ; Stewart v. R. R. Co.,
168 U. S. 445 ; Russell v. R. R, Co., 113 Cal. 258, 45 Pac. 323 ; Guerney v.
Moore, 131 Mo. 650, 32 8. W. 1132 ; Marshall v. Sherman, 148 N. Y. 9, 10, 29,
42 N. E. 419 ; First Nat. Bank v. Dillingham, 147 N. Y. 603 ; Hancock Nat
Bank v. Ellis, 166 Mass. 414 ; Post v. R. R. Co., 144 Mass. 341, 345. But
see Coffing v. Dodge, 167 Mass. 231, 45 N. E. 928.
" Russell V. Pac. R. R. Co., 113 Cal. 258, 45 Pac. 323, 324. See alw
Marshall v. Sherman, 148 N. Y. 9, 29.
^ Post V. K. R. Co., 144 Mass. 341, 344, 345.
f 10 FOURTH EXCETPTION — PENAL LAWS. 27
in the State of the forum the machinery proper and necessary to
enforce the peculiar liability, so that care may be taken to see
that no injustice be done."
It is obvious that if a special and peculiar remedy is given
by the law of the State creating the liability, no other State
will in general possess the machinery adequate to enforce it,
and its courts would have no authority to enforce it by other
means." If the statute creating the liability leaves the remedy
to be determined by the application of general principles of
jurisprudence, then its «nforcement in a foreign State must
depend upon whether such State, through its courts, possesses
adequate machinery to enforce it, without danger of injustice.
Hence a liability arising upon the same statute may be enforced
in one State when it will not be enforced in another.*^ Even
in the same State the machinery may be adequate for the
enforcement of certain rights in connection with the liability,
while not adequate for other purposes. In that event, since the
existence of the liability is recognized everywhere, such redress
as the courts of the forum may properly grant will be afforded.
Hence in Massachusetts, whose courts refuse to directly enforce
a quasi-contractual liability of this kind, it was nevertheless
held that if the relief sought was merely a discovery in equity,
by the officers of the corporation, of the stockholders and the
number of shares held by each, the relief should be granted,
although the purpose of the discovery was to enforce by suit in
another State a personal liability imposed upon the stockholders
by the laws of another State.^'
18 Post V. R. R. Co., 144 Mass. 341 ; Bank v. Rindge, 154 Mass. 203. See
Bank v. Rindge, 57 Fed. 279 ; Guerney v. Moore, 131 Mo. 650, 32 S. W. 1132.
" See Russell v. Pac. R. R. Co., 113 Cal. 258, 45 Pac. 323 : Marshall v.
Sherman, 148 N. Y. 9, 42 N. E. 419 ; Bank v. Rindge, 154 Mass. 203 ;
Stewart v. R. R. Co., 168 U. S. 445.
16 See Bank v. Rindge, 154 Mass. 208 ; Bank v. Rindge, 57 Fed. 279 [U. S.
Court for California] ; Guerney v. Moore, 131 Mo. 660, 32 S. W. 1132. These
cases all arose under the same Kansas statute, making stockholders liable to
creditors of the company for an amount equal to the amount of their stock.
In the Massachusetts case, it was held that the judicial machinery ol that
State was inadequate to ensure full justice. In the other two cases the Uik
bility was enforced.
i« Post V. R. R. Co., 144 Mass. 341.
28 FIFTH EXCEPTION — IMMOVABLES. § 11
§ 11. Fifth Exception — Transactions relating to Immov-
able Property. — It is generally admitted that transactions
relating to lands or immovable property of any kind are to be
governed by the law of the place where the property is situated
(lex loci rei sitae or lex situs). ^
Although this principle is generally recognized, the reason for
the doctrine has not always been kept clearly in view. In truth
it simply constitutes one branch of the first exception, already
discussed, and what is known as the lex situs is, in the last
analysis, nothing more than the lex fori. Since immovable
property is fixed forever in the State where it lies, and since no
other State can have any jurisdiction over it, it follows nec-
essarily that no right, title, or interest can be finally acquired
therein, unless assented to by the courts of that State, in accord-
ance with its laws. The courts of no other State can finally
pass upon such questions, so as to give or take away from any
litigant a claim to the property. On the other hand, the courts
of the situs of the land will be peculiarly rigid in their require-
ment that the law of the situs be complied with in regard to
the transfer of the title to that class of property. The policies
of each State in connection with the transfer of land within
its limits are justly ranked amongst the most important of
all its policies, no outside interference with which will be
tolerated. Every effort is made by each State to have its laws
touching the devolution, transfer, and charge of lands within
its borders as definite and certain as possible. Particular for-
malities are required which are not required in other matters.
And it is of the utmost importance that the legal records of
such transactions, constituting chains of title to land, should be
kept free from blemish, irregularity, or confusion with the
requirements of other States.
Hence it becomes peculiarly a part of the policy of every
State that no transactions relating to the transfer of any interest
in or title to immovable property situated there shall be upheld,
1 United States v. Crosby, 7 Cr. 115 ; Clark v. Graham, 6 Wheat. 577 ;
Kerr v. Moon, 9 "Wheat. 565 ; McCormick v SiiUivant, 10 Wheat. 192 ;
Darby v. Mayer, 10 Wheat. 465 ; Ross v. Ross, 129 Mass. 243, 245, 37 Am.
Rep. 321; and other cases cited in note 5, infra
§11 FIFTH EXCEPTION — IMMOVABLES. 29
if violative of its own law, whether valid by the laws of foreign
States or not. These considerations are amply sufficient to
induce the courts of the situs of land (when the situs is the
forum) to prefer their own laws upon this subject to those of
any ether State.''
Nor will the courts of other States attempt to enforce their
own laws with respect to land situated elsewhere, not only
because of the spirit of comity and their unwillingness to en-
gage in conduct towards other States, which they would not tol-
erate in other States towards themselves, but also, and perhaps
chiefly, because of their utter inability to render any judgment or
decree that would be final and effectual to transfer any interest
in the land.* Instead, therefore, of rendering idle judgments in
accordance with their own law, the courts, in dealing with the
title to foreign real estate, will seek to determine the rules
laid down by the lex situs of the land, and will decide in ac-
cordance with that law, for to it the parties must finally appeal
in any event.*
Thus it comes to be a well settled principle of private inter-
national law, fortified by a great mass of authority, that all
questions relating to the transfer of title to immovable prop-
erty, wherever arising, will be governed by the lex situs, the
law of the ultimate forum in which all such questions must
finally be decided.*
« See Williams v. Saunders, 5 Coldw. (Tenn.) 60, 76 ; Sneed v. Ewing,
5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 56.
« See Dicey, Confl. L. 38-40 ; Rodgers v. Rodgers, 56 Kan. 483, 48 Pac.
779, 781. See Guillander v. Howell, 35 N. Y. 657, 660.
* See Hawley v. James, 7 Pai.Ch. (N. Y.) 213, 32 Am. Dec. 623.
5 Watkins v. Holman, 16 Pet. 26; Ross v. Ross, 129 Mass. 243, 245, 37
Am. Rep. 321 ; Williams i'. Saunders, 5 Coldw. (Tenn. ) 60, 70 ; Wick v. Daw-
son, 42 W. Va. 43, 24 S. E. 587; Swank i;. Hufnagle, 111 Ind. 453, 12 N. E.
303 ; Otis v. Gregory, 111 Ind. 504, 13 K E. 39 ; Carpenter v. Bell, 96 Tenn.
294, 34 S. W. 209 ; Knox v. Jones, 47 N. Y. 389, 395 ; Rice v. Harbeson, 63
N. Y. 493, 502 ; Staigg v. Atkinson, 144 Mass. 564, 569 ; Chipman v. Pea-
body, 159 Mass. 420, 34 N. E. 563 ; Poison v. Stewart, 167 Mass. 211, 45 N. E.
737; Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974, 977; Keith v.
Keith, 97 Mo. 224, 10 S. W. 597; Lamar v. Scott, 3 Strob. L. (S. C.) 562 ;
Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324 ; Heine v. Ins. Co.,
45 La. Ann. 770, 13 So. 1; Bronson v. Lumber Co., 44 Minn. 348, 46 N. W.
30 FIFTH EXCEPTION — IMMOVABLES. § 11
Not only does the lex situs control transfers of land to the
extent of invalidating such transfers of title as are not in ac-
cordance with the lex situs, though valid where entered into,
but the converse is also true. If valid by the lex situs, the
transaction may be upheld, though invalid where entered into.'
A qualification of the rule however must be observed, where
the question relates not to the transfer itself, but to some col-
lateral incident of the transfer. Thus, while in case of a mort-
gage of land or an assignment thereof for the benefit of creditors
the lex situs will still govern to the extent that such transfer
constitutes a muniment of title as between the parties, it does
not follow that an instrument sufl&cient for this purpose under
the lex situs, but which transfers a title voidable by creditors,
will in the latter respect also be governed by the lex situs.
Such matters do not constitute any part of the muniment of
title, and are merely matters of local policy. Such, for instance,
are laws of the situs avoiding, at the instance of creditors
thereby defrauded, assignments which prefer creditors, or to
which is not appended an inventory of the property assigned,
or to which bonds by the trustees for the due performance of
their duties are not attached. These requirements, and others
of the same kind, are for the benefit of creditors. As between
the parties, the assignment, if in conformity to the lex situs,
is valid, and if no creditors complain, will be sustained. It is
manifest that requirements like those above mentioned do not
constitute part of the title, but are intended for the collateral
purpose of securing creditors. They are mere matters of policy,
and may or may not be intended by the legislature to protect
foreign as well as domestic creditors, their effect depending upon
the interpretation placed upon the policy by the courts of the
situs and forum.
570 ; Ford ». Ford, 70 Wis. 19, 33 N. W. 188, 194 ; Frazier v. Boggs, 37 Fla.
307, 20 So. 245 ; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781; Glenn
V. Thistle, 23 Miss. 42, 49 ; Penfield v. Tower, 1 N. D. 216, 46 N. W. 413 ;
Post V. Bank, 138 IlL 559, 28 N. E. 978 ; Wood v. Wheeler, 111 N. C. 231,
16 S. E. 418.
« Succession of Cassidy, 40 La. Ann. 827, 5 So. 292 ; Post v. Bank, 138
IlL 559, 28 N. E. 978 ; Chipman r. Peabody, 159 Mass. 420, 34 N. £. 563.
§ 11 FIFTH EXCEPTION — IMMOVABLES. 31
In suits by domestic creditors the law of the situs will un-
doubtedly prevail, not because it is the lex situs however, but
because it is the lex fori, being an instance of the second excep-
tion.' But if the creditors who institute the suit are not citi-
zens, unless the requirements of the lex situs are intended to
secure all creditors, the law of the place where the assignment
is made (lex loci contractus) will control in these particulars,
even though the subject be real estate located elsewhere.'
So also with respect to mortgages of land, though the mort-
gage itself must be such as will constitute a transfer of title
under the lex situs, the question as to whether the debt secured
thereby (if contracted in another State) is a valid consideration
to support the mortgage (for instance, whether it is usurious) is
to be determined by the law which properly governs the validity
of the debt.'
The same may also be said of contracts to convey land situ-
ated elsewhere. So far as they constitute links in the chain of
title (passing the equitable title thereto), they are to be gov-
erned by the lex situs of the land. But if the vendee waives
his right to a conveyance, or has none, and looks upon it in the
7 Ante, § 8 ; May v. Bank, 122 111. 551, 13 N. E. 806 ; Williams v. Dry
Goods Co., 4 Okl. 145, 43 Pac. 1148, 1149; Long v. Girdwood, 150 Penn. St.
413, 23 L. R. A. 33, note.
8 May V. Bank, 122 111. 551, 13 N. E. 806 ; Juillard v. May, 130 111. 87,
22 N. E. 477; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Longw.
Girdwood, 150 Penn. St. 413, 23 L. R. A. 33, note, 24 Atl. 711 ; Thurston v.
Rosenfield, 42 Mo. 474 ; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345. But
see Moore v. Church, 70 la. 208, 59 Am. Rep. 439. It is otherwise if the
policy of the State is violated by the assignment. Bank v. Stellings, 31 S. C.
360, 9 S. E. 1028. In respect to this point, there is no difference in principle
between assignments of land and of personalty. See post, §§ 133-135. In
case of involuntary as.signments of land under foreign insolvent or bankrupt
laws, such assignments being given no exterritorial force in the United States,
the lex fori (or lex situs) will govern, at least as to creditors domiciled in
other States than that where such assignment occurs. See Townsend v. Coxe,
151 111. 62, 37 N. E. 689 ; Moore v. Land, etc. Co., 82 Md. 288, 33 Atl. 641 ;
Hervey v. Edens, 66 Tex. 420, 6 S. W. 306 ; post, § 138.
9 Fessenden v. Taft, 65 N. H. 39, 17 Atl. 713, 714; Klinck v. Price, 4 W.
Va. 4, 6 Am. Rep. 268. See Bowles v. Field, 78 Fed. 742. But see Chap-
man V. Robertson, 6 Pai. Oh. (N. Y.) 627, 31 Am. Dec. 264.
32 LAND — TRANSPEJJS AND LIENS § 12
light of a mere personal contract, suing for damages for the
breach thereof, it will be governed by the law properly appli-
cable to an ordinary executory contract.^*^ Whether the latter
principle will apply in case of a suit by the vendee for the
specific execution of a deed to the land, instead of a suit for
aamages, may be doubtful. It is believed however that it will,
at least in cases wheie a proper deed can be made, in conformity
to the lex situs of the land.^^ The courts of the situs would
recognize and enforce a contract of this character, even though
not in conformity to the lex situs, if it conforms to the proper
law. If they did not, there would be nothing to prevent the
courts of other States from compelling the vendor to make a
suitable deed, in accordance with the lex situs, which the courts
of the situs would be bound to recognize.^*
§ 12. Same — Application of Lex Situs to Transfers of
Land, and Liens thereon. — Subject to the qualifications men-
tioned in the preceding section, the lex situs regulates all
transfers of land, in every point which constitutes part of the
conveyance.
Thus, the capacity to devise lands, or to be a devisee thereof,
or to transfer them inter vivos by conveyance or mortgage, will
be controlled by the lex situs of the realty.* So also the forms
» See Glenn v. Thistle, 23 Miss. 42.
^^ The kind of conveyance which is to be made in pursuance of the contract
of sale is to be determined by the lex situs of the land, that being the place
of performance of the contract. See Carnegie v. Morrison, 2 Met. (Mass.)
381, 398.
^* This is the conclusion of a majority of the court in Poison v. Stewart,
167 Mass. 211, 45 N. E. 737. That ca.se however was a suit for the specific
performance of a covenant by a husband made in North Carolina to release
and extinguish his marital rights in the wife's land in Massachusetts. The
covenant did not purport to pass any title. But the principle would seem to
be the same.
1 Carpenter v. Bell, 96 Tenn. 294, 34 S. "W. 209 ; Williams v. Saunders,
5 Coldw. (Tenn.) 60, 72; Frazier v. Boggs, 37 Fla. 307, 20 So. 245 ; Ford v.
Ford, 70 Wis. 19, 33 N. W. 188 ; Cochran v. Benton, 126 Ind. 58, 25 N. E.
870; Otis v. Gregory, 111 Ind. 504, 13 N. E. 39; Bethell v. Bethell, 54 Ind.
428, 23 Am. Rep, 660, 652 ; Poison v. Stewart, 167 Mass. 211, 218, 45 N. E.
737; Boehme v. Rail, 51 N. J. Eq. 574, 26 Atl. 832; White t; Howard, 38
Conn. 342.
§ 12 LAND — TRANSFERS AND LIENS. 93
aud solemnities required by the lex situs for valid conyeyances
or devises of land, or for powers of attorney to convey the same,
must be followed. Compliance with the law of the party's dom-
icil or of the place where the instrument is executed will not
suffice.^
The same principle applies in the determination of the validity
and effect of the substantial provisions of the conveyance, mort-
gage, or devise. The lex situs of the land governs.'
So it is also in respect to the devolution of land by descent.
No one is heir to a deceased owner of land, unless he belongs
to the class designated as such by the lex situs of the land.*
And the same law will control the shares each heir shall inherit,
as whether they shall take per capita or per stirpes.^ If the
rules of primogeniture or of representation prevail in the State
where the land is situated, they will furnish the guide, what-
ever may be the law of descent in the domicil of the deceased
owner. As was said in a leading case: ® " If a man domiciled
in England has two legitimate sons there and dies intestate,
owning land in Massachusetts, both sons have the status of
2 Kerr i;. Moon, 9 Wheat. 565 ; Clark v. Graham, 6 Wheat. 577; Williams
V. Saunders, 5 Coldw. (Tenn.) 60, 72 ; Otis v. Gregory, 111 Ind. 504, 13 N. E.
39 ; Bethell v. Bethell, 54 Ind. 428, 23 Am. Rep. 650, 652 ; Ross v. Ross, 129
Mass. 243, 245, 37 Am. Rep. 321 ; Ford v. Ford, 70 Wis. 19, 33 N. W. 188,
194 ; Succession of Larendon, 39 La. An. 952, 3 So. 219, 220.
8 McGoon V. Scales, 9 Wall. 23 ; Ross v. Ross, 129 Mass. 243, 245, 37 Am.
Rep. 321 ; Williams v. Saunders, 5 Coldw. (Tenn.) 60, 72, 75 ; Hawley v.
James, 7 Pai. Ch. (N. Y.) 213, 32 Am. Dec. 623; Frazier v. Boggs, 37 Fla.
307, 20 So. 245 ; Bethell v. Bethell, 54 Ind. 428, 23 Am. Rep. 650, 652 ;
Bronson v. Lumber Co., 44 Minn. 348, 46 N. W. 570, 571 ; Penfield v. Tower,
1 N. D. 216, 46 N. W. 413 ; Succession of Cassidy, 40 La. Ann. 827, 5 So.
292, 295.
* Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 895 ; Williams v.
Saunders, 5 Coldw, (Tenn.) 60, 75 ; McGoon v. Scales, 9 Wall. 23 ; Miller v.
Miller, 91 N. Y. 315 ; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A.
207; Warren v. Prescott, 84 Me. 483, 17 L. R. A. 435, note ; Ross v. Roas,
129 Mass. 243, 37 Am. Rep. 321 ; Smith v. Derr, 34 Penn. St. 126, 75 Am.
Dec. 641 ; Birtwhistle v. Vardill, 5 B. & C. 438, 7 CI. & F. 895.
5 Story, Confl. L. § 481 a.
» Ross V. Ross, 129 Mass. 243, 247, 37 Am. Rep. 321. See also Story,
Confl. L. § 481 a.
3
34 LAND — TRANSFERS AND LIENS. § 12
legitimate children here, but by virtue of our statute of de«
scents the land descends to them equally, and not to the
eldest son alone, as by the law of England."
But though it is well settled that the lex situs shall deter-
mine who shall inherit lauds, it has not always been found easy
to interpret that law. For example, should that law provide
that an intestate's land shall go to his "children," a question
may be, and has been, raised whether that term will include
bastard children, subsequently legitimated by a proper foreign
law.'
In such case, if the lex situs of the land also admits of sub-
sequent legitimation, though by a different method, there can be
little doubt that such a child will be included in the class desig-
nated by the lex situs as ''children."' It is in cases where
the policy of the situs altogether prohibits such legislation that
most difficulty arises. The famous English case of Birtwhistle
V. Vardill ' was of this character. The question there was
whether a bastard son of Scotch parents, afterwards legiti-
mated by the marriage of the parents (which by the law of Scot-
land had that effect), could inherit lands in England as heir.
The Court of King's Bench held that he could not, though ad-
mitting that he must be considered in England as legitimate.
This decision, after elaborate argument, was affirmed in the
House of Lords. The decision was based upon the strict letter
of the English statute of Merton, and the history of its pas-
sage." That statute was construed to mean that, in order to
inherit, the claimant must not only be a legitimate child (which
was admitted to be the fact in this case), but must also have
been born in wedlock.
"^ The *• proper law " governing the status of a bastard subsequently legiti-
mated will be examined hereafter. Post, §§ 97 et seq.
8 Ross V. Ross, 129 Mass. 243, 37 Am. Rep. 321 ; Gray v. Holmes, 57 Kan.
217, 45 Pac. 596, 33 L. R. A. 207.
9 5 B. & C. 438. Afterwards affirmed in the House of Lords, 7 CI. & F. 895.
lo The statute of Merton was passed by the English nobility in Parliament
in response to a demand of the clergy that the Roman law of legitimation per
subseqtcens matrimonium be adopted in England. The assembled barons curtly
and emphatically declined through the statute of Merton. See Ross r. Ross,
129 Mass. 243, 252, 37 Am. Rep. 321.
§ 12 LAND — TRANSFERS AND LIENS. 85
But the basis of the English decision is purely technical,
being founded on the statute of Merton alone, and the modern
tendency in the United States — at least in States where that
statute is held not to be in force — seems to be in favor of per-
mitting the subsequently legitimated bastard to inherit, pro-
vided his status of legitimacy has been fixed by the proper
law.^^ Thus in a New York case,^'' an action of ejectment was
brought there by the plaintiff, who was born a bastard. The
parents subsequently intermarried in the State of their domicil,
the effect of which, by the domiciliary law, was to legitimate
the infant. The law of New York did not permit such an effect
to a subsequent marriage. The plaintiff claimed the New York
land as heir to his father, under a statute of that State pro-
viding that the land should pass to " the lineal descendants " of
the decedent. It was also provided by the laws of New York
that ** children and relatives who are illegitimate shall not be
entitled to inherit." It was held that the plaintiff, being legiti-
mate by **the proper law," must be so considered in New York,
and accordingly he recovered the land.
The same doctrine is applicable, in America at least, to chil-
dren legally adopted in accordance with the proper law, where
that law gives them the same status and puts them on the same
footing as the real children of the adopting parent. They will
in general be entitled to inherit land from the adopting parent
u Miller v. Miller, 91 N. Y. 315 ; Scott v. Key, 11 La. Ann. 232 ; "Wood-
ward V. Woodward, 87 Tenn. 644, 11 S. W. 892, 895 ; Ross v. Ross, 129 Mass.
243, 256, 37 Am. Rep. 321. Smith v. Kelly, 23 Miss. 167, 55 Am. Dec. 87,
was a case in which the child was not legitimated by the " proper law." See
post, §§ 97 et seq. Even in England the mle is believed to be otherwise with
respect to the succession of personal property, the statute of Merton not
being applicable. See Wright's Trusts, 2 K. & J. 595, 25 L. J. (Ch. ) 621 ;
Goodman v. Goodman, 3 Giff. 643; Goodman's Trusts, 17 Ch. Div. 266;
Skottowe V. Young, L. R. 11 Eq. 474 ; Ross v. Ross, 129 Mass. 243, 256,
37 Am. Rep. 321. Some of the American courts however have followed,
with respect to lands, the decision in Birtwhistle v. Vardill, holding that the
statute of Merton is in force in their States. Smith v. Derr, 34 Penu. St. 126,
75 Am. Dec. 641 ; Williams », Kimball, 35 Fla. 49, 16 So. 783. See Bamum
V. Bamum, 42 Md. 252 ; Keegan v. Geraghty, 101 111. 26 ; Smith ». Kelly
23 Miss. 167, 55 Am. Dec. 87.
" Miller v. Miller, 91 N. Y. 315.
36 LAND — TRANSFERS AND LIENS. § 12
in other States, as if they were in reality lineal descendants of
the adopter.^'
The provisions of a deed of conveyance of land will be in
general governed by the lex situs of the land, not only with
respect to their validity and effect, as has been already shown,
but also with respect to the interpretation to be given am-
biguous legal phrases used therein, such as ''heirs; " " chil-
drcM " (as whether including illegitimate or legitimate children) ;
"brothers " (as whether or not including those of the half-blood) ;
whether or not a provision for a wife is to be deemed intended
in lieu of her dower ; whether a limitation to one for life, with
remainder to his heirs, vests an inheritance in the ancestor, etc.
Where the legal effect of such provisions in a deed varies in
different States the lex situs of the land (not the lex loci con-
tractus), it is believed, will control; for in the construction of
a deed to land, legal terms are given their strict legal inter-
pretation, in the absence of plain evidence of a contrary intent.
They constitute, as it were, rules of property, muniments of
title. ^* It may be doubted, however, whether the same rule
will necessarily control the interpretation of ambiguous phrases
in a deed, when the phrases in question have no particular legal
signification in connection with transfers of land. In regard
to such matters the actual, not the legal, meaning of the
grantor's words will be sought, in accordance with the prin-
18 Ross V. Ross, 129 Mass. 243, 37 Am. Rep. 321 ; Melvin v. Martin, 18
R. I. 650, 30 Atl. 467 ; Gray v. Holmes, 57 Kan.217, 45 Pac. 596, 33 L.R. A.
207; Keegan v. Geraghty, 101 111. 26 ; Van Matre v. Sankey, 148 111. 356,
36 N. E. 628. It would seem to be otherwise where the recognition of the
foreign status might result in injustice to third persons, citizens of the forum,
as where the adopted child claims to inherit, because of the adoption, from
collateral kindred of the adopting parent, unless the statutes of the situs
provide for such a case. Keegan v. Geraghty, 101 111. 26 ; Van Matre v.
Sankey, 148 111. 356, 36 N. E. 628. See Lorlng v. Thomdike, 5 Allen
(Mass.), 257.
1* Van Matre v. Sankey, 148 111. 356, 36 N. E. 628 ; McCartney v. Osburn,
118 111. 403, 9 N. E. 210 ; Brown v. Bank, 44 Ohio St. 269, 6 N. E. 648 ;
Staigg V. Atkinson, 144 Mass. 564, 12 N. K 354 ; Jennings v. Jennings,
21 Ohio St. 56 ; Richardson v. De Giverville, 107 Mo. 422 ; 17 S. W. 974,
977 ; Baxter v. Willey, 9 Vt. 276, 31 Am. Dec. 628.
§ 12 LAND — TRANSFERS AND LIENS. 87
ciples whereby is determined the law governing the interpreta-
tion of ordinary contracts, hereafter to be noted. ^^
But in the case of a devise, the courts are more proae to
abide by the actual (as opposed to the legal or constructive)
intent of the testator, in matters depending merely upon his
will. The law which he most probably had in mind when he
used the words (generally the lex domicilii of the testator), it
is believed, will determine the testator's meaning.^'
Whether a valid trust in lands is created by the provisions of
a deed or will, whether or not a trust results by implication of
law, whether or not a conveyance absolute on its face shall be
deemed a mortgage, and other questions of this character, are
to be governed by the lex situs."
Another point that should be observed in this connection
arises in regard to the effect to be given to covenants contained
in a deed conveying lands, where the deed is executed and the
grantor resides in one State, and the land is situated in another.
In the solutioja of this question, it must first be observedthat
although a covenant is contained in a de^d of ftonvpyanfift it ib
ifgpjf^iTi goTioril nTily nTi (wmi'iiilM y tntxitrai^t^,^ f^nd for mOSt pUT-
poseg-it is to be governed by the low oontrolling executory con--
tracts. But if it be a covenant running with the land, especially
if it be a covenant of title, it is the better opinion that the
effect of it must be determined by the lex situs in all cases
where its breach imposes a liability or confers a right upon the
party holding the title to the land. A covenant of title follows
the title and should therefore be governed by the same law,
though the liability be sought to be imposed elsewhere."
" Post, § 186. See Mullen v. Reed, 64 Conn. 240, 29 Atl. 478.
" Post, § 145 ; Story, C!onfl. L. §§ 479 h, 479 m. There is authority
however in favor of the lex situs of the land in such cases. See Van Matre
j;. Sankey, 148 111. 356, 36 N. E. 628 ; McCartney v. Osbum, 118 111. 403,
9 N. E. 210. But see Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354.
17 Hawley v. James, 7 Pai. Ch. (N. Y.) 213, 32 Am. Dec. 623 ; Penfield
V. Tower, 1 N. D. 216, 46 N. W. 413 ; Baxter v. Willey, 9 Vt. 276, 31 Am.
Dec. 623 ; Depas v. Mayo, 11 Mo. 314, 49 Am. Dec. 88.
18 Post, § 185; Dickinson r. Hoomes, 8 Gratt. (Va.) 353, 410 ; Succession
of Cassidy, 40 La. Ann. 827, 5 So. 292 ; Bethell v. Bethell, 54 Ind. 428, 23 Am.
Rep. 650. But see Brown v. Bank, 44 Ohio St. 269, 6 N. E. 648, which ap-
pears not to have been very carefully considered.
38 WHAT ARE IMMOVABLES. § 13
So, according to the better opinion, the right of a creditor to
charge in equity a married woman's equitable separate estate in
lands (apart from charging her personally) is to be determined
by the lex situs of the land, regardless of the locality of the
debt. Such a claim on the part of the creditor is practically
the assertion of a lien, created as to the wife in invitam ; and
the effect of a lien upon land, as well as the capacity to create
such a lien, since it affects the title to the land, is to be gov*
erned by the lex situs."
So also the marital rights of the husband or wife in the lands
of the consort, such as dower or curtesy under the common law
system, community rights under the civil law, or other rights
of a similar nature created by the statutes of particular states,
will be regulated by the lex situs of the land in question, and
not by the law of the parties' domicil, nor by that of the place
where the marriage was contracted.** And the effect of a divorce
of the parties upon their marital rights in the lands of the con-
sort will be governed by the same law, regardless of the law of
the place of divorce, '^^ although the validity of the divorce itpelf
will be determined upon entirely different principles. '^
§ 13. Meaning of " Immovable Property " in Private Inter-
national La'w. — In the previous sections the term "immovable
property" has been used as synonymous with "real property,"
and for the most part they may be used interchangeably. In-
w Bank v. Williams, 46 Miss. 618, 12 Am. Rep. 319; Wicks v. Dawson,
42 W. Va. 43, 24 S. E. 587; La Selle v. Woolery, 14 Wash. 70, 44 Pac. 115,
32 L. R. A. 75 ; Johnston v. (Jawtry, 11 Mo. App. 322 ; Cochran v. Benton,
126 Ind. 58, 25 N. E. 870; Swank v. Hufnagle, 111 Ind. 453, 12 N. E. 303.
But see Story, Confl. L. §§ 266, 267, 268 ; Spearman v. Ward, 114 Penn. St.
634, 8 Atl. 430. These authorities regard the charge upon the land as a part
of the married woman's obligation, and governed by the lex solutionis of her
contract.
20 Lamar v. Scott, 3 Strob. L. (S. C. ) 562 ; Staigg v. Atkinson, 144 Mass.
564, 12 N. E. 354 ; Kneeland v. Ensley, Meigs (Tenn.), 620, 33 Am. Dec. 168;
Richardson v. DeGiverville, 107 Mo. 422, 17 S. W. 974, 977.
»i Barber v. Root, 10 Mass. 260 ; Ross v. Ross, 129 Mass. 243, 248, 37 Am.
Rep. 321; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; McGill
V. Doming, 44 Ohio St. 645, 11 N. E. 118, 123 ; HUbiih «. Hattel, 145 InA
69, 33 L. R. A. 783, 787.
32 See post, S§ 89 et seq.
§13 WHAT ABE IMMOVABLES. 39
deed it may be postulated that all such property as at oommon
law was real estate is to be classed as immovable property.^
But the reverse of this is not always true. It is the quality of
immovability which international law looks to. Thus, terms for
years or leasehold estates constitute immovable property, and
yet at common law they are to be deemed personalty. From
the standpoint of international law, these interests, according
to the better opinion, are to be classed as immovables, to be
regulated by the lex situs of the land.* On the other hand,
property may be movable (following the owner), though con-
sidered in the State where it is situated as real property for
some purposes.'
In any event, it is universally admitted that each State may
impress upon all property within its limits whatsoever character
it sees fit, and that character will attach to it everywhere, as
long as the property remains within that jurisdiction. The lex
situs will determine what is or is not to be considered real or
immovable property so as to possess a locality of its own.* But
if personalty has impressed upon it by the law of its actual situs
the character of real estate, as was sometimes the case in South-
ern States, prior to the war, with respect to slaves, and such
property is afterwards removed to another State by whose law it
is to be regarded as persoiialty, the latter character is deemed to
have been imposed upon it from the time of the removal.*
1 Story, Confl. L. § 447.
2 Dicey, Confl. L. 72 ; Whart. Confl. L. §§ 286, 287; Sneed v. Ewing,
5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 58, 59, 60. But see Despard v.
ChurchUl, 53 N. Y. 192,
8 Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 56, 61;
McCoUum V. Smith, Meigs (Tenn.), 342, 33 Am. Dec. 147, 148. In the first
case, a testator domiciled in Indiana owned slaves and other property in Ken*
tucky. The Kentucky law declared slaves descendible to the heirs like land,
but the court held the will to be governed by Indiana law (lex domicilii).
♦ Chapman v. Robertson, 6 Pai. Ch. (N. Y. ) 627, 630, 31 Am. Dec. 264 ;
Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717, 718 ; Lamar v. Scott,
3 Strob. L. (S. C.) 562; Guillander v. HoweU, 35 N.Y. 657, 663; McCollum
r. Smith, Meigs (Tenn. ), 342, 33 Am. Dec. 147, 148 ; Kneeland v. Enslejr,
Meigs (Tenn.), 620, 33 Am. Dec. 168, 169. See Union Bank v. Hartwell,
84 Ala. 379, 4 So. 156, 157; Story, Confl. L. § 447.
' Minor v. Cardwell, 37 Mo. 350, 90 Am. Dec. 390. The rents and profits
40 WHAT AKE IMMOVABLES. § 13
If the owner of land directs his lands to be sold and con-
verted into personalty, the question whether the principle of
equitable conversion will apply so as to convert it instanter into
personalty, or whether it shall remain land, will depend upon
the lex situs of the land.® On the other hand, should a testator,
domiciled in one State, by his will direct personalty to be in-
vested in land, so that an equitable conversion into land takes
place, the essential validity of the trusts or provisions of the
will should be controlled, not by the law of the testator's domi-
cil (as if it were a will of personalty'), but by the lex situs of
the land actually purchased under the directions of the will.'
But in the latter case, the question whether in the first instance
there is an equitable conversion of the money into land must be
decided in accordance with the law of the testator's domicil, for
that is the law by which his will is to be interpreted.* Hence
also the question whether or not the testator had the legal capa-
city to make the will is to be determined by the law of his
of lands (already accrued) are personal property, and, like other personalty,
are legally situate with the owner. Cameron v. Watson, 40 Miss. 191, 208 ;
Wood V. Wood, 5 Pai. Ch. (N. Y.) 596, 605, 28 Am. Dec. 45L
« Curtis V. Hutton, 14 Ves. 537; Hawley v. James, 7 Pai. Ch. (N. Y.) 213,
32 Am. Dec. 623, 625 ; Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717,
718-19 ; Chamberlain v. Chamberlain, 43 N. Y. 424, 432^; Hope v. Brewer,
136 N. Y. 126; Hobson v. Hale, 95 N. Y. 588 ; Bible Society v. Pendleton,
7 W. Va. 79 ; Ford v. Ford, 80 Mich. 42, 44 N. W. 1057; Penfield v. Tower,
1 N. D. 216, 46 N. W. 413.
t Post, S 144,
* Ford r. Ford, 80 Mich. 42, 44 N. W. 1057; Penfield v. Tower, 1 N. D.
216, 46 N. W. 413. But see Wood v. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Am.
Dec. 451, in which it was held that a will made by a citizen of New York,
directing his personalty to be invested in Ohio lands upon trusts violating the
New York law against perpetuities, must be governed by New York law. It
might well be asked. Why ? If the provisions of the will had been carried
out, the money would have gone to the person in Ohio from whom the land
there was purchased, and the land would have been in Ohio. Of what interest
could it be to New York whether or not Ohio property was held in perpetuity !
This case seems to have been tacitly overruled by the later New York cases.
Thus, it is said in Chamberlain v. Chamberlain, 43 N. Y. 424, 434: "It is no
part of the policy of New York to interdict perpetuities or gifts in mortmaio
in Pennsylvania."
• See post, §§ 145 et seq.
§ 14 LEX 8ITUS WHEN APPLIED TO MOVABLES. 41
domicil, not the lex situs of the land into which he directs his
money to be converted. For unless the will is a valid will of
the personalty, the conversion into land cannot take place."
§ 14. Application of Lex Sitas to Transactions relating to
Movable Property. — It is a general principle of private inter-
national law that movable property, such as chattels and choses
in action, are to be considered in contemplation of law as situ-
ated with the owner, regardless of their actual locality. The
maxim "mobilia personam sequuntur" applies very generally;
so that no matter where the chattels may be actually situated,
their legal situs follows the situs of the owner himself.^
But if the movables are situated in one State and the owner
has his situs in another, transfers may be made by him, the
enforcement of which may contravene the interests or policy of
the State where the property is situated, or may work a wrong
upon its people, or may be contrary to its views of morality.
These are the very cases which constitute exceptions to the
operation of a proper law.* Hence if, under such circumstances,
it is attempted to enforce the transfer in the State where the
property is actually situated (and such questions will in general
arise there) that State becomes the forum, and the lex fori
will be substituted for the proper foreign law (the law of the
situs of the owner), in accordance with the principles already
noticed in discussing these exceptions. It therefore frequently
comes about, where there is a litigation over the transfer of
movables situated in the State where the suit is brought, that
the lex fori, not the law of the owner's situs, will control.
Furthermore, in such cases the litigation is almost always
based upon one or the other grounds of exception above men-
tioned, and if the existence of the exceptional circumstances is
10 Post, § 70.
1 The term " lex situs " when applied to movables does not generally mean
the law of the legal, but of the actual, situs of the property. For a full dis*
cussion of the situs of personalty, and the law governing transactions con-
nected therewith, see post, §§ 120 et seq. The distinction between the actual
and the legal situs of the owner will be noted hereafter. Post, §§ 18 et seq,
120 et seq.
2 Aut«, §§ 6, 7, 8, 9.
42 LKX SITUS WHEN APPLIED TO MOVABLES. § 14
established, the law of the actual situs of the personalty will
usually prevail over the law of the owner's situs (the proper
law).'
But it cannot he too carefully observed that this result is not
due to any inherent force of the lex situs of the personalty, as
such, but because it is in general also the lex fori. There is,
in the last analysis, in respect to personalty, no such thing as
the "lex situs," apart from the lex situs of the owner. It is
only where the actual situs of personalty is the forum, that
it assumes any importance in private international law.* In
those cases (so numerous as almost to obscure the general rule)
where the law of the actual situs of personalty does control, it
is because of the effect given to it as the lex fori. Hence, if
the litigation takes place in the domicil of the owner, or in any
state other than that of the actual situs of the property, the
situs and the forum are no longer identical, and the grounds for
the enforcement of the lex situs disappear.
These principles have sometimes escaped the attention of the
courts and text writers, so that the proposition is frequently
stated that **the lex situs controls the transfer of movables." '
* All this will be explained more fully hereafter. Post, §§ 120, 129, 182,
134, 135.
* For purposes of jurisdiction movables must always be considered as
situated withiu the territory where they actually are. To hold otherwise
would be to impeach the sorereignty of that State over everything within its
borders. The point maintained in the text is not that movables may not
possess an actual situs apart from the owner, but that there is no such thing
as a substantive "lex situs" in such cases, as there is in the case of real
property.
6 See Guillander v. Howell, 35 N. Y. 657. Mr. Wharton takes this posi-
tion unreservedly. Whart. Confl. L. §§ 298 et seq. In defence of this view
he says (§ 299) : *' If it is the domicil of the owner which is to decide, it
becomes a difficult and sometimes insoluble question to determine who this
owner is. An action is brought to decide as to the ownership of a chattel.
The litigants have different domicils ; and if the article in dispute is to be
subjected to the owner's domicil, the question as to who is the owner not
being yet decided, the suit has to be stopped at the outset from inability to
determine how it shall be tried." It is manifest that the case put by Mr.
Wharton is not one of substantive law, but of jurisdiction. It is not denied
that for such a purpose a chattel has a situs of its own. In no case could a
§ 15 SUBSEQUENT CHANGE OP SITUS. 48
It will do so where the situs is also the forum, provided
grounds exist (as they frequently will) for the operation of
any of the exceptions already discussed, but not necessarily, nor
generally, in other cases.
§ 15. Effect of Transactions completed and perfected un-
der Proper Law not generally altered by Subsequent Change
of Situs. — Before concluding the discussion of these general
exceptions to the operation of a proper law, it will be well
(even though we must anticipate some general principles) to
call attention to a point which will often necessitate some
modification of the propositions laid down in the preceding
sections.
Courts will be reluctant jthnngh th?y will not always rgfnp")
to apply these exceptions to a transf'^^^^^i wTiioTi Tiaa htyn
validly fjite^'"'^ "^^" m^Hor ifa prnppr ]p.w, and has, under that
law, been once valid as against the entire world, merely because.
by some subxf.qup.nt r.hange of situs, the transantinn ban mmr-
under tbfi d<;>mininn of the law of some other State, wbinh rpt-n-
ders it void or voidable. In such a case the courts of the forum
will not so readily substitute the lex fori for the proper law,
and will usually refuse to do so altogether, except in those cases
where the lex fori is expressly prohibitory of the enforcement
of such transactions, even when entered into abroad, or unless
the policy of the forum or the possible injury to its people is of
the most pronounced character.^
judgment for a specific chattel be given in any other State than that wherein
it is actually situated, for the judgment is in rem, and the court must have
jurisdiction over the res. But it is one thing to say that the courts of the
actual situs alone can have jurisdiction to determine the title to a chattel,
and quite a different thing to say that, having jurisdiction, they must deter-
mine that question in accordance with their own substantive law, or to say
that the courts of another State in which the validity of such title comes
collaterally into question must be governed by the law of the actual situs.
See Mason v. Beebee, 46 Fed. 556.
1 See Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62 ; Homthall v.
Burwell, 109 N. C. 10, 13 S. E, 721 ; Thuret v. Jackson, 7 Mart. (La.) 318 ;
Langworthy v. Little, 12 Gush. (Mass.) 109 ; Bank v. Lee, 13 Pet. 107 ;
Edgerly v. Bush, 81 N. Y. 199 ; Miller v. Miller, 91 N. Y. 315 ; Phillips v.
Gregg, 10 Watts (Penn.), 158, 36 Am. Dec. 168 ; Barker v. Stacy, 25 Miss. 477;
44 SUBSEQUENT CHANGE OF SITUS. § 15
One of the most prominent instances of the application of
this principle occurs in the case of qualified transfers of movable
property, for example, a chattel mortgage, where the chattels
mortgaged are situated at the time in the place of transfer, but
are subsequently removed to another State, by whose laws the
mortgage is invalid as against creditors of the mortgagor,
though valid as against the world by the law of the State where
the mortgage was executed and the chattels were at the time
situated. In such case, the transaction has been completed
under the law of the first State, all the requirements of its law
(the "proper law" at the time) have been complied with, and
the parties have been vested with a perfect title, not only as
between themselves, but as to third parties. This title should
not be divested merely by reason of the fact that the chattels
thus transferred are subsequently brought under a new juris-
diction, at least if this be done without the consent of the
mortgagee.^
Thus, in Kanaga v. Taylor, L-the-plaiatifE solda piano in
New York_to~G~wEo there executed a chattel mortgage lipon it
to secure the unpaid purchase money. The mortgagewas re-
corded in New York as that law directedTand waS there valid
Wood V. Wheeler, 111 N.C. 231, 16 S. E. 418 ; Cummington v. Belchertown,
149 Mass. 223, 227, 21 N. E. 435 ; Crapo v. Kelly, 16 Wall. 610, 622 ; Pond
V. Cooke, 45 Conn. 126, 29 Am. Rep. 668 ; Chicago, etc. R. R. Co. v. Packet
Co., 108 111. 317, 48 Am. Rep. 557 ; Cagill v. Wooldridge, 8 Baxt. (Tenn.)
580, 35 Am. Rep. 716 ; Richardson v. Shelby, 3 Okl. 68, 41 Pac. 378 ; Craig
V. Williams, 90 Va. 500, 505 ; Bank v. Hill, 99 Tenn, 42, 41 S. W. 349 ;
Handley v. Harris, 48 Kan. 606, 29 Pac. 1145 ; Stirk v. Hamilton, 83 Me.
524, 22 AtL 391 ; Ames Iron Works v. Warren, 76 Ind, 51 2, 40 Am. Rep. 258.
« See post, § 132 ; Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62 ;
Handley v. Harris, 48 Kan. 606, 29 Pac, 1145 ; Hornthall v. Burwell, 109 N. C.
10, 13 S. E, 721, 722; Thuretv. Jackson, 7 Mart. (La.) 318 ; Craig u. Williams,
90 Va. 500, 505 ; Crapo v. Kelly, 16 Wall. 610, 622 ; Bank v. Lee, 13 Pet.
107 ; Langworthy v. Little, 12 Cash. (Mass.) 109; Edgerly v. Bush, 81 N. Y.
199 ; Martin v. Hill, 12 Barb. (N. Y.) 631 ; Barker v. Stacy, 25 Miss. 477 ;
Cagill V. Wooldridge, 8 Baxt. (Tenn.) 580, 35 Am. Rep, 716. But see Corbett
V. Littlefield, 84 Mich. 30, 47 N. W. 581, It is otherwise if the transaction
be not completed before the removal of the goods. Cronan v. Fox, 50 N, J, I^
417, 14 Atl. 119.
8 7 Ohio St. 134. 70 Am. Dec. 62.
§ 15 SUBSEQUENT CHANGE OF SITUS. AH/^^^^
as against the world^ Ct aftfirwarHs carriftiii the piano taj/^^ .
Ohio and pledged^itllflL^^ to secure a loan. The New York /-f -^
mortgage was not recorded in OhioT and M (a residenroT'Ofaio')
had no notice_of_the--incumhraiicgi__M8old the piano to the
defendant, who was also a citizen ofOhio7~an3~WhD-inrew
nothing of the" New York lien. Though the law of Ohio re-
quiring the.j:ecordation of chattel mortgages was not complied
with, the court held the plaintiii's claim to Be"p5ramuuul. — —
The same principle has heen applied in regard to the title of
receivers and assignees for the benefit of creditors. If such
title has once been fully perfected under the proper law as
against the world, a subsequent removal of the chattels to a
State by whose law the title of the receiver or assignee would
not be good against creditors, will not divest the title once
vested.*
In Pond V. Cooke,' a manufacturing corporation in New
Jersey had contracted to build a bridge in Connecticut. The
corporation became insolvent and a receiver was appointed by a
New Jersey court, who purchased iron with the funds in his
hands and sent it on from New Jersey to Connecticut to com-
plete the bridge. Connecticut creditors of the corporation
attached the iron after it reached that State. But the Con-
necticut court dismissed the attachment on the ground that the
receiver's title to the iron was complete as against all persons
in New Jersey, where he was appointed and first held possession
of the iron, and that the title once thus fully vested in him
should not be divested by merely sending the goods to another
State.
But it must be remembered that this principle is applicable
only in those cases where the transaction is perfected and com-
* Pond V. Cooke, 45 Conn. 126, 29 Am. Rep. 668 ; Chicago, etc. R. R. Co.
V. Packet Co., 108 111. 317, 48 Am. Rep. 557 ; Cagill v. Wooldridge, 8 Baxt.
(Tenu.) 580, 35 Am. Rep. 716 ; Crapo v. Kelly, 16 Wall, 610, 622 ; Cook v.
Van Horn, 87 Wis. 291, 50 N. W. 893 ; May v. Wannemacher, 111 Mass.
202, 209 ; Bank v. Hill, 99 Tenn. 42, 41 S. W. 349. But see Walworth v.
Harris, 129 U. S. 355 ; Donald v. Hewitt, 33 Ala. 534, 73 Am. Dec. 431. In
both these cases the lien was imposed by law, not by agreeaent.
5 45 Conn. 126, 29 Am. Rep. 668.
46 SUBSEQUENT CHANGE OF SITUS. § 15
pleted before the property becomes subject to the new jurisdic*
tion. This will not be the case if the property, at the time of
the transfer, is situated in the latter jurisdiction. Here third
persons, resident in the State where the chattels are situated
(and in some cases though uot residing there), may justly claim
that as to them the title has not completely passed out of the
original owner until the law of the actual situs of the chattels
has also been complied with."
Another prominent example of this principle may be seen in
the rules for the determination of the law governing a person's
status. Once permanently fixed by the proper law,^ it is not in
general altered by any subsequent change of situs on the part
of the individual. Thus, if one be born a bastard, and is sub-
sequently legitimated under the proper law by the intermarriage
of his parents, his status as a legitimated child becomes perma-
nent, and will not be altered by the assumption of a new situs,
though by the law of the latter a subsequent intermarriage of
the parents does not legitimate,'
So also, if a marriage is valid by the proper law, it will not
in general be rendered invalid by a subsequent removal to a
State by whose laws such marriages are invalid. Thus in State
V. Ross,' a white woman, domiciled in North Carolina, went
into South Carolina to marry a negro resident there. They
were married there and lived there for several years, when they
removed to North Carolina. Upon a prosecution in North
Carolina for lewdness, under a statute of that State absolutely
prohibiting the marriage of a white person and a negro, it was
« These are the exceptional cases already alluded to, in which the lex fori
will prevail over the proper law. The cases illustrating this principle are
very numerous, and are collected hereafter. See post, §§ 129, 134, 135. Ref-
erence is here made to a few only. Green v. Van Buskirk, 5 Wall. 307 ;
Guillander v. Howell, 35 N. Y. 657 ; Faulkner v. Hyman, 142 Mass. 53 ;
Catlinv. Plate Co., 123 Ind. 477, 8 L. R. A. 62; Sheldon v. Wheeler, 32
Fed, 773 ; Sturtevant v. Armsby Co., 66 N, H, 557, 23 Atl. 368.
^ What is the proper law to govern the status will be seen, post, §§ 68
et seq.
* Post, §§ 99 et seq. ; Miller v. Miller, 91 N. Y. 315 ; Boss v. Ross, 129
Mass. 243, 247, 256, 37 Am. Rep, 321.
• 76 N. C. 242, 22 Am. Rep. 678.
§ 15 SUBSEQUENT CHANGE OF SITUS. 47
held that since both the parties were domiciled, at the time of
the marriage, in South Carolina, where such marriages were not
illegal, the subsequent removal of the parties to North Caro-
lina, the former home of one of them, should not affect it.
The prosecution therefore failed.
So it is also with divorced persons. If validly divorced in
the State of their domicil, their status as single persons will
thereafter be recognized, whithersoever they may remove.^"
This principle explains in some measure the reluctance shown
by the courts to substitute the lex fori for the proper law iu
cases where they are called upon to enforce executory contracts
made abroad. The violation of the policy of the forum entailed
by an enforcement of the proper law must be very pronounced
to induce them to decline its enforcement. Thus executory
contracts relating to lotteries, ^^ for the purchase price of slaves, ^*
for the sale of intoxicating liquor,^' contracts forbidden by the
usury laws of the forum," and many other contracts of a similar
kind, have been enforced in States whose policies strictly pro-
hibit such dealings, because valid by the proper law. Though
not expressly stated by the authorities, it is believed that this
reluctance to substitute the lex fori for the proper law in these
cases is due to the principle that the rights of the parties, once
perfected and definitely fixed by the proper law controlling
their voluntary agreement, will not be set aside without the
gravest consideration and weighty reasons, even though the
^ See post, §§ 89 et seq. Other examples of the same principle, as appli-
cable to status, may be seen by reference (to the following cases : Taylor v.
Sharp, 108 N. C. 377, IS S. E. 138 ; Cnmmington v. Belchertown, 149 Mass.
223, 227, 21 N. E. 435 ; Schluter v. Bank, 117 N. Y. 125, 130, 22 N. E. 572.
This principle does not fully apply to status more or less of an unperraanent
cliaracter, such as the status of guardians, administrators, etc. See post,
§§ 102 et seq,, 114 et seq.
" Kentucky v. Bassford, 6 Hill (N. Y.), 526; Mclntyre v. Parks, 3 Met.
(Mass.) 207; post, § 178.
^2 Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145 ; Roundtree v. Baker,
52 111. 24I,\4 Am. Rep. 597; Osborn v. Nicholson, 13 Wall. 654.
13 Tegler i^Snipman, 33 la. 194, 11 Am. Rep. 118 ; Hill v. Spear, 50 N. tt
253, 9 Am. Re>^ 205 ; post, §§ 177, 178.
" Post, § 179^
48 VALUE OF PKECEDENTS. § 16
general policy of the forum be violated by its enforcement.
Even in the case of executory contracts, however, there are some
instances in which the lex fori may be substituted."
§ 16. Value of Precedents in Private International Law. -~
The exceptions and the related principles discussed in the pre-
ceding sections exert a very marked influence upon the weight
ordinarily to be attached to precedents and decided cases. This
effect should be constantly borne in mind in the investigation
of the authorities upon a point involving the conflict of laws.
If unnoticed, it may result that decisions will be cited to sustain
propositions which in reality they do not sustain.
In the exceptional cases, the court, as has been observed,
generally substitutes the law of its own State (lex fori) for the
proper law. If the court says as much in plain terms, naming
the exception to which it belongs, and giving its reasons for
believing it to be one of the exceptional cases, no confusion of
the lex fori with the proper law is apt to arise. But frequently
the courts fail to make the distinction, merely holding that the
case is governed by the law of their own State, without even
specifically designating it the lex fori ; sometimes treating it as
the enforcement of the proper law, instead of a law substituted
for the proper law; sometimes confusing terms, as in cases of
foreign transactions relating to personalty situated in the forum,
where they designate the substituted law as the lex situs rather
than the lex fori, in which aspect it should be considered, as we
have seen.^ The consequence of all this confusion is of course
that false impressions are created as to the law really looked to
by the court as ruling the particular case, and still more with
respect to the proper law which should rule similar instances
where the circumstances creating the exceptional cases are not
present. This has been a most fruitful source of confusion and
error. Some hints therefore, drawn from experience, touching
the points to be looked to in attaching the proper weight to
authorities in these investigations will not be amiss.
1. In distinguishing the various conflicting cases, care must
1* Ante, § 9. See Oscanyon r. Arms Co., 103 U. S. 261. See also post,
§ 152.
1 Ante, § 14.
§ 16 VALUE OF PRECEDENTS. 49
be taken in the first place to observe in what State the suit is
brought, for the determination of the governing law in a given
case will often depend upon which State is the forum.*
2. This point must be observed as well with respect to federal
courts sitting in a State to enforce its laws, as with regard to the
State courts.'
3. After ascertaining and carefully noting which State is
the forum, observation should next be directed to the facts of
the case. If such as to constitute one of the exceptions, the
decision will in general be of little direct authority with re-
spect to the "proper law " governing such transactions. It
is only a direct authority for the application of the lex fori in
the case of the particular exception disclosed by the facts of that
particular case. The rest is dictum, more or less valuable.
4. If the facts in the case under investigation do not disclose
an instance of the operation of any of these exceptions, the deci-
sion is a direct authority, more or less valuable, touching the
"proper law."
5. If ♦ihere be disclosed ground for the operation of one of the
exceptions, but the court enforces a foreign law (not the lex
fori), the decision is direct authority of a very strong kind to
show that the foreign law thus enforced is the ""proper law."
6. The weight to be attached to a particular decision will
depend, as in other cases, upon the character of the court, the
care bestowed upon the opinion, whether it is decision or merely
dictum, its date, the particular facts or statutes in the case, etc.
7. In examining the facts of the case, care must always be
taken to note the nature of the transaction in detail, to observe
what are the various foreign elements that enter into the case,
which of these are given weight in the decision and which are
a See Armstrong v. Best, 112 N. C. 59, 17 S, E. 14 ; Robinson v. Queen,
87 Tenn. 445, 3 L. R. A. 214. This principle should also be borne in mind
in deciding in what State a suit of this nature should be instituted.
' Hence federal decisions are as much authorities ou questions of the con«
flict of laws as are the State courts. For example, see Swann v. Swann, 21
Fed. 299 ; Atherton Co. v. Ives, 20 Fed. 894 ; Bamett v. Kinney, 147 U. S.
476 ; Cole v. Cunningham, 133 U. S. 107, 129 ; Bowles v. Field, 78 Fed. 742,
743 ; Smith v. Union Bank, 5 Pet. 518; Green ». Van Buskirk, 6 "Wall. 307,
812.
4
50 VALUE OF PBECEDSNTS. { 16
discarded. Many different combinations of these elements may
arise, and each combination may cause a change in the result.
It is of the utmost importance therefore to note what combina-
tion of foreign elements exists in a particular case, and whether
the court had before it the whole combination, in making its
decision, or only one or more of the foreign elements. The
value of the decision will in large measure depend upon
this. Abundant illustrations of these principles will be seen
hereafter.
I 17 IMPORTANCE OP SITUS. 61
PART II.
SITUS OF THE PERSON.
CHAPTER III.
ACTUAL SITUS OF THE PERSON.
S 17. Importance of Situs in Private International Law. ^
The foundation principle of the Conflict of Laws is Situs.
Every element in every transaction known to the law has a
situs somewhere, and the law of that situs will regulate and
control the legal effect of that element. Not only is this true
of active steps taken towards the completion of a given trans-
action, but it is equally true of those elements, not consisting of
acts of parties, but merely acts of the law, or of passive char-
acteristics, legal qualities, or disqualifications inherent in the
parties, independently of their own will or in spite of it. For
example, in the case of an executory contract, not only may each
active step in the transaction — the making of the contract, the
act to be done in consideration thereof, and the performance of
it — have a separate situs of its own, but the capacity or dis-
qualification of the parties to enter into the agreement — a mere
passive quality — must also have its situs, which may perhaps
be separate from all the rest. These passive qualities of legal
capacity or incapacity inhere, not in the transaction (in general),
but in the person of the party, and in the main have the same
situs as the person whose capacity is in question.^
Thus, it is not difficult to conceive of a contract made by A,
of New York, with B, of Massachusetts, entered into in New
Jersey, to be performed in Maryland, in consideration of an act
to be performed by B in Pennsylvania. We may even go fur*
1 Post, §§ 69 et seq.
62 IMPOKTANCB OP SITUS. § 17
ther and suppose the consideration for A's promise to be an
executory contract made by B to be performed in Virginia.
In this hypothetical case it will be observed that many dif-
ferent States, possessing various systems of law, are represented,
and each may be the situs of some material step (active or pas-
sive) connected with the transaction. A^s capacity to contract
has its situs; B^s capacity to contract has its situs; there is a
situs for the entry into the contract; another for the considera-
tion of the contract; another for the performance of the contract.
And if the consideration be itself executory (as where B makes
a promise), there may be a separate situs for the formation and
for the performance of that contract.
Each one of these elements may have a separate situs and be
governed by a different law. Each such element must be upheld
by its proper law, the law of its situs, in order that the transac-
tion as a whole may be upheld.' It is not proposed to consider at
this point what is the situs of each of these elements. A com-
plete answer to that question in such a case as the above, and in
other cases of which this is but a sample, would constitute a
treatise on the Conflict of Laws, and is the purpose of this work.
It is intended here merely to point out that the situs of each
step in a given transaction is to be carefully noted, and its effect
is in general to be tested by the law of that situs. The com-
plete transaction being made up of all these various elements,
its ultimate validity will in general depend upon the validity of
each of its constituent parts (tested by its proper law). If, when
so tested, each element is valid, then the transaction as a whole
will be valid; but if one or more of the essential steps be in-
valid, when measured by its proper law, neither can the trans-
action as a whole be in general sustained.
Hence, in order to arrive at a correct solution of the law
which is to govern a particular transaction, that transaction
must be resolved into all its essential parts, and to each of
these parts the law of its own situs must be applied.
These elements of a given transaction may be active, depend-
ent upon the will of the party himself. In such cases he may
3 Subject always to the exceptions given in Chapter IL
§ 17 IMPORTANCE OP SITUS. 53
perform the particular act or not as he pleases, and if he chooses
to do the act, he may and does select the place where it is done.
But having once done the particular act at the place selected,
the effect of that act must in general be determined by the law
of the place where it is done. This is expressed by the maxim
" locus regit actum." The party should not be permitted to
select one place for the doing of the act in question and then
select the law of a different place to govern that act, for that
would be to subordinate the sovereignty of the first State to the
will of the individual. He cannot thus give the act, by the
mere exercise of his will, a constructive situs which it does
not actually possess.
Other elements in a transaction may be passive, arising by act
of the law. The capacity of a party to do an act or receive
a benefit, taxation of property, the succession to a decedent's
property, adjudications of insolvency or bankruptcy, marital
rights, etc., are instances where elements of this kind occur.
Such elements also must possess a situs somewhere. But
when the law acts, it must either act upon the person or
upon property. If upon the person, the act of the law will
generally have the same situs as the person; for if the person be
not actually or constructively within its jurisdiction, the act of
the law is nugatory. Wheiuacting upf>Ti tbp pp.rsnp, Jjift law
creates a stfituru Hftnon fihr -litiin of a itatni. whose law will
grfvvfirn it, ia thft sitna of the person.
If f^^<^-//T.</^ a^fg upon property, f.bft situs of the act of the
law fiillouia thn aitnn of tbo pioppityj in otlin words, the prop-
erty mufit hnvff itp pitMP; n^^tni^lly i^r in rnnt'^mplation of law,
within the iurisdictioTi of thn Inw purporting to act upon it.
But there may be a legal, as well as an actual, situs of property,
at least in case of personal property, the actual situs not being
in general considered save in the exceptional cases mentioned in
the previous chapter.* It is the legal situs that is usually
looked to, and that follows the situs of the owner, upon the
maxim " mobUia personam sequunturJ' *
These are the basic principles upon which private interna-
tional law, as a science, is founded. But in their application
» Ante, §§ 6. 7, 14.
54 ACTUAL SITUS OF THE PEKSON. § 18
many difficulties and much confusion among the authorities
will be encountered, not only in determining what are the es-
sential elements of a given transaction, but in deciding what is
their proper situs when ascertained.
Since the situs of status and of personal property generally
follows the situs of the party to whom they pertain, in order to
determine the law which governs questions relating to these
matters we must consider what is the situs of the person.
In regard to contracts, we must look to the same law with
respect to questions of capacity (capacity being a status'), but
with regard to those elements which consist of active steps
taken by the parties and dependent upon their own will, such as
the entering into the contract, the performance of it, or the per-
formance of the act which constitutes the consideration therefor,
we must determine what is the situs of each particular act form-
ing a constituent part of the transaction.
So likewise, in regard to torts and crimes, we must determine
the situs of the tort or of the crime, in order to ascertain the
law properly applicable.* And so it is also with respect to
remedies.'
§ 18. Actual Situs of the Person. — It seems a paradox to
say that a person may occupy two places in space at the same
time. Yet under the rules of private international law such is
the case. But it is not the paradox it seems, for the law only
admits one to occupy two places at the same time for different
pverposes, — never for the same purpose. The latter principle
prevents the confusion of applicatory laws that would otherwise
result from the former.
The law-assigns to every man immediately upon his birth and
t,hrniig;hout hia life a situs in the State where he has his Jom i -
oil, whose laws are those to which primarily he owes allegiance.
* Ante, § 14 ; post, §§ 120 et seq. We will see in the following sec-
tions that the situs of the owner may itself be either actual or legal. In
regard to immovable property, the actual and legal situs will usually cor-
respond. See ante, § 11.
6 Post, § 72.
* Post, §§ 195 et seq., 204. But in the case of crimes, the exception re-
lating to penal laws applies in full force. Post, § 203.
* Post, §§ 205 et seq.
§18
ACTUAL SITUS OF THE PERSON.
55
In order that ha shnnTd poaSftSS ^^m firim{o\'[^ if. I'n Tinf nanoaqoyy
that heshould actually be prfisftnt t^fi 1 1' il itll ti ii — iie-ixia,y
actually he at a given moment in one State, while his domicil
is in another. The domicil, then, is the leffolsitua of the imi-
vj^TiiaTT'and may^or may not be coincident with hja n^tu"! H^i^^•^
at a given moment. Tlie_^ctualsitus_of,J;^e_gei§onata given
moment isThe State where, at_that mogafinfeL^e isjidaiallj
cally pteseaL TZEEe^legalsitus of the person is the State of his
domicil^—tjie Statfi-^ol^is permanehTresiHellce^^hetKer He is
actually present there or not.
Te have seen that there"^e certain cases (transactions touch-
ing status and personal property) wherein the law of the situs
of the person will control. Under some circumstances, it will
be the law of the actual situs of the person. Under others, it
will be the law of his legal situs or domicil. These two may
coincide in a given case, or they may be distinct. In the latter
case, the law of one or the other situs may govern a particular
element or matter, but never the law of both. In ascertaining
which situs should furnish the law to govern a particular matter
properly determinable py the law of the situs of the person, the
same diatinp.tiniL.must be made as was noted in the preceding sec-
tion between active or voluntary elements, and passwe or invot-
untary elflmftTifH, nr ai^r^h as are created by the law itij(jll, wilhuufc-
the exercise of the party's wjlV. It will be remembered, as
saw in the last section, that a person's status is the creation of
the law, and not dependent upon his will. On the other hand,
the disposition or transfer of his personal property may result
merely from the exercise of the owner's will, as in case of a
conveyance, or it may result merely from the act of the law, as
in the case of the succession to an intestate's personal estate.
If a person domiciled in one State enters actively into a par-
ticular trarigaY^finT^ in g.Tir>tT^^T Stflt»; ^" ^liP dftlThpralifttyTrfmsftn
for the purposes of that transaction to submit himself and it to
the opera|tion_of_thelatter law. In selecting a place for the
performance of the act ^njgpiefltio"; ^'^ nolp/'ffl jts l^w ur tlu>
governinglawj^to^hold othftrwiaft ^fmjjjhgtn deny to that State
sovereignty and control over acts taking placeTHefe! Justice to
the partv himself, to the other parties to the transaction, and to
56
ACTUAL SITUS OF THE PERSON.
§18
the State where it is entered into, requires the enforcement of its
law with respect thereto, rather than the law of the legal situs
or domicil, which has no force ex propria vigore outside its own
limits, and which the party himself has temporarily renounced,
so far as that transaction is concerned.
This is the natural and proper view for the courts of the State
where the transaction occurs or of a third State to take ; but it
does not necessarily follow that the same view will be taken by
the courts of the party's domicil, if in entering into such for-
eign transaction the party has violated its law or policy.^
But if the matter in question (determinable by the lex situs
of the person) arises, without the active intervention of the
party, merely as a creation of the law, while he is thus tempo-
rarily in a State other than the State of his domicil, the same
reasoning is not applicable. The laws of each State are enacted
primarily for the benefit of its own citizens ; and to impose those
laws, except where the welfare of the State demands it, as in
case of police and criminal laws, upon the citizens of other
States temporarily there, in regard to matters in which they
have not voluntarily submitted themselves to those laws, would
be unjust to them and to the State where they reside, whose
sovereignty over its own inhabitants would thus be denied.
If, for example, we take the__caap of a transfRTL-ofjersonal
property, which is in general povernod by-tha_law of the situs
of the owner, and suppose that the transfer occurs while the
owner is inaTState^^ther th5Sff~Eis domicil, the~~tf3iisfeir-will be
governed~Ty" the law of the"actu^ situs of the owner j(the lex
loci contractus) or~15y"the"Tawj;>f hia lftga.1 gi't^ig_Qft-r domicilii),
accordjng^as the transfgrJsL-by^-ygluiitary agreem«nt_on the part
otthe owner, or arises by operation of lawj_aghi the case of the
succession of a distnbutee^othe personal estateonhs^deceased
intestate owner* "
Matters of status are always the creatures of the law, being
fixed by law, independently of the will of the individual. Hence
we should expect to find such matters always regulated by the
law of the person's legal situs or domicil, save in the exceptional
1 Post,§ § 72, 73.
* Post, §§ 128 et seq., 136 et seq., 139 et seq.
§ 18 ACTUAL SITUS OF THE PERSON. 67
cases of the preceding chapter. And such is the general rule.*
But even in respect to status (the status of capacity) the same
principle has been applied, and a distinction is made between
the law governing a person's capacity to do a voluntary act,
such as to enter into a contract, and his capacity in respect to
involuntary acts or matters arising by operation of law, such as
capacity to hold property under a conveyance or will.*
In conclusion, it may be said that there is usually no diffi-
culty in ascertaining the actual situs of a person at a particular
time. It is a mere question of fact. But often the ascertain-
ment of the domicil or legal situs of the person is not so easy.
It is a mixed question of law and fact. The legal rules by which
the domicil is determined will be dealt with at length in the
succeeding chapter.
« Post, §§ 68 et seq.
« Post, §§ 70, 144 ; Ross r. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321.
58 DOMICIL, NATIONAL OE MUNICIPAL. § 19
CHAPTER IV.
LEGAL SITUS OF THE PERSON, OR THE DOMICIL.
§ 19. Domicil, National, Quasi-National, or MunicipaL —
Mr. Jacobs, in his work on the Law of Domicil,^ has appropri-
ately divided Domicil into three classes — (1) The national
domicil, representing the absolutely sovereign State in which
one may be domiciled; (2) tht quasi-national domicil, repre-
senting residence in a State which is not wholly, but only
partially sovereign, such as one of these United States; and
(3) the municipal domicil, representing only the intra-State
political division, such as a county or city within a State,
which is not sovereign at all.
The last class has no place in private international law, but
is entirely the subject of the municipal law of the State where
the particular county or city is located. And the distinctions
to be drawn between the first two are comparatively slight and
unimportant. Whether the particular States in question are
wholly or only partially sovereign, if they are supreme with
respect to the point at issue, that is all that private interna-
tional law requires. If the law of the domicil of a party is to
control, it is usually of small importance whether this be a
national or a quasi-national domicil. Occasionally however
distinctions must be taken between them.
It follows from what has been said that cases deciding ques-
tions relating to municipal domicil should be accepted with
caution as authority in regard to matters of national or quasi-
national domicil. The former is the subject of municipal law
only, the latter of private international law. To argue from
the principles of municipal law to those of private interna'
» Jac. Dom. § 77.
§ 20 DOMICIL DISTINGUISHED FROM RESIDENCE. 59
tional law is always apt to be misleading. The failure to
reoiember this fact has sometimes led to serious error.'
§ 20. Domicil distinguished from Mere Residence. — Dom-
xi\, as we have seen, in the last chapter, is to be distinguished
from the actual situs of a person, a mere temporary locality of
existence in a particular State at a particular time.
It must now be observed that domicil is also to be distin-
guished from a mere residence, of a temporary character, not
intended to be permanent. Residence in a State is usually
said to be necessary to domicil, but it must be a residence of
a permanent, not of a temporary or limited, character. When
the term "resident" or "residence" is used in connection with
private international law, it is generally used in the sense o*
domicil, though not always.^
The Virginia case of Long v. Ryan * is a good illustration
of the distinction between mere residence and domicil. lu that
case, a person domiciled in Washington came to Virginia intend
ing to remain there about nine months, until he should complete
a contract into which he had entered, proposing afterwards to
leave Virginia. His property was attached in Virginia under a
statute permitting attachments against " non-residents," but the
court, notwithstanding his domicil in Washington, held him to
be a resident of Virginia, and dismissed the attachment.
So also a foreign_niiaiater-aetuaHy residBS or is personally
present at the court Jo^ghich ho is accrGditcd.-lbttt-his legal
residence^ and domicil are in his own country. ^Ijoideed., by the
fip.tinnjfvfjRjtgrritnriality, fhft pla-cft nf biajcagidflnfiR-lq a._part of
his r>wT) nmin try- It iff ^thffrwiHft With ^""fflllft*
' For example, with respect to the right of a guardian to alter the ward's
domicil. See post, § 41.
1 In re Wrigley, 8 Weud. (N. Y.) 134; Frost v. Brisbin, 19 Wend, 11, 32
Am. Dec. 423 ; Laugdon v. Doud, 6 Allen (Mass.), 423, 83 Am. Dec. 641 ;
Allgood V. Williams, 92 Ala. 551, 8 So. 722 ; Chitty v. Chitty, 118 N. C. 647,
82 L. R. A. 394 ; Wood v. Boeder, 45 Neb. 311, 63 N. W. 853 ; Ayer v.
Weeks, 65 N. H. 248, 18 Atl. 1108; Long v. Ryan, 30 Gratt. (Va.) 718;
Tipton V. Tipton, 87 Ky. 243, 8 S. W. 440. See Story, Confl. L. § 4a
bote (c).
« 80 Gratt. 718.
« Whart. Confl. L. 5 49 ; Crawford v. Wilson. 4 Barb. (N. Y.) 50S.
60 DOMICIL DISTINGUISHED FROM NATIONALITY. § 21
So it is with students. Though resident at a college or univer-
sity for the period necessary to complete their course, they are
not domiciled there unless they have the intention to remain
there permanently. But the question of domicil is distinct
from the right of suffrage. The latter is a matter of munici-
pal law, and is subject to the rules prescribed by each State
within its own borders. If those laws do not require a domicil
as a condition of suffrage, but only a mere residence, a student
may be permitted to vote, though he be not domiciled in the
State. Such is the general rule in the United States.*
§ 21. Domicil distinguished from Nationality or Citizen-
ship. — The distinction between domicil and nationality or
citizenship is just as marked as that which exists between
domicil and residence. A person may be a subject or citizen
of one country, while domiciled in another.^ Thus, ^citizen
of France may qr-t.naTly >><> in "I^pw Vprk- Tf merely ^assin^
throTigh~h6 has'only his actual sitna in "N"ew Yorli^_Tf he re-
sides there, with the intentiorrto remain for a limited period,
he is a resident of New York, andi?7couple(i with the residence,
there is the intentTon to remain^her£_germaiieutly Oftor an un-
limited period, he is dqmiciled-iji^oyif Yorky^y£iL^e_m^ all the
time remain a ct^t'gew of France.
But it must be observed that, so far as citizens of the United
States are concerned, the rule is otherwise as between the States
of this Union. The fourteenth amendment to the federal con-
stitution expressly provides that ''all persons bom or natural-
ized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States, and of the State wherein they
reside " (that is, are domiciled). This provision establishes
for the States of the Union the rule that a citizen of one State,
* Whart. Confl. L. § 48 ; Opinion of the Judges, 5 Met. (Mass.) 587 ; Fry's
Case, 71 Penn. St. 302; Hart ». Lindsey, 17 N. H. 235, 43 Am. Dec. 602 ;
Kelley v, Garrett, 67 Ala, 304 ; Sanders r. (Jetchell, 76 Me. 158 ; Vanderpoel
V. O'Hanlon, 53 la. 246, 36 Am. Rep. 216 ; Dale v. Irwin, 78 111. 170.
1 Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21 ; Raymond v.
Haymond, 74 Tex. 414, 12 S. W. 90, 92 ; Larquie v. Larquie, 40 La. Ann.
457, 4 So. 335, 336 ; Roth r. Roth, 104 111. 35, 44 Am. Rep. 81, 82 ; Powers
V. Lynch, S Mass. 77.
§ 22 LEGAL SITUS OP THE PERSON, OR DOMICIL. 61
who abandons that State and goes to another to reside perma-
nently, thereby ipso facto loses citizenship in the former State
and acquires it in the latter, regardless of his own intention or
wishes.*
§ 22. The Legal Situs or Domicil of the Person. — In law,
persons are either natural persons, individuals; or artificial
persons, corporations. Private international law regards for
the most part the domicil of natural persons. The very nature
of what is usually termed the ''domicil " of corporations differs
essentially from that of individuals, and is subject to very
different rules. It is manifestly impossible for a mere cor-
poration to possess a permanent home or residence in the same
sense as an individual, nor is there usually the same occasion to
fix a domicil for it. Many of the transactions, which in the case
of an individual must be regulated by the law of his domicil, do
not arise at all in the case of corporations, such as most questions
of status, the making of wills, the intestate succession to estates,
marriage, divorce, etc. But there are some transactions to which
a corporation may be a party, just as an individual may be, such
as taxation, the conveyance of property, or the making of con-
tracts. In these cases, it sometimes becomes necessary to in-
voke the aid of some foreign law, corresponding to what would
be the law of the domicil, if the party were an individual in-
stead of a corporation. For such purposes (comparatively in-
frequent), a corporation must be assigned a situs, which is
sometimes spoken of as a domicil.^
'■« Dougherty v. Snyder, 15 S. & R. (Penn.) 84, 16 Am. Dec. 520 ; Firth
V. Firth, 50 N. J. Eq. 137, 24 Atl. 916, 917. Owing to this principle, the
American courts are more prone than others to use the terms " residence " and
" citizenship," as synonymous with domicil. But even in the United States,
this only applies to citizens of the United States, not to citizens or subjects
of foreign countries. In general, private international law does not concern
itself with mere residence or with citizenship. See post, § 66.
^ A section will hereafter be devoted to the situs of corporations. Post,
§ 67. With respect to associations of persons, not incorporated, such aa part-
nerships, it may be observed that, since their existence as a legal entity is not
recognized by the law, neither will the law assign them a distinct situs of
their own. See Faulkner v. Hyman, 142 Mass. 53, 55. Such associations
are sometimes spoken of as " domiciled " or " resident " in a particular place,
but what is meant is merely that all the partners or members reside there and
62 DEFINITION OF DOMICIL. § 23
The domicil of natural persons may be divided for the pur-
poses of the subsequent discussion into the following heads*
(1) Definition of domicil ; (2) Certain general principles touch-
ing domicil; and (3) The several kinds of domicil, and the
principles governing each. These will be taken up in order.
§ 23. Definition of Domicil of Natural Persons. — The domi-
cil of a natural person, as used in private international law, may
be defined as the State or country where a party actually or
constructively has his permanent horned
The conduct of a man's business, the presence of his family,
his voting, the payment of his taxes, etc., are not essential ele-
ments of a domicil, but are merely evidences, more or less
weighty, of an intention to make the place where these things
exist or are done his permanent home. Such circumstances
therefore should find no place in the definition.^
The definition of domicil above given is very broad, as it must
be to cover all the points that may arise. Indeed, owing to the
number of points to be covered, there are few terms more diffi-
cult to define. As was said in Abington v. N. Bridgewater,'
" The fact of domicil is often one of the highest importance to a
person; it determines his civil and political rights; it fixes his
allegiance ; it determines his belligerent or neutral character in
time of war; it regulates his personal and social relations whilst
that there the firm transacts its business. It is the domicil of the members
that is looked to, when that is important, not that of the firm. For instances
of the loose employment of these terms, as applied to unincorporated associa-
tions, see Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Halsted
r. Straus, 32 Fed. 279, 280 ; Long ». Girdwood, 150 Penn. St. 413, 24 Atl.
711, 23 L. R. A. 33.
1 Dicey, Confl. L. 79 ; Story, Confl. L. § 41 ; Jopp v. "Wood, 4 DeG., J. & S.
616, 622 ; Mitchell v. United States, 21 Wall, 350 ; Desmare v. United States,
93 U. S. 605; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note; Price v. Price,
156 Penn. St. 617, 27 Atl. 291 ; Oilman v. Gilman, 52 Me. 173, 83 Am. Dec.
502 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530, 532 ; White v.
Tennant, 31 W. Va. 790, 8 S. E. 596 ; Hart v. Lindsey, 17 N. H. 235, 43 Am.
Dec. 597, 601 ; Steer's Succession, 47 La. Ann. 1551, 18 So. 503.
* Pearce v. State, 1 Sneed (Tenn.), 63, 60 Am. Dec. 135 ; Guier v. O'Daniel,
IBinn. (Penn.) 349, note; Steer's Succession, 47 La. Ann. 1551, 18 So. 503,
806; Shelton v. Tiffin, 6 How. 163.
« 23 Pick. (Mass.) 170, 176.
§ 24 AREA OF DOMICIL. 63
he lives, and furnishes the rule for the disposal of his property
when he dies. Yet as a question of fact, it is often one of great
difficulty, depending sometimes on minute shades of distinction
which can hardly be defined."
To every definition proposed some objection may be offered.
Thus Story defines domicil to be "the^lace where a person has
>i T o^-jjm^ ^>y ftfl7 "^ riH^^p^rnfi^p.nt home and principal establish-
mcnt^ nn(\ tn vrhifih, whenever he isaEsent^he has the intenTrion
of returning. '^ * Among the objections tothis definition peF-
haps the most serious one is that it has no application to the
eonstructive domicil of an infant, married woman, or other per-
son incapable in law of exercising a choice with respect to his
or her place of abode. The same fault is to be found with most
of the definitions that have been proposed.
§ 24. Area of Domicil. — Since the domicil, for the purposes
of private international law, is the State or country where a
party has his permanent home, it is manifest that the term need
not be confined to the particular tract of land, town, county,
or district, immediately occupied by him,^ but it also extends
to the whole country or State in which he resides, that is, the
whole territory over which the sovereignty of the State extends,
and controlled therefore by the same system of laws. But it is
worthy of notice that the term includes the town, county, or
district of residence, as well as the State itself, and that one
domiciled in such town, county, or district must also be domi-
ciled in the State of which it forms a part, for the greater
includes the less.
Eminent authorities have declared it not essential that one
domiciled in a particular State or country should also have a
fixed residence in any particular spot in that country.* Thus,
let us suppose a Frenchman comes to England, intending to
remain permanently, spending his life traveling from one point
to another in England, but residing permanently at no par-
ticular spot. According to these authorities, England becomes
< Story, Confl. L. § 41.
1 This corresponds to the municipal domicil, but the national or quasi-
national domicil is more comprehensive.
s Dicey, Confl. L. 91-93 ; Jac. Dom. § 77.
*• ^ M/vui^ -ttma/ ^iji^^fr^'^^Ajt ^1/t.x/ Jiyy^A^cuif i/
A.4a«£m^^ >.*fctv>-*-^
64
DOMICIL, THE ACTUAL HOME.
§25
his permanent home and national domicil, but ii« is domiciled
in no particular town or county in England, he hr»^s no -munici-
pal domicil there.
Under this view, the Frenchman's munic'pal domicil, if he
has any at ail, remains in France. But having ceased alto-
gether to reside in France, and becoming domiciled in England,
he cannot be said to reside in any town or county or province of
Irance. We are then driven to the conclusion that he must be
held to have no municipal domicil anywhere. This conclusion
is in direct contravention of the great weight of authority in
the United States and elsewhere, to the effect that a resident
of a State must always be held to pos8e<^s a municipal domicil
somewhere in that State.''
In this countrythe question is still an open one^ In an
Ulinojs case^^Vwoman domiciled in Missouri abandoiie(rHiat
State,--WTfch4iexJiusban37~nrteBdiB^-J;Q_remov^^ and to
reside-ei%bex..atBloommgton~c>r Salem. Shewent toTlltnois with
herhusbapd. but before they had r<eriiHQf1 in wMrrh-^^wn they
jrjiii
lOUld-
yiTinnld )?pf.flA shfi die'^.izijiggj;^;!^ ^^® laws of Missouri govern-
ing the succession to_per3onaH"y T^^ffftrftrl fE£m»-ri»f>«^=sf Illinois,
(^nd the Question thereu:BQlL-a^Q»^-whethbr she was^^omiciled at
hazLdgath in Illinois or_MissQi]ri, the Im? domifti1ii,drtprmining
tbft_r->rHftT nf siirfiPiSHinn. — The court— held her-domicil to be
Missouri, but based its decision upon the ground that, not
having detinitelj_fixedjipiHL_eithfir.ioiy»_as a place of residence,
there was no sufficient evidence of the parH^s*--4fitention to
resi^ie pexmauently ill Illinois at all. The main-peint was left
undectltETir
§ 25. Domicil, the ActUEiI Permanent Home. — Domicil
usually conveys the idea of '* home " in case of persons sui juris
' Abington v. N. Bridgewater, 23 Pick. (Mass.) 170; Whitney v. Sherborn,
12 Allen (Mass.), HI; Otis v. Boston, 12 Gush. (Mass.) 44; Crawford v.
Wilson, 4 Barb. (N. Y.) 505 ; Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108 ;
Siiepherd v. Cassiday, 20 Tex. 24, 70 Am. Dec. 372 ; School Directors v. James,
2 W. & S. (Penn.) 568, 570, 87 Am. Dec. 525 ; Mills v. Hopkinsville (Ky.),
11 S. W. 776.
* Cooper V. Beers, 143 111. 25, 33 N. E. 61. See Lowry v. Bradley, 1 Speer's
Eq. (S. C.) 1, 39 Am. Dec. 142, 145, where the court seems to lean the other
way.
§ 26 DOMICIL, THE CONSTRUCTIVE HOME. 65
and capable of possessing an actual home of their own, but a
home need not necessarily be adomicil.^ "Home" means an
actual abode, coupled with the intention of remaining there, but
it is not needful that there should be a purpose to remain perma-
nently or for an unlimited time.^ But when is added to home
the notion of permanency and stability, wheSTTBecol
nent home, there being no present fixed exp?
it gfaTiy fnf.nrft fir^e. near or remotgy thtf home then becomfea a
domicil.
— Xndeed it is too well settled for dispute that a person sui
juris, who actually resides and has his home in a given State, is
domiciled there, provided he has legally formed an intention to
remain there permanently, or for an unlimited or indefinite
period; * or, to put it somewhat differently, provided he has no
present fixed intention of removing therefrom in the future.*
§ 26. Domicil, the Constructive Permanent Home. — There
are some cases in which the law will assume that a person has
his home in a particular country, though the fact may be far
otherwise, and even though the party may never have set foot
upon its shores. In these instances a permanent home is
implied by construction of law.
These cases arise for the most part (though not always) where
the person whose domicil is to be determined is non sui juris,
and is therefore deemed legally incapable of forming an in-
tention of permanent residence, or else where from the circum-
stances of the case the law must presume a purpose to reside in
a given country. One may thus be assigned a domicil in a
State where he does not actually live.
1 Otis V. Boston, 12 Gush. (Mass.) 44; Steer's Succession, 47 La. Ann.
1551, 18 So. 503.
^ Dicey, Confl. L. 80 et seq.
8 Guier v. O'Daniel, 1 Binn. (Penn.) 349, note ; Dupuy v. "Wurtz, 53 N. Y.
556 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530 ; Gilman v. Gil-
man, 52 Me. 173, 83 Am. Dec. 502 ; Allgood v. Williams, 92 Ala. 551, 8 So.
722 ; White v. Tennant, 31 W. Va. 790, 8 S. E. 596.
< Putnam v. Johnson, 10 Mass. 488 ; Hallett v. Bassett, 100 Mass. 167 ;
Price V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Whitney v. Sherborn, 12 Allen
(Mass.), Ill ; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502. The firat
mode of expression is the more accurate.
6
66 DOMICIL, THE CONSTRUCTIVE HOME. § 26
In assigning a constructive domicil, the law will weigh the
circumstances of the case, the probabilities as to the party's
regarding one or another place as his home, should he exercise
a choice, and the duty he may be under to abide at a particular
spot. From these data the law raises certain presumptions
more or less strong. It should be noticed that it is the law
that raises these presumptions, not the courts. Hence they are
not so liable to change, with the slightly varying circumstances
of each particular case, and are susceptible of being reduced to
more or less stable rules. The courts have no other power than
to decide the questions thus raised in accordance with the rules
and presumptions fixed by the law.
Thus, an infant is assigned the domicil of its parent, though
it be born elsewhere and has never been within their domicil.^
Here the law conclusively presumes that the home of the child
will be with its parents, without regard to the facts of a par-
ticular case, and hence wherever their permanent home is his
will be also.
So, where a woman marries, the law regards her as identified
with her husband, and recognizes a duty resting upon her to
live with him. Hence the law presumes her proper home to be
with him, and his domicil becomes hers upon the marriage.
And thereafter throughout their married life her domicil
changes with his, as a general rule, regardless of the actual
facts in the case.''
The instances mentioned have been cases of persons non sui
juris, but the principle of constructive domicil is not confined
to them. Thus, if a full grown man should abandon his native
country, intending never to return, his domicil is not thereby
lost or changed. It is a well_settled[^rinciple_oJ[ law that a
doinicil is rp/hajngj imt.i] a new one is acquired, for no person
can ever be without a domicil.' A new domicil, in the case of
a person~swi^'Brw^"cairoTlly be acquired by actual residence in
the new country, coupled with the intention to remain there per-
manently.* HencC) until he actually takes up his abode else-
1 Post, §§ 32, 36 et seq. » Post, §§ 46 et stq..
« Post, § 29. * Post, 5§ 56 et seq.
§ 27 NO PERSON WITHOUT A DOMICIL. 67
where aninio manendi^ he retains his former domicil. By
construction of law he is presumed still to have his home in
his original domicil, though he has turned his back upon
his country for ever.'
§ 27. Certain General Principles touching Domicil. — I. No
Person without a Domicil. — There are four general principles
relating to domicil which must be borne in mind throughout
every discussion of this subject. With their aid, many problems
otherwise difficult may be easily solved.
The first of these may be thus stated : No natural person can
ever be without a domicil}
For the purpose of determining rights and liabilities, the
courts of all civilized nations have formulated the rule that a
person must always be held to have a domicil somewhere. He
may be homeless in the ordinary and popular sense of the word,
he may be a vagrant, but legally he will always be deemed to
have his domicil in some country.^
Thus, in Shaw v. Shaw,' the facts were that Shaw and his
wife, domiciled in Massachusetts, determined to remove to
Colorado. They left Massachusetts, not expecting to return,
and proceeded as far as Philadelphia. There they stopped tem-
porarily, and during their stay there Shaw was so cruel to his
wife that, in fear of her life, she left him and returned to Mas-
sachusetts, where she applied for a divorce. Shaw never re-
turned thither. Though fully recognizing the principle that
a divorce should only be granted upon the application of one
domiciled within the State,* the court granted the application.
* See post, § 29.
i Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177 ; Crawford v.
Wilson, 4 Barb. (N. Y.) 505, 518 ; Dupuy ». Wurtz, 53 N. Y. 556 ; Desmare
V. United States. 93 U. S. 605 ; Otis ». Boston, 12 Cush. (Mass.) 44 ; Shaw v.
Shaw, 98 Mass. 158 ; AUgood v. Williams, 92 Ala. 551, 8 So. 722 ; Oilman
V. Oilman, 52 Me. 165, 83 Am. Dec. 502 ; Ayer v. Weeks, 65 N. H. 248,
18 Atl. 1108 ; De La Montanya v. De La Montanya, 112 Gal. 101, 32 L. R. A.
82, 53 Am. St. Rep. 165; Tipton v. Tipton, 87 Ky. 243, 8 S. W. 440; Whita
t;. Tennant, 31 W. Va. 790, 8 S. E. 596.
2 See Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142 ; Borland
V. Boston, 132 Mass. 89, 42 Am. Rep. 424 ; Shaw v. Shaw, 98 Mass. 158.
8 98 Mass. 158. * Post, § 50.
68 ONLY ONE DOMICIL AT A TIME. § 28
Neither the hushand nor wife had acquired a domicil elsewhere,
and in the language of the court, " Every one must have a
domicil somewhere."
Indeed, the authorities go a step further and lay down the
proposition that not only must a person always have a domicil
somewhere, but he must further be deemed to be domiciled in
some civilized State or at least in a State sufficiently civilized to
possess a perfected system of law. Such will certainly be the
rule in respect to persons who have once been citizens of a civil-
ized country.' The reasons for this last qualification are quite
evident. Not only is it generally true in cases where a citizen
of a civilized community has exiled himself in this manner,
that he does not intend to settle permanently in a barbarous
country,^ but even should such an extraordinary intent domi-
nate his mind, public policy and the safety of the individual
alike require that he should be presumed not to have intended
to surrender the protection and benefits secured by his home
laws in exchange for the barbarous customs of the savages among
whom he lives.
§ 28. II. Only one Domicil at a Time. — The second of
these principles may be thus stated: No natural person can
have more than one domicil at a time}
It is the settled doctrine both in England and America that
one cannot have more than one domicil at the same time for the
5 Thus there are numerous English cases in which citizens of England or
Scotland have been held to retain their original domicils, though passing their
lives in India or China. Dicey, Confl. L. 88, 149 ; Bruce v. Bruce, 2 B. & P.
229 ; Jopp V. Wood, 4 DeG., J. & S. 616.
8 Dicey, Confl. L. 733, 734.
1 This is the form in which this proposition is usually stated, but it is sub-
ject to a qualification. It is true that no one court or no one jurisdiction will
consider a person domiciled in more than one place at a time. But it is quite
possible that the court of one State may adjudge a person to be domiciled
therein at a given time, while the court of another State, before whom the
same question may be pending, may hold him to be domiciled in the second
State at that time. Such a position has been asserted by the Massachusetts
court in passing upon the domicil of an insane person under guardianship
there, who takes up his abode in another State, where he is adjudged sane and
capable of selecting his own domicil. Talbot v. Chamberlain, 149 Mass. 57i
60, 3 L. R. A. 254.
§ 28 ONLY ONE DOMICIL AT A TIME. 69
same purpose.^ But it is sometimes said or intimated that a
person may Have one domicil for one purpose, and, at the same
time, other domicils for other purposes." These dicta (for they
are nothing more) Mr. Dicey explains as being the result of con-
fusion of thought with respect to the terms " domicil " and " resi-
dence," domicil being used in these cases to designate different
.kinds of residence. He maintains with great earnestness that
no person can have more than one domicil at a time for any and
all purposes, and in this he is supported by strong authority.*
Indeed, it may be accepted as generally true that no natural
person can have more than one domicil at one and the same
time, even for different purposes, using the word " domicil " in
its technical sense as importing not merely residence, but resi-
dence for an unlimited period.*
But to this general rule theieJa-QJie eYception, or at least an
apparent^excepSon^ in jthe.xase_of -a- mairried woman^ suing in
other State or country. In such case, notwithstanding the rule
of law that the wife's domicil follows that of her husband, • and
the other rule, no less authoritative, that a suit for divorce must
be brought in the domicil of the complainant,'' it is now gen-
erally admitted that a wife may acquire a domicil apart from
2 Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177; Otis v. Boston,
12 Cush. (Mass.) 44; Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108 ; Crawford
V. Wilson, 4 Barb. (N. Y.) 505 ; Dupuy v. Wurtz, 53 N. Y. 556 ; Allgood
V. Williams, 92 Ala. 551, 8 So. 722; Oilman v. Oilman, 52 Me. 165, 83 Am.
Dec. 502 ; In re Olson's Will, 63 la. 145, 18 N. W. 854 ; Somerville v. Somer-
ville, 5 Ves. 750.
» See Dupuy v. Wurtz, 53 N. Y. 556 ; Allgood v. Williams, 92 Ala. 551,
8 So. 722 ; Oilman v. Oilman, 52 Me. 165, 83 Am. Dec. 502 ; De La Mon-
tanya v. De La Montanya, 112 Cal. 101, 32 L. |R. A. 82, 85 ; White v. Ten-
nant, 31 W. Va, 790, 8 S. E. 596 ; Abington v. N. Bridgewater, 23 Pick.
(Mass.) 170, 177; Hallett r. Bassett, 100 Mass. 167; Greene r. Oreene, 11
Pick. (Mass.) 409, 415.
* Dicey, Confl, L. 96, 97; Story, Confl. L. § 45, note (a); Jac. Dom.
§§ 91, 92.
5 Jac. Dom. §§ 91, 92 ; Otis v. Boston, 12 Cush. (Mass.) 44 ; Price v. Price,
156 Penn. St. 617, 27 Atl. 291 ; De La Montanya v. De La Montanya, 113
CJal. 101, 32 L. R. A. 82, 85, 53 Am. St. Rep. 165.
• Post. § 46. ' Post, § 50.
70 DOMICIL KETAINED TILL ANOTHER GAINED. § 29
her husband for the purpose of instituting a suit for divorce.'
If she doea ^ot desire a divorcCj^ h^er domicil remains in general
the same as her husband's, and ohangea with his. This principle
appears to~give the wife one-dataicil for the purpose of divorce,
and a different domicil (at the same time) for all other purposes.
The incongruity of this result has even led one court to deny
the well nigh universally admitted rule that jurisdiction of,
divorce is governed by the domicil of the complainant, and not
by his or her mere residence.^
But upon a close examination it will probably be found that
there is little or no real incongruity here. After the wife has
instituted the suit, if then a question should arise which would
make it needful to fix her domicil for any purpose, she would
probably be held to have acquired a domicil apart from her hus-
band/or aZZ purposes. Until she sues for divorce she has but
one domicil for any purpose, — that of her husband. After she
institutes the suit in a foreign jurisdiction, she still has only
one domicil for any purpose, — the one she has voluntarily
chosen as the locality in which she wishes to obtain her
divorce.
—^ § 29. III. Domicil retained until another is acquired. —
y^TYiQ third general principle relating to domicil is as follows:
A domicil once acquired is retained until a new domicil is
gained.^
This principle is but the logical and necessary consequence
of the two preceding ones. K one can never be without a dom-
icil, and can never have but one domicil at a time, it must fol-
» Post, § 50.
» De La Montanyai;. De La Montanya, 112 Cal, 101, 32 L. R. A. 82, 85,
63 Am. St. Rep. 165.
1 Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177; Dupuy v.
Wurtz, 53 N. Y. 556; Hallett v. Bassett, 100 Mass. 167; Borland v. Bos-
ton, 132 Mass. 89, 42 Am. Rep. 424 ; Desmare v. United States, 93 U. S. 605;
Mitchell V. United States, 21 WaU. 350 ; Shaw v. Shaw, 98 Mass. 158; AH-
good V. Williams, 92 Ala. 551, 8 So. 722 ; Price v. Price, 156 Penn. St. 617,
27 Atl. 291; Oilman v. Oilman, 52 Me. 165, 83 Am. Dec. 502 ; Williams v.
Saunders, 5 Coldw. (Tenn.) 60 ; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916 ;
Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142, 144 ; Shephei-d
V. Cassiday, 20 Tex. 24, 70 Am. Dec. 372, 373; Hart v. Lindsey, 17 N. H-
J85, 43 Am. Dec. 597, 601, 602 ; Somerville v. Somerville, 5 Ves. 750.
§ 29 DOMICIL EETAINBD TILL ANOTHER GAINED. 71
low that a domicil once acquired will be retained until another
is gained.' It is to be observed therefore that the abandonment
of a domicil does not of itself destroy it, even when coupled
with an intent to acquire a new one, but it continues until an-
other is in fact gained.'
Many examples of the application of these propositions might
be adduced, but one or two will suffice to illustrate them.
A person domiciled in Boston, Massachusetts, left that city in
1876, with his family, to reside in Europe for an indefinite
period, with the fixed purpose never to return to Boston, and to
make some place other than Boston his residence when he should
return. While in Europe, prior to May 1, 1877, he fixed upon
a place of residence in another State, but remained in Europe
until 1879. The question arose whether, as a domiciled citizen
of Massachusets, he was liable to taxation there on his personal
property, the taxes falling due May 1, 1877. It was held that
he was still domiciled in Boston on that day.*
In another case, a married woman left New York for Europe,
with her husband, for her health, at first intending to return.
But after her husband's death her physicians decided that she
must not come back. She wrote letters to that effect, but still
seemed to regard New York as her home. She lived in hotels
and lodgings in Europe, but never set up any establishment
there. She finally died, leaving a will of personalty valid
under the laws of New York but invalid under the law of
France, where the will was executed and where she died. It was
decided that the validity of the will must be determined by
the law of her domicil, and that she must be deemed to have
retained her New York domicil until she acquired another,
which she did not do.®
2 White V. Tennant, 31 W. Va. 790, 8 S. E. 596 ; Ayer w. Weeks, 65 N. H.
248, 18 Atl. 1108.
8 Shaw V. Shaw, 98 Mass. 158 ; First Nat. Bank v. Balcom, 35 Conn. 351;
In re Olson's Will, 63 la. 145, 18 N. W. 854 ; Hood's Estate, 21 Penn. St.
106 ; Cooper v. Beers, 143 111. 25, 33 N. E. 61 ; Somerville v. Somervillfl^
5 Yes. 750.
* Borland v. Boston, 132 Mass. 89, 42 Am. Rep. 424.
» Dupuy V. Wurtz, 53 N. Y. 556.
72 DOMICIL CHANGEABLE AT PLEASURE. § 30
It is a corollary of these propositions that the legal presump-
tion is in favor of the retention of a previous domicil, and the
hurden of proof lies on him who asserts a change of domicil.*
It should he noted however that a change of domicil from one
country or State to another under the same general sovereignty,
as from Scotland to England, or from one of the United States
to another, is more easily inferred than a change to a foreign
country, whose laws are strange and whose people are alien.''
,^y>y^ ,,■ § 30. IV. PerBons Sui Juris may change Domicil at
^ Pleasure. — The fourth principle is : Every natural person,
free and sui juris, may change his domicil at pleasure.^
This is the result of the personal liberty of locomotion, be-
longing of right, and now generally accorded to every person
not under disabilities and capable of controlling his own move-
ments. It implies the exercise of choice or will, and hence the
proposition is applicable only to that kind of domicil known as
the domicil of choice.^
But persons who are not legally sui juris, such as infants,
insane persons, or married women, or those who are incapable of
exercising a choice as to their locality, such as persons impris-
oned, invalids ordered to a particular place by their physicians,
or other persons deprived of freedom of locomotion, cannot in
general change their domicil at their own pleasure.'
6 Desmare r. United States, 93 U. S. 605 ; Mitchell v. United States, 21
Wall. 350; AUgood v. "Williams, 92 Ala. 551, 8 So. 722 ; Price v. Price, 156
Penn. St 617, 27 Atl. 291 ; Hood's Estate, 21 Penn. St. 106 ; Dnpuy v.
Wurtz, 53 N. Y. 556.
7 Moorehouse v. Lord, 10 H. L. Cas. 286, 287 ; Whicker v. Hume, 7 H. L.
Cas. 124 ; Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 504; Dupuy ».
Wurtz, 53 N. Y. 556.
1 See Jac. Dom. §§ 98, 100; Udny v. Udny, L. R. 1 Sc. App. 441 ; Harral
». Harral, 39 N. J. Eq. 279, 51 Am. Rep. 17.
" Post, §§ 56 et seq.
' Particular instances of these incapacities will be considered hereafter.
See post, §§ 57, 58. As to domicil of fugitive from justice, see Chitty v. Chitty,
118 N. C. 647, 24 S. E. 617, 32 L. R. A. 394; Young i;. PoUak, 85 Ala. 439,
5 So. 279. As to domicil of invalids, see Dicey, Confl. L. 143 ; Dupuy v.
Wurtz, 53 N. Y. 556; Hegeman v. Fox, 31 Barb. (N. Y.) 475, As to domicil
of exiles, see Ennis v. Smith, 14 How. 400. Of person rum compos mentis,
see Harral v. Harral, 39 N. J. £q. 279, 51 Am. Rep. 17 ; Talbot r. Chamber*
§ 31 DOMICIL OF OBIOIK. 78
§ 31. Sereral Kinds of Domicil. — I. Domicil of Origin. —
An individual's domicil may originate in three ways. It may
be (1) A domicil of origin, or original domicil ; (2) A con-
structive domicil, or domicil by operation of law ; or (3) A
domicil of choice. Each of these various forms of domicil will
be examined in detail.
The domicil of origin is the place assigned by the law to
every child as its permanent home or legal situs. It is assigned
at the moment of birth, for no person can ever be without a
domicil, and so one must be at once assigned him. Upon this
account it has been sometimes termed the domicil of birth, ^ but
the use of this term is liable to mislead, since it implies that
one's domicil of origin is the place where he is born. In Bruce
V. Bruce,' Lord Thurlow disapproves this idea, saying: "It is
an enormous proposition that a person is to be held domiciled
where he drew his first breath, without adding something more
unequivocal." Indeed, so far is this from being universally
true that it is well established that a domicil of origin may be
assigned a child in a State or country he has never seen. The
place of birth or the place of actual residence of the child is
generally immaterial.'
It must be observed that the domicil of origin is the first of
all domicils in point of time, since it is assigned at the moment
of the child's birth. Any domicil acquired after birth, however
short or long the interval, cannot be a domicil of origin. It
must be either a domicil by operation of law or a domicil of
choice. It must also be remembered that no person can have
more than one domicil at a time. Hence it is impossible for one
to have more than one domicil of origin. No subsequent occur-
rence, no combination of circumstances, can make that place a
lain, 149 Mass. 57, 3 L. R. A. 254 ; Upton v. Northbridge, 15 Mass. 237 ;
Mowry v. Latham, 17 R. I. 480, 23 Atl. 13 ; Sharpe r. Crispin, L. R. 1 P. & D.
611 ; Bempde v. Johnstone, 3 Ves. Jr. 198.
1 See Story, Confl. L. §§ 35, 46 ; Whart. Confl. L. § 35 ; Steer's Succession,
47 La. Ann. 1551, 18 So. 583.
2 2 Bos. &Pul. 229, 230. See Munro v. Munro, 7 CI. & F. 842 ; Somerrille
». Somerville, 5 Ves. 750 ; Price v. Price, 156 Penn. St. 617, 27 Atl. 291.
* Somerville v. Somerrille, 5 Ves. 750 ; Colbum -». Holland, 14 Sich. Eq.
(S. C.) 176, 228 ; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note.
74 ORIGINAL DOMICIL OP LEGITIMATE CHILD. § 32
child's domicil of origin which was not so when he was born.
The original domicil may be altered by such a combination of
circumstances, and the person may acquire a new domicil, but
it will be either a constructive domicil or a domicil of choice.
These conclusions seem irresistible, but authorities are found
to hold that the domicil of origin may be affected by certain
circumstances occurring after birth, such as the subsequent
legitimation of a child born a bastard.*
Since every newborn child must have a domicil somewhere,
and since he is incapable of selecting one for himself, the law
undertakes to ascertain it by well defined rules. To that end it
sets apart as his domicil of origin that country which, under all
the circumstances of the case, would be most naturally looked
upon by him as his home, had he the power to express a prefer-
ence.^ And since a domicil once acquired is retained until
another is gained, it frequently happens that one retains his
domicil of origin even after he has reached mature years.'
The rules whereby to determine the domicil of origin depend
upon various circumstances attending the party's birth, as
whether he be born legitimate or illegitimate; if the former,
whether the father be living or dead at the time of his birth ;
or whether the child is a foundling, whose parents are unknown.
§ 32, Original Domicil of Child born Legitimate. — If the
father jA..alive at tbe-t^ina«-afJJae birth of a legitimate child, the
infant has his domicil of origin in the couiitry where the father
then had his domicil.* It is the~father^s highest duty to pro-
vide a support and a home for his helpless and dependent off-
spring,* and it is his privilege to have the care and custody of
* Dicey, Confl. L. 104. See post, §§ 33, 34.
» See Price v. Price, 156 Peun. St. 617, 27 Atl. 291.
• Gaier v. O'Daniel, 1 Binn. (Penn.) 349, note; Crawford v. Wilson,
4 Barb. (N. Y.) 505 ; Price v. Price, 156 Penn. St. 617, 27 Atl. 291 ; Firth v.
Firth, 60 N. J. Eq. 137, 24 Atl. 916; In re Steer, 3 H. & N. 594.
1 Gaier v. O'Daniel, 1 Binn. (Penn.) 349, note; School Directors v. James,
2 W. 4 S. (Penn.) 568, 37 Am. Dec. 525; Hiestand v. Kuns, 8 Blackf. (Ind.)
845, 46 Am. Dec. 481 ; Somerville v. Somerville, 5 Ves. 750 ; Sharpe v. Cris«
pin, L. B. 1 P. & D. 611; Whart. Confl. L. § 35; Story, Confl. L. § 46.
« See Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Van Matre v. Sankey,
148 111. 356, 36 N. E. 628; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note.
§ 33 ORIGINAL DOMICIL OP BASTARD. 76
the child's person and education. To no other person has the
child the same right to look for these things; and if the infant
itself had the discretion to express a preference, it would most
probably choose as its home that of its father. The probabilities
are in favor of that being the child's permanent home rather
than any other place. Hence the law, basing a general rule
upon conrenience and the probabilities of the case, has fixed
upon this as the infant's domicil of origin.
If the father is dead when the child is born, he receives as
his original domicil that of his mother at that time. In the
absence of the father, his natural protector, the infant must look
to the mother for a home, and for all the guardian care that
childhood requires.'
§ 33. Origined Domicil of a Bastard — Of Legitimated Child.
— The law does not in general fix upon any particular man as
the father of a bastard, because of the uncertainty in ascertain-
ing him. The bastard is filius nullius. But there is no more
difficulty in ascertaining who is the mother of a bastard than of
a legitimate child, though the common law thought otherwise.
And since, in most cases, the care and support of an illegitimate
child devolves upon the mother, the law justly infers that the
probabilities in every case are greatly in favor of the bastard's
living with his mother rather than with the father, even if the
latter is known.
Hence the general rule-o£-IagJg that a bastard^a-domioi-l of ^
origin is the domicil of the mother at the moment of his birth.*
Upon principle, it would seem that no circumstance super-
vening after the bastard's birth should make his domicil of
origin other than that of the mother at that time, though such
a circumstance might confer upon him a new domicil by opera-
tion of law. Thus, the subsequent acknowledgment by the
father, or his intermarriage with the mother, which by the law
of many countries renders the bastard legitimate, may, as we
8 See Jac. Dom. § 105; Dicey, Confl. L. 103; Van Matre v. Sankey, 148
111. 356, 36 N. E. 628 ; Mears v. Sinclair, 1 W. Va. 185.
1 Dicey, Confl. L. 103 ; Wright's Trusts, 2 K. & J. 595, 25 L.J. (Ch.) 621;
Udny V. Udny, L. R. 1 Sc. App. 441; Blythe t>. Ayres, 96 Cal. 532, 31 Pac.
915, 19 L. R. A. 40.
76 ORIGINAL DOMICIL OF BASTARD. § 33
shall presently see, cause the infant's domicil thereafter to be
governed by that of the father.* But the bastard's domicil in
such case would cease to be the domicil of origin, and would
become a constructive domicil. His ^rst-and -oxigiaal domicil
was ihatx)! the mother, and hence when he afterwards acquires
the domicil of ihe fatherT^-xeaaoiLQl tha legitimation, it cannot
be referred back to the time of his birth, even though the legiti-
mation itself he^referred to that datg. The domicil of origin is
assigned at the moment of birth; whatever is then the condition
of the child will determine the locality of that domicil. If he
be then illegitimate, and the mother's domicil is once assigned
him legally as his domicil of origin, no other domicil of origin
can be assigned him. That would be to give him two domicils
at the same time."
It must be admitted however that t^ere are authorities other-
wise.* For example, so able and accurate a commentator upon
the Conflict of Laws as Mr. Dicey states the rule to be that one
born a bastard but afterwards legitimated stands (after legiti-
mation) in the position he would have occupied if he had been
born legitimate, and that his domicil of origin is therefore the
country where his father was domiciled at the time of the bas-
tard's birth (not at the time of his legitimation). But he admits
that this opinion is open to doubt.* This view seems to be based
upon the theory that the act legitimating the 'bastard (such
as an intermarriage of the parents) is to be referred to the time
of conception or of birth, thus causing the conception or birth to
take place, by relation^ in wedlock. Even if this theory is ad-
mitted, it does not materially weaken the force of the reasoning
above adduced against the proposition, and would be of no ap-
plication at all in those cases where the legitimation arises
from some other source than a subsequent intermarriage of the
parents, such as the mere acknowledgment of the father, which
suffices in some States.'
a Post, § 43 ; Dicey, Confl. L. 104 ; Whart. Confl. L. § 38.
« See Jac. Dom. § 30.
* Dicey, Confl. L. 104. See Munro v. Munro, 7 CI. & F. 817.
« Dicey, Confl. L. 104.
« See Blythe v. Ayres, 96 Cal. 352, 31 Pac. 915, 19 L. R. A 40 ; Ires a
McNicoU, 59 Ohio St. 402, 43 L. R. A. 772.
§ 34 ORIGINAL DOMICIL OP FOUNDLING. 77
§ 34. Original Domicil of a Foundling — Of an Adopted
Child. — A foundlifig^domijciI_of-^»igiH--ift-thacouiitry where
he ifipfound.* The principle applicable here is not different from
that applied in other cases of original domicil. But there is
here an element of uncertainty not arising under other circum-
stances,— an uncertainty as to the locality of the parents' domi-
cil. In other cases this quantity in the equation is known.
Here the parents themselves are not ascertained, much less their
domiciL
The law therefore in such cases must not only raise the pre-
sumption, as in the case of other new-born infants, that they
will have their permanent home in the domicil of their parents,
but it must make a further presumption as to the locality of that
domicil. The law will assume that the parents' domicil is in
the country where the child is found, in the absence of evidence
to the contrary, upon the principle that where no domicil is
shown to exist elsewhere, mere presence in a country sufi&ces to
establish a, prima facie domicil there.*
It is to be observed that the two presumptions above referred to
differ in this respect. The presum^ptiott^fchat-the-^omiciljjf. the
parents is in the country where the foundling_is_.dise»veped-. is
merely a presumpfibn oTj^ac^, rebuttaiJjle- by evidence to the
contrwry^; while the other jjresiimption — that a child has as his J
domicil of origin the domicil of his parents at tte tinre-^Lhis
birth — is a conclusive presumption of law whieh-«»mnjt' be
rebutted in a particular case.
Hence, if it is afterwards discovered that the parents' domicil
at the birth of the foundling was in reality in some other coun-
try than that wherein he is found, his domicil of origin is at
once transferred thither, and the latter place will thenceforth be
considered his domicil of origin.' This last conclusion is not in
conflict with the principle that no one can have more than one
domicil of origin. The law, in this case, merely acknowledges
itself mistaken in assuming that the parents were domiciled in
1 Dicey, Confl. L. 103, 132; Whart. Confl. L. § 39. See Washington «
Beaver, 3 W. & S. (Penn.) 548, 549.
3 Post, § 64 ; Dicey, Confl. L. 132.
» See Washington v. Beaver, 3 W. & S. (Penn.) 548, 549.
78 CONSTRUCTIVE DOMICIL. § 35
the country where the child is found, and corrects its mistake.
This is a very different case from that of the legitimated hastard
adverted to in the preceding section.
Where a child has heen adopted by persons, not his natural
parents, it is evident that the adoption, like the subsequent
legitimation of a bastard, being a circumstance supervening
after his birth, cannot confer upon him any other original
domicil than the one he already has.
§ 35. II. Constructive Domicil, arising by Operation of
Itaw. — The domiciLjof origin, it will_be rememberedj is as-
signed at the very moment of birth, and is retained until an-
other is acquired. Such new domicil may be acquired in two
ways. The individual, having reached maturity and being free
from all disabilities, may choose a new home for himself. This
is a domicil of choice. But it often becomes necessary for the
law to assign a new domicil other than that of origin to infants
and other persons incapacitated from selecting their own homes.
Thus, a child's domicil of origin is the domicil of the father
at the moment of its birth. But the father may change his
domicil to another State or country. The same reasons which
induce the law to make the father's former domicil the child's
domicil of origin operate to alter the child's domicil with that
of the father. And so it is with disabilities other than infancy,
such as those of a married woman or an idiot.
Such domicil, being assigned by the law, is said to arise by
construction or operation of law. As in the case of the original
domicil, the determination of the constructive domicil is based
upon legal presumptions, which however are so strong as to be
in the main conclusive and incontrovertible. Indeed the domicil
of origin itself is only one instance of constructive domicil, though
generally treated separately because of its peculiar importance
and influence.
There are two main points of difference between a domicil of
origin and a constructive domicil.
The first is that the domicil of origin is assigned to infants at
the moment of birth, while a constructive domicil is always as-
signed after birth, and may be given to others under disabilities
as well as to infants.
§ 36 DOMICIL OF INFANT — LEGITIMATE. 79
The second difference is to be found in the weight sometimes
attached to the domicil of origin in ascertaining the domicil of
choice in doubtful cases. It is expressed by the maxim : The
domicil of origin is less easily abandoned and more easily re-
verts} This is simply a rule of evidence and means that it will
take more convincing proof to show that one has abandoned his
original domicil for a new one than to show that he has aban-
doned one later domicil for another; and on the other hand, it
will require less evidence to prove a resumption of the domicil
of origin (upon the abandonment of some later domicil) than to
prove the acquisition of an entirely new domicil.*
There are a number of instances of constructive domicil, the
most important of which, those of infants, married women, and
insane persons, will now be examined.
§ 36. Constructive Domicil of Infant — Legitimate Child. —
Infants, not having arrived at years of discretion, are incapable
in law of exercising that voluntary and discreet choice in regard
to their permanent abode which is essential to the acquisition
of a domicil of choice.^
Furthermore, it being ordinarily true in fact that an infant
occupies the home of his parents and is under their fostering
care and protection, until he is himself able to battle with the
world, the law substitutes the general presumption that such is
the case in the place of particular evidence in each case as it
arises. We have already noted the application of this rule in
ascertaining the domicil of origin. The same principles will
in general apply to any subsequent change of domicil during
1 Jac. Dom. §§ 110, 115 et seq. ; Ennis v. Smith, 14 How. 400 ; Hallett
V. Bassett, 100 Mass. 167 ; Otis r. Boston, 12 Gush. (Mass.) 44 ; Harvard
College V. Gore, 5 Pick. (Mass.) 370 ; Oilman v. Oilman, 52 Me. 165, 83 Am.
Dec. 502 ; Somerville v. Somerville, 5 Ves. 750 ; Douglas v. Douglas, L. R.
12 Eq. 617. See Steer's Succession, 47 La. Ann. 1551, 18 So. 503 ; post,
§§ 65, 66.
* This last proposition is discoased, and in some measure dissented from,
post, §§ 65, 66.
1 Jac. Dom. § 229 ; Van Matre v. Sankey, 148 111. 356, 36 N. E. 628 ; Price
V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Lamar v. Micou, 112 U". S. 452 ;
Allgood V. WiUiams, 92 Ala. 551, 8 Sov 722 ; Mears v. Sinclair, 1 W. Va. 185 ;
Guier v. O'Daniel, 1 Binn. (Penn.) 349, note.
80 infant's domioil — fatheb alive. § 37
the child's minority; and in the main similar distinctions are
to be taken.
The domicil of a legitimate child may be brought into ques-
tion under various circumstances. The child's father may be
living; or he may be dead, the mother surviving; or both may
be dead; or they may be divorced.
§ 37. Domicil of Legitimate Child — Father Alive. — It is
a well established rule that the domicil of an infant will usually
change wijh that of the father, so long aa he lives.* It will in
general make no difference in the application of this principle
that the father and mother actually reside apart in different
States or countries, or that in fact the child lives with its
mother.'
The reason for this presumption of law is not only that in the
rast majority of cases the child actually has the home of his
father, but it may be placed upon the broader ground of the
established legal right of the father, as the natural guardian
of the child, to the custody of his person against all the world,
— even against the mother, — and his corresponding duty to
afford it home and shelter.'
It is said that possibly the father's abandonment of his family
and the emancipation of the child will constitute exceptions to
this rule.* And if the parents should have been divorced, under
1 Dicey, Confl. L. 120 ; Jac. Dom. § 235 ; Story, Confl. L. § 46 ; Whart.
Confl. L. § 41 ; Sharpe v. Crispin, L. R. 1 P. & D. 611 ; Lamar v. Micou, 112
U. S. 452; School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec.
525 ; Van Matre v. Sankey, 148 III. 356, 36 N. E. 628 ; Hears v. Sinclair,
1 W. Va. 185 ; Dresser v. Illuminating Co., 49 Fed. 257 ; Hiestand v. Runs,
8 Blackf. (Ind.) 345, 46 Am. Dec. 481 ; Woodward v. Woodward, 87 Tenn.
644, 11 S. W. 892, 896 ; Kline v. Kline, 57 la. 386, 10 N. W. 825, 826.
2 See Jac. D«m. § 236 ; Allgood v. Williams, 92 Ala. 551, 8 So. 722 ; Kelsey
». Green, 69 Conn. 291, 37 Atl. 679.
» Allgood V. Williams, 92 Ala. 551, 8 So. 722. See Lamar v. Micou, 114
TJ. S. 214. " The nurture and education of the offspring make it indispensable
that they be brought up in the bosom of their parents' family ; without which
the father could not perform the duties he owes them, or receive from them the
service that belongs to him." School Directors r. James, 2 W. & S. (Penn.)
568, 37 Am. Dec. 525, 527.
* Jac. Dom. f § 231-237 ; Allgood v. Williams, 92 Ala. 551, 8 So. 7J2. See
Van Matre v. Sankey, 148 111. 356, 36 N. E. 628.
§ 37 infant's domicil — father alive. 81
such circumstances of misconduct on the part of the husband
that the divorcing court has taken the children from his custody
and has turned them over to the mother, thenceforward, provided
the court has jurisdiction to make the decree, the domicil of the
children will usually be held to depend upon that of the mother,
since she then has the legal custody of them. The father has
ceased to be the natural guardian, and the foundations upon
which this rule of domicil is based are shattered.'
Although it is ordinarily competent for the father to change
his child's domicil at any time hy changing his own, it is not
as a general rule within his power to give the child a domicil
apart from his own.^
Thus, in Allgood «. Williams,' it appeared that the father of
an infant, a few weeks before his death, requested his brother
to take the child and raise her. The uncle lived in a different
county from the father but in the same State. The question
arose as to which county was the legal residence of the child
after the father's death. It was held that the child's municipal
domicil remained in the county where the father had lived, and
was not transferred to the home of her uncle.
In De Jarnett v. Harper,* the parent, residing in Missouri,
actually entrusted the custody of the infant child, before death,
to a person in another county in the same State. It was held
that that fact did not change the minor's domicil for the pur-
pose of determining in which county a guardian should be
appointed on the parent's death.
But though a father will not generallyJbe_permittedto change
his child's domicITsave in so far as he changes his own, there"
' The same result would seem to follow without a divorce if the husband's
conduct has been such as to make it necessary to withdraw from him the
custody of his children. Jac. Dom. § 237. See Kelsey v. Green, 69 Conn.
291, 37 Atl. 679.
« Jac. Dom. §§ 237, 241 ; Dicey, Confl. L. 143 ; "Woodward v. Woodward,
87 Tenn. 644, 11 S. W. 892 ; Allgood v. WiUiams, 92 Ala. 551, 8 So. 722 ;
De Jamett v. Harper, 45 Mo. App. 415. These two latter cases refer to municu
pal domicil, but a fortiori the same principle would govern national or quasi'
national domicil. But see White t>. Howard, 52 Barb. (N. Y.) 294, 318.
1 92 Ala. 551, 8 So. 722.
« 45 Mo. App. 415.
6
82 DOMICIL OP FATHERLESS INFANT. § 38
are qualifications of the rule that deserve attention. If the
father should^x_the,child'ajesidence apart from his own, with
the intentioiLflf^JfilBa^eStlyjrfiaQjjncing^o^^ over its actions,
and surrendering to competent persons his legal right to the cus-
tody of its "person an drthe'caFe""oF~Tfs~education, this might, in
some cases, effect a change in the child's domicil . ' Thus if the
father should Isind the child out as apprentice, the latter's dom-
icil, it is believed, will then become that of the master, and will
change with his, even into anothw SfeM of country, if such a
change is within the scope of^ the contract of apprenticeship.
Here not only the actual physical custody, but the legal custody
also, has been renounced by the parent.^"
The same is true if the father surrenderajfehe child to a third
person for adoption, at least where the relation of child by adop-
tion is legally recognized.^^
§38. Same — Father Dead, Mother Surviving. — It is a
general principle of the law that, after the father's death, the
mother succeeds to his position as the natural guardian of the
infant children, so long as she remains unmarried and is fit for
the trust. There is a strong moral, if not a strictly legal, duty
resting upon her to provide them a home, as in fact she usually
will. For these reasons the rule seems now well established
that the domicil of the fatherless infant will change with that
of the mother, at least so long as she remains unmarried.*
» Jac. Dom. §§ 246, 247, 248; Maddox v. State, 32 Ind. 14 ; Ross v. Ross,
129 Mass. 243, 37 Am. Rep. 321; In re Johnson, 87 la. 130, 54 N. W. 69 ;
Washburn v. White, 140 Mass. 568.
1° See Maddox v. State, 32 Ind. 14, which however is a case of monicipal
domicil, involving the right to vote.
" Jac. Dom. §§ 247, 248; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321;
Washburn v. White, 140 Mass. 568 ; Woodward v. Woodward, 87 Tenn. 644,
11 S. W. 892 ; In re Johnson, 87 la. 130, 54 N. W. 69 ; Foley's Estate, 11
Phila. 47. If the adoption is not a legal status, it is doubtful, to say the
least, whether the same result would follow. See Allgood v. Williams, 92 Ala.
551, 8 So. 722 ; De Jamett v. Harper, 45 Mo. App. 415. But see Lamar v.
Micou, 114 U. S. 452.
1 Jac. Dom. §§ 238, 241 ; Dicey, Confl. L. 121; Whart. Confl. L. § 41 ;
Story, Confl. L. § 46, note (c); Potinger r. Wightman, 3 Meriv. 67; Johnstone
V. Beattie, 10 CI. & F. 42, 138; Sharpe v. Crispin, L. R. 1 P.& D. 611 ;
Lamar v. Micou, 112 U. S. 452; Van Matre v. Sankey, 148 111. 356, 36 N. E.
§ 38 DOMICIL OF FATHERLESS INFANT. 83
Some question has been made whether this principle applies
in cases where the child fails to actually accompany the mother
to a new home, remaining apart from her in his old place of
abode. Some of the authorities hold that, under such circum-
stances, the child's domicil does not follow the mother's.* But
the better view, and the most reasonable, is that the power of
the widowed mother with respect to the infant's domicil is the
same as that of the father, were he alive.'
It is sometimes said that the widowed mother may change the
domicil of her child with hers, if she act without fraudulent in-
tent to thereby alter the rule of succession to the child's person-
alty (which depends upon the law of the domicil). It may well
be doubted whether this is a proper qualification of the rule.*
628; Woodward v. Woodward, 87 Tenn. 644; 11 S. W. 892 ; Mears v. Sin-
clair, 1 W, Va. 185 ; Allen v. Thomason, 11 Humph. (Tenn.) 536, 54 Am.
Dec. 55, 57, note ; Succession of Lewis, 10 La. Ann. 789, 63 Am. Dec. 600,
601, 602; School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec.
625; Freetown v. Taunton, 16 Mass. 52; Dedham v. Natick, 16 Mass. 135.
In De Jarnett v. Harper, 45 Mo. App. 415, it was held that the domicil of a
widowed mother, even though she had been adjudged a lunatic, fixes the
municipal domicil of her child, and determines the jurisdiction of the court
to appoint a guardian. The incompetence or unfitness of the mother as a
guardian, says the court in that case, can only be tried by the court of the
county where she is domiciled.
2 See Jac. Dom. § 241 ; Dicey, Confl. L. 122-123.
8 Sharpe v. Crispin, L. R. 1 P. & D. 611; Lamar v. Micou, 112 U. S. 452;
Van Matre v. Sankey, 148 111. 356, 36 N. E. 628 ; Woodward v. Woodward,
87 Tenn. 644, 11 S. W. 892 ; Allen v. Thomason, 11 Humph. (Tenn.) 536,
54 Am. Dec. 55, 57, note ; Mears v. Sinclair, 1 W. Va. 185 ; Succession of
Lewis, 10 La. Ann. 789, 63 Am. Dec. 600, 601-602 ; School Directors v. James,
2 W. & S. (Penn.) 568, 570, 37 Am. Dec. 525; Dedham v. Natick, 16 Mass.
135.
* Dicey, Confl. L. 126, 127; Potinger v. Wightman, 3 Mertv. 67 ; School
Directors v. James, 2 W. & S. (Penn.) 568, 569, 37 Am. Dec. 525, 526;
Wheeler v. HoUis, 19 Tex. 522, 70 Am. Dec. 363, 365. No reason can be
urged why this qualification should be attached in the case of the mother,
which would not apply with equal force to the father. Yet it is never applied
to restrict the father's power to change the child's domicil. Mr. Jacobs argues
against it with force. He says: " Suppose that for the purpose of affecting
the personal succession, a mother carries with her her infant child into another
State or a foreign country, and the child, instead of dying there, should live
Wid grow up to maturity. Can it be doubted that his general legal capacity
84 EFFECT OF REMABRIAGE OF THE MOTHER. § 39
§ 39. Effect of Remarriage of the Mother. — A woman, upon
marriage, generally ceases to have the power to choose her own
domicil. The law fixes it, independently of her volition, as
that of her hushand, whether she actually resides with him or
at his domicil or elsewhere. She becomes a part of her hus-
band's family and thereby ceases to be the head of her own.*
Since therefore her domicil becomes subordinate to her hus-
band's, and since he owes no legal duty to provide the step-
children with a home, some of the authorities hold that the
domicil of the wife's minor children, from the time of her re-
marriage, ceases to follow any further change of domicil by the
stepfather and his wife, but remains where it was at the time
of the mother's second marriage, until she again becomes dis-
covert, or until the children arrive at maturity and select
domicils of their own.*^
Othe.r_authorities seem to hold that the question turns upon
whether Jhe cYniAactiLally changea. its -residence to the domicil
of the stepfather^ jfj after herjcemairiage, the infant actually
lives with the mother^js-Jihe stjftpfathftr'a home, then that be-
comes his domicil. Otherwije^ the child retains the former
domicil.*
would be determined by the laws of the new place ? Can it be doubted that
his personal property would be taxable there «... It seems therefore more
logical to hold that while courts would interpose to defeat the fraudulent de-
sign with which a parent had attempted to change the domicil of his or her
infant child, they would not do so upon the ground that the change of domicil
had not been accomplished, but rather upon the ground that, in the particular
case, the usual legal eflfect could not be given to the change of domicil, so as
to assist in the i)erpetration of the fraud." Jac. Dom. § 243. But see Mears
V. Sinclair, 1 W. Va. 185.
1 Post, § 46; School Directors v. James, 2 W. & S. (Penu.) 568, 569,
37 Am. Dec. 525, 526 ; Allen v. Thomason, 11 Humph. (Tenn.) 536, 54 Am.
Dec. 55, 57 ; Lamar v. Micou, 112 U. S. 452.
2 Jac. Dom. § 244; Dicey, Confl, L. 125, 126; Lamar v. Micou, 112
U. S. 452; "Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896 ; Allen
». Thomason, 11 Humph. (Tenn.) 536, 64 Am. Dec. 55, 57 ; School Directors
V. James, 2 W. & S. (Penn.) 568, 569, 87 Am. Dec. 525, 526 ; Mears v. Sin-
clair, 1 W. Va. 185; Freetown v. Taunton, 16 Mass. 52; Brown v. Lynch,
2 Bradf. (N. Y.) 214.
* See Blythe v. Ayres, 96 CaL 532, 31 Pac. 915, 919 ; Succession of Lewis,
§ 40 CONSTBtrCTIVB DOMICIL OP ORPHAK. 85
The second view is more consonant with reason. It must be
admitted that thT'fiKt' doctrine leaves out of consideration the
strong moral duty resting upon the mother to provide her infant
children with a home, as well as other necessaries — a duty
which rests upon her no less strongly after her remarriage than
during her widowhood. It moreover disregards the usual trend
of events in such cases, and instead of assuming to be true what
is true in most cases, as in other instances of constructive
domicil, it assumes to be true what in most cases is known to
be false. For though in law the widowed mother ceases proba-
bly upon her remarriage to be the natural guardian of her infant
children, and to be as such entitled to the care and custody of
their persons, in fact it is otherwise in the vast majority of
eases. Indeed the last doubt as to the fact must be dismissed
»yhen we suppose the children actually to reside with their
toother and her husband.*
§ 40. Constrnctive Domicil of Orphan. — ITpoB^he principle
that a domicil once acquired is^ retained until another is gained,
the settled rule is that a minor^ both_ofjwhose_parents^ are-dead,
will retajBTjlie last domicil -of ih^Jas^tjauDdvin^pjarent, until It
is legally changed. This^clMuige the ^infant cannot himseH
make nniiX^j^hg^omoa-SuiJuris. The law fixes his domicil for
him during his minority, regardless of the place of his actual
abode.^
But although the authorities are agreed that an orphaned in-
fant cannot by his own act change his domicil, they are much
dividied upon the question as to the power of his guardian in
10 La. Ann. 789, 63 Am. Dec. 600, 601-602 ; Wheeler ». Hollis, 19 Tex. 522,
70 Am. Dec. 363, 367 ; Brown v. Lynch, 2 Bradf. (N. Y.) 214. In Suoces-
eion of Lewis, supra, the mother had been appointed the guardian of her child.
In Wheeler v. Hollis, supra, the stepfather had been appointed the child's
guardian.
* See Story, Confl. L. § 46, note (c); Wheeler v. Hollis, 19 Tex. 52J,
70 Am. Dec. 363, 367 ; Blythe v. Ayres, 96 Gal. 532, 31 Pac. 915, 919, 19
L. R. A. 40 ; Dalhousie v. M'Douall, 7 CI. 4 F. 817.
1 Van Matre ». Sankey, 148 111. 356, 36 N. E. 628 ; School Directors v.
James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525, 527. See I^mar v. Micou,
112 U. S. 452 ; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896
Holyoke r. Haskins. 5 Pick. (Mass.) 20, 25-26, 16 Am. Dec. 371
86 C50NSTRUCTIVB DOMICIL OF ORPHAN. § 40
this respect.* The examination of this point will lead us to
review briefly the several kinds of guardians and their rights
and duties, and then to consider especially the guardian's power
with reference to the ward's domicil.
The law admits two general classes of guardians, those hav-
ing the custody and care of the ward's 'person and those having
the custody of his estate. The first class was known to the
Roman law as tutors, the second as curators. Under the modi-
fied system of the common law, as it exists generally in England
and the United States, there are three main classes of guardians :
the guardian by nature, or natural guardian ; the guardian by
appointment of court, or the appointed guardian ; and the tes-
tamentary guardian.
1. The guardian by nature has charge of the ward's person
onli/y and the care of his education. The father is primarily
the natural guardian of a legititnate child, or if he be dead, the
mother, so long as she remains unmarried and is fit for the
trust. If the child is illegitimate, the case is like that of a
legitimate child whose father is dead; the mother is the natural
guardian. If both parents be dead, then it seems, according to
the common law, that any lineal ancestor of the minor to whom
he is heir may be the natural guardian. The father has the
first claim; the mother the second; and amongst more remote
ancestors, such as grandparents, etc., he who first obtains pos-
session of the infant, pursuant to the maxim, in cequali jure,
melior est conditio possidentis.^
2. The guardianship by appointment embraces both the care
of the person and of the property of the ward. But it applies
to the ward's person only in the event that there is no natural
guardian.* It must be observed that the appointed guardian,
2 See Jac. Dom. §§ 249 at seq. ; Whart. Confl. L. §§ 41, 42 ; Dicey, Confl.
L. 123.
8 Jac. Dom. § 245 ; 1 Minor's Insts. (4th ed.) 452 ; 1 Bl, Com. 461 ;
Lamar v. Micou, 114 U. S. 218 ; Darden v. Wyatt, 15 Ga. 414. But Bee
Marheineke r. Grothaus, 72 Mo. 204.
* See 1 Minor's Insts. (4th ed. ) 456-457 ; Wood v. Wood, 5 Pai. Ch. (N. Y.)
596, 28 Am. Dec. 451. Bat see Townsend v. Kendall, 4 Minn. 412, 77 Am.
Dec. 534.
§ 41 POWEB OF GUABDIAN TO ALTBB DOMICIL. 87
even wbere there is no guardian by nature, has not the same
ties of affection and influence to draw the ward to him as has
the natural guardian, nor has he the same control over him iu
fact.'
3. Te$tamentary guardians are statutory guardians, depend-
ing for their authority upon the statutes of the various states.
They are usually given control of the person and property of
the ward. But, like an appointed guardian, a testamentary
guardian does not supersede the natural guardian in the custody
of the child's person, or the care of his education. Nor can he,
in the nature of things, possess the same control over the ward
that the parents would have.
In conclusion, it is proper to observe that, independently of
statute, these guardianships terminate, as to male wards at
twenty-one, and as to female wards at twenty-one or marriage.*
Even as to male wards, the common law seems to hold that mar-
riage emancipates the person, but still leaves the property of
the ward under the control of the guardian.'
§ 41. Power of Guardian to alter Ward's Domicil. — From
the brief summary, just given, of the various guardians, and
remembering the principle that the law, in establishing a con-
structire domicil, looks to the actual probabilities of the case
and the presumed choice of the incompetent party, as well
as to the legal right to the custody and control of the ward,
some deductions may be drawn of importance in the solution
of the question, how far a guardian may influence the ward's
domicil.
With respect to the natural y Marc?ta?i,_uaitfid aa Jie iaJiathe
infant by ties x>i parental love^and obligation on the one hand,
and filial dependence^ Respect, and duty on the^ other, Itf is
not difficult to understand that all the presumptions of fact, as
well as of law, are in favor^of -the ^B©ral3ile!Ihat thelffliinbr^s
domicil will be with the^pareiii wherever he is, and will change
with^Eis. "TheTnfjuit is an integral part of his family. An4
6 See Jac. Dom. |§ 251 et seq.
6 Charlestown v. Boston, 13 Mass. 468, 472.
' 1 Minor's Insts. (4th ed.) 464. See Com. v. Graham, 157 Mass. 78, 75"
Washington v. Beaver, 3 W. & S. (Penn.) 548. 549.
88 POWEB OF GUARDIAN TO ALTEB DOMICIL. § 41
such is the general rule, not only where the natural guardian
is the father or the mother,* but even in case of the grand-
parent also, at least where the infant actually resides with him.'
Hence, in the further consideration of this much vexed question
we may eliminate from the discussion the right of the natural
guardian to change the minor's domicil and confine our atten-
tion to the powers of the appointed and testamentary guardians
in this respect, where there is no natural guardian.
Upon the rights of such guardians to change the ward's
domicil during his minority there has been great division of
opinion. Some courts have held that these guardians take in
law the place of the parents of the infant, and succeed to all the
powers of the parents — amongst others, that of changing his
domicil.'
Others have held with equal positiveness that the guardian's
intentions or acts have no effect whatever upon the ward's
domicil, which remains fixed where it was at the death of his
last surviving parent or natural guardian.*
Some of the cases have made a distinction in this respect
between testamentary guardians and those appointed by court,
1 Ante, §§ 37, 38.
» Lamar v. Micou, 114 U. S. 218 ; Darden v. Wyatt, 15 Ga. 414 ; Kirkland
V. Whately, 4 Allen (Mass.), 462 ; Dresser v. Illuminating Co., 49 Fed. 257 ;
Jac. Dom. § 245. But see Woodward v. Woodward, 87 Tenn. 644, 11 S. W,
892.
• Townsend v. Kendall, 4 Minn. 412, 77 Am, Dec. 534, 536 ; Wheeler v.
Hollis, 19 Tex. 522, 70 Am. Dec. 363, 365 ; Wood r. Wood, 5 Pal. Ch. (N, Y.)
596, 28 Am. Dec. 451 ; White v. Howard, 52 Barb. (N. Y.) 294, 318 ; Wood-
worth V. Spring, 4 Allen (Mass.), 321. See Lamar v. Micou, 112 IT. S. 452 ;
Talbot V. Chamberlain, 149 Mass. 57, 20 N. E. 305, 3 L. R. A. 254. These
cases relate to national or quasi-national domicil. Other decisions hold that
the guardian is permitted to change the municipal domicil of the ward.
See Mills ». HopkinsviUe (Ky.), 11 S. W. 776 ; Kirkland v. Whately,
4 Allen (Mass.), 462 ; Holyokev. HasMns, 5 Pick. (Mass.) 20, 25-26, 16 Am.
Dec. 372.
* Woodward ». Woodward, 87 Tenn. 644, 11 S. W. 892, 896 ; Mears v.
Sinclair, 1 W. Va. 185 ; Daniel v. HUl, 52 Ala. 430 ; Hiestand v. Kuns,
8 Blackf. (Ind.) 345, 48 Am. Dec. 481. See Lamar v. Micou, 112 U. S. 452.
As to municipal domicil, see School Directors v. James, 2 W. & S. (Pena. )
568, 87 Am. Dec. 525. See Jac. Dom. §§ 261 et seq.
§ 41 POWER OP GUARDIAN TO ALTER DOMICIL. 89
permitting the change of the ward's domicil in the former case,
but not in the latter. It is difficult to discover any valid basis
for this distinction. ••
With regard to the ward's national or quasi-national domicil,
since the gttardiajij(ffih.ethfiiLtfiatajaen|ar^r appoint6d)^has no
legal authority as of right^ve^p*hfr'per8ea-of--tEa. ward outside
of the jnriRJirtion whpirft hp is appointftrl an^j.qvialifipfl as such,*
and since furthermore the ward is not g6n«raUy4a facLa mein;^
ber ol his guardian's family, not expected and not intending to
make _his home permanently with him,' it would seem reason-
able to suppose that a change of such domicil on the part of the
guardian would not ordinarily cause a corresponding change of
the ward's.
But if the ward, as a matter of fact, is a member of the .
guardian's family, living with him as such, and actually remov-
ing with him to his new abode, his domicil, it is believed, will
change with that of the guardian.^
As between a natural and a testamentary or appointed guar-
dian, it will be remembered that the legal custody of the
infant's person belongs, by municipal law as well as by the law
* Jac. Dom. § 260 ; Lamar v. Micou, 112 U. S. 452 (a dictum). The dis-
tinction rests upon this dictum of the Supreme Court, for which no reason is
given and to sustain which only one case (Wood v. Wood, 5 Pai. Ch. (N. Y.)
596, 605, 28 Am. Dec. 451) is cited. The language of the latter case is ap-
plicable to all guardians. See contra, Mears v. Sinclair, 1 W. Va. 185.
* Post, § 115. See Lamar v. Micou, 112 U. S. 452 ; Douglas v. Douglas,
L. R. 12 Eq. 617, 625.
'' See Jac. Dom. § 251 ; School Directors v. James, 2 W. & S. (Penn.)
568, 37 Am. Dec. 525, 527.
8 Such were the facts in Wheeler v. HoUis, 19 Tex. 522, 70 Am. Dec. 363 ;
White r. Howard, 52 Barb. (N. Y.) 294, wherein it was held that the ward's
doaicil followed the guardian's. See also Townsend v. Kendall, 4 Minn. 412,
77 Am. Dec. 534, 536. But in Daniel v. Hill, 52 Ala. 430, where the same
state of facts arose, the court decided against a change of domicil. So also in
Mears v. Sinclair, 1 W. Va. 185, which was the case of a testamentary guar-
dian. In Wood V. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Am. Dec. 451, the court
refused to allow a testamentary guardian residing in another state to remove
the wards from New York, where their mother lived. The language of the
decision supports the proposition that a guardian may alter his ward's domicil,
but the court clearly had in mind the state of facts referred to in the text.
90 POWER OF GUARDIAN TO ALTER DOMIOIL. § 41
of nature, to the former, so long as he remains fit for the trust.
Hence we should expect to find that, so long as there is a
natural guardian living, the child's domicil will follow his,
rather than that of the testamentary or appointed guardian.
And this conclusion is borne out by the cases.'
It should be observed that the guardian herein alluded to, as
competent to alter the ward's domicil with his own under cer-
tain circumstances, is the domiciliary guardian, the guardian
appointed in the State where the ward is domiciled. If ap-
pointed in a State where the ward is resident, but not domi-
ciled, his powers are strictly local. He may be able to change
the ward's municipal domicil, but he cannot affect his national
or quasi-national domicil.^"
With respect to the municipal domicil of the ward, the guar-
dian's power to alter or affect it is a matter of municipal law.
It seems however to be generally conceded that the powers of
the guardian in this respect, there being no natural guardian,*^
are much more extensive. There is indeed but little dissent
from the proposition that a guardian may change an orphan
ward's municipal residence whenever such a course is for the
benefit of the ward, not necessarily, it seems, being confined in
his choice to the place where he himself lives. ^'^
There are several reasons why the guardian's powers should
here be extended. In the first place he has the powers of a
guardian in every portion of the State of his appointment;
wherever he places the ward, he has the authority of guardian.
This is not the case when he takes the ward to another State."
' Seiter v. Straub, 1 Demar. (N. Y.) 264; School Directors v. James,
2 W. & S. (Penn.) 568, 37 Am. Dec. 525; Kirkland v. Whately, 4 Allen
(Mass.), 462 ; Wood v. Wood, 5 PaL Ch. (N, Y.) 596, 28 Am. Dec. 451 ;
Lamar v. Micou, 114 U. S. 218.
10 Lamar v. Micou, 112 U. S. 452.
" In School Directors v. James, 2 W. 4 S. (Penn.) 568, 37 Am. Dec. 525,
it was held that a ward's personalty could not be taxed in the borough where
the guardian lived, the ward residing with his mother in another borough.
12 Jac. Dom. § 257 ; Lamar v. Micou, 112 U. S. 452 ; Mills v. Hopkinsvillo
(Ky.), 11 S. W. 776 ; Kirkland v. Whately, 4 Allen (Mass.), 462 ; Holyoke v.
Haskins, 5 Pick. (Mass.) 20, 25, 16 Am. Dec. 372.
i« Jac. Dom. § 261 ; Lamar v. Micou, 112 U. S. 452 ; Douglas v. DouglM,
L. B. 12 Eq. 617.
I 42 DOMICIL OF ILLEGITIMATE CHILD. 91
Again, the removal of the ward's residence from one part of the
State to another does not expose him to be subjected to any
change in the law governing him and his property, as does a
change of his national domicil. The courts are very jealous of
a change of that character.^* Finally, the guardian has the
management of the ward's estate, and his pecuniary interests
may often require a change of residence, for example, for pur-
poses of less rigorous taxation, " education, ^' or cheaper living.
§ 42. Constructive Domicil of an niegitiniate Child. —
The father of a bastard being unknown, it devolves upon the
mother to provide a home for him, and she, as the natural
guardian, has the custody of his person and the care of his
education. The same principles will apply here as in the case
of a legitimate child whose father is dead, and whose mother
survives.^
The domicil of the mother is the domicil of the bastard, the
place of the infant's birth and the domicil of the father being
immaterial elements.^ Should the mother marry, her domicil
will thereafter be governed by that of her husband. "Whether
the bastard's domicil will be correspondingly changed would
seem to depend upon whether he actually resides with his
mother and stepfather, the principle being the same as in the
case of a legitimate child, whose widowed mother marries
again.* But if the mother marries the father of the child, it
is believed the rule would be different, even though legitimation
does not result. In such case, it would seem that the infant
bastard's domicil would shift with the mother's, whether he
actually resides with his mother and father or not.
1* See Pedan v. Robb, 8 Ohio, 227 ; Wheeler v. HoUis, 19 Tex. 522, 70 Am.
D«c. 363.
15 Mills V. Hopkinsville (Ky.), 11 S. W. 776 ; Kirkland v. Whately, 4 Allen
(Mass.), 462.
16 School Directors v. James, 2 W. & S. (Penn.) 568, 57 Am. Dec. 525, 527.
1 Ante, §§ 38, 39.
2 Jac. Dom. § 244, a ; Dicey, Confl. L. 120, 121 ; "Whart. Confl. L. § 37 ;
Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40.
8 Ante, § 39. See Blythe w. Ayres, 96 Cal. 532, 19 L. R. A. 40, 31 Pac
915, 919.
92 DOMICIL OP AN ADOPTED CHILD. § 44
§ 43. Constructive Domicil of Child subsequently Legiti*
mated. — At common law a child born . put otja^fidlock was a
bastard, and no subsequent intermarriage of the .parents or
acknowledgment of the child bjr theiather, or any-other. super-
venient act, would legitimate him. But by the Roman or civil
law, and by statute in most of these States, the subsequent
intermarriage of the parents, either standing alone, or coupled
with an acknowledgment by the father, will legitimate an ille-
gitimate child.* In some of the States, the mere acknowledg-
ment of the father, without marriage, will have the same effect.*
The question in all such cases is, has the child become legiti-
mate under the proper law ? ' If so, it is immaterial how that
result came about. Thenceforth he is in exactly the same posi-
tion in all respects as if he wejie born legitimate, and his domicil
will thereafter' lie governed by the same rules. It will follow
the domicil of his father, or if he be dead thattjf the mother,
so long as the child remains Tmdeir age; ''
§ 44. Constructive Domicil Of an Adopted Child. — Under
the common law (it was otherwise by^he civil law) there was
no such legal- relalJidh as t15at of adopted child. Such child
had no legal right to look to the adopting parent for support or
home, in the absence of special contract, or to succeed to any
portion of his property. But in many, if not in most, of these
States statutes have been passed in accordance with the civil
law, permitting this relation to be created upon the observance
of certain formalities. These statutes generally impose upon
the adopting parent, after the adoption, the same duties that
the law places upon him in respect to his own children. The
natural parents or the guardians surrender their control to the
adopting parent, and he, on the other hand, must supply to
the adopted child all the necessaries he would be bound to
supply to his own children, amongst other things, a home.*
1 See Ross v. Ross, 129 Mass. 243, 249, 37 Am. Rep. 321.
» See Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40.
• For the proper law to determine this question, see post, §§ 98-100.
1 Ross V. Ross, 129 Mass. 243, 263, 37 Am. Rep. 321 ; Washburn v. White,
140 Mass. 558 ; Foster v. Waterman, 124 Mass. 592 ; Woodward r. Wood-
ward, 87 Tenn. 644, 11 S. W. 892, 896.
§ 46 DOMICIL OP A MARRIED INFANT. • 93
Under such a state of the law, the adopting parent hecomea
the natural guardian of the child, and his domicil becomes that
of the child also,'
Possibly this result may also follow, even in the absence of
legal adoption, in cases where the parents are dead, and the
children are taken to distant localities, to be reared by relatives
or others interested in the orphans.* But if the parents or
either of them be alive, it would seem that, lio ^pattftr ^in^
clearly they may intend or agree to surrender the control of
the child, its domicil is not thereby changed.*
§ 45. Domicil of a Married I^anCr=>- As we have seen in
speaking of the functions of guardians,^ it is the better opinion
that at common law, even as to male wards, all guardianship
ceases, so far as the ward's person is concerned, at twenty-one
or marriage. In jurisdictions where this is the rule it follows
that if a minor is married and has a family and home of his
own, he becomes "emancipated," and may acquire a domicil of
choice.*
If the infant is a female and marries, she merely exchanges
one dependence for another. lier domicil ceases to be that of
her parents and becomes that of her husband,' even though she
continues to reside with her parents, provided the husband be
in no default.*
An interesting question might be raised as to the domicil of
2 See cases above cited. See also In re Johnson, 87 la. 130, 54 N. W. 69 ;
Foley's Estate, 11 Phila. 47 ; Jac. Dom. §§ 247, 248.
' See Lamar v. Micou, 114 U. S. 218 (the child here resided with the
grandparent, whom the court held to be the natural guardian) ; Dresser v.
Illuminating Co. , 49 Fed. 257 (also case of grandparent) ; Cutts v. Haskins,
9 Mass. 543 (case of brother). But see "Woodward v. Woodward, 87 Tenn.
644, 11 S. W. 892, 896, criticising Lamar v. Micou, supra.
* De Jarnett v. Harper, 45 Mo. App. 415. See Armstrong v. Stone,
9Gratt. (Va.) 102.
1 Ante, § 40.
2 Whart. Confl. L. § 41 ; Allgood v. Williams, 92 Ala. 551, 8 So. 722 ;
Van Matre v. Sankey, 148 111. 356, 36 N. E. 628; Washington v. Beaver,
3 W. & S. (Penn.) 548, 549. See Com. v. Graham, 157 Mass. 73, 75. But
see Jac. Dom. §§ 231, 232 ; Dicey, Confl. L. 128, 129.
' See the following sections.
* Charlestown v. Boston, 13 Mass. 468, 472.
94 * DOMICIL OF MARRIED WOMAN. § 46
an infant widow or divorcee. Has she been emancipated by
the marriage so as to give her power to change her domicil at
pleasure upon the termination of the coverture ? Is she thereby
relegated to the condition of dependence upon her parents from
which her marriage took her ? Or is she to retain her last
domicil (that of her husband) until she becomes twenty-one or
remarries? The first view seems the more reasonable, especially
if she is left with children to support and is not again received
into the bosom of her parents' family.*
§ 46. Constructive Domicil of Married Woman. — It is a
general principle of the common law, and one that is more or
less inherent in all systems of jurisprudence, that a married
woman merges her legal identity in her husband's, and solemnly
yields her will to his. Hence it results that the husband is
bound to support her, has the control of her person, and is en-
titled to her services.
From this principle follows the general rule of law which
fixes her domicil. It is established beyond dispute that a
woman, upon marriage, immediately acquires the domicil of
her husband, and that her domicil ordinarily changes with
every alteration of his, regardless of the actual locality of her
residence after the marriage.^
This rule is founded not only on the above-mentioned prin-
• Warrender v. Warrender, 2 CL & F. 488, 525. But Mr. Dicey favors the
last view. Dicey, Confl. L. 130, note 1.
1 Jac. Dom. §§ 209, 213, 214; Barber v. Barber, 21 How. 582 ; Cheely v.
Clayton, 110 U. S. 701, 705; Suter v. Suter, 72 Miss. 345, 16 So. 674; Burtis
V. Burtis, 161 Mass, 508, 510 ; Watkins v. Watkins, 135 Mass. 83, 85 ; Hunt
r. Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; Hill v. Hill, 166 111. 54, 46 N. E.
751, 752 ; White v. White, 18 R. I. 292, 27 Atl. 506; Kline v. Kline, 57 la.
386, 10 N. W. 825, 826 ; Arrington v. Amngton, 102 N. C. 491, 9 S. E. 200 ;
Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Williams v. Saun-
ders, 5 Coldw. (Tenn.) 60; Smith v. Smith, 19 Neb. 706, 28 N. W. 296, 298 ;
Champon v. Champon, 40 La. Ann. 28, 3 So. 397, 399 ; Shreck v. Shreck, 32
Tex. 578, 5 Am. Rep. 251, 252 ; Harrison v. Harrison, 20 Ala. 629, 56 Am.
Dec. 227; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335 ; Harral v. Har-
ral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 23 ; Dougherty v. Snyder, 15 S. & B.
(Penn.) 84, 16 Ani. Dec. 520 ; Magnire v. Maguire, 7 Dana (Ky.), 181, 186;
Warrender v. Warrender, 2 CI. & F. 488.
§ 46 DOMICIL OF MARRIBD WOMAN. 96
ciple of identity ' and upon the duty she owes to submit her will
to her husband's, ' but also on the broader ground, the operation
of which, with respect to constructive domicil, has already been
noticed, that the law will presume that to be true which is true
in the great majority of cases.^
Hence this general rule does not apply when the relations of
the husband and wife are of an abnormal character. IfThey are
divorceH^or contemplate divoree, or- il the. iusband deserts the
wife, becomes insaneor^ otherwise incompetent to be the head
of the family and to furnish her with a support and a home, an
abnormal conditTon- Testtlta- which will sometimes prevent the
operation of the rule, and will authorize the wife to select a
domicil apart from that of her husband. Indeed it has been
said by an eminent tribunal* that **the rule is that she may
acquire a separate domicil whenever it is right and proper that
she should do so. The right springs from the necessity for its
exercise and endures as long as the necessity continues."
The general rule, however, is in the main strictly adhered to.
Save in a few exceptional cases, presently to be adverted to, the
wife cannot acquire a domicil separate and apart from her hus-
band, though she actually lives in a different State, or even
though they actually reside apart by agreement or under a
« Harteauv. Harteau, 14 Pick. (Mass.) 181, 25 Am, Dec. 372; Burtis v.
Burtis, 161 Mass. 508, 510 ; Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec.
227, 229 ; Smith v. Smith, 19 Neb. 706, 28 N. W. 296, 298 ; Dutcher v.
Dutcher, 39 Wis. 651 ; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335 ;
Hunt V. Hunt, 72 N. Y. 217, 243 ; O'Dea v. O'Dea, 101 N. Y. 23, 36.
* Barber v. Barber, 21 How. 582 ; Dedham v. Natick, 16 Mass. 135 ; Har-
teau V. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372 ; Harding v. Alden,
9 Greenl. (Me.) 140, 23 Am. Dec. 549 ; Jenness v. Jenness, 24 Ind. 355, 87
Am. Dec. 335 ; Hunt v. Hunt, 72 N. Y. 217, 243 ; Colbum v. Holland, 14
Rich. Eq. (S. C.) 176, 229.
* Harteau i;. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372 ; Mason v.
Homer, 105 Mass, 116 ; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129 ;
Dutcher v. Dutcher, 39 Wis. 651 ; Cook v. Cook, 56 Wis, 195, 43 Am, Rep.
706, 14 N. W. 33, 34 ; Smith v. Smith, 19 Neb, 706, 28 N, W. 296 ; War-
render v. Warrender, 2 CI, & F. 488, 523-524 (opinion of Lord Brougham).
5 The Supreme Court of the United States in Cheever v. Wilson, 9 Wall.
108, 124. See also Hunt v. Hunt, 72 N. Y, 217, 243, 28 Am. Rep. 129;
Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am, Dec. 372.
96 DOMICIL OP DESERTED WIFE. § 47
deed of separation.' It is otherwise, as we shall presently see,
if there be a judicial separation.''
Even if the wife is induced to leave the husband because of
his ill-treatment and harshness, or for reasons that would give
her the right to apply for a separation or a divorce a vinculo, if
she do not actually ask for one, and until she does, his domicil
will still be hers.* But should she apply for a divorce, and for
that purpose change her domicil, it would remain changed for
all purposes ; otherwise she would have two domicils.'
But there may be exceptional circumstances surrounding the
wife that make it necessary that she should in some cases be
capable of selecting a domicil apart from her husband. To hold
otherwise would in many instances result in grievous injustice
to her.^" These more or less abnormal conditions will now be
considered.
§ 47. Domicil of a Deserted "Wife. — If the wife applies for
a separation or a divorce a vinculo because of the husband's de-
• Jac. Dom. §§ 215, 216; Barber v. Barber, 21 How. 582; Greene v.
Greene, 11 Pick. (Mass.) 409, 415; Hood v. Hood, 11 Allen (Mass.), 196, 199,
87 Am. Dec. 709 ; Williams v. Saunders, 5 Coldw, (Tenn.) 60, 79; Dougherty
V. Snyder, 15 S. & R. (Penn.) 84, 16 Am. Dec. 520; Warrender v, Warrender,
2 01. & F. 488, 524. There are a few cases holding that a permanent depart-
ure of the wife from the husband's home destroys her domicil there, even
though it be the result of an amicable arrangement. See Colburn v. Holland,
14 Rich. Eq. (S. C.) 176, 229; Florance's Will, 54 Hun (N. Y.), 328. 7 N. Y.
Suppl. 578; Cook v. Cook, 56 Wis, 195, 43 Am. Rep. 706, 14 N. W. 33, 34;
Smith V. Smith, 19 Neb. 706, 28 N. W. 296, 298 ; Chapman v. Chapman, 129
111. 886, 21 N. E. 806. In most of these, there were peculiar circumstances,
such as the pendency of divorce or the desertion of the husband, which took
the case out of the operation of the general rule.
"> Post, § 52; Hunt v. Hunt, 72 N.Y. 217, 243, 28 Am. Rep. 129.
8 Dolphin V. Robins, 7 H. L. Cas. 390 ; Harrison v. Harrison, 20 Ala. 629,
66 Am. Dec. 227, 229; Shawr. Shaw, 98 Mass. 158 ; Loker v. Gerald, 157 Mass,
42, 31 N. E, 709, 710 ; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129 ;
Maguire ». Maguire, 7 Dana (Ky.), 181, 186; Harding v. Alden, 9 Greenl.
(Me.) 140, 23 Am. Dec. 549; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248.
But see Florance's Will, 54 Hun (N. Y.), 328, 7 N. Y. Suppl. 578. See Jaa.
Dom. § 223.
« Ante, § 28. See Jac. Dom. § 226 ; Dolphin v. Robins, 7 H. L. Cas. 390.
10 Cheever v. Wilson, 9 Wall. 108, 124 ; Hunt v. Hunt, 72 N. Y. 217, 243,
28 Am. Rep. 129 ; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372.
§ 47 DOMICIL OP DESERTED WIFE. 97
sertion, it is nowwell eatahlished that_she may renounce the
constructive domicil created by the marriagestatus, and actpiire
a separate domicil of her own where she may obtain a divorce/
TKe^"ques¥ion becomes more complicated if we suppose the
wife unwilling or without intention to obtain a divorce, or if the
question should arise before she has begun to put such intention
into effect." It has been said by some eminent authorities that
the doctrine of the wife's separate domicil, under such circum-
stances, does not extend beyond cases of divorce,* or as it is
sometimes put, beyond proceedings whose " express object is to
show that the relation itself ought to be dissolved or so modified
as to establish separate interests, and especially a separate dom-
icil and home ; bed and board being put, a part for the whole, as
expressive of the idea of home." *
It is believed that this is the proper solution in those cases
(e. g. adultery or cruelty) where the husband's offense does not
go to the extent of depriving the wife of his support or of a home
provided by him. And the cases do not take a position beyond
this. There is good reason for this doctrine. The wife by her
silence may be taken to have signified her intention to condone
the offense, if indeed any has been committed. And if it be
alleged that she has not condoned it, the difficulties in the way
of establishing the wrongs alleged in a collateral inquiry would
be insurmountable.®
1 Barber v. Barber, 21 How. 582, 594, 595 ; Harteau v. Harteau, 14 Pick.
(Mass.) 181, 25 Am. Dec. 372 ; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87
Am. Dec. 709 ; Blackinton v. Blackinton, 141 Mass. 432, 435 ; Hunt v. Hunt,
72 N. Y. 217, 242-243, 28 Am. Rep. 129 ; Harding*. Alden, 9Greenl. (Me.)
140, 23 Am. Dec. 549; White v. White, 18 K. I. 292, 27 Atl. 506; Kline u.
Kline, 57 la. 386, 10 N, W. 825, 826.
^ For example, should the deserted wife die without taking any step to-
wards the prosecution of a divorce suit. The disposition of her personal
estate depends upon the law of her domicil at the time of her death. See
post, §§ 139-141.
« See Jac. Dom. §§ 226, 227; Dolphin v. Robins, 7 H. L. Cas. 390 ; Yel-
verton v. Yelverton, 1 Swab. & Tr. 574, 29 L. J. (P. & M.) 34; Burtia v.
Bui-tis, 161 Mass. 508, 510-511.
* Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372.
» See Jac. Dom. §§ 226, 227; Dolphin v. Robins, 7 H. L. Cas. 390.
7
98 DOMICIL OP WIFE WHO DESERTS HUSBAND. § 48
But where the improper act of the husband is one that amounts
to a total renunciation of the marriage relation, as in case of
desertion, and as a result the wife is left to make her own way in
the world and by her own endeavors to provide a home for her-
self and her family, it would seem to be a great injustice to deny
her the right to make her legal as well as her actual home in any
place which will promise her a livelihood, uutrammeled by pre-
sumptions of law favorable to the husband, which he himself
has outrageously cast aside. It is submitted therefore (with
deference) that the wife, even without divorce, should be per-
mitted to alter her domicil when deserted by her husband, espe-
cially when he has added to his desertion the offense of taking
with him a paramour, or otherwise rendering his new home un-
inhabitable by his wife.'
In Florance's Will,^ the wife lived apart from her husband by
mutual agreement for a number of years, during which time the
children lived with her and were wholly supported by her, the
husband living in another State and contributing nothing to
the support of his wife or children. She was held to acquire a
domicil in the State where she thus lived, so that the husband's
rights in her personal estate at her decease were governed by the
laws of that State, not by the law of her husband's domicil.
It would seem, upon the same principle, if the husband is
under restraint for hopeless lunacy, or is confined for life upon
conviction of crime, that the wife should in such cases also be
permitted to select a new legal domicil for herself, should she
desire to do so.'
§ 48. Domicil of Wife who Deserts her Husband. — The
wife who deserts her husbandj'eren^ though fo_r_a_£aaisewhich
6 Champon v. Champon, 40 La. Ann. 28, 3 So. 397, 399 ; Smith v. Smith,
43 La. Ann. 1140, 10 So. 248, 249 ; Barber v. Barber, 21 How. 582, 594, 595 ;
Chapman v. Chapman, 129 111. 386, 21 N. E. 806 ; Cummington v. Belcher-
town, 149 Mass. 223, 226, 21 N. E. 435 ; Blackintonr. Blackinton, 141 Mass.
432, 435 ; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec 549 ; Dutcher
r. Dutcher, 39 Wis. 651, 659 ; Doerr v. Forsythe, 50 Ohio St. 726, 36 N. E.
1055.
^ 54 Hun (N. Y.), 328, 7 N. Y. Suppl. 578.
« See post, § 49 ; Whart. Confl. L. § 44 ; McPherson v. Honsel, 2 Beasley
CN. J.), 85, 13 N. J. Eq. 35.
§ 48 DOMICIL OF WIFE WHO DESERTS HUSBAND. 99
would-lje^round for a divnp^ft, nr wTiip.h wnnlrl fnnafifiT^t^^ good
defence to a suit bv the husband for a restitutiaa-of conjugaF
riglifsfj wil] ^fillj according to the great weighty modefn o\i«^
th^Hty, bp h"^d to rp|ain_the domicil of Jiar husbands Hjiless
she sues for divorce.^ But if she does institute divorce proceed-
ings she may acquire a new domicil for the purpose. It is not
essential that she should have left her husband with that
intent.*
It is also worthy of observation in this connection that the
law requires the wife to cling to her husband and to follow him
into whatever country the necessities of health or of business
require him to make his home. Her refusal to accompany him
without legal excuse, and his departure alone, constitute a de-
sertion on her part, not on his. In such cases, her domicil fol-
lows that of her husband.'
But if the husband refuses, without good cause, or refuses
except upon unreasonable conditions, to permit the wife to live
with him, and departing to another State sues her there for di-
1 See Whart. Confl. L. § 43 ; Jac. Dom. §§ 226, 227 ; Dolphin v. Robins,
7 H. L. Cas. 390 ; Yelverton v. Yelverton, 1 Swab. & Tr. 574, 29 L. J, (P. 4
M.) 34 ; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248, 249 ; Barber v. Bar-
ber, 21 How. 582; Cheever v. Wilson, 9 Wall. 108, 124 ; Shaw v. Shaw, 98
Mass. 158; Burlen v. Shannon, 115 Mass. 438, 447 ; Cheely v. Clayton, 110
U. S. 701, 705; Chapman v. Chapman, 129 111.386, 21 N. E. 806; Flower*.
Flower, 42 N. J. Eq. 152, 7 Atl. 669 ; Arrington v. Arrington, 102 N. C. 491,
9 S. E. 200 ; Shreck v. Shreck, 32 Tex. 578, 5 Am. Rep. 251. See Watkins
V. Watkins, 135 Mass. 83, 85-86; Florance's Will, 54 Hun (K Y.), 328,
7 N. Y. Suppl. 578.
2 Flower v. Flower, 42 N. J. Eq. 152, 7 Atl. 669 ; Chapman v. Chapman,
129 111. 386, 21 N. E. 806 ; White v. White, 18 R. I. 292, 27 Atl. 506. But
see Lyon v. Lyon, 2 Gray (Mass.), 367, 368.
3 Loker v. Gerald, 157 Mass. 42, 43, 31 N. E. 709, 710 ; Burlen v. Shan-
non, 115 Mass. 438, 447 ; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87 Am.
Dec. 709 ; Watkins v. Watkins, 135 Mass. 83, 85-86 ; Cheely v. Clayton,
110 U. S. 701, 705 ; Hunt r. Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; Larquie
V. Larquie, 40 La. Ann. 457, 4 So. 335, 337 ; Suter v. Suter, 72 Miss. 345,
16 So. 674. See Chapman v. Chapman, 129 111. 386, 21 N. E. 806. But see
Heath v. Heath, 42 La. Ann. 437, 7 So. 540, which, however, turns upon a
doctrine of divorce peculiar to Louisiana, namely, that suit for divorce must be
brought in the jurisdiction where the married pair have lived together. Se«
«lso O'Dea v. O'Dea, 101 N. Y. 23. 38 (dissenting opinion of Danforth, J.).
100 wife's DOMICIL — HUSBAND INSANE. § 49
vorce because of her desertion, her domicil will not be held to
follow his.* So, if the wife living in another State from her
husband herself sues for divorce in the State of her actual resi-
dence, she cannot allege that her domicil is with her husband,
in order to defeat a cross-bill for divorce filed by him in answer
to her complaint.^
§ 49. Domicil of Wife w^hose Husbaind is Insane or other-
wise incapacitated. — If the law itself has established the in-
competence or incapacity of the husband to be the head of the
family and to provide them with a home, as by reason of an
adjudication of permanent insanity, the presumption of law
that the wife is dependent upon the husband for a home no
longer applies, and shj_is.at-liberty to select her own domicil as
well as that of the minor children. It is similar to, and even
stronger than, the case of the husband's desertion.^ If there
has been no legal adjudication of insanity, it would seem that
the wife's domicil must be held to follow that of her husband,
notwithstanding mental or physical ailments.
It has been said that if the husband is incapacitated to sup-
port the wife by reason of conviction of felony (an incapacity
established by the law) his domicil will cease to control that of
the wife.' But unless the confinement is permanent, for life,
it is difficult to see how it could leave the wife free to select a
domicil of her own."
Mere physical weakness or incapacity on the part of the hus-
band will in no event, it is believed, confer upon the wife the
privilege of choosing a domicil apart from his. Indeed such a
course would generally be a plain violation of the duty she owes
her husband, whom she has taken for better or for worse, in
sickness as well as in health.
* Williams v. Williams, 130 N. Y. 193, 197, 29 N. E. 98. See Chapman v.
Chapman, 129 111. 386, 21 N. E. 806.
' Watkins v. Watkins, 135 Mass. 83, 85-86.
^ See Whart. Confl. L. § 44. This is true however only in case the in-
sanity is of a permanent character.
» Whart. Confl. L. § 44 ; McPherson r. Housel, 2 Beasley (N. J,), 35,
18 jST. J. Eq. 35.
» See Kelsey v. Green, 69 Conn. 291, 37 Atl. 679.
§ 50 DOMICIL OP WIFE CONTEMPLATING DIVOBCE. 101
§ 50. Domicil of "Wife contemplating Divorce. — The mu-
nicipal law of almost all States requires that the complainant in
a divorce suit should be domiciled in the ^ate where" tEe^stiit
is instituted!. Hence iFhecomes Important Tn sucE cases''^
It is now settled that an innnnent wife majr fu'.qnjjrA a separate
domicil from her husband for purposes of divorce, or probably
in any case where her interests are antagonistic to his and are
dependent upon the locality of the domicil, provided she actually
resides there and actually raises the question in a judicial pro-
ceeding.^
Mr. Jacobs has expressed the opinion that this rule should
not be extended beyond giving to the wife the right to sue for
divorce in the State where she and her husband have resided
together." But it is now well settled that the wife may go to
an entirely new State, and having become domiciled there may
sue for a divorce.'
This rule is adopted in order to prevent the grave injustice
that might be done the wife, if her domicil was held to follow
her husband's, otherwise she would be compelled to follow him
into any distant State he might select as his domicil, and after
expense and trouble sue for her divorce in the forum selected by
him, perhaps chosen for the very reason that its laws would
deny her the relief she might obtain at home.* And if she
1 See Jac. Dora. §§ 223-226 ; Cheever v. Wilson, 9 Wall. 108, 123-124 ;
Hunt V. Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; Hill v. Hill, 166 111. 54,
46 N. E. 751, 752 ; Chapman v. Chapman, 129 111. 386, 21 N. E. 806 ; Dun-
ham V. Dunham, 162 111. 689, 35 L. R. A. 70, 77 ; Arrington v. Arrington,
102 N. C. 491, 9 S. E. 200 ; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248,
249 ; Burtis v. Burtis, 161 Mass. 508, 510 ; Blackinton v. Blackinton, 141
Mass. 432, 435 ; Harteau v. Harteau, 14 Pick. (Mass.) 187, 25 Am. Dec. 372 ;
White V. White, 18 R. I. 292, 27 Atl. 506, 507 ; Van Fossen v. State, 37 Ohio
St. 317, 41 Am. Rep. 507, 508 ; Cook v. Cook, 56 Wis. 195, 43 Am. Rep.
706, 14 N. W. 33, 35.
2 Jac. Dom. §§ 224, 224 a.
8 See cases cited, note 1, supra.
< Jac. Dom. § 224 ; Whart. Confl. L. § 224 ; Cheever v. Wilson, 9 Wall.
108, 124; Harteau v. Harteau, 14 Pick.<Mass.) 181, 25 Am. Dec. 372; Burtis
V. Burtis, 161 Mass. 508, 510; Hunt v. Hunt, 72 N. Y. 217, 24S, 28 Am.
Rep. 129 ; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec 335, 337.
102 wife's domicil — husband seeking divorce. § 61
were relegated to the domicil of her married life, the State
where she has lived with her hushand, the inconvenience would
still he great ; she would be compelled to sue for divorce in her
former home before she could remove to another State, or else to
forego altogether her right to divorce.
This rule is prescribed in order to afford a better protection
to the wife. Its adoption ought not to deprive the wife (at
least from the standpoint of private international law) of the
right she would have had without it of treating her husband's
domicil as still her own, if she should prefer that course, and
sue there.^
But if the allegation of the wife is not that the marriage
relation should be dissolved by decree of the court, but that
it is absolutely null and void, and she accordingly asks for a
decree of nullity, the domicil of the alleged husband will not
affect hers, for that would be to suppose the existence of a valid
marriage, the very point in dispute.'
§ 51. Domicil of Wife '^hose Husband applies for Di-
vorce.— If the husband, in contemplation of divorce, should
leave the wife and acquire a new domicil in another State or
country, it would in many instances result in great injustice to
the wife, should the law require her domicil to follow his. For
she would then, merely by construction of law, contrary to the
actual fact, be subjected to the laws and jurisdiction of her hus-
band's domicil, chosen by him under circumstances which would
lead him to advance his own interests and to antagonize hers.
The law will not ordinarily thus disregard the actual state of
facts in such cases, nor content itself with idle presumptions
' See Jac. Dom. § 224 ; Greene v. Greene, 11 Pick. (Mass.) 410. But see
"Wood V. Wood, 54 Ark. 172, 15 S. W. 459 ; Cook v. Cook, 56 Wis. 195, 43
Am. Rep. 706, 14 N. W. 33, 35. In Jenuess v. Jenness, 24 Ind. 355, 87 Am.
Dec. 335, 337, this principle is disapproved on the ground that it gives the
wife two domicils. It is manifest that this is not so : it only gives her a
choice between two. Her domicil remains that of her husband until she sues
for divorce. She may accept the general presumption of law which operates
upon her up to the time her suit is instituted, and sue where her husband is
domiciled; or she may accept the alternative of separating her domicil from
her husband's, suing where she actually resides.
« See Whart. Confl. L. § 224.
§ 52 DOMICIL OF DIVORCED WIFE. 103
which the husband's conduct shows to have no foundation in
fact.^ Hence it is well settled that the wife, as defendant in a
divorce suitHSrought by her husband in his domicil, is fo be
considered from the time the suit is instituted as domiciled in
fW sfaffl ^hftT? Pflff artTr°^^j " '' I ■■■"'"■ ■"' j iITfn^ti
and protection she actually is. The acquisition of a new
domicil b^ the husband for purposes of dtvorce'^oe8"'noB draw
the^e|fe,mt0-fclifi,j»ftmQ;;jUrisdiction, unless she in fact removes
thitl^er permanently. Their interests are antagonistic'
But^a wife cannot thus obtain a separate domicil by her own
wrong, so that if she deserts her husband he may sue for divorce
in any State where he is domiciled, and she, though actually
resident elsewhere, will be deemed in law to be domiciled with
him, thus giving the court jurisdiction of both the parties.*
§ 52. Domicil of Divorced Wife. — We have seen that the
law generally assigns the wife the domicil of her husband,
because they are one person in law, because it is her duty to
live with him, and because in fact she will usually do so. But
when the parties are divorced, these reasons cease to operate
altogether or in large measure.
Thus in a case of a divorce a mensa, or judicial separation,
the law itself, through the courts, has decreed that the parties
shall no longer be considered identical, as before, and that they
shall thereafter live separate and apart. All the foundations
upon which rests the presumption that the husband's domicil is
likewise the wife's are thus swept away. Indeed the very oppo-
site presumption at once arises, namely, that the parties have
obeyed the decree of the court and have ceased to live together.^
1 Watkins v. Watkins, 135 Mass. 83, 86.
2 Story, Confl. L. 229 a, note ; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am.
Rep. 129 ; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 643 ; Borden v. Fitch,
15 Johns. (N. Y.) 121, 141, 8 Am. Dec. 225 ; Heath v. Heath, 42 La. Ann.
437, 7 So. 540 ; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 336-337.
8 Whart. Confl. L. § 227 ; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709 ;
Builen V. Shannon, 115 Mass. 438, 447-448 ; Harteau v. Harteau, 14 Pick.
(Mass.) 181, 25 Am. Dec. 372 ; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87
Am. Dec. 709 ; Hunt v. Hunt, 72 N. Y. 217, 243, 38 Am. Rep. 129 ; Heath
V. Heath, 42 La. Ann. 437, 7 So. 540.
'^ So strong is this latter presumption that a child bom more than ten
104 DOMICIL OF DIVORCED WIFE. § 62
The fiction that the wife has her home with the husband
being thus destroyed by the act of the law itself, there would
seem to be no reason why the wife may not actually acquire a
separate domicil, even though the dissolution of the marriage
ties be not absolute. And such is now the general opinion.*
In case of a divorce a vinculo, the parties have in general
all the rights and capacities of unmarried persons, amongst
other things the right to change their domicils at will.* The
fact that the woman is the offending party, and that the court
is authorized to decree and does decree that she shall not marry
again, would not affect her right in this particular; for such a
penal disability cannot follow her into other States, nor does it
prevent her status from being in general that of an unmarried
woman.*
But if the divorce is invalid, as for example if it is granted
by a court without jurisdiction, it is of no legal effect in free-
ing the parties from their marital obligations and disabilities.
They are still bound by the rules regulating the relations of
married persons, and the wife's domicil is still in law that of
her husband's, though she actually resides elsewhere or marries
another man.'
The divorce, even though valid, does not necessarily ipso facto
alter the wife's domicil. She retains the domicil she had imme-
diately before the coverture was determined until she acquires
another for herself; and neither her domicil of origin, nor her
domicil before marriage, will play any part unless she actually
lives there.'
months after the decree of separation is prima facie presumed illegitimate.
See 1 Minor's Insts. (4th ed.) 297 ; 2 Bright's Husb. & Wife, 262, Bac. Abr.
Marr. & Div. (F.).
2 Jac. Dom. §§ 217, 219, 220, 221 ; Dolphin v. Robins, 7 H. L. Cas. 390 ;
Barber v. Barber, 21 How. 582 ; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am,
Rep. 129 ; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 643 ; Borden v. Fitch,
15 Johns. (N. Y.) 121, 141, 8 Am. Dec. 225.
« Jac. Dom. § 217; Whart. Confl. L. § 46 ; Dicey, Confl. L. 130 ; War-
render V. Warrender, 2 CI. & F. 488, 525, 627.
♦ Post, § 74.
* See Dicey, Confl. L. 127-128 ; Dolphin r. Robins, 7 H. L. Cas. 390.
• Jac. Dom. § 222 ; Dicey, Confl. L. 130. This principle has already been
§ 54 CONSTRUCTIVE DOMICIL OF IDIOTS. 105
§ 53. Domicil of Wife, where the Marriage is Voidable or
Void. — If the marriage is merely voidable by decree of court,
and no decree has been obtained, there would seem to be no
doubt that the wife's domicil would continue in general to be
governed by that of the husband.^
If the marriage is absolutely void, when tested by the law
properly applicable to determine the question, as by reason of
the insanity of one of the parties (which in many States renders
the marriage absolutely void) or because one of the parties has a
consort still living and undivorced, it would seem clear that
since there has never been a marriage, the woman's domicil
would be identical with her supposed husband's only so far as,
by her actual residence there with him animo manendi, she
makes it so. The doubt, if there be any, is not whether she
may be assigned the domicil of her supposed husband without
actual residence there, but whether, even though she does actu-
ally reside there with him, she can be said to have acquired a
domicil of choice.^
§ 54. Constructive Domicil of Idiots. — Idiots are those
who from birth are so deficient in intellect as to be totally un-
able to manage their own affairs or to live without the protecting
applied to the case of an infant wife who has been widowed or divorced.
Ante, § 45. It should be added that the domicil of a toidow is governed by
the same rules that govern that of a divorced woman. Story, Confl. L. § 46 ;
Dicey, Confl. L. 130 ; Jac. Dom. § 222 ; Warrender v. Warrender, 2 CI. & F.
488, 525, 527.
1 Warrender r. Warrender, 2 CI. & F. 488, 527, 528. But after a decree
avoiding the marriage ab initio for a cause existing at the time of the mar-
riage, it would seem that the wife would be deprived of her right to the hus-
band's domicil from the beginning, save in so far as it is actually her own.
2 Jac. Dom. § 212 ; Concord v. Rumney, 45 N. H. 423. See Middle-
borough V. Rochester, 12 Mass. 363. In both of these cases (which were
settlement cases) the marriage was void for insanity. In the first it was the
wife who was insane ; but the court held that if, in residing with her husband,
she had sufficient understanding to choose her place of abode, her municipal
domicil must be considered as located at the place where she thus dwelt. In
the latter case it was the husband who was insane, and it is not clear that the
wife actually resided at his domicil ; it appears from the report of the case
that she continued to reside where she was living at the time of the marriage.
The decision was that her municipal domicil remained unchanged.
106 CON8TRUCTIVE DOMICIL OF LUNATICS. § 55
care of some guardian. They are incapable, eyen after they
become adults, of forming such a definite intention and purpose
as is necessary to constitute a legal domicil of choice. They
must always remain dependent for a home, as infants are, upon
those having the legal custody and control of their persons
They continue infants perpetually. The rules of law, there-
fore, which determine an infant's domicil are extended to adults
also who have never acquired sufficient intelligence to select and
support a home of their own.^
§55. Constrnctive Domicil of Lunatics. — If an infant
should become insane during his minority and remain in that
state continuously, the incapacity of minority never having been
followed by adult capacity to select a home of his own, his
domicil must be determined by the same rules that control the
domicil of an idiot or infant.^ But in those cases where the
lunacy has supervened after the party has reached maturity,
the domicil must be determined upon different principles.
One point must be observed at the outset, and should be
borne in mind. The Supreme Court of New Hampshire * has
thus expressed it: "Insanity may exist in various degrees,
from the slight attacks which are hardly distinguishable from
eccentricity to the most raving and uncontrollable madness. It
may be general, seeming to affect all the operations of the mind
upon all subjects, or it may exist only in reference to a small
number of subjects, or a single subject: the mind in such cases
of partial insanity seeming to be in its habitual and natural
condition as to all subjects and matters which do not come
within the scope of the partial disease. In no case at the
present day is it a mere question whether the party is insane.
The point to be established is, whether the party is so insane
1 Jac. Dom. §§ 264-269 ; Whart. Confl. L. §§ 52, 53 ; Holyoke v. Haskins,
5 Pick. (Mass.) 20, 25-26, 16 Am. Dec 372 ; Upton v. Northbridge, 15 Mass.
237 ; Overseers of Alexandria v. Bethlehem, 1 Harr. (N. J.) 119, 31 Am.
Dec. 229.
1 Jac. Dom. § 268 ; Whart. Confl. L. § 53 ; Sharpe v. Crispin, L. R. 1 P. &
D. 611, 618 ; Washington v. Beaver, 3 W. & S. (Penn.) 548, 549.
^ Concord v. Rumney, 45 N. H. 423. See Culver's Appeal, 48 Conn. 304 ;
Holyoke v. Haskins, 5 Pick. (Mass.) 20, 26, 16 Am. Dec. 372. All these are
eases of municipal domicil.
§ 55 CONSTRUCTIVE DOMICIL OF LUNATICS. 107
as to be incapable of doing the particular act with understand-
ing and reason. This would be the essential question now,
where marriage is alleged to be void by reason of insanity, and
the same test would be applied in determining the question of
capacity to change the domicil: Had the party at the time
sufficient reason and understanding to choose her place of
residence?"
There can be no doubt that a stricter test of insanity should
be required to deprive one of the capacity to select his own
home than is required to avoid a contract or a will.'
The determination of a lunatic's domicil would seem to
hinge upon the question whether there has been an adjudica-
tion of lunacy, or rather whether his person has been actually
committed to the custody and control of a legal guardian or
committee.*
Indeed, so far as his national or quasi-national domicil is
concerned, a question has been made whether even an adjudi-
cation and commission of lunacy would be given such force in
other States as to affect the lunatic's right, should he go to
another State, to acquire a domicil there.' It is submitted that
the gist of the inquiry in such cases is not whether the adjudi-
cation of lunacy shall be given exterritorial effect ex propria
vigore, but whether as a matter of evidence, the action of the
court of one State should not be taken as very strong evidence,
if not conclusive, of the proposition that, at the time of such
decree, the party was really of such unsound mind as to require
his person to be controlled.*
But while this last principle is believed to be sound, it is ap-
plicable only to the party's state of mind at the time of the
» See Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21 ; Concord v.
Rumney, 45 N. H. 423 ; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781 ;
Talbot r. Chamberlain, 149 Mass. 57, 59, 20 N. E. 305, 3 L. R. A. 254 ;
Mowrj' V. Latham, 17 R. I. 480, 23 Atl. 13.
♦ See Talbot v. Chamberlain, 149 Mass. 57, 58, 20 K E. 305, 3 L. R. A.
254 ; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13.
6 See Talbot v. Chamberlain, 149 Mass. 57, 59, 20 K E. 305, 3 L. R. A.
254.
• See Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781 ; Mowry v. Latham,
17 R. L 480, 23 Atl. 13.
108 CONSTRUCTIVE DOMICIL OF LUNATICS. § 55
decree. The continuance of that state of mind may be rebutted.
It is not indispensable that there should be an adjudication of
restoration to sanity by the same or any other court.'
The true principle therefore would seem to be that a lunatic,
whose person has been placed under the control of a guardian
or committee, is prima facie incompetent to establish a domicil
iu another State, but, upon satisfactory proof of mental capacity
supervening, such domicil may be recognized. In any event,
the mere fact that the control of the lunatic's property has been
committed to a guardian or committee will not suffice to prevent
him from choosing even a municipal domicil, much less a na-
tional or quasi-national one.^
A fortiori would the party be capable of choosing his own
domicil, if there is no adjudication or commission of lunacy at
all. Thus, one suffering from habitual intemperance, melan-
cholia, monomania, or very pronounced eccentricities, may ordi-
narily be fully competent to determine where he should reside.®
Nor would an adjudication of lunacy in a collateral proceeding
to set aside a contract have the effect of depriving the party of
the right to choose his own domicil, for the tests in the two
cases are different, and no control is thereby assumed of the
lunatic's person.
If the insanity is so marked or so violent as to require the
duress of an asylum, there can then of course be no question of
any selection of domicil by the lunatic.
The question remains, what is the locality of the lunatic's
domicil when he is himself too insane to choose one ? Shall
the guardian or committee have power to change it, or must it
remain unalterably where it was when the disability was first
incurred ?
The case is closely analogous to that of the guardian's power
to change an infant ward's domicil, already discussed.^" As to
T Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781.
8 Mowry v. Latham, 17 R. L 480, 23 Atl. 13 ; Talbot v. Chamberlain, 149
Mass. 57, 20 N. E. 305, 3 L. R. A. 254.
• Concord v. Rumney, 45 N. H. 423. See Harral ». Harral, 39 N. J. Ect
379, 51 Am. Rep. 17.
w Ante, § 41.
§ 56 DOMICIL OP CHOICE. 109
the lunatic's municipal domicil, it seems that the guardian has
the power, but not so with respect to his national or quasi-
national domicil.^^ His latter domicil will remain unchanged,
regardless of the place of his actual residence. He will retain
the domicil he possessed before he became insane. uponirfTe^in-
ciple that a donircil once acquired is retained until a,nother is
gainedT'^''^
§ 56. HI. Domicil of Choice — Three Essential Elements.
— The domicil of origin assigned to an infant immediate!}^
upon his birth, upon principles already considered, is retained
by him, even after maturity, until another has been acquired.^
Unless one is acquired by operation of law in the meanwhile,
an infant will always arrive at the age of majority with his orig-
inal domicil still clinging to him.* From that time, if free
from disabilities, he may choose a new home for himself. But
it does not follow that he will do so. On the contrary, he will
usually retain his original domicil all his life.
The burden of proof is on him who alleges a change of dom-
icil, or in other words there is a prima facie presumption in
favor of the retention of a domicil once acquired. This presump-
tion applies not only to the original domicil but to domicils of
every sort.'
A domicil of choice, as the name implies, means simply that
a party is legally competent to exercise his own choice with re-
spect to his permanent home, and has exercised it.
" Talbot V. Chamberlain, 149 Mass. 57, 59, 3 L. R. A. 254 ; Culver's Ap-
peal, 48 Conn. 165 ; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13; Anderson
V. Anderson, 42 Vt. 350, 1 Am. Rep. 334 ; Rodgers v. Rodgers, 56 Kan. 483,
43 Pac. 779, 781.
1* Bempde v. Johnstone, 3 Ves. Jr. 198, 201 ; Harral v. Harral, 39 N.J.
Eq. 379, 51 Am. Rep. 17, 21 ; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779,
781 ; Mowry r. Latham, 17 R. I. 480, 23 Atl. 13.
1 White V. Tennant, 31 W. Va. 790, 8 S. E. 596, 597; Steer's Succession,
47 La. Ann. 1551, 18 So. 503, 505 ; Firth v. Firth, 50 N, J. Eq. 137, 24 Atl.
916, 917.
2 Price V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Hiestand v. Kuns,
8 Blackf. (Ind.) 345, 46 Am. Dec. 481.
8 Desmare v. United States, 93 U. S. 605 ; Mitchell v. United States, 21
Wall. 350 ; Dupuy v. Wurtz, 53 N. Y. 556 ; Allgood v. Williams, 92 Ala. 551,
8 So. 722; Price v. Price, 156 Penn. St. 617, 27 Atl. 291.
110 PARTY FBEE TO CHOOSE DOMICIL. § 57
There are three elements which are essential to the acquisi-
tion of a domicil of choice: (1) Freedom of choice, without
which it would he idle to speak of a domicil of choice / (2) Ac-
tual presence in the locality chosen ; (3) Intention to remain
permanently, without which there would be no " permanent
home," as the definition of domicil demands.
Curiously enough however, although all these attributes are
essential to the acquisition of a domicil of choice, the domicil
when once acquired may continue though all three or any of
them be absent. Thus, in order to acquire a domicil of choice,
one must of his own free will select it, he must actually be pres-
ent there, and such presence must be coupled with the intention
to remain there permanently. But such domicil having been
once acquired thus, will continue until another is gained,
though the party be kept there against his will, as by im-
prisonment, or though, while remaining in the State, he changes
his mind about residing there permanently, or even though he
leaves the State altogether (no new domicil being acquired).
§ 57. Party must be free to choose Domicil. — The first
essential of a domicil of choice is that the party should be
legally and actually free to choose his own place of abode. If
not, no place of residence can be said to be his domicil of choice.
Besides the cases of legal disability when a constructive domicil
is assigned by the law, such as infants, married women, luna-
tics, etc., there sometimes occur cases in which, though the
party may be under no legal disability, he is in fact deprived of
the freedom of volition necessary to the act of choosing his dom-
icil. He does not choose to be where he is; he resides there
permanently because he cannot help himself. If he could, he
would live elsewhere. Under circumstances such as these, a
question may arise as to the place of his domicil.
Instances in which these circumstances are apt to appear are
cases of persons imprisoned, exiles, fugitives, and invalids. In
all of these cases there is some degree of coercion. They are
under the duress of physical confinement, the duress of political
power, or the duress of their own fears.
The real question in these cases is not what motive has led
the party to make a choice, but whether he has actually chosen
§ 57 PAETY FREE TO CHOOSE DOMICIL. Ill
to reside permanently at the given place. If he has so chosen,
the motive which induced him to do so is immaterial. It may
even be immoral or illegal.^
In the case of a person imprisoned, it is quite obvious that as
a general rule his confinement cannot be considered as giving
him a domicil of choice in the place of his confinement, if he
had it not before. He must be held to retain the domicil pre-
viously possessed by him,' unless in fact he becomes so enam-
ored of his prison-house as to determine to remain permanently
in that locality.* The application of this latter principle is ap-
parent in the case of one imprisoned for a term of years only,
even though he should die while in confinement. And it is be-
lieved the same general rule will apply where he is imprisoned
for life. But there should be some positive evidence that he has
voluntarily made up his mind to live permanently in the place
of his confinement. Mere resignation to the inevitable, without
the actual mental operation incident to the formation of inten-
tion, is not an exercise of choice, and therefore will not suffice.*
With respect to exiles, a distinction is to be made between
such as are compelled to permanently abandon their country by
the command of a superior political power, and those who, be-
cause of persecutions and restraints upon liberty, abandon it
without compulsion. In the former case the presumption is
against a change of domicil, it being never presumed that the
exile has abandoned all hope of return. This must be shown by
affirmative evidence.^
1 Young V. Pollak, 86 Ala. 439, 5 So. 279, 282 ; H^eman v. Fox, 31 Barb.
(N, Y.) 475, 483 ; Fosdick v. Fosdick, 15 R. I. 130, 23 Atl. 140 ; State v.
Ross, 76 N. C. 242, 22 Am. Rep. 678, 679 ; Colburn v. Colbum, 70 Mich. 647,
38 N. W. 607. See Reed v. Reed, 52 Mich. 117, 17 N. W. 720, 50 Am. Rep.
247, 251; Ennis v. Smith, 14 How. 400, 401; Guarantee Co. v. Bank, 95 Va.
480, 28 S. E. 909, 3 Va. Law Reg. 873. As was said in Chitty v. Chitty, 118
N. C. 647, 32 L. R. A. 394, 24 S. E. 517, "the question is one of law, not of
morals, and we could not inquire into the latter. "
2 Jac. Dom. § 272.
« Jac. Dom. §§ 272, 273; Guarantee Co. v. Bank, 95 Va. 480, 28 S. E. 909,
3 Va. Law Reg. 873.
* Jac. Dom. § 274. But see Whart. Confl. L. § 54.
6 Jac. Dom. §§ 277 et seq. ; Ennis v. Smith, 14 How. 400 ; White v. Brown,
1 WalL Jr. 217, 265 ; DeBonneval v. DeBonneval, 1 Curteis, 856.
112 INVALIDS COMPELLED TO RESIDE ABBOAD. § 58
In the case of fugitives from justice, as in the case of exiles
and refugees, there is no presumption indulged of the abandon-
ment of their former homes. An intention to reside permanently
in their haven of refuge must be affirmatively shown.*
§ 58. Same — Invalids compelled to reside Abroad. — The
determination of the domicil of an invalid, compelled by con-
siderations of health to leave his home and reside elsewhere, is
often a matter of great perplexity. The principle here is the
same as in other cases; the difficulty lies in applying it, in
ascertaining the invalid's intention. If his intent is to live
permanently in his new abode, the fact that he is impelled to
make the choice by reason of fears for his life is immaterial.
The motive for his decision will not be inquired into. But he
must intend to live at the place to which he goes in search of
health. An intention merely to die there is not enough.
Mr. Dicey, with his usual accuracy of thought, has made this
matter so plain that it will only be necessary to borrow from
him. After noting various confused and confusing dicta on the
subject, he says : ^
**The apparent inconsistency between these doctrines may be
removed or explained, if we dismiss all reference to motive, to
external necessity, and so forth, avoid the use of the misleading
terms 'voluntary' and 'involuntary,' and, recurring to the prin-
ciple that residence combined with the purpose of permanent or
indefinite residence constitutes domicil, apply it to the different
cases or circumstances under which a domiciled Englishman
may take up a foreign residence for the sake of his health."
He then proceeds to give three cases. His first case is that
of an Englishman (D) who goes to France for relief from sick-
ness, with the firm intention of residing there six months and
no longer. He proceeds : " This case presents no difficulty what-
ever. D does not acquire a French domicil any more than
he does if he goes to France for six months on business or
for pleasure. He has not the animus manendi, but the quite
« Young V. PoUak, 85 Ala. 439, 5 So. 279, 282; Chitty v. Chitty, 118
N. C. 647, 24 S. E. 517, 32 L. R. A. 394 ; Reed v. Reed, 52 Mich. 117, 60
Am. Rep. 247, 248, 17 N. W. 720.
1 Dicey, Confl. L. 144 et sea.
§ 58 INVALIDS COMPELLED TO RESIDE ABROAD. 113
different intention of staying for a determinate time or definite
purpose."
His next case: "D, finding that his health suffers from the
English climate, goes to France and settles there, that is, he
intends to reside there permanently or indefinitely. D in this
case acquires a French domicil. Here again there is no devia-
tion from general principle. D acquires a French domicil be-
cause he resides in France with the animus manendi." '^
His third case: "D goes to France in a dying state, in
order to alleviate his sufferings, veithout any expectation of
returning to England.
" This is the case which has suggested the doctrine that a
change of residence for the sake of health does not involve a
change of domicil. The doctrine itself, as applied to this case,
conforms to common sense. It would be absurd to say that D,
who goes to Pau to spend there in peace the few remaining
months of his life, acquires a French domicil. But the doctrine
in question, as applied to this case, is in conformity not only
with common sense, but with the general theory of the law of
domicil. D does not acquire a domicil in France because he
does not go to France with the intention of permanent or indefi-
nite residence in the sense in which these words are applied to
a person settling in another country, but goes there for the
definite and determinate purpose of passing in France the few
remaining months of his life. The third case, now under con-
sideration, is in its essential features like the first, and not like
the second, of the cases already examined. If D knew for cer-
tain that he would die precisely at the end of six months from
the day he left England, it would be apparent that the first and
third case were identical. That the definite period for which
he intends to reside is limited, not by a fixed day, or by the
conclusion of a definite piece of business, but by the expected
termination of his life, can make no difference in the character
of the residence. In neither the first nor the third case is the
residence combined with the proper animtis manendi. . . . The
« Hoskins r. Matthews, 8 DeG. M. & G. 13, 25 L. J. (Ch.) «89, S5 Eng. L.
& Eq. 532; Hegeman r. Fox, 31 Barb. (N. Y.) 475.
114 ELEMENTS OP DOMICIL OP CHOICE. § 69
dicta of the authorities who lay down that a residence adopted
for the sake of health does not involve a change of domicil are
obviously delivered by persons who had before their minds the
third, not the second, of our supposed cases. These dicta, again,
embody what, in reference to such a case, is a perfectly sound
conclusion. Their only defect is that they are expressed in
terms which are too wide, and which therefore cover circum-
stances probably not within the contemplation of the authorities
by whom they were delivered; and further, that, while embody-
ing a sound conclusion, they introduce an unnecessary and mis-
guiding reference to the motives which may lead to the adoption
of a foreign domicil." •
§ 59. Farther Elements of Domicil of Choice — Actual
Presence and Animus Manendi. — Supposing that nothing ap-
pears in the circumstances of a particular case to show a want
of freedom of choice, two elements must concur to establish a
domicil of choice, namely, actual presence in the country, and the
intention to remain there permanently or for an indefinite time
at least (animus manendi). Indeed, the first essential referred
to in the preceding sections, freedom of choice, is a necessary
implication from the requirement of an intention to reside, for
there can usually be no real or active intention where there is
no freedom of choice. It has been treated separately however
for the sake of clearness. In this aspect it may be truly said
that wherever the two elements of presence and intention com-
bine, a domicil of choice is created, and all former domicils are
ipso facto abandoned.^
It must be observed that neither presence alone,' nor inten-
tion alone, will suflBce to create a domicil of choice! Both mlist
» See Dicey, Confl. L. 145-146 ; Jac. Dom. §§ 287-296 ; Johnstone v.
Beattie, 10 CI. & F. 42, 138 ; Moorehouse v. Lord, 10 H. L. Cas. 272, 292 ;
Anderson v. Laneuville, 9 Moore, P. C. 325 ; Hoskins v. Matthews, 8 DeG.
M. & G. 13, 28, 25 L. J. (Ch.) 689, 35 Eng. L. & Eq. 532 ; Dupuy v. Wurtz,
53 N. Y. 556 ; Hegeman v. Fox, 31 Barb. (N. Y.) 475 ; Isham v. Gibbons,
1 Bradf. (N. Y.) 69; Mayo v. Equitable Assurance Society, 71 Miss. 590, 15
So. 791 ; Still ». Woodville, 38 Miss. 646. See Udny v. Udny, L. R. 1 Sc.
App. 441.
1 Dicey, Confl. L. 104 ; Story, Confl. L. § 46 ; Jac. Dom. §| 125, 126.
* For a qualification of this statement, see post, § 64.
§ 60 ACTUAL PRESENCE. 115
coqcur, and at the very moment they do concur the domicil is
createdT ^ it if^ometimes expressed, the factum, (presence)
and the animus (intention) must unite.' And thereafter no
change of locality alone (there being no change of intent) or
vice versa, no change of intention (there being no change of
locality), will effect an alteration of the domicil of choice, which
remains where it was, until the factum and the animus again
unite.*
These two essential elements of domicil must now be ex-
amined a little more fully.
§ 60. Actued Presence. — It is usually said that the elements
necessary to the creation of a domicil of choice are residence and
the animus manendi. The term "residence," as here used,
means simply the actual bodily presence of the party, if that
presence is coupled with the intention to remain permanently.
It but tends to confusion to designate this presence as a "resi-
dence," though in fact and in law it is a residence if it is
coupled with the intention to remain.
The possible confusion incident to the use of the term "resi-
dence " in this connection is well illustrated by the state of
facts in White v. Tennant.^ In that case the party abandoned
his residence in one State, with no intention of resuming it, and
• Kinggold V. Barley, 5 Md. 186, 59 Am. Dec. 107, 109 ; Hairston v.
Hairston, 27 Miss. 704, 61 Am. Dec. 530 ; Mitchell v. United States, 21
Wall. 350 ; Allgood v. WUliams, 92 Ala. 551, 8 So. 722 ; Price v. Price, 156
Penn. St. 617, 27 Atl. 291 ; White v. Tennant, 31 W. Va. 790, 8 S. E. 596,
597 ; Dupuy v. Wurtz, 53 N. Y. 556 ; De Meli v. De Meli, 120 N. Y. 485,
491 ; City of Hartford v. Champion, 58 Conu. 268, 20 Atl. 471, 473-474 ;
Shaw V. Shaw, 98 Mass. 158.
* Dupuy V. Wurtz, 53 N. Y. 556 ; De Meli v. De MeU, 120 N. Y. 485,
491 ; Vischer v. Vischer, 12 Barb. (N. Y.) 640; Steer's Succession, 47 La.
Ann. 1551, 18 So. 503, 504 ; Mayo v. Equitable, etc. Society, 71 Miss. 590,
15 So. 791 ; Hart v. Lindsey, 17 N. H. 235, 43 Am. Dec. 597, 601 ; Lowry
V. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142, 143-144,
1 31 W. Va. 790, 8 S. E. 596, 597. See also HiU v. Hill, 166 111. 54,
46 N. E. 751. The difficulty, where the term " residence " is used, is that
there is an implication that the stay must be more or less protracted, and that
if merely momentary, eren though there exists at the time an intention to
remain permanently, it will not suffice to create a domicil. The reverse oX
this is true, however, as shown by the above casen.
116 ACTUAL PRBSBNCE. § 60
went with his family to a house in another State where he in-
tended to reside thereafter. After he and his family arrived at
their new house, only about one half mile from the State line,
they deposited their baggage, and returned the same day to
spend the night with a relative residing across the line in the
State of their former home, intending to return the following
morning. But the man was detained there by sickness and sub-
sequently died there, never having returned to his new home,
and never having in fact resided there. The court however
held him domiciled in the State of his new home, because,
though he had never actually lived there, he had been physically
present there with the intention forthwith to make it his per-
manent home.*
Since physical presence (coupled with the animus manendi)
is all that is required, it is immaterial to inquire whether the
party is living in a house of his own, in a rented house, iu a
hotel, in lodgings, or has no place to lay his head. These may
be, and often are, of the greatest importance as evidences
whereby to determine whether he has the proper animus ; but
if that is established otherwise they become unimportant."
But it must not be supposed that the physical presence must
continue in order to the formation of the domicil of choice. At
the moment when a party, being present in a place, forms the
definite intention to remain there permanently, from that mo-
ment a domicil of choice is created, which will in general con-
tinue until a new domicil is acquired, though the party for a
long period absents himself, or though he is actually there for
ever so short a time.*
3 See also Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142,
144.
' Guier v. O'Daniel, 1 Binn. (Penn.) 349, note. See ante, § 24.
* Dicey, Confl. L. 107. Mr. Dicey names "residence" as the first essen-
tial of domicil, defining it as "habitual physical presence in a country," and
then finds it necessary to define ' ' habitual. " It is submitted that the word
"habitual" is unnecessary. All such qualifications tend to confound the
factum with the animus, and also tend to confuse the creation of the domicii
with its continuance, which latter is presumed generally, until physical pres-
ence elsewhere coupled with the animus manendi creates a new domicil. See
Hart V. Lindsey, 17 N. H. 235, 43 Am. Dec. 601 ; Lowry v. Bradley. 1 Speer'a
§ 61 THE ANIMUS MANENDI. 117
Physical presence in a country is a tangible fact, and may be
proved, like other facts of that kind, by the testimony of eye-
witnesses or by circumstantial evidence. It is susceptible of
easier proof than the animus, because it is tangible, visible, and
more or less notorious,' while the intention, being rarely ex-
pressed, must usually be inferred from the acts of the parties or
from surrounding circumstances.
Circumstantial evidence is seldom needed to prove the fact of
presence. If such evidence is called for, it will usually be by
reason of uncertainty as to the party's identity. In most cases
where a question of domicil is raised, the dispute is not with re-
gard to the party's presence, but with respect to the intention.*
§ 61. The Animas Manendi. — The last essential of a dom-
icil of choice is the intention to remain permanently or for an
indefinite time. The intention shoum not be to remain for a
fixed period (however long) and then to move away. There
must be a fixed and definite purpose to remain permanently, or
at least for an unlimited or indefinite time, without any definite
intention of ultimate removal.^
But it is not necessary that there should be a fixed intention
to remain during one's whole life. A mere floating intention
to return to a former home or to live elsewhere at some future
period unfixed and contingent upon circumstances, as upon an
indefinite restoration to health or when one's fortune has been
made, will not prevent the acquisition of a domicil at the new
Eq. (S. C.) 1, 39 Am. Dec. 142, 143-144 ; White v. Tennant, 31 W. Va. 790,
8 S. E. 596, 597 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530 ;
Price V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Hill v. Hill, 166 111. 54,
46 N. E. 751 ; State v. Palmer, 65 N. H. 9, 17 Atl. 977.
6 Oilman v. Oilman, 52 Me. 165, 83 Am. Dec. 502, 508 ; Jac. Dom. § 364.
6 Jac. Dom. §§ 364, 365.
1 AUgood V. Williams, 92 Ala. 551, 8 So, 722 ; Young v. Pollak, 85 Ala.
439, 5 So. 279, 282 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530 ;
Price V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Hood's Estate, 21 Penn. St.
106, 116 ; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916, 917 ; Harral v. Harral,
39 N. J. Eq. 379, 51 Am. Rep. 17, 21 ; Hill v. Hill, 166 HI. 54, 46 N. E.
751, 752 ; Dupuy r. Wurtz, 53 N. Y. 556 ; Vischer v. Vischer, 12 Barb.
(N. Y.) 640, 643 ; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 98, 19 Am,
Dec. 258 ; Lowry r. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142, 144 ;
City of Hartford v. Champion, 58 Conn. 268, 20 All. 471, 473.
118 COMMENCEMENT OF THE INTENTION. § 62
abode.' The intention however must be settled and fixed. The
party must have definitely made up his mind to remain. A mere
probability, however great, that he will stay, or an intention
conditional upon a contingency, such as his obtaining employ-
ment, finding the climate suitable to his health, or liking the
people of the community, will not suffice.'
The latter case is to be distinguished from that of one who,
induced by the probability of finding employment, a suitable
climate, etc., definitely determines to live permanently in a par-
ticular spot. In the former case the definite animus has not
been formed. In the latter, it has been formed, though induced
by probabilities only.*
§ 62. Commencement of the Intention. — The animus ma-
nendLalone is not sufficient to constitute a df'^'ifV'T "^ ^^^^a^
nor is merepEysical presence enough. Both must unite. The
moment that both exist at the same time the domicil is created^
Hence no formation of an intention is of avail unless and
until it is accompanied by physical presence. Though one
breaks up his home in one State, intending to remove to another,
but in itinere changes his mind before reaching the latter State,
he cannot be held to have been domiciled there. He retains his
abandoned domicil until he acquires another /acio et animo.^
« Story, Confl. L. § 46 ; Hoskins r. Matthews, 25 L. J. (Oh. ) 689, 8 DeG.
M. & G. 13, 35 Eng. L. & Eq. 532 ; Brunei v. Brunei, L. R. 12 Eq. 298 ;
Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 505 ; Larquie v. Larquie,
40 La. Ann. 457, 4 So. 335, 336-337; Hallett v. Bassett, 100 Ma.ss. 167 ;
Holmes v. Greene, 7 Gray (Mass.), 299; Whitney v. Sherbom, 12 Allen
(Mass.), Ill, 114; Williams ». Saunders, 5 Coldw. (Tenn.) 60, 79 ; White u.
Tennant, 31 W. Va. 790, 8 S. E. 596, 597; Ringgold v. Barley, 5 Md. 186,
59 Am. Dec. 107, 109 ; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916, 917 ;
Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21 ; Hart v. Lindsey, 17
N. H. 235, 43 Am. Dec. 597, 601.
8 Ross V. Ross, 103 Mass. 576, 577; Whitney v. Sherbom, 12 Allen (Mass.),
Ill, 114 ; Mayo ». Equitable, etc. Society, 71 Miss. 590, 15 So. 791, 792 ;
Smith V. People, 44 El. 23.
* See Hegeman v. Fox, 31 Barb. (N. Y.) 475, 483-484.
1 Steer's Succession, 47 La. Ann. 1551, 18 So. 503; Borland v. Boston,
132 Mass. 89, 42 Am. Rep. 424 ; Shaw v. Shaw, 98 Mass. 158 ; Otis v. Bos-
ton, 12 Gush. (Mass.) 44; Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. 107,
109. See White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597.
§ 62 COMMENCEMENT OF THE INTENTION. 119
Some question has been raised whether the same principle
will apply where the emigrant, instead of changing his mind,
dies in itinere. Some most respectable authority seems to
favor a change of domicil in such case.'' But it is believed
there is no sound principle upon which this exception to the
general rule can be predicated, and the weight of authority is
against it.'
Again, an intention, though definitely fixed, to reside in a
given State at & future time, even though it be in the immediate
future, and though coupled with actual presence there at the
time of the formation of the intent, will not suffice to consti-
tute a domicil of choice. The presence must be coupled with
the intent to reside there from that moment.*
Thus, one who contemplates moving from one State to another
2 White V. Tennant, 31 W. Va. 790, 8 S. K 596, 597. See Story, Confl.
L. §§ 47, 48 ; Munroe v. Douglas, 5 Madd. 405. Judge Story however here
applies this principle only in case the party is returning from a foreign dom-
icil of choice to his original or native domicil, but he does not confine it to
the case of death in itinere. He admits the doctrine in any case where a party
leaves a foreign domioil of choice on a final return to his original domicil,
basing it upon the maxim that the domicil of origin easily reverts. See post,
§§ 65, 66.
» Bell V. Kennedy, L. R. 3 H. L. 323 ; Brace v. Brace, 2 Bos. & Pul. 229,
230, note ; Shaw v. Shaw, 98 Mass. 158 ; Harvard College v. Gore, 5 Pick.
(Mass.) 370.
* See Otis v. Boston, 12 Cush. (Mass.) 44. The case of White v. Tennant,
31 W. Va. 790, 8 S. E. 596, 597, is not opposed to this view, though at first
sight it appears to be. In that case, the party broke up his establishment in
West Virginia and removed to a house across the State line in Pennsylvania,
which he had already rented. Upon leaving his West Virginia honse in the
morning, he intended to make the Pennsylvania house forthwith his home,
intending to remain there thenceforward. But after arriving there he decided
to return for the night to his brother's house in Pennsylvania, where he waa
taken ill and died, without ever having returned to the Pennsylvania house.
It was held he was domiciled in Pennsylvania. This decision was clearly cor-
rect. The physical presence in Pennsylvania united with the intention to re-
side there permanently from that moment. His subsequent decision to return
for the night to West Virginia did not aCFect the question. If when he started
out that day from the West Virginia house he had had the intention not to
begin his residence in the Pennsylvania house until the following morning, the
decision would probably have been different.
120 DURATION OP THE INTENTION. § 63
and goes thither to select a suitable dwelling before moving,
will not by that act alone be held to have acquired a domicil
there. His intention to reside will be regarded as conjectural
merely, and not definite enough to create a domicil ; nor has he
in such case as yet finally abandoned his former domicil.* But
if under like circumstances, before he goes into the new State
upon his tour of investigation, he breaks up his establishment
in his former domicil entirely, even though he does not bring
his family with him but sends them to a third State pending
his selection of a dwelling-place, so that he does not anticipate
returning to his former domicil at all, it is said that he will
acquire a new domicil even before a final settlement, for he has
definitely abandoned his former domicil.*
On the other hand, it is not essential to the creation of a
domicil of choice that the intention should be formed immedi-
ately upon one's entry into a State. The mere presence there
will not suffice of itself; there must be an intention also, and
until both concur no domicil arises. But the intention may
spring up later, and if the actual presence continues at that
time the new domicil is at that instant acquired.''
§ 63. Duration of the Intention. — A domicil once created
is retained until another is acquired, which in the case of a
domicil of choice can in general only be facto et animo. If the
purpose to remain in a country permanently has once existed,
and while in existence was coupled with actual physical pres-
6 Behrensmeyer v. Rreitz, 135 111. 591, 26 N. E. 704 ; Cooper v. Beers,
143 111. 25, 33 N. E. 61. See Bruce v. Bruce, 2 Bos. & Pul. 229, 230, note ;
Guier v. O'Daniel, 1 Binn. (Penn.) 349, note.
« Behrensmeyer v. Kreitz, 135 III. 591, 26 N. E. 704. See Cooper v.
Beers, 143 111. 25, 33 N. E. 61. In the latter case, it seems from the opinion
that there had been no actual breaking up of the establishment in St. Louis
(the parties' former home). The court says : *' No act intended as an act of
removal or in aid of removal to Illinois is proved." If the proposition men-
tioned in the text is true, a fortiori would it apply if the party brings his
family with him to the State of his intended residence. See White v. Tennant,
31 W. Va. 790, 8 S. E. 596. The whole principle however must be taken in
gubordination to what has been said ante, § 24.
7 Udny V. Udny, L. R. 1 Sc. App. 441, 458. See Colbum v. Holland,
14 Rich. Eq. (S. C.) 176, 233.
§ 64 EVIDENCE OP ANIMUS MANENDI. 121
ence there, a domicil of choice arises. And since it can be
changed thereafter only by the acquisition of a new domicil in
the same way,^ it follows that no subsequent change of intention
(alone), though the change take place the next day or the next
moment, will effect a change of domicil.
We may even go a step further and lay it down as a corollary
that though physical absence from the country be united with
an intention to make that country no longer the party's home,
the domicil will not in general be thereby destroyed. These
mere negative propositions will effect no change of domicil. The
propositions must be affirmative. The party must not only be
absent from his former home, but must be present in the new ; he
must not only intend not to make the former home his permanent
abode hereafter, but must affirmatively intend to make the new
home his permanent abiding place. And both these affirmative
propositions must coexist.'
§ 64. Evidence of Animus Manendi. — As in all questions
of intention, it is often extremely difficult to arrive at a certain
conclusion touching the animus manendi in cases of domicil.
Much of the difficulty in ascertaining the domicil arises from
this source. The trouble for the most part lies in the fact that
the intention is rarely expressed, and must be inferred from
all the surrounding circumstances.
The question in such cases is not what the party has said,
but what was his real intention. The fact that one openly
proclaims a place to be his permanent home does not make it so
unless in fact the intention to reside there permanently exists.
In general, however, the declarations of the party are admitted
in evidence of the intention, as part of the res gestce.^
^ A modification of this principle may be noted in the case of a party who
abandons a foreign domicil of choice, purposing to return to the country ot
which he is a citizen. See post, § 66.
2 See City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471 ; Dupuy v.
Wurtz, 53 N. Y. 556 ; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 98, 19 Am.
Dec. 258 ; Shaw o. Shaw, 98 Mass. 158 ; Price v. Price, 156 Penn. St. 617, 27
Atl. 291 ; Cooper v. Beers, 143 111. 25, 33 N. E. 61; Mitchell v. United States,
21 Wall. 350.
1 Jac. Dom. §§ 449 et seq., to which the reader is referred for a full
122 EVIDENCE OF ANIMUS MANENDI. § 64
Frequently there are no declarations, or they are ambiguous
or untrustworthy as evidence. In such cases the courts are com-
pelled to rely upon the acts of the party and the surrounding cir-
cumstances. In the decision of this question there are no points
in a man's life, however trifling they may appear, which may not
be examined. Amongst the acts and circumstances which have
been considered by the courts in the determination of domicil
are the exercise of the voting franchise ; " the payment of taxes
on personalty ; * the ownership of a place of residence or of
business ; * continued residence in a country ; * attendance upon
a church, and active participation in its affairs ; ' and various
other circumstances of themselves trivial but sufficient to turn
discussion. See Guier v. O'Daniel, 1 Binn. (Penn.) 349, note; Wilson v.
Terry, 11 Allen (Mass.), 206 ; Holmes v. Greene, 7 Gray (Mass.), 299, 300 ;
Viles V. Waltham, 157 Mass. 542, 32 N. E. 901 ; Thomdike v. Boston, 1 Met.
(Mass.) 242 ; Mitchell v. United States, 21 Wall. 350 ; Ennis v. Smith, 14
How. 400, 401 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 580 ; Steer's
Succession, 47 La. Ann. 1551, 18 So. 503, 506 ; Robert's Will, 8 Pai. Ch.
(N. Y.) 519; Hegeman v. Fox, 31 Barb. (N. Y.) 475, 478-479; Fulham v.
Howe, 62 Vt. 386, 20 Atl. 101. But see Wright v. Boston, 126 Mass. 161 ;
Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108.
2 Jac. Dom. §§ 435 et seq. ; Mitchell v. United States, 21 Wall. 350;
Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 506. Voting has even been
said to be conclusive evidence of the party's intention to remain permanently,
since there should be no presumption of fraud on the part of the voter. See
Shelton v. Tiffin, 6 How. 163. But the weight of authority is in favor of its
being considered only prima facie evidence of the animus manendi, since it
may result from fraud or from the voter's bona fide mistake as to his legal
rights. East Livermore v. Farmington, 74 Me. 154 ; Easterly v. Goodwin,
35 Conn. 279 ; Hayes v. Hayes, 74 111. 312; Folgerw. Slaughter, 19 La. Ann.
323.
« Jac. Dom. §§ 442 et seq. ; Mitchell v. United States, 21 Wall. 350 ; Har-
vard College V. Gore, 5 Pick. (Mass.) 370. Such property is liable to taxation
generally at the domicil of the owner.
* Some authorities are inclined to give these last preponderating weight.
See Story, Confl. L. §§ 46, 47. But though raising strong presumptions, they
are not conclusive. Jac. Dom. §§ 401, 410 et seq.
6 Dupuy w. Wurtz, 53 N. Y. 556; Elbers v. Ins. Co. 16 Johns. (N. Y.)
128 ; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13 ; Ennis v. Smith, 14 How.
400, 401 ; Shelton v. Tiffin, 6 How. 163. But see Jopp v. Wood, 4 DeG. J. &
8. 616, 622.
• Fulham v. Howe, 62 Vt. 386, 20 Atl. 101.
§ 64 EVIDENCE OF ANIMUS MANENDI. 123
the scale in a close case, many of which will be found enumer-
ated in more copious treatises on the subject of Domicil.'
There is one combination of circumstances which deserves
special attention in this connection and has given the courts
much trouble. It is the case of double residence.
A perfton may haye two residences between which he divides
his time, ^ince he can have only one domicJL it is often
difficult to tell which should be so regarded^__Jf ona-4g his,
principaT establishment, the other being used only for short
periods of the year, the first will clearly be the place of his
doHiicil.* Or if one is his residence and the other his place of
business, though he actually spends more time at the latter,
there can be no doubt that the first is his domicil.' But if both
are residences, and he passes about an equal portion of the year
in each, with his family and establishment, it often becomes ex-
tremely difficult to decide which is his domicil. Great weight
in these doubtful cases should be attached to the presumption of
the retention of a prior domicil, and unless the evidence clearly
predominates in favor of the home last acquired, the presump-
tion should be in favor of the first as the party's domicil."
In the absence of any circumstances from which the courts
may infer the animus, they are accustomed to fall back on two
legal presumptions, without which it would in some cases be
impossible to arrive at any conclusion as to a party's domicil.
The first of these is the presumption that the party has re-
tained the last domicil known to have been possessed by him.
This follows from the principle that a domicil once acquired is
retained until another is gained, and from the other principle
growing out of it that the burden of proof is on him who alleges
a change of domicil.^^
^ See Jac. Dom. eh. xxii et seq. ; Wliart Confl. L. §§ 63 et seq. ; Dicey,
Confl. L. 134, 135; Story, Confl. L. §§ 46-49.
8 Thayer v. Boston, 124 Mass. 132. » Ibid.
10 See Jac. Dom. §§ 422, 423 ; Oilman v. Oilman, 52 Me. 165, 83 Am. Dec.
602, 507. In Chenery v. Waltham, 8 Cush. (Mass.) 327, a curious instance
of double residence occurred, the dividing line between two towns running
through a man's house. See Jac. Dom. § 425.
u Dicey, Confl. L. 133 ; ante, §§ 29, 56.
124 EFFECT OF ABANDONMENT OF DOMICIL. § 65
The second is the presumption of domicil inferred from mere
presence in a country, in the absence of evidence to the
contrary.
We have already seen that residence in a country may
je ground to infer the animus manendi, in the absence of
evidence to the contrary.^'^ This second presumption proceeds
a step further, and provides for those cases (otherwise not to be
solved) in which all that is known of the party is that he is
found in a particular State. A newborn child may be laid at
some one's door, or a stranger may be found dead, leaving no
clue to identify him. In these cases, there being no evidence
upon which to base an opinion, since according to the general
principle no person can ever be without a domicil, the law must
rely upon the weak presumption afforded by mere presence there.
There is no ground upon which to fix his domicil elsewhere.^'
§ 65. Effect of Abeuidonment of Domicil — Conflicting
Views. — In the case of the domicil of origin, it is very clear
that the intention to abandon it permanently, even when coupled
with an actual abandonment thereof in pursuance of such inten-
tion, will not cause it to be lost, provided the party does not
acquire a new domicil, for no person can be without a domicil,
and there is none other that can be assigned him.^
But if the abandoned domicil be not the domicil of origin, it
is possible for his original domicil to be assigned him. Even
though no new domicil be acquired, the party will always have
" Dupuy V. Wurtz, 53 N. Y. 556 ; Elbers v. Ins. Co., 16 Johns. (N. Y.)
128 ; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13 ; Ennis v. Smith, 14 How.
400, 401.
18 Dicey, Confl. L. 132-133 ; Jac. Dom. §§ 375, 376 ; Bempde v. Johnstone,
3 Ves. Jr. 198 ; Bruce ^. Bruce, 2 Bos. & Pul. 229, 230, note ; Taylor v.
Sharp, 108 N. C. 377, 13 S. E. 138 ; Guier v. O'Daniel, 1 Binu. (Penn.) 349,
note. See Flood v. Growney, 126 Mo. 262, 28 S. W. 860. We have seen the
application of this principle to determine the original domicil of foundlings,
ante, § 34.
1 De Meli v. De Meli, 120 N. Y. 485, 491 ; Price v. Price, 156 Penn. St.
617, 27 Atl. 291; Hallett v. Bassett, 100 Mass. 167 ; Shaw v. Shaw, 98 Mass.
168 ; Jennison v. Hapgood, 10 Pick. (Mass. ) 77, 98, 19 Am. Dec. 258 ; Har-
vard College v. Gore, 5 Pick. 370 ; Bell v. Kennedy, L. R. 3 H. L. 307. But
see In re Rice, 42 Mich. 528, 4 N. W. 284.
§ 65 EFFECT OF ABANDONMENT OF DOMICIL. 125
his domicil of origin in reserve, which he may consider his
home. In such case therefore the question arises, Shall the
presumption of the retention of the la^t domicil be respected ?
Shall the party, having voluntarily abandoned a foreign domicil,
be considered as still residing there, contrary to the notorious
fact and to his evident desire and intention, merely because he
has not yet made a home for himself elsewhere ? Or shall he
be presumed (for the nonce) to have resumed his original and
native domicil ?
The English authorities are in favor of the latter view, hold-
ing one who has abandoned a foreign domicil but has not
acquired a new one to have resumed ipso facto his domicil
of origin, though he has no intention of actually returning
thither. 2
Mr. Jacobs considers the American doctrine to be that the
domicil of origin reverts only in the single case where the party,
upon an abandonment of his foreign domicil, sets out to return
to his original domicil ; he then acquires as his domicil, even in
itinere, the domicil of origin.' But it cannot be doubted that
the great current of American authority lays down the principle
without qualification that a domicil onffo arqniTPrl ]}j on&sui
juris is retained, even after, abandon mftnt, — mitil another_i8
acquired^ac^Q et animo, and no hint is given of any exception.*
The ca8_es cited (by no means ^t] ftYTiannfiVft ^^ll^ctiou) ave
believed to establish the American doctrine in favor of the reten-
tion of the former domicil in all cases until another is acquired
animo et facto.
2 Dicey, Confl. L. 117, 118 ; Udny v. Udny, L. R. 1 Sc. App. 441, 454
See also Story, Confl. L, § 48 ; The Venus, 8 Cr. 253.
8 Jac. Dom. § 201. See also Story, Confl. L. § 47.
* Mitchell V. United States, 21 "Wall. 350 ; Desmare v. United States,
93 U. S. 605 ; Allgood v. Williams, 92 Ala. 551, 8 So. 722 ; Lowry v. Bradley,
1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142 ; Price v. Price, 156 Penn. St. 617,
27 Atl. 291 ; City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471 ;
Olson's Will, 63 la. 145, 18 N. W. 854 ; Hood's Estate, 21 Penn. St. 106 ;
Williams r. Saunders, 5 Coldw. (Tenn.) 60, 79, 80; Harvard College v. Gore,
5 Pick. (Mass.) 370 ; Shaw v. Shaw, 98 Mass. 158 ; Vischer v. Vischer,
12 Barb. (N. Y.) 640, 643. Indeed, in Harvard College v. Gore, supra, the
court expressly disapproves such an exception.
126 ABAJTDONMBNT — SOLUTION SUGGESTED. § 66
§ 66. Same — A Solution suggested. — Mr. Jacobs has
pointed out some strong objections to the English view of the
reverter of the original domicil,* and the English judges have
denounced the American rule as entirely irrational. "^ Indeed
objection, more or less pronounced, may be taken to all the
theories mentioned in the preceding section.
There is another theory, not specifically adverted to by the
authorities, which is submitted as being logical and at the same
time going far to reconcile the conflicting views, lying as it does
between the extremes.
A distinction should be taken between those cases where the
party's ties to the original domicil may be presumed to be close
and those where they are of a slight character: between those
cases where the party owes allegiance to, and is a citizen of, the
country of his origin, whither his thoughts would naturally
turn, and those cases where he has either never owed such alle-
giance to that country or else has thrown it off by naturalization
elsewhere.
It is manifest that an Englishman, born in England of parents
domiciled there, who lives there until he is twenty-one, but who
subsequently changes his domicil to Holland,' would regard him-
self, if he should abandon his Dutch domicil, still an English-
man, and his home as in England until he selects another
(though he does not return thither).* In such case, it is plainly
reasonable that the law should not compel him to retain his
Dutch domicil and be governed in many respects by its laws,
after he has deliberately abandoned it. On the contrary, it
would be natural and just to infer that he intends to resume liis
English domicil of origin in the interim, though he does not
actually return to England and does not intend to do so. The
question is not whether he intends to live in England, but
whether he intends to place himself in the same position he
would have occupied if he had acquired no domicil of choice.
1 Jac. Dom. § 199. * Udny v. Udny, L. R. 1 Sc. App, 441.
' This is the case suggested by Lord Westbnry in Udny v. Udny, L. R.
1 Sc. App. 441.
* This case is adduced in Udny v. Udny, supra, against the retention
theory.
§ 66 ABANDONMENT — SOLUTION SUGGESTED. 127
Now let us suppose the same Englishman to be born of Eng-
lish parents, domiciled at the time of his birth in America, who
shortly afterwards return to England to live, and there bring
up their son, the other circumstances remaining the same.' He
has no ties of allegiance or connection with America. There is
no logical reason here to suppose that, having abandoned his
Dutch domicil as before, he would look upon America, his acci-
dental domicil of origin, as his home, rather than England.*
Or if his domicil of origin be English, but he (or his parents
for him), having in childhood or after maturity deliberately
severed the ties of allegiance that bind him to that country,
becomes a naturalized citizen of the United States, and then
(as before) acquires and abandons his Dutch domicil, why should
the law presume that he regards England as his home, whose
allegiance he has cast off, rather than America, whose citizen he
is ? In such case, England certainly has the least claim of any
of the States concerned.
The true theory (if we do not accept citizenship in all such
cases as the true basis'), it is submitted, is that, upon an aban-
donment of a foreign domicil, none being actually acquired else-
where, the original domicil is resumed, if it be the State whereof
the party is a citizen (whether native or naturalized), for the
law may justly presume him when homeless to look upon that
country as his home. But if he were never a citizen of the
country wherein is his domicil of origin, or if he has since be-
come a naturalized citizen of another, the reason ceases for this
exception to the general rules regulating the acquisition of domi-
cil, and the doctrine of the retention of the domicil, until a new
one is acquired yac^o et animo, will apply.
This is in accord with the great mass of American authority,
which, as we have seen, pays little heed to the English principle
* This is in substance the case supposed by Mr. Jacobs to illustrate the
irrational character of the English doctrine of reverter of original domiciL
See Jac. Dom. § 199.
• See Douglas o. Douglas, L. R. 12 Eq. 617, 643.
^ The most reasonable doctrine is to adopt citizenship in this instance as
the criterion of domicil, under %X\. circumstances, but as yet none of the au-
thorities have gone so far.
128 ABANDONMENT SOLUTION SUGGESTED. § 66
of the reverter of the original domicil. For with us, a citizen
of the United States, no matter where his domicil of origin, is a
"citizen oi the State wherein he resides (or is domiciled).* Hence,
upon the principle above mentioned, a citizen of the United
States, whose original domicil is in one State, who acquires a
domicil of choice in another, which he subsequently abandons
(acquiring no new domicil elsewhere) should not resume his
domicil of origin in the interim, but should retain his last
domicil until he actually acquires another /acio et animo. For,
when he abandons the State of his original domicil and becomes
domiciled in another State of the Union, he ipse facto abandons
his citizenship of the first State also, and there is no ground
upon which to base a presumption of the reverter of the original
domicil. The case is thus seen to be similar to that, above ad-
verted to, of the Englishman who abandons his Dutch domicil
of choice, after becoming a naturalized American citizen.'
In Udny v. Udny, ^^ Lord Westbury criticises a doctrine nearly
approaching this laid down in First Nat. Bank v. Balcom,^^ de-
claring that to so hold ''is to confound the political and civil
states of an individual, and to destroy the difference between
patria and domicilium."
' U. S. Const. Amendment XIV.
* It is worthy of remark that some of the American courts seem to have
taken this view. First Nat. Bank v. Balcom, 35 Conn. 351 ; Steer's Succes-
sion, 47 La. Ann. 1551, 18 So. 503, 504; In re Rice, 42 Mich. 528, 4 N. W.
284. But see dictum in Allen v. Thoraason, 11 Humph. (Tenn.) 536, 54 Am.
Dec. 55, 57, quoting Story, Confl. L. § 47. Story's view, it is believed, is not
far removed from that above given. He says (§ 48) : "A national character
acquired in a foreign country by residence changes when the party has left the
country animo non revertendi, and is on his return to the country where he
had his antecedent domicil. And especially if he be in itinere to his native
country with that intent, his native domicil revives while he is yet in tran-
situ, for the native domicil easily reverts. The moment a foreign domicil is
abandoned, the native domicil is reacquired."
w L. R. 1 Sc. App. 441, 460.
11 35 Conn. 351. In that case the court uses the following language,
which was the subject of Lord Westbury's animadversion : " The principle
that a native domicil easily reverts applies only to cases where a native citizen
of one country goes to reside in a foreign country, and there acquires a domicil
by residence without renouncinj^ his original allegiance In such cases his
§ 67 SITUS OF CORPORATIONS. 129
With all the deference due to such eminent authority, t is
submitted that to advert to citizenship as a means of deter-
mining the probable intention and wishes of the party is not
to confound citizenship with domicil, but, on the contrary, to
recognize them as distinct, and from the natural influence of
nationality or citizenship to deduce the probable intention to
resume the domicil of origin or not to resume it.
There are other instances in which the probability of an in-
tention or a desire to consider a particular country as one's
permanent home supplies a rule whereby to ascertain the con-
structive domicil, as in the case of infants and married women.
And the effect of a probability of one's desire to resign his
domicil of origin on account of citizenship in another country
is expressly recognized in several cases as entitled to great
weight.^*
There seems therefore to be no valid reason why the proba-
bility of one's desire to resume his domicil of origin, upon the
abandonment of a domicil of choice, should not in like manner
be inferred from his citizenship in the former country. And on
the other hand, in the absence of the probability of such desire,
there is no reason to imply it.
§ 67. Situs (or Domicil) of Corporations. — There is,
strictly speaking, no such thing as the "domicil" of a cor-
poration, for it can have no permanent home in the ordinary
and usual meaning of the term. But a corporation, like every
other thing, act, or circumstance known to the law, may and
must have a situs.
The situs of a corporation, like that of a natural person,
native domicil reverts as soon as he begins to execute an intention of return-
ing ; that is, from the time he puts himself in motion bona fide to quit the
country sine animo revertendi, because the foreign domicil was merely adven-
titious and de /ado, and prevails only while actual and complete. . . . This
principle has reference to a national domicil in its enlarged sense, and grows
out of native allegiance or citizenship. It has no application when the ques-
tion is between ^ native and acquired domicil, where both are under the same
national jurisdiction."
12 Sharpe v. Crispin, L. R. 1 P. & D. 611, 621 ; Douglas v. Douglas, L. R.
12 Eq. 617, 643; Otis v. Boston, 12 Gush. (Mass.) 44; Greene v. Greene,
11 Pick. (Mass.) 409, 415.
0
130 SITUS OP CORPORATIONS. § 67
may be either actual or legal. It is the legal situs with which
we now have to do, which is generally styled, inaccurately, the
domicil of the corporation. It is not such, however, in the full
sense of the term, and hence the rules for ascertaining the
so-called domicil of a corporation, though in large measure analo-
gous to those by which the natural person's domicil is deter-
mined, are by no means identical with them.
Thfe^gpueral mle.ig_well settled that^ corporation js*^ domi-
ciled " or has its legal situalnthe State where it is incorporated,
not where its stockholders reside.^ ^^ it does^ not cFange its
domicil by merely doing business elsewhere. Its actuaL_situs
(through its agents) -may_be__in_the latter ^l.acfi»-lmJLjt8 legal
situs is unchanged.^
But if a corporation is chartered in several States successively,
as sometimes in the case of railroad companies, it becomes a
citizen of each of those States, and thus may, unlike an indi-
vidual, have several domicils at the same time.'
» B. & 0. R. R. Co. V. Glenn, 28 Md. 287, 92 Am. Dec. 688 ; Boehme r.
Rail, 51 N. J. Eq. 574, 26 Atl. 832 ; Chafee v. Bank, 71 Me. 514, 36 Am.
Rep. 345, 351 ; Chamberlain v. Chamberlain, 43 N. Y. 424, 432 ; Bank of
Augusta V. Earle, 13 Pet. 520, 586, 587 ; B. & 0, R. R. Co. v. Koontz, 104
U. S. 10, 11 ; Douglas r. Ins. Co., 138 N. Y. 209, 33 N. E. 938; Boston In>
vestment Co. v. Boston, 158 Mass. 461 ; Railroad Co. v. Barnhill, 91 Tenn.
395, 19 S. W. 21 ; Memphis, etc. R. Co. v. Alabama, 107 U. S. 581.
2 Faulkner v. Hyman, 142 Mass. 53, 55 ; Chamberlain v. Chamberlain,
43 N. Y. 424, 432 ; Chafee v. Bank, 71 Me. 614, 36 Am. Rep. 345, 351 ; Bank
of Augusta V. Earle, 13 Pet. 520, 586.
» See Whart. Confl. L. § 48 o ; B. & 0. R. B. Ca ». Glenn, 28 Md. 287,
92 Am. Dec. 688.
§ 68 8ITUS OF STATUS. 131
Jlsu^iJl S^aAl^
PAKT m.
SITUS OF STATUS.
§ 68. Preliminary — Situs of Status follows the Situs of the
Person. — The attributes and qualities attached to a person by
nppnttion nf IfiTTj r^gardlf'Sfi nl.his own wishes, constitute his
statiLS in law. As ^ well defined in a leading jflnglish case : *
* * The status of an indiyidual. used in a le^al sense, is the legal
relation in which that individna|| atanilH to |fhe rest of the coin-
nmnity." '
These legal relations may be various. One who is under age
does not occupy the same relation to the rest of the community
as one who is an adult: the relations of a single man differ
from those of one who is married; one who is competent to
transact business occupies a different relation from one who is
not ; a legitimate or adopted child from one who is not ; a ward
from one who is not under guardianship ; a fiduciary from one
who is acting for himself, etc. All these and others that need
not be enumerated are instances of status.
It is natural and proper that these personal attributes or
qualities, grouped under the generic term status, should follow
the person to whom they are attached, and should in the main
be regulated and governed by the same law that governs him.
Indeed, for the most part, it is through these qualities and at-
tributes that a particular law can be said to govern a person at
all. The law which governs the person is in general the law of
his situs. Hence the law governing the status of the person is
1 Niboyet v. Niboyet, 4 P. D, 11.
' See also Ross v. Ross, 129 Mass. 243, 246, 37 Am. Bep. 321 ; Van Matre
V. Sankey, 148 111. 356, 36 N. E. 628 ; Freeman's Appeal, 68 Conn. 533,
37 Atl. 4-20, 421 ; De La Montanya v. De La Montanya, 112 Cal. 101, 32
L. R. A. 82 , 87, 53 Am. St. Rep. 165
132 SITUS OF STATUS. § 68
the law of his situs. The law of the person's situs then is ''the
proper law " controlling the status.
But we have seen in a preceding chapter* that when a
''proper law " comes to be enforced in another State, there are
certain circumstances, such as the consequent violation of the
policy of the forum or the perpetration of injustice upon its
people, that may lead the courts of the forum to substitute the
lex fori in a given case in the place of the proper law. This is
exemplified in some whole groups of status, as in the case of
fiduciaries,* where the application of the lex fori is the rule
rather than the exception; and sometimes in other cases of
status where the exceptional circumstances arise.
But when we say that "the proper law " to determine status
is the law of the person's situs, we must bear in mind that the
person's situs may be twofold. He may have an actual situs
or he may have a distinct legal situs or domicil ; that is, his
actual situs may be recognized for one purpose, and his legal
situs for another, and the two need not coincide.'
We have also seen that the actual situs of a person is looked
to in those matters which are the result of the person's activity
and voluntary efforts, for in respect to such matters the recog-
nition of the sovereignty of the State wherein they arise de-
mands that its law should govern them, and to the operation of
that law the party has voluntarily and deliberately submitted
himself.' On the other hand, if the rights or liabilities in dis-
pute have been conferred upon the party, not by his own volun-
tary act, but as a result of the operation of law, if they are
dependent upon the law of the person's situs at all, it will in
general be the legal, not the actual, situs of the person, that will
furnish the applicatory law.' We shall hereafter have occasion
to apply these principles more than once ; they are at the foun-
dation of many of the problems that present themselves.
With respect to the particular instance, now under consider-
ation, of the application of the law of the person's situs, namely,
the status of the individual, it may be said that it belongs in the
« Chapter H. * Post, Chapter IX.
8 S«e ante, § 18. « See ante, §§ 17, 18.
T See ante, §§ 17, 18
§ 68 SITUS OP STATUS. 133
main to the second class of cases above mentioned, that is, mat-
ters arising by operation of law without the active intervention
of the party. Hence, the general rule of private international
law is that questions of status are to be determined by the law
of the legal situs or domicil (lex domicilii) of the party whose
status is in dispute.*
But this is not universally true, and under some circumstances
"the proper law " to determine a status may be the law of the
person's actual situs,' while in other cases the lex fori may be
substituted for the proper law altogether.
The status may be considered under four main groups, to each
of which one or more chapters will be devoted. These are:
(1) Personal capacity; (2) The marriage status; (3) The status
of legitimacy and adoption ; and (4) The status of fiduciaries.
8 Lamar v. Micou, 112 U. S. 452 ; Ross v. Ross, 129 Mass. 243, 246, 37
Am. Kep. 321 ; Watkins v. Watkins, 135 Mass. 83, 84 ; Adams v. Adams,
154 Mass. 290 ; Kinney v. Com., 30 Gratt. (Va.) 858 ; Miller v. Campbell,
140 N. Y. 457, 460, 35 N. E. 651 ; Miller v. Miller, 91 N. Y. 315 ; Moultrie
17. Hunt, 23 N. Y. 394, 403-404 ; "Woodward v. Woodward, 87 Tenn. 644, 11
S. W. 892, 893 ; Armstrong w. Best, 112 N. C. 59, 17 S. E. 14 ; State v. Ken-
nedy, 76 N. G 251, 22 Am. Rep. 683 ; People v. Dawell, 25 Mich. 247, 12
Am. Rep. 260 ; Blythe v. Ayres, 96 Cal. 532, 19 L. R. A. 40, 31 Pac. 915 ;
Gray v. Holmes, 57 Kan. 217, 33 L. R. A. 207, 45 Pac. 596 ; Melvin v. Martin,
18 R. I. 650, 30 Atl. 467; Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep.
507, 508 ; Jones v. Jones, 67 Miss. 195, 6 So. 712 ; Gregory v. Gregory, 78
Me. 187, 57 Am. Rep. 792 ; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132,
134 ; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916 ; Birtwhistle v. Vardill.
7 CI. & F. 895 ; Skottowe v. Young, L. P^. 11 Eq. 474 ; Price r. Dewhurst,
S Sim. 279.
» Post, §§ 72, 78.
184 SBVEEAL SOBTS OF CAPACITY. § 69
CHAPTER V.
STATUS OF PERSONAL CAPACITY.
§ 69. Capacity in General — Several Sorts of Capacity. ^
In general, the capacity or incapacity of a person to take part
in a particular transaction is not an active but a passive element
of the transaction, one imposed by law, and independent of the
will of the parties.
Theoretically therefore, upon principles just examined, the
proper law governing the capacity or incapacity of the person
is the law of the person's legal situs or domicil (lex domicilii),
not the law of his actual situs. And in general, as we shall see,
this is the rule.^
But when the matter with respect to which the party's capacity
is questioned is the result of a voluntary and deliberate act on
the part of the person, for example, the making of a contract in
a particular State (other than his domicil), a serious question
arises whether his capacity to enter into such contract is to be
governed by the law of his legal situs (lex domicilii) or by the
law of his actual situs (the place where the contract is entered
into). The point, being one upon which the courts are much
confused, will be discussed hereafter.^
As illustrating this distinction, in respect to capacity, between
the active participation of a party in a given transaction and
such participation as is imposed upon him by the law, it will
not be amiss to quote the language of a leading Massachusetts
decision : •
"The capacity or qualification to inherit or succeed to prop-
erty, which is an incident of the status or condition, requiring
no action to give it effect, is to be distinguished from the
» Post, 5§ 70, 71 et seq. 3 Post, §§ 72, 73.
• Ross V. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321, Gray, J.
§ 69 SEVERAL SORTS OF CAPACITY. 135
capacity or competency to enter into contracts that confer rights
upon others. A capacity to take and to have differs from a
capacity to do and contract; in short, a capacity of holding,
from a capacity to act."
It will be seen that when the actual situs and the legal situs
(or domicil) of the party coincide, that is, when the act or mat-
ter in question arises in the domicil, the lex domicilii will,
under all circumstances, be the proper law to determine the
party's capacity, no matter where the question may arise. It is
true that the proper law may be substituted by the lex fori, but
only in the exceptional cases heretofore discussed.*
If the act is a voluntary one (e. g. making a contract) per-
formed in a third State, the question arising in a State other
thoM the party's domicil, the courts of such State will usually
hold that the law of the place where the contract is entered into,
or other act is done, that is, the law of the actual situs of the
person at that time, will govern his capacity to do the act.*
But if, though the act be voluntary and performed in a third
State, the question is raised in the party's domicil with respect
to his capacity or incapacity to do the act, there is great differ-
ence of opinion, or at least apparent difference of opinion, as to
the law which should govern.'
The status of personal capacity is to be examined, according
to the character of the transaction, in different aspects. The
primary distinction is that already noted between cases of
involuntary transactions (if the expression may be used) and
those which are the result of voluntary action by the party.
We will consider two instances of capacity under each of these
heads.
The first instance of capacity under the head of involuntary
transactions is that of the capacity to make a will and to be a
beneficiary thereunder. At first glance, the making of a will
would seem to be a voluntary act of the testator, but a moment's
reflection will show that though the actual writing of a will is a
< Chapter II. 6 Post, §§ 72, 73.
• Post, §§ 72, 73. The discrepancy is due for the most part to the diflFer-
ent conceptions of the various courts as to the importance to be attached to
the policy of the forum.
136 TESTAMENTARY CAPACITY. § 70
voluntary act on the part of the testator, it is dependent for its
effect upon his death, which is involuntary. It is therefore
to be classed under this head.'
The second instance of capacity in involuntary transactions
may be designated business capacity in general (exclusive of
contracts and other voluntary acts). Under this head are
grouped all those cases in which the abstract question arises
whether the party is a competent agent, but in which he does
no voluntary and deliberate act.'
Under the head of voluntary transactions, the first instance
of capacity will arise in respect to the making of contracts in
general, and the second with respect to capacity to enter into
the contract of marriage in particular.' The *' proper law " to
regulate those instances of capacity belonging to the first class
is the law of the party's legal situs or domicil; while capacities
of the second class are controlled by the law of the party's
actual situs at the time of the transaction, subject to modifica-
tions which will be discussed hereafter.
§ 70. Testamentary Capacity. — In respect to the capacity
to make a will, a distinction, already adverted to, must be made
between wills of lands and wills of personal property. In re-
spect of wills of lands, the testamentary capacity of the testator
is one of the steps in the chain of title, all of which are to be
regulated by the law of the place where the land is situated.
Hence, it is well settled that the lex situs of the land governs
the capacity to devise, as well as the formal and substantial
validity of the will.^
But in the case of a will of personalty the rule is otherwise,
the legal situs of personal or movable property being with the
person of the owner. Hence the general rule of private inter-
national law is that the law of the owner's situs shall deter-
mine his capacity to bequeath it; and since the will takes effect
» See post, §§ 70, 142. « Post, § 71.
» Post, §§ 72, 73.
1 Ante, § 11 ; Story, Confl. L. § 474 ; Boss r. Ross, 129 Mass. 243, 246,
37 Am. Rep. 321 ; Williams v. Saunders, 5 Coldw. (Tenn.) 60, 61, 70; Car-
penter V. Bell, 96 Tenn. 294, 34 S. W. 209 ; Frazier v. Boggs, 37 Fla. 307,
20 So. 245.
§ 70 TESTAMENTARY CAPACITY. 137
by the death of the testator (an involuntary act) it is the law
of the testator's legal situs (or domicil) at the time of his
death that will govern. That the lex domicilii of the testator
is the proper law to govern testamentary capacity in case of
personalty is settled beyond dispute."
It is not always easy however to determine when a question
is really one of testamentary capacity. Because the law of a
State prohibits its citizens to make particular testamentary dis-
positions, it does not follow that the prohibition is against their
testamentary capacity. In order to create a true testamentary
incapacity, the policy of the prohibiting law must be directed
against the right of the testator to dispose of his property, not
against some particular form of disposition he may desire to
make, nor against the right of his beneficiary to hold the prop-
erty bequeathed.
Thus, a law prohibiting a person under legal age to make
a will creates a testamentary incapacity; or a law prohibiting
married women from bequeathing their property, whether ap-
plying to all or only part of their possessions. So also, a law
providing that no will shall be valid, unless executed a certain
time before the testator's death ; or a law providing that no will
creating a charitable trust shall be valid if executed within a
named time before the death of the testator ; or a provision that
a testator shall not give more than a certain proportion of his
estate to charities. The policy of all these provisions is to
prevent the testator from making indiscreet dispositions, to the
disinheritance of his family. They are aimed to deprive him of
a discretion which, if given full sway, might result in injustice
to those dependent upon him. They create a true testamentary
incapacity. The policy of such laws is applicable to all persons
who are subject to them, to all persons domiciled in that State,
2 Koberts' Will, 8 Pai. Ch. (N. Y.) 519; Chamberlain r. Chamberlain,
43 N. Y. 424, 432-433 ; Kerr r. Dougherty, 79 N. Y. 327, 341 ; Cross v. Trust
Co., 131 N. Y. 330, 340 ; Russell v. Hooker, 67 Conn. 24, 34 Atl. 711, 712 ;
Ford V. Ford, 70 Wis. 19, 33 N. W, 188, 194 ; Sickles v. New Orleans, 52
U. S. App. 147, 80 Fed. 868, 873 ; Montgomery v. Millikin, 5 Sm. & M.
(Miss.) 151, 43 Am. Dec. 507 ; Cameron v. Watson, 40 Miss. 191, 207; Wil-
liams V. Saunders, 5 Coldw. (Tenn.) 60
138 TESTAMENTARY CAPACITY. § 70
regardless of their actual situs, or the actual situs of the prop-
erty bequeathed. Wherever the latter may be, it must for this
purpose be regarded as helping to make up the aggregate wealth
of the State whose citizen the owner is. The strict lex scripta
of the testator's domicil therefore will govern testamentary
incapacities of this character.*
On the other hand, a law is not a restriction upon testamen-
tary capacity, which avoids a will creating a trust to endure
longer than lives in being, or other perpetuity; or which avoids
charitable trusts, or other vague and indefinite dispositions.
These prohibitions are not for the protection of the testator's
estate from his improvident dispositions, but for the general
welfare of the State, or because of the incapacity of the courts
to enforce the provisions. The State passing such laws is only
concerned with their enforcement when the property is designed
under the will to be held in perpetuity within its limits^ or
where its courts are to enforce the vague and indefinite trusts
created by the will. This policy is not affected by the resi-
dence or the non-residence of the testator, but only by the
presence or non-presence of the property disposed of. If the per-
petuities or indefinite trusts are to take effect there, the policy
of these laws is violated, and the domicil of the testator and its
laws are not of material importance.*
Another class of these prohibitory laws relate to the capacity
of the beneficiary to take the property bequeathed. These laws
also are to be distinguished from those which place a restriction
upon the capacity of the testator to dispose of his property.
The purpose of such laws is not to restrain the testator from
improvident dispositions, but to subserve a general policy, which
the welfare of the State as a whole requires should be carried
out. To this class belong prohibitions upon a corporation
to be a legatee, or to hold more than a certain amount of the
property bequeathed to it, etc. The purpose is to impose a
check upon the aggrandizement of the corporation and for the
protection of the State against its undue influence and power.
» See Healy v. Reed, 153 Mass. 197, 200 ; Montgomery v. Millikin, 5 Sm.
k M. (Miss.) 151, 43 Am. Dec. 507. See post, § 144.
♦ See Healy v. Beed, 163 Mass. 197, 200 ; post, § 144.
§ 70 TESTAMENTARY CAPACITY. 139
Such is the policy of statutes of mortmain. In such a case,
it is evident that the State enacting such law is not interested
in enforcing it if the corporation or other heneficiary thus pro-
hibited to take is not within its borders; and on the other
hand, if such beneficiary is within its limits, the policy of the
law applies, no matter where the testator's domicil may be or
what may be its laws. The question here involved is not
the testamentary capacity of the testator, but the capacity of
the legatee to take, and that capacity should be regulated by the
law of the beneficiary^ s domicil, just as much as the testator's
capacity is to be controlled by the law of his domicil.*
Thus, in Chamberlain v. Chamberlain,* a leading New York
case, a testator, domiciled in New York, bequeathed property
to a Pennsylvania corporation for educational purposes. If the
legatee had resided in New York and the property was to have
remained there, the disposition would have contravened the
New York law placing restrictions upon the capacity of cor-
porations to take as legatees. But inasmuch as the corporation
legatee was capable of taking the legacy under the law of Penn-
sylvania (its situs), the court construed the New York statute
not to apply. In the course of its opinion the court says :
" It is no part of the policy of New York to interdict per-
petuities or gifts in mortmain in Pennsylvania."
On the other hand, in another New York case,' a testator
domiciled in New York bequeathed a legacy to a Pennsylvania
corporation for charitable purposes, and died within a month
after executing his will. The law of New York provided that
no devise or bequest to a corporation by one leaving a wife,
child, or parent should be valid in any will not made and
executed at least two months before the testator's death. The
law of Pennsylvania was the same. It was held that the bequest
' Chamberlain v. Chamberlain, 43 N. Y. 424 ; Kerr r. Dougherty, 79 N. Y.
327; Healyr. Reed, 153 Mass. 197, 200; Sickles v. New Orleans, 52 U. S.
App. 147, 80 Fed. 868; Fellows v. Miner, 119 Mass. 541 ; Sohier w. Burr,
127 Mass. 221 ; Hope r. Brewer, 136 K. Y. 126. See Cameron v. Watson,
40 Miss. 191. See Vansant v. Roberts, 3 Md. 119; post, § 144.
« 43 N. Y. 424.
' Kerr v. Dougherty, 79 N. Y. 327, 341.
140 TESTAMENTARY CAPACITY. § 70
was invalid. This decision was clearly correct, but it is sub-
mitted that the court erred in following the Pennsylvania law
rather than that of Hew York in reaching its conclusion. The
result was the same, for the two laws were similar; but the pro-
hibition of the New York law was directed in this case against
the capacity of the testator, not against the capacity of the
legatee, and should therefore have furnished the guide, since
New York was the testator's domicil. Mr. Wharton's criticism
upon this decision is well founded.*
Following the same line of reasoning, it would seem that if
the question should arise, not in the testator's domicil but in
the State where the property is or the legatee resides, the courts
of the forum should be governed by the lex domicilii of the tes-
tator, it is true, but should construe that law according to the
policy indicated thereby. K intended as a restriction upon
testamentary capacity, the strict lex scripta of the testator's
domicil should be applied. If the lex domicilii is intended to
lay down rules governing the mode in which property in the
domicil should be held or enjoyed, as in case of statutes pro-
hibiting gifts in perpetuity; or rules prescribing what persons
under its jurisdiction may receive bequests, as in case of statutes
of mortmain ; or rules governing its courts in the administration
of trusts, as in case of provisions that vague and indefinite trusts
shall not be enforced, — in all such 'cases the policy of the lex
domicilii indicated by such laws is confined to the limits of the
domicil itself and is not to be construed as applying to property
to be enjoyed in other States, to legatees domiciled elsewhere, or
to trusts to be administered by the courts of other States.®
In those cases in which the law of the testator's domicil is to
be applied, it must be observed that it is the domicil possessed
by the testator at the time of his death that furnishes the proper
* Wbart. Confl. L. § 577. In a similar case in Massachusetts it was held
that the lex domicilii of the testator, not of the legatee, should govern. Healy
V. Reed, 153 Mass. 197. See Mollis v. Seminary, 95 N. Y. 166; Curtis r,
Button, 14 Ves. 537.
» See Chamberlain v. Chamberlain, 43 N. Y. 424 ; Healy v. Reed, 153 Mass.
197 ; Dammert v. Oshorn, 140 N. Y. 30 ; Cross v. Trust Co., 131 N. Y. 330
In the last case the disposition was opposed to the policy of both States.
§ 71 BUSINESS CAPACITY IN GENERAL. 141
law. If he makes his will when domiciled in one State, and
then afterwards removes to another where he dies, it is the law
of the latter State, not that of the former, which determines his
testamentary capacity."
Testamentary capacity under the exercise of a power of ap-
pointment depends upon different principles, and will be con*
sidered hereafter.^^
§ 71. Business Capacity in general. — By " business ca-
pacity," as here used, is meant a general capacity for business
transactions, exclusive of voluntary acts of the party, such
as entering into contracts, which will be discussed in the fol-
lowing sections.
The period of wardship, the age of majority, the effect of
settlements between guardian and ward, the ability of a mar-
ried woman to be a trustee, etc., are matters that do not involve
the idea of a voluntary and deliberate entrance into a transac-
tion, but are more or less matters of law, rather than of active
consent or contract. All these and others of a like kind may
be grouped under the general head of business capacity.
It is the established general rule that this sort of capacity is
governed by the law of the legal situs (or domicil) of the party
whose capacity is in question.* The lex domicilii is the * * proper
law," but as in other instances the proper law is liable to be
substituted under certain circumstances by the lex fori in the
exceptional cases already mentioned in the second chapter.
Thus, in Woodward v. Woodward,' a ward domiciled in
Louisiana and being of full age there (fixed at eighteen), though
W Story, Confl. L. § 473 ; Jac. Dom. § 43 ; Whart. Confl. L. § 570. See
Moultrie V. Hunt, 23 N. Y. 394 ; White v. Howard, 46 N. Y. 144, This is
eminently reasonable since a will takes eflfect by the death of the testator, not
by its execution.
" See post, § 150.
1 Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892 ; Hiestaud v.
Kuns, 8 Blackf. (Ind.) 345, 46 Am. Dec. 481 ; Barrera r. Alpuente, 6 Mart.
N. s. (La.) 69, 17 Am. Dec. 179 ; Schluter r. Bank, 117 N, Y. 125, 22 N. E.
572 ; Lamar v. Micou, 112 U. S. 452 ; Kohn's Estate, 1 Pars.Eq. Ca«. (Penn.|
399 •, Freeman's Appeal, 68 Conn. 533, 37 Atl. 420 ; In re Helleman's Will,
L. R. 2 Eq. 363 ; In re Da Cunha, 1 Hagg. Eccl. 237.
» 87 Tenn. 644, 11 S. W. 892.
142 BUSINESS CAPACITY IN GBNBRAL. § 71
under age in Tennessee, sued her guardian in Tennessee, where
he was appointed, to compel him to turn over to her her person-
alty located there. It was held that she was of age and entitled
to make this demand, though there was a Tennessee statute pro-
viding that a ward might make such demand of the guardian
upon attaining the age of " twenty-one," this phrase being con-
strued by the court as equivalent to ''full age."
In Hiestand v. Kuns,' a guardian removed with his ward (a
niece) nine years old from Ohio, where her parents had lived
and died, to Indiana. By the law of Ohio she became of age at
eighteen ; by the law of Indiana at twenty-one. Upon attain-
ing the age of eighteen she gave her guardian a power of attor-
ney to sell her property, and he made a settlement with her
which he alleged was a final one. The Indiana court held that
her capacity to come to a settlement with her guardian de-
pended upon the law of her domicil ; that her Ohio domicil was
unchanged by her removal to Indiana with her guardian ; but
that when she became eighteen, she became under Ohio law
competent to select her own domicil; that she did select In-
diana; and that the law of her new domicil straightway threw
her back into her old status of minority and dependence until
she should become twenty-one. The court therefore held her,
under the law of Indiana (her newly acquired domicil), incom-
petent to make a final settlement with her guardian.
In Schluter v. Bank,* a married woman domiciled in New
York there became a trustee of certain funds deposited there.
She afterwards became domiciled in New Jersey, by whose law
a married woman was incompetent to act as trustee. Upon the
question whether she remained a trustee of the New York funds
after her removal to New Jerse\'^, it was held by the New York
court that, capacity being conferred upon her at tlie time of the
transaction by the law of her domicil (New York), the trans-
action was a valid one, and continued to be so notwithstanding
her subsequent removal to New Jersey.*
8 8 Blackf. (Ind.) 345, 46 Am. Dec. 481.
* 117 N. Y. 125, 22 N. E. 572.
6 Here the married woman's former domicil was also the forum. If the
same question had arisen in New Jersey or in a third State, the result might
§ 71 BUSINESS CAPACITY IN GENERAL. 143
With respect to the law governing the age of majority, the
time at which an infant becomes an adult for legal purposes, all
the authorities agree that the lex domicilii of the party is the
proper law to determine the question.* But there is consider-
able conflict upon the question whether the proper law is the law
of the party's domicil of origin or that of his domicil at the time
he is alleged to have attained his majority, supposing him no
longer to possess his original domicil.
The weight of American authority, and, it may be added, of
reason, is in favor of the latter domicil as furnishing the proper
law.' But many of the continental jurists incline to the domicil
of origin, on the ground that '' each State or nation is presumed
to be best capable of judging from the physical circumstances
of climate or otherwise when the faculties of its citizens are
morally or civilly perfect for the purposes of society." ^
have been different, since a capacity conferred by one State upon a citizen does
not usually continue after the party becomes domiciled in another State,
whose law does not confer it, except in cases of permanent status, such as the
marriage status, legitimation, and others of a similar character.
6 Story, Confl. L. § 71 ; Woodward v. Woodward, 87 Tenn. 644, 11 S. W.
892 ; Hiestand v. Kuns, 8 Blackf. (lud.) 345, 46 Am. Dec. 481 ; Barrera v.
Alpuente, 6 Mart. N. s. (La.) 69, 17 Am. Dec. 179.
7 Woodward i;. Woodward, 87 Tenn. 644, 11 S. W. 892 ; Hiestand v. Kuns,
8 Blackf. (Ind.) 345, 46 Am. Dec. 481.
8 Story, CJonfl. L. § 72 ; Barrera v. Alpuente, 6 Mart. N, s. (La.) 69,
17 Am. Dec. 179. Possibly, when the question arises in the courts of the
original domicil, they may be governed by their own law, but, except to pre-
serve their own citizens from injustice, it is difficult to see any adequate reason
for such a course. See Story, Confl. L. § 73 ; Whart. Confl. L. § 113. In Bar-
rera V. Alpuente, supra, the plaintiff sued in Louisiana, and was nonsuited, on
the ground that she was an infant and incapacitated under the laws of Louisi-
ana from suing in her own name. She was twenty-three years old, and had
her domicil of origin in Louisiana. In 1802, when she was born, the age of
majority was fixed in that State at twenty-five. In 1808, the Louisiana law
was changed so as to make twenty-one the age of majority. The plaintiff had,
some years prior to the suit (whether before or after 1808 did not appear),
become domiciled in Spain, whose law was similar to the earlier law of Louisi-
ana, and she was domiciled in Spain when the suit was brought. Upon her
appeal, the court held that the time at which she attained her majority was
to be determined by the law of her domicil of origin (Louisiana), and not by
the law of her present domicil (Spain), and refused to give her relief because
144 CAPACITY TO CONTBACT. § 72
But an important distinction is to be made between the law
governing the age at which a person reaches maturity and the
law regulating the capacity or incapacity of one admittedly an
infant. It is one thing to say that a particular law shall govern
the question whether one is an infant or not, and a very differ-
ent thing to say that, admitting him to be an infant, the same
law must govern his capacity to transact business. The law of
his domicil is the proper law to determine whether or not he is
legally an infant, but having determined that he is an infant
that law withdraws and leaves the effect of his infancy upon
his capacity to transact business to the law proper for determin-
ing the effect of his infancy. In the case of business capacity
in general — involuntary transactions — the lex domicilii is
still the proper law to govern the effect of infancy; but with
regard to voluntary transactions, as we shall see in the follow-
ing sections, the lex domicilii is not the proper law for this
purpose.
§ 72. Voluntary Transactions — Capacity to Contract. —
We now come to the consideration of the law whereby a party's
capacity is to be determined in those cases in which, by volun-
tarily entering into a transaction abroad, he deliberately puts
himself in a position to work an injustice upon others with
whom he deals, should he set up an incapacity created by the
law of his legal situs or domicil with which those dealing with
him at his actual situs in a foreign country cannot be supposed
to be familiar. Upon the question as to the proper law govern-
ing the party's capacities or incapacities in such cases, there is
a great difference of opinion.
It may be regarded as certain that if the party enters into a
contract in the State of his domicil, though the contract is to be
performed elsewhere, the proper law governing his capacity to
enter into the contract is the lex domicilii, no matter where the
suit may be brought.^
she had not shown whether she left Louisiana before its law had been altered.
This decision does not, it is believed, lay down the correct rule.
» Hill t>. Bank, 45 N. H. 300; Bell v. Packard, 69 Me. 105, 31 Am. Rep.
251, 252 ; Poison v. Stewart, 167 Mass. 211, 45 N. E. 737 ; Armstrong r.
Best, 112 N. C. 69, 17 S. K 14 ; Wood v. Wheeler, 111 N. C. 231, 16 S. E.
§ 72 CAPACITY TO CONTEACT. 145
But if the contract is entered into in a State other than the
party's domicil, he has not the same right to claim the protec-
tion of his domiciliary law. He has voluntarily entered into
another State and has there made an agreement with persons
who are relying upon the law under which he is acting. To that
law he has submitted himself when he makes the contract there,
and a just comity will ordinarily demand that the sovereignty
of that State over all acts done there should be respected in other
States. Every element of a contract may have a separate situs
of its own, whose law will govern the effect of that element.
The making of the contract may have a situs separate from the
performance of it and separate from the consideration. The law
of the place of the making will determine whether a contract
has been validly entered into ; the law of the place of perform-
ance will determine whether it can be legally performed there;
while the law of the situs of the consideration will determine
the legality and sufficiency of the consideration. These are
elementary principles governing contracts which will be fully
discussed hereafter.^ If a party has not the legal capacity, he
cannot enter into a valid contract ; if he has the capacity, he
may. This question must be determined at the time he enters
into the contract, not when he comes to perform it. It pertains
therefore to the making of the contract, and hence the element
of capacity must be given the same situs that belongs to the
making of the contract.
For these reasons, the general principle of private interna-
tional law is that the capacity of the party to make a contract,
whether executory or executed, is governed by the law of the
actual (not the legal) situs of the contracting party at the time
he enters into the contract; or, to put it in different form, by
the law of the place where the contract is entered into. This is
known as the lex loci celebrationis of the contract, in contra.
418; Hanover Nat. Bank v. Howell, 118 N. C. 271, 23 S. E. 1005, 1006 ;
Taylor v. Sharp, 108 N. C. 377, 13 S. E. 138 ; Robinson v. Queen, 87 Tenn.
445, 11 S. W. 38, 3 L. R. A. 214 ; Kerr v. Urie, 86 Md. 72, 37 Atl. 789 ;
Union Bank v. Hartwell, 84 Ala. 379, 4 So. 156 ; Freeman's Appeal, 68 Conn.
533, 37 Atl. 420, See Miller v. Campbell, 140 N. Y. 457, 35 N, E. 651.
a Post, §§ 167-179.
10
146 CAPACITY TO CONTRACT. § 72
distinction to the lex loci solutionis, or the law of the place
where the contract is to be performed. The proper law then to
determine the capacity to contract is the lex celebrationis of the
contract.^
But this general principle is subject to qualification when the
domicil of the party is the forum. Under these circumstances,
upon the exceptional ground (already discussed) of protection
to its citizens as well as of public policy, the lex fori (which will
also be the lex domicilii) will be sometimes substituted for the
proper law. It is believed however that even the courts of the
domicil will follow the lex celebrationis of the contract in de-
termining the capacity of its citizen to enter into the contract,
except where the incapacity imposed by the law of the domicil
is general or total, such as the common law disabilities of cover-
ture. Only in such pronounced instances of a policy of protec-
tion towards its citizens who are non sui juris will the courts of
the domicil enforce their own laws.
Hence, if the law of the domicil and forum only declares a
few of a married woman's contracts void, and suit is brought
there upon a contract made by her in another State and there
valid, which is one of those declared to be beyond her capacity
by her domiciliary law, the contract will still be enforced against
3 See Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Ross v. Ross, 129
Mass. 243, 246, 37 Am. Rep. 321 ; Bellr. Packard, 69 Me. 105, 31 Am. Rep. 251,
253 ; Campbell v. Cramptou, 2 Fed. 417, 421, 423 ; Matthews w. Murchison, 17
Fed. 760 ; Saul v. His Creditors, 5 Mart. N. s. (La.) 569, 16 Am. Dec. 212, 226 ;
Wilder's Succession, 22 La. Ann. 219, 2 Am. Rep. 721 ; Pearl u. Hansbrough,
9 Humph. (Tenn.) 426 ; Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38,
3 L. R. A. 214 ; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14 ; Wood v.
Wheeler, 111 N. C. 231, 16 S. E. 418, 419 ; Taylor v. Sharp, 108 N. C. 377,
13 S. E. 138, 139; Freeman's Appeal, 68 Conn. 533, 37 Atl. 420 ; Dougherty
V. Snyder, 15 S. & R. (Penn.) 84, 16 Am. Dec. 520; Baum v. Birchall, 150
Penn. St. 164, 24 Atl. 620. As was said in a well considered case: "Upon
principle, no reason can be alleged why a contract, void for want of capacity
of the party at the place where it is made, should be held good because it pro-
vides that it shall be performed elsewhere, and nothing can be found in any
adjudicated case or text-book to support such a conclusion. It is a solecism
to speak of that transaction as a contract, which cannot bo a contract because
of the inability of the parties to make it such." Campbell i;. Crampton, 2 Fed.
417, 423.
§ 72 CAPACITY TO CONTRACT. 147
her even in her domicil. The protective policy of the domicil
is partial only, and its enforcement of less importance to the
community than the general policy of recognizing the binding
effect of contracts and the sovereignty of another State over all
matters arising within its jurisdiction.* But if the law of the
domicil (and forum) imposes a total incapacity to contract on
the part of its married women, the need for this stringent policy
of protection cannot he removed by the voluntary act of the
woman in making her contract in another jurisdiction. It is
against just these voluntary acts that the policy of such laws is
directed. In such cases therefore, when it is attempted to en-
force the woman's contract in the courts of her domicil, the law
of the forum (and domicil) will he generally substituted for the
proper law (the lex celebrationis of the contract), upon the
ground that this policy of protection to the married women of
the State is too important a policy to be overridden by a foreign
law, even when that is the " proper law." ®
In Milliken v. Pratt,® a leading case, a married woman dom-
iciled in Massachusetts made a contract in Maine as guarantor
for her husband. The contract was valid in Maine, but void
in 'Massachusetts, whose law, while permitting a married woman
to contract generally, prohibited her from entering into con-
tracts as surety for her husband. Suit being brought against
her upon the contract in Massachusetts, it was held that the
contract must be enforced, notwithstanding the domicil iarj' law.
In the course of its opinion, the court said : "It is possible also
that in a State where the common law prevailed in full force, by
which a married woman was deemed incapable of binding her-
self by any contract whatever, it might be inferred that such
* Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Bell v. Packard, 69
Me. 105, 31 Am. Rep. 251, 252.
6 Armstrong v. Best, 112 N. C. 59, 17 S. C. 14; Hanover Nat. Bank v.
Howell, 118 N. C. 271, 23 S. E. 1005, 1006 ; Milliken v. Pratt, 125 Mass.
374, 28 Am. Rep. 241 ; Freeman's Appeal, 68 Conn. 533, 37 Atl. 420 ; Case
V. Dodge, 18 R. I. 661, 29 Atl. 785, 786; Baum v. Birchall, 150 Peun. St.
164, 24 Atl. 620; Johnston v. Gawtry, 11 Mo. App. 322 ; Bowles v. Field,
78 Fed. 742, 743 ; Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 3 L. E. A
214.
• 125 Mass. 374, 28 Am. Rep. 241.
148 CAPACITY TO CONTRACT. § 72
an utter incapacity, lasting throughout the joint lives of hus-
band and wife, must be considered as so fixed by the settled
policy of the State for the protection of its own citizens that it
could not be held hy the courts of that State to yield to the law
of another State in which she might undertake to contract."
In Armstrong v. Best,' a married woman domiciled in North
Carolina entered into a contract in Maryland which was valid
there. By the law of North Carolina the married woman was
under the general common law disabilities, and was totally in-
competent to enter into contracts. Suit being brought thereon
in North Carolina, the court held that it must enforce the law
of North Carolina (the law of the domicil and forum) rather
than the law of Maryland (the lex celebrationis and the proper
law). The court, in its opinion, thus refers to Milliken v. Pratt
in speaking of the necessity for sometimes substituting the law
of the forum and domicil: **That this qualification is appli-
cable to cases like the present is manifest, not only by reason
and necessity, but also by the decisions of other courts. Even
in Milliken v. Pratt, in which the lex loci contractus is pushed
to the extreme limit, it is suggested that where the incapacity
of a married woman is the settled policy of the State * for the
protection of its own citizens, it could not be held by the courts
of that State to yield to the law of another State, in which she
might undertake to contract.' "
A fortiori^ if the policy of protection to its citizens adopted
by the law of the domicil and forum is not so pronounced as to
render the contract void at all, but only voidable, the proper
law (lex celebrationis) will be enforced even in the domiciliary
courts.
Thus it is the well settled rule that the liability of an infant
upon his contracts is to be determined, even in the courts of his
domicil, by the lex celebrationis of his contract, not by the law
of the domicil and forum.'
7 112 N. C. 59, 17 S. E. 14.
8 Male V. Roberts, 3 Esp. 163 ; Thompson v. Ketcham, 8 Johns. (N. Y.)
189; Saul r. His Creditors, 5 Mart. N. s. (La.) 569, 16 Am. Dec. 212, 226 ;
Wilder's Succession, 22 La. Ann. 219, 2 Am. Rep. 721, 724-725 ; Milliken ».
Pratt, 125 Mass. 374, 28 Am. Rep. 241. See Campbell v. Crampton, 2 Fed.
§ 73 CAPACITY TO MARRY. 149
§ 73. Same — Capacity to Maury. — Notwithstanding some
strong dicta to the effect that the ''proper law" to determine
the capacity to marry is the lex domicilii of the parties at the
time of the marriage/ the contract of marriage is believed to be
governed, in respect to the parties' capacity to enter into the
contract, by substantially the same principles as other contracts.
If at the time of the marriage the actual and legal situs of the
parties coincide, in other words if the marriage takes place in
the parties' domicil, the law of the domicil will govern their
capacity, no matter where the question arises. In such case
there is no particular foreign element. The domicil of both the
parties coincide with the place of celebration of the marriage.
The law of that place will therefore control in all respects, even
when the marriage is called in question elsewhere as being con-
417, 422. Indeed, it can hardly be said with accuracy that a matter which
renders a contract voidable merely is a matter of capacity to make the con-
tract at all. On the contrary, the capacity (of an infant, for example) to
enter into the contract is conceded. It is rather in the nature of a privilege
accorded to him to disaffirm the contract after he has entered into it. In any
event however the privilege attaches, if at all, at the time he enters into the
contract, so that the conclusion remains undisturbed that the situs of his
privilege is the locus celebrationis of his contract, and its "proper law," the
lex celebrationis.
So it is also in other cases where the contract is voidable merely, not void.
Thus causes existing at the time of a marriage which render it voidable only,
and do not avoid it ipso /ado, can hardly be called cases of incapacity to
marry, for the marriage is a legal marriage, notwithstanding the existence of
these defects, unless avoided during the lifetime of the parties. Despite the
obstacles interposed by the law, the fact remains that the parties are capable
of entering into a marriage contract that the law may recognize as legal and
valid. Such matters go to the validity of the contract itself, rather than to
the capacity of the parties to enter into the contract. See post, § 78.
1 Brook v. Brook, 9 H. L. Cas. 193 ; Shaw r. Gould, L. R. 3 H. L. 83 ;
Sottomayor v. De Barros, 3 P. D. 5, 7; Udny v. Udny, 1 H. L. Sc. 441, 457;
Kinney v. Com., 30 Gratt. (Va.) 858 ; Greenhow v. James, 80 Va. 636 ; State
V. Ross, 76 N. C. 242, 22 Am. Rep. 678 ; State v. Kennedy, 76 N. C. 251,
22 Am. Rep. 683 ; Campbell v. Crampton, 2 Fed. 417. See Dicey, Confl. L.
642 et seq. In most of these cases the domicil was the forum. But see Sotto-
mayor r. De Barros, supra, where it was held that a marriage in England
between two first cousins domiciled in Portugal, whose law forbade such mar-
riages, would be held void in England, though the English law did not pro*
hibit first cousins from marr3ring.
150 CAPACITY TO MARRY. § 73
trary to the law of the forum, unless it be contra honos mores,
as polygamous, or universally incestuous.^
Thus, in State v. Ross,' a white woman residing in North Caro-
lina left that State and went to South Carolina, with the purpose
of there marrying and living with a negro man residing in the
latter State. The marriage was valid in South Carolina, but
void in North Carolina. Some time after the marriage, the
parties determined to remove to North Carolina. Being in-
dicted there for fornication in living and cohabiting together
without being lawfully married, they pleaded the South Caro-
lina marriage. The court held it a good defense, since both
parties were domiciled in South Carolina when the marriage was
contracted.
If the parties are domiciled in one State by whose law they
are prohibited to marry, but the marriage occurs in another
State where such marriages are permitted, and the validity of
the marriage is impugned in the latter or any third State, the
general rule is that the lex celebrationis, not the lex domicilii,
will govern,*
But if, under the circumstances last stated, the validity of the
-narriage is questioned in the courts of the domicil, much con-
flict has arisen amongst the authorities as to the law which shall
dominate.
Many of the decisions hold that the lex celebrationis must
govern the capacity of the parties to enter into the contract, as
well as the formal validity of the wedding ceremony,^ no matter
2 State V. Ross, 76 N. C. 242, 22 Am. Rep. 678 ; Harral v. Harral, 3&
N. J. Eq. 379, 51 Am. Rep. 17, 25 ; West Cambridge v. Lexington, 1 Pick.
(Mass.) 506, 11 Am. Dec. 231; Sutton v. Warren, 10 Met. (Mass.) 451.
Polygamous and incestuous marriages are always void in Christian countries,
though valid where contracted. Post, § 75.
8 76 N. C. 242, 22 Am. Rep. 678.
* Story, Confl. L. §§ 79, 89 ; Ross v. Ross, 129 Mass. 243, 247-248, 37
Am. Rep. 321; Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E.
435 ; Campbell v. Crampton, 2 Fed. 417, 424 ; Dickson v. Dickson, 1 Yerg.
(Tenn.) 110, 24 Am. Dec. 444; Roth v. Roth, 104 111. 35, 44 Am. Rep. 81,
82 ; Succession of Hernandez, 46 La. Ann. 962, 24 L. R. A. 831, 841-842.
But see Sottomayor p. De Barros, 3 P. D. .'^, 7. ,
' It is universally conceded that the forms and solemnities of the wedding
§ 73 CAPACITY TO MARRY. 151
how opposed to the policy of the domicil and forum a marriage
between the parties may be (if not immoral), preferring before
any special policy of the domicil the general policy which looks
to the upholding of marriages valid where contracted.* And
these courts hold to this view even though the parties have con-
tracted the marriage abroad in order to evade the domiciliary
law. Under this line of decisions, nothing but a statute of the
domicil explicitly declaring such a marriage between its citizens
void, though entered into abroad, will be permitted to outweigh
the general and important policy of upholding marriages.
Thus, in a leading Massachusetts case,'' a white person and a
negro, resident in Massachusetts, went to Rhode Island and
were there married, intending to evade the law of Massachusetts,
which invalidated such marriages. They then returned to Mas-
sachusetts. The validity of the marriage being called in ques-
tion before the courts of Massachusetts (the domicil and forum),
the court sustained the marriage, inasmuch as it was valid in
Rhode Island. In the course of its opinion, the court said :
"Motives of policy may likewise be admitted into the consid-
eration 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 thus contracted. But it is not
to be inferred from a toleration of marriages which are pro-
hibited merely on account of political expediency, that others
which would tend to outrage principles and feelings of all civil-
ized nations would be countenanced." '
are to be regulated in all cases by the law of the situs of the celebration (lex
celebrationis). See post, § 77.
^ Medway V. Needham, 16 Mass. 157, 6 Am. Dec. 131 ; Putnam v. Putnam,
8 Pick. (Mass.) 433 ; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509 ; Ross ».
Ross, 129 Mass. 243, 247-248, 37 Am. Rep. 321 ; Cummington v. Belcher-
town, 149 Mass. 223, 226, 21 N. E. 435 ; Van Voorhis v. Brintnall, 86 N. Y.
18, 25, 40 Am. Rep. 505 ; Thorp v. Thorp, 90 N. Y. 602 ; Moore r. Hegeman,
92 N. Y. 521, 44 Am. Rep. 408; Stevenson v. Gray, 17 B. Mon. (Ky.) 193.
^ Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131.
8 But matters of political expediency may become of as tremendous im-
portance as matters of moral expediency. It must be remembered that at the
date of this decision (1819) there were (and still are) comparatively few ne-
groes in Massachusetts, and the policy which dictated this statute had ceased
to be of great importance.
152 CAPACITY TO MARRY. § 73
In a Kentucky case," a man and the widow of his deceased
uncle, while domiciled in Kentucky, where they were prohibited
from marrying, went into Tennessee, where no such prohibition
existed, and were there married, and then returned to Kentucky.
The court of the domicil pronounced the marriage good.
In Van Voorhis v. Brintnall," the law of New York provided
that, upon a divorce for adultery, the court might decree that
the guilty party should not marry again during the lifetime of
the consort. A marriage between E and B was dissolved there
on the ground of B's adultery, the parties being domiciled in
New York; and the court ordered that B should not marry
during E's lifetime. Thereafter B went to Connecticut, E be-
ing still alive, and there married I, also a resident of New York.
B and I went to Connecticut for the purpose of evading the New
York law, and returned to New York on the day of the marriage,
which was valid under the laws of Connecticut. The New York
court held that, although the marriage would have been invalid
if celebrated there, it must be considered as valid in New York
because valid where it was celebrated, and that the issue of the
marriage were therefore legitimate in New York, and entitled
to share with the children of the first marriage under a devise
"to the issue of B."
On the other hand, many courts, attaching greater weight to
the particular domestic policy than to the general policy which
seeks to uphold marriages bona fide entered into between the
parties, will be found to have arrayed themselves in favor of
the enforcement of the law of the domicil and forum, in those
cases where the domestic policy is so important and pronounced,
or the evils it aims to avert are so imminent, as to justify such
a course.^* In the view of this line of decisions, the fact that
the statutes of the domicil are so framed as explicitly to prohibit
9 Stevenson v. Gray, 17 B. Mon. (Ky.) 193.
10 86 N. Y. 18, 40 Am. Rep. 505.
" Kinney r. Com., 30 Gratt. (Va.) 858 ; State v. Kennedy, 76 N. C. 251,
22 Am. Rep. 683 ; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319 ; Williams
V. Gates, 5 Ired. L. (N. C.) 535 ; Pennegar v. State, 87 Tenn, 244, 10 S. W.
305, 2 L. R. A. 703 ; Ex parte Kinney, 3 Hughes (U. S.), 1, 20-21 ; State v.
Tutty, 41 Fed. 753, 759-760 ; True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164 ;
Brook V. Brook, 9 H. L. Gas. 193.
§ 73 CAPACITY TO MABRY. 153
such marriages by its citizens, even when entered into abroad,
is only one evidence of the importance attached to its policy by
the State of the domicil and forum. But other evidences of the
importance of the domestic policy, in the absence of such statute,
are not excluded."
No finer illustration of the manner in which this divergence
of view comes about can be found than that presented in the
comparison of the cases arising upon the validity of marriages
between white persons and negroes, valid where contracted, but
prohibited by the law of the domicil and forum. In Mas-
sachusetts, where negroes are few, it has been held under such
a state of facts that the law of the domicil and forum (Massa-
chusetts) could not be invoked to annul a marriage between its
citizens, validly contracted elsewhere. On the other hand,
under precisely similar circumstances it has been held by the
courts of the Southern States, where negroes are numerous and
marriages between them and the whites are regarded justly as
most contrary to public policy and expediency, as well as utterly
repugnant to the sentiment of the people, that marriages of this
sort will not be sustained in the domicil and forum, though
validly contracted by its citizens in another jurisdiction, even
in the absence of a statute embracing such marriages when con-
tracted abroad.^*
The true principle is that it is a question of policy, which
each State must determine for itself according to the conditions
prevailing there, so far as its own citizens are concerned, and it
may determine the question as well through its courts as its
legislature. As the North Carolina court expresses it in State
V. Kennedy: " "When it is conceded, as it is, that a State may
" See State r. Tutty, 41 Fed. 753 ; Ex parte Kinney, 3 Hughes (U. S.), 1 ;
State V. Kennedy, 76 N. C. 251, 22 Am. Rep. 683, 684 ; Pennegar v. State,
87 Tenn. 244, 10 S. W. 305, 2 L, R. A. 703 ; Jackson t;. Jackson, 82 Md. 17,
33 Atl. 317, 319.
13 Kinney r. Com., 30 Gratt. (Va.) 858 ; State v. Kennedy, 76 N, C. 251,
22 Am. Rep. 683 ; Ex parte Kinney, 3 Hughes, 1 ; State v. Tutty, 41 Fed. 753.
See also Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319; Pennegar v. State,
87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703.
" 76 N. C. 251, 22 Am. Rep. 683, 684. And the same principle, though
with the opposite result, was applied in Med way v. Needham, 16 Mass. 157,
6 Am. Dec. 131.
154 CAPACITY TO MARRY. § 73
by legislation extend her law prescribing incapacities for con-
tracting marriage over her own citizens who contract marriages
in other countries by whose law no such incapacities exist, as
Massachusetts did after the decision of Medway v. Needham,
the main question is conceded, and what remains is of little
importance. Nothing remains but the question of legislative
intent, to be collected from the statute."
Nor has this divergence always been confined to cases of mar-
riages between white persons and negroes. The same difference
of opinion appears with respect to the importance to be attached
to the domestic policy prohibiting certain relatives from marry-
ing.^^ So also a like difference of opinion has been manifested
in the effect of a foreign marriage by a guilty party to a divorce
suit who has been prohibited to marry again."
It is to be observed that if the parties remove from the State
of their domicil, with the bona fide intent to become domiciled
in another State, and having settled there then marry according
to its laws, the marriage, though prohibited by the law of their
first domicil, will be deemed valid everywhere, even in the fi,rst
domicil, should they afterwards return thither either tempo-
rarily or permanently."
If the parties to the marriage are domiciled in different States
15 For example, compare Brook v. Brook, 9 H. L. Gas. 193 (in which a
marriage contracted in Holland, between a domiciled Englishman and his
deceased wife's sister, who had met there casually, not by design, was held to
be void in England, because within degrees of kindred prohibited by English
law) with Stevenson v. Gray, 17 B. Mon. (Ky.) 193, already quoted, and Com.
V. Lane, 113 Mass. 458, 18 Am. Rep. 509. The latter case criticises Brook v.
Brook very severely. And perhaps the enforcement of a domestic policy of that
nature at the expense of international comity is going a little further than
sound judgment warrants. In England however the lex domicilii is regarded
as the "proper law." See Sottomayor v. De Barros, 3 P. D. 5, 7.
16 Compare Van Voorhis v. Brintnall, 86 N. Y. 18, 25, 40 Am. Rep. 505
(already quoted), and Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509, with
Pennegar i;. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703. See post,
§74.
" State V. Ross, 76 N. C. 242, 22 Am. Rep. 678; West Cambridge v.
Lexington, 1 Pick. (Mass.) 506, 11 Am. Dec. 231. See Cummington v.
Belchertown, 149 Mass. 223, 227, 21 N. K 435 ; Sutton v. Warren, 10 Met.
(Mass.) 451.
§ 74 PARTICULAR INCAPACITIES TO MARRY. 155
at the time of the marriage, perplexing questions may arise.
Suppose the law of the intended husband's domicil prohibits
the marriage, while that of the intended bride's does not, or
vice versa, what law shall govern ? The solution of such ques-
tions will be found in the principles above stated. The mar-
riage, if valid where contracted, will be valid everywhere,
except in the State whose policy towards its own citizens has
been violated. In the latter State the marriage will be annulled
or sustained according to the view its courts take of the relative
importance of the policies involved, or their view of the legisla-
tive intent. But it must not be forgotten that after the mar-
riage the parties will generally reside in the husband's domicil,
not in the wife's. Hence the importance to be attached to the
policy of the wife's prior domicil will not usually be so great
as that attached to the policy of the husband's domicil.
§ 74. Particular Incapacities to Marry — Guilty Party to
Divorce prohibited to Marry again. — In the preceding section
the general principles regulating matrimonial incapacity have
been considered, and incidentally the disabilities imposed by
consanguinity or affinity and by the evils of miscegenation have
been discussed pretty fully, and the former will be soon ad-
verted to again. ^ The disability to marry again imposed under
the laws of many States upon the guilty party in a divorce de-
serves special attention.
In many of the States the legislatures have enacted that a
guilty party shall not remarry during the lifetime of the in-
nocent consort, or else they have given to the courts the power
to make such decree. What will be the effect if the party
does marry again ?
If no foreign element is introduced into the case, it is not a
question of international, but strictly of municipal law, with
which we have no concern. Such will be the case when the
divorce takes place in the domicil of both the parties, and the
subsequent marriage occurs in the same State, and the question
arises there for decision. Here there is no foreign element.
But if the question arises elsewhere, or if the subsequent mar-
riage occurs in a State other than the domicil, or if the party
1 Post. § 75.
166 PARTICULAR INCAPACITIES TO MARRY. § 74
prohibited to remarry is not domiciled in the State where the '
divorce is granted, a foreign element is introduced which must
be reckoned with in the final determination of the law which
should govern the validity of the second marriage. There are
a number of important distinctions to be noted here, to some of
which attention will now be directed.
In all such cases, the first question is : Did the court decree-
ing the divorce have jurisdiction of the guilty party? The
essentials to give a court jurisdiction to make a decree of divorce
which will be binding in other States are considered hereafter
at large.' A very brief summary is all that will be attempted
here.
For the purposes of the divorce itself, if the parties are
domiciled in the State of divorce, its courts will have juris-
diction, whether or not the defendant is personally before the
court. The suit for divorce is a proceeding in rem to dissolve
the marriage status, and according to the better opinion does
not require a personal service upon nor appearance by the
defendant in order to give to the court jurisdiction of the cause
and to its decree an extra-territorial operation.' But when to
the decree of divorce is superadded an order that the guilty
party shall not marry again, the question arises whether this
part of the order is a decree in rem (like the divorce itself) or a
decree in personam. If the latter, in order to be exterritorially
binding upon the defendant, he or she must voluntarily appear
or be personally served with process within the jurisdiction of
the court.* Whether it shall be deemed a proceeding in rem or
in personam, depends upon the question whether the prohi-
bition to reiparry is looked upon as a denial of relief to the
guilty party, leaving him (or her) still married, as has been
sometimes averred,* or whether it is regarded as merely inflict-
ing a punishment upon him for his wrong-doing, while still
giving full effect to the divorce itself as to both parties. The
* See post, §§ 88 et seq.
» Post, § 89.
« See post, §§ 85, 95.
» See Elliott v. Elliott, 88 Md. 358, 363 ; Williams v. Gates, 6 Ired. L
IN. C.) 635, 638 ; Calloway v. Bryan, 6 Jones L. (N. C.) 570.
§ 74 PARTICULAR INCAPACITIES TO MARRY. 157
weight of reason and authority is decidedly in favor of the latter
view, that it is a mere penalty or punishment.*
If then it is admitted that such an order merely inflicts a
penalty upon the guilty defendant, without impairing his status
as a single person, fixed by the decree of divorce, the decree must
be regarded as in personam, that is, he must be before the court.
(It may perhaps be doubted if even a personal service upon
him within the territorial jurisdiction of the court will suffice,
if not followed by appearance, for it is in the nature of a sen-
tence pronounced upon him in a criminal proceeding.) At
least if the defendant be a non-resident, served with notice by
order of publication only, and not voluntarily appearing, the
order of the court that he or she shall not remarry cannot be
given any exterritorial effect, for lack of jurisdiction.''
But even though we suppose the defendant domiciled in the
State where the order is made, and even though he voluntarily
appears to defend the suit, so that the court has complete
jurisdiction to make the order, it will not in general receive
exterritorial recognition for the reason that it is a penalty.
Penal disabilities, as we have seen, are never enforced by the
courts of other States, nor recognized by them as existing,' even
though such States themselves impose similar disabilities upon
their own guilty citizens, or though the guilty party seeks to
evade the law of his domicil by going elsewhere to be married.'
« Huntington v. Attrill, 146 U. S. 657,663 ; Crawford v. State, 73 Miss. 172,
35 L. R. A. 224, 225 ; State i>. Weatherby, 43 Me. 248, 69 Am. Dec. 59 ; Van
Voorhis v. Brintnall, 86 N. Y. 18, 28-29, 40 Am. Rep. 505 ; "Wilson v. Holt,
83 Ala. 540, 3 So. 321, 328 ; Succession of Hernandez, 46 La. Ann. 962, 24 L.
R. A. 83 ; Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 24 Am. Dec. 444 ; Cora. v.
Lane, 113 Mass. 458, 18 Am. Rep. 509 ; West Cambridge v. Lexington, 1 Pick.
(Mass.) 506, 510, 11 Am. Dec. 231 ; Moore v. Hegeman, 92 N. Y. 521, 524,
44 Am. Rep. 408.
^ See Maguire v. Maguire, 7 Dana (Ky.), 181, 187 ; Gamer v. Garner, 56
Md. 127 ; Van Storch v. Griffin, 71 Penn. St. 240.
8 Ante, § 10.
9 Wilson V. Holt, 83 Ala. 528, 540, 3 So. 321, 328 ; Dickson v. Dickson,
1 Yerg. (Tenn.) 110, 24 Am. Dec. 444. See Succession of Hernandez, 46 La.
Ann. 962, 24 L. R. A. 831 ; West Cambridge v. Lexington, 1 Pick. (Mass.)
606, 510, 11 Am. Dec. 231.
158 PAETICULAR INCAPACITIES TO MARRY. § 74
A fortiori will the domiciliary prohibitions be disregarded, if
the party abandons his former domicil, and becoming bona fide
domiciled anew in another State, marries there.^"
It is to be observed likewise that a disability imposed upon
the guilty party, not by a decree of the court, but by the statute
law itself, operates and is intended to operate only upon citi-
zens, and not upon strangers, whether the divorce is granted
there or elsewhere ; and the disability, when thus imposed, is
penal in its nature, just as where it is imposed by a decree of
court. It will not therefore be recognized exterritorially even as
against citizens of the penalizing State. Nor will it be applied
even in that State to persons other than citizens. ^^
Thus, in a recent Louisiana case, ^* a citizen of Louisiana had
been divorced there for his adultery. The law of Louisiana in
such case prohibited the guilty party from marrying his para-
mour during the life of the innocent consort. He went to New
York, and there married another woman, afterwards returning to
Louisiana. Had this marriage taken place in Louisiana it would
have been valid. The New York law prohibited a person di-
vorced for his own adultery to marry any one during the con-
sort's lifetime. The Louisiana court held that the New York
law was not applicable to a citizen of Louisiana, and that the
marriage was valid.
But in cases where the disability is imposed by the domicil
of the guilty party, and the validity of a subsequent foreign
marriage is questioned there, there is much the same division of
opinion as in the corresponding case of other incapacities, and
upon the same distinctions there taken, namely, a comparison of
the respective importance to be attached to the special policy
of the domicil and forum ( prohibiting a guilty party to re-
marry), with the general policy of upholding marriages. It
w West Cambridge v. Lexington, 1 Pick. (Mass.) 506, 610, 11 Am. Dec.
231 ; Dickson v. Dickson, 1 Yerg. (Teun.) 110, 24 Am. Dec. 444; Fuller
V. Fuller, 40 Ala. 301 ; Wilson v. Holt, 83 Ala. 528, 3 So. 321, 328 ; Webb's
Estate, 1 Tnck. (N. Y.) 372.
" See cases before cited. See Cra^'ford v. State, 73 Miss. 172, 18 So. 841^
35 L. R. A. 224, 225.
« Succession of Hernandez, 46 La. Ann. 962, 24 L. R. A. 831.
§ 74 PARTICULAR INCAPACITIES TO MARRY. 159
is a difficult matter to decide, requiring a wise judicial discre-
tion. Even the decisions of the same State are not always
harmonious."
There are other questions also that arise under decrees and
statutes creating disabilities of this character. The contention
often relates not to the validity of the second marriage con-
tracted elsewhere, but to the criminal aspects of the case, as
whether the guilty party, upon his return to his domicil and his
cohabitation there with his second consort, is guilty of lewdness,
fornication, adultery, or bigamy. It will be observed that the
first two offences above named are based upon the invalidity of
the second marriage ; while the last two are based lapon the
theory that, so far as the accused is concerned, the first mar-
riage continues in existence. The party accused cannot be
guilty of lewdness or fornication with a woman who is legally
married to him; he cannot be guilty of adultery or bigamy with
a woman if he be not already a married man.
Since it is settled that the prohibition to remarry does not
prevent the entire dissolution of the first marriage as to both
parties (it being inconceivable that there should be a husband
without a wife, or vice versa) , but merely operates as a penalty
or punishment imposed upon the guilty party, it follows that
upon remarriage that party cannot, merely because of such re-
marriage, be deemed guilty of either adultery or bigamy.^* Of
course, however, this does not imply that there cannot be a
1' In probably the majority of the States where the question has arisen, it
has been held that the special domestic policy in this instance should give
way to the more general one of upholding marriages wherever practicable.
The following decisions hold such a marriage valid even in the domicil. Com.
V. Lane, 113 Mass. 458, 18 Am. Rep. 509 ; Putnam v. Putnam, 8 Pick. (Mass.)
433 ; Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505 ; Thorp r.
Thorp, 90 N. Y. 602 ; Moore v. Hegeman, 92 N. Y. 621, 44 Am. Rep. 408.
Other decisions give precedence to the domestic policy, and favor the inva-
lidity of the marriage. West Cambridge v. Lexington, 1 Pick. (Mass.) 506,
510, 11 Am. Dec. 231 ; Pennegar v. State, 87 Tenn. 244, 10 S. W. 805,
2 L. R. A. 703 ; Marshall v. Marshall, 4 N. Y. Suppl. 449 ; Williams v. Oates,
5 Ired. L. (N. C.) 535.
" Com. V. Putnam, 1 Pick. (Mass.) 136; People v. Hovey, 5 Barb. (N. Y.)
1J7; State V. Weatherby, 43 Me. 248, 69 Am. Dec. 59 ; Crawford v. State,
73 Miss. 172, 35 L. R. A. 224, 225, 18 So. 848.
160 POLYGAMOCrS AND INCESTUOUS MARRIAGES. § 75
statute providing that a guilty party so remarrying shall be
punished as if he were guilty of adultery or bigamy. If there
be such a statute, the effect of a foreign marriage by the guilty
party must generally depend upon the express or implied intent
of the statute, the tendency of judicial construction being op-
posed to the operation of the statute in such a case, unless it
be specifically embraced therein.^*
On the other hand, if the offence charged be lewdness or for-
nication, th« charge is based, not on the continued existence of
the former marriage status, but upon the invalidity of the sub-
sequent union. In these cases therefore the guilt or innocence
of the accused will turn upon the view taken of the validity of
the second marriage, the principles controlling which question
have already been discussed."
In one case, decided in Kew York," the question has arisen
whether or not such foreign marriage constituted a contempt of
the courts of the domicil (New York), and it was held that it
did not.
§ 75. Same — Polygamous and Incestuous Marriages. — If
one having a consort living and undivorced marries again, though
the subsequent marriage should take place in a barbarous State
where dual marriages are valid, it will not be upheld in any
civilized country. It is contra honos rriores.^ This is merely an
instance of the operation of one of the exceptions to the enforce-
ment of a foreign law discussed in the second chapter of this
work.
The same principles apply to marriages contracted between
relatives so near as to cause the union to be deemed incestuous
and illegal in all civilized States. Prohibitions of this sort
w See Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509.
w See Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703 ; State
V. Kennedy, 76 N. C. 251, 22 Am. Rep. 683.
" Thorp V. Thorp, 90 N. Y. 602.
1 Ross V. Ross, 129 Mass. 243, 247, 37 Am. Rep. 321 ; Com. v. Lane, 112
Mass. 458, 463, 18 Am. Rep. 509 ; Van Voorhis r. Brintnall, 86 N. Y. 18,
26, 40 Am.Rep. 505 ; Collins v. Collins, 80 N. Y. 1 ; Hatchings v. Kimmell,
31 Mich. 126, 18 Am. Rep. 164, 168; Jackson v. Jackson, 82 Md. 17, 33 Atl.
317, 319 ; State r. Ross, 76 N. C. 242, 22 Am. Rep. 678, 680-681 ; Campbell
V. Crampton, 2 Fed. 417, "424. See True v. Ranney, 21 N. H. 52, 53 Am,
Dec. 164, 166.
§ 75 POLYGAMOUS AND INCESTUOUS MARRIAGES. 161
imposed by the policy of the forum alone, or by the policy of a
few States merely, will not have the effect necessarily of aroid-
ing a marriage between relations, valid where contracted.* In
order that the marriage shall universally be deemed invalid
(though valid where contracted) the relationship must be so
close as to condemn the union in all civilized countries, and to
cause it to be considered in all Christian States as impious and
contra bonos mores. It is generally agreed that the only mar-
riages answering this description are those contracted between
persons related by blood in the lineal ascending or descending
line, and (in case of collateral relatives) between brother and
sister.*
In case of persons related in more distant degree, the ques-
tion whether their intermarriage is valid will in general depend
upon the lex celebrationis of the marriage. If valid there, it
will usually be held valid in every State in which it is called
in question.* And if it be absolutely void where contracted,
it will in general be deemed void everywhere.
But if, where contracted, it is merely voidable by decree of
court, and not void per se, the fact that the same marriage would
be absolutely void if contracted in another State will not jus-
tify the courts of the latter State in pronouncing the parties not
to be man and wife, even though they have since lived in the
latter State, much less if they are domiciled in the State of the
marriage. Such is the rule when the validity of the marriage is
questioned in a collateral proceeding.
Thus, in Sutton v. Warren,* a marriage was contracted in
' See ante, § 73. If the question arises in the domicil, the policy of the
forum (and domicil) may be held to be paramount to the lex celebrationis of
the marriage.
» Story, Coufl. L. § 114 ; Ross v. Ross, 129 Mass. 243, 247-248, 37 Am.
Rep. 321 ; Com. v. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509 ; Medway
V. Needham, 16 Mass. 157, 6 Am. Dec. 131 ; Wightman v. Wightman,
4 Johns. Ch. (N. Y.) 343, 348-350; Van Voorhis v. Brintnall, 86 N. Y. 18,
26, 40 Am. Rep. 505 ; Hutchings v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164,
168 ; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319 ; State v. Ross, 76
N. C. 242, 22 Am. Rep. 678, 680-681.
* Except in certain cases where the domicil is the forum. See ante, § 73.
' 10 Met. (Mass.) 451.
11
162 POLYGAMOUS AND INCESTUOUS MARRIAGES. § 75
England, the domicil of the parties, between a man and his
mother's sister. Such marriage was not void by English law
prior to the statute of 6 Wm. IV. c. 54, but only voidable in
the Ecclesiastical Court. The marriage took place before the
statute. The parties removed to Massachusetts, about one year
after the marriage, by the law of which State a marriage be-
tween such relatives was absolutely void. The wife, Ann Sut-
ton, lent money to Warren on his note, which was not paid,
whereupon the husband sued Warren upon the note; and objec-
tion being made that he was not the husband of Ann, the court
held that the marriage, not being void in England but voidable
only and not avoided, could not be attacked collaterally in
Massachusetts by reason of the laws of that State.*
6 See Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435 ;
post, $ 78.
76 DUAL MATURE OF MABBIAGZ. 168
CHAPTER VI.
STATUS OF MARRIAGE.
§ 76. Dual Nature of Marriage. — There are two senses in
which the term marriage is familiarly used, both of which
are essential to a true marriage, the one being preliminary to
the other. These two essential elements of the legal idea of
marriage are : (1) The contract of marriage, the agreement of
the parties, the wedding ceremony; and (2) The state of life
which is ushered in by that ceremony or agreement, the matri-
monial union, or the marriage status. These elements, though
both often denominated "marriage," are separate and distinct,
and should be so treated. There can be no matrimonial union
without a marriage contract; there can be no (valid) marriage
contract without a matrimonial union resulting therefrom. Yet
they are by no means one and the same. A failure to observe
the distinction will cause, as it has already often caused, serious
confusion and error. ^
1 See Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 36.
Thus we find the New York courts holding that a divorce is a proceeding in
personam, and that it operates to annul the contract of marriage, instead of
dissolving the status or union created by that contract, in which latter case
the proceeding would be in rem, as is generally held. See post, §§ 87, 89 et
seq. In Jones v. Jones, 108 N. Y. 415, 424, — a divorce case, — the New
York court says : " The Texas court did not acquire jurisdiction of the defend-
ant by service of citation here. The contract of marriage cannot be annulled
by judicial sanction any more than any other contract inter partes, without
jurisdiction of the person of the defendant." The distinction between the
contract of marriage and the resulting union or status is brought out in many
of the cases. See Story, Confl. L. § 124 a, note (a) ; Brook r. Brook, 9 H. L.
Cas, 193 ; Kinney v. Com., 30 Gratt. (Va.) 858 ; State v. Kennedy, 76 N. C.
251, 22 Am. Rep. 683, 684 ; Campbell v. Crampton, 2 Fed. 417, 424 ; State
V. Tutty, 41 Fed. 753, 758 ; Adams v. Palmer, 51 Me. 481, 483.
164 DUAL NATURE OF MARRIAGE. § 76
So far as the contract of marriage is concerned, it is an exe^
cuted agreement between two persons who must be competent to
contract, and is governed by the same general rules that control
other executed contracts.^
But a marriage, in its complete sense, is much more than a
contract. It is ushered in by the solemn compact of the parties,
with the accompaniment of such formalities and ceremonies as
the law may prescribe. The result of this contract is the im-
mediate creation of a union for life between the parties. But
the union itself is no more a contract than the ownership of land
under a deed of conveyance is a contract. It is a status, a con-
dition, which by their contract has become fastened upon the
parties during their lives and in every country whither they
may go, whether temporarily or permanently.
The creation, continuation, and dissolution of this relation
constitute matters of deepest concern not only to the parties in-
terested but to the State as well. The proper performance of
the duties it imposes involves not only the highest happiness
and welfare of the individuals immediately concerned, but also
that of their offspring and of the countless generations to suc-
ceed them. To the State it offers the means of protecting its
>itizens from impurity and immorality, secures them the bless-
ings of home and family, and creates a noble nursery for the
commonwealth .
Nothing can be of greater importance or interest to the State
than this relation, which, with its incident, — the family, — is
justly deemed the foundation, corner-stone, and unit of the
social order. It is not surprising therefore to find the State
regarded almost as a party to the transaction, both in its incep-
tion and in its dissolution.'
2 The proper law governing the contract of marriage will be considered
post, §§ 77, 78.
» See Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, 24 ; People v. Dawell,
25 Mich. 247, 12 Am. Rep. 260, 268 ; Ellis v. Ellis, 55 Minn. 401, 56 N. W.
1056, 1059 ; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134 ; Gregory
V. Gregory, 78 Me. 187, 57 Am. Rep. 792 ; Cook v. Cook, 56 Wis. 195, 43 Am.
Rep 706, 14 N. W. 33, 36 ; Dunham v, Dunham, 162 111. 589, 44 N. E. 418.
35 L. R. A. 70, 79 ; O'Dea v. O'Dea, 101 N. Y. 23, 39 (dissenting opinion).
§ 77 THE CONTRACT OP MARBIAQE. 165
Not only will the State prescribe definitely the persons who
may enter into the relation and the forms and solemnities with
which it shall be ushered in, but it will likewise preside over
its dissolution, not permitting a termination of it during the
lives of the parties, save with its consent (through its courts)
and for causes assigned by itself. Many of the peculiarities
incident to the law regulating marriage and divorce are due to
the fact that the State is thus a quasi party to the transaction and
deeply interested in the proper performance of its obligations.
There is perhaps no other private relation in which the State
becomes, as it were, a third party.*
Keeping the contractual element of marriage distinct from
the status, we will examine (1) The ''proper law " regulating
contracts of marriage; (2) The ''proper law" governing the
marriage status or the matrimonial union that results from the
contract.
§ 77. The Contract of Marriage — Formal Validity. — By
the contract of marriage, or marriage contract, is meant the
solemn agreement of the parties to assume the relation of man
and wife, — the wedding ceremony, — which constitutes the
vestibule to the matrimonial union.
It is of course to be distinguished from a contract to marry,
at least at the present day, when such contracts, even though
accompanied by consummation, no longer constitute a marriage.
The contract to marry is merely an executory contract, to be
performed thereafter by marriage ; while the marriage contract
itself is an executed contract, performed at the same time and
place at which it is entered into. The contract to marry may
be performed elsewhere than where it is entered into. The con-
tract to marry may be broken. The contract of marriage cannot
be, though the rights and obligations springing from the marital
* Unless the relation of parent and child be excepted, to which the relation
of marriage has been sometimes likened. See Cook v. Cook, 56 Wis. 195, 43
Am. Rep. 706, 14 N. W. 33, 36. But the relation of parent and child has its
origin in the laws of nature and in municipal law, not in contract. Matri-
mony is more nearly analogous to the statutory relation of adopted parent and
child, which, like marriage, begins with a quasi contract with the State, re-
sulting in the creation of a status. See post, § 101 •
166 THE CONTRACT OF MARRIAGE. § 77
relation may be violated. There can be no " breach " of a com-
pletely executed contract.
Following the general rule touching the "proper law" to
govern executory contracts,^ if a contract to Tnarry \n madf in
onft Rt.atp (locus r.nlphratinnis), n,iifLjt_isagreed that_the mar-
riage-iiL-tft-takeqilace in another (locus solutionis), or such an in-
te ntion^ is_tfl_be implied, the law of the place of_performance
(lex s<°rhrft<»ini^ ip tn [jnvrrn the performance ^fthe contract,
and to determine whether it has been properly performed, ofj if
it cannot be legally performed there, to determine the validity
of the original contract. If the marriage may lawfully be cele-
brated in the State agreed upon (the locus solutionis of the con-
tract to marry), the contract to marry will be sustained, though
made in a State where such marriage (if there celebrated) would
be invalid; and if the marriage is contrary to the law of the
place where the executory contract is to be performed, that
promise will be invalid though it could have been lawfully per-
formed in the State where the promise of marriage is entered
into. The lex solutionis of an executory contract governs mat-
ters relating to its performance, and this applies as well to
promises of marriage as to other executory contracts. *
In the discussion of the contract of marriage, which is an
executed contract, we must anticipate the principles which de-
termine the ''proper law" governing executed contracts gener-
1 See post, § 175.
2 See Haviland v. Halstead, 34 N. Y. 643 ; Van Voorhis v. Brintnall, 86
N. Y. 18, 26, 40 Am. Rep. 505. But see Campbell v. Cramptoii, 2 Fed. 417,
421. In the latter case, a man entered into a contract in Alabama, where he
resided, with his aunt, to marry her at a future time in New York, where she
resided. Such a marriage was invalid in Alabama, but goodin New York.
The woman sued him in New York for breach of promise. The court held
that the contract was invalid, but not on the ground that the contract should be
governed by the law oflhe place where it was made. On the contrary, it was
admitted that its validity should be governed by the law of the place of per-
formance (lex solutionis). But it was decided that the place of performancs
of the promise of marriage was not the place where the marriage was to taka
place (New York), but was the domicil of the future husband (Alabama),
where the parties were to live their married life. This latter ruling can hardly
be reconciled with reason.* The contract to marry is performed as soon as thfl
marriage occurs.
§ 77 THE CONTRACT OP MAERIAQB. 161
allj, from which the contract of marriage does not materially
differ.
We have heretofore sfifin that thn nf>pni ilj III ( iiiiliiw^li iiiitLLJiij^M
is iiL-general to be d''*-'^\Tn'^rt(>A l^y ^ha Iqw r>f flip plty^p whfirft tjhft
Cnntraflt if^ tn h^ ^j^fprofl infn (In^ 111! i /ml^T^I'jtt.^Tii'a) «
Another principle applicable to contracts generally, and equally
applicable to the marriage contract, is that the formal validity
of the contract (that is, the forms and solemnities with which
it is to be entered into) is also to be determined by the law of
the place where the contract is entered into (lex loci celebra-
tionis).* With respect to the forms and ceremonies of the mar-
riage, the solemnities with which the parties are required by
law to enter into the marriage contract, it is universally con-
ceded by all the authorities, English and American, that the
lex celebrationis governs, no matter where the question arises.
So far as these matters are concerned, if the marriage is valid
in the locus celebrationis, it is valid everywhere; if invalid
where contracted, it is in general invalid everywhere.* Thus
the lex celebrationis has been held to govern the effect upon
the validity of the marriage contract of the omission of banns
or license;' of the want of consent of parent or guardian;^ of
« Ante, § 73.
* See post, § 172.
* Scrimshire v. Scrimshire, 2 Hagg. Cons. 395 ; Dalrymple v. Dalrjrmple,
2 Hagg. Cons. 54 ; Compton v. Bearcroft, 2 Hagg. Cons. 444 ; Warrender w.
Warrender, 2 CI. & F. 488, 530 ; Patterson v. Gaines, 6 How. 560, 587 ; State
V. Tutty, 41 Fed. 753, 760; Phillips v. Gregg, 10 "Watts (Penn.), 158, 36
Am. Dec. 167, 168 ; Diimaresly v. Fishly, 3 A. K. Marsh. (Ky.) 368 ; Hutch-
ings »». Kimmell, 31 Mich. 126, 18 Am. Rep. 164 ; Com. r. Graham, 157 Mass.
73, 75 ; Loring v. Thorndike, 5 Allen (Mass.), 257, 265; Vischer u. Vischer,
12 Barb. (N. Y.) 640, 643 ; Kinney v. Com., 30 Gratt. (Va.) 858 ; Clark v.
Clark, 52 N. J. Eq. 650, 30 Atl. 81, 83 ; Jackson v. Jackson, 82 Md. 17, 33
Atl. 317, 319 ; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752, 754 ; Pennegar
V. State, 87 Teun. 244, 10 S. W. 305, 2 L. R. A. 703, 705 ; State v. Kennedy,
76 N. C. 251, 22 Am. Rep. 683, 684.
' Compton V. Bearcroft, 2 Hagg. Cons. 444 ; Loring v. Thorndike, 5 Allen
(Mass.), 267,265. The former was the first case to uphold the validity of
" Gretna Green " marriages.
7 Steele v. Braddell, Milw. (Irish), 1 ; Simoniu v. Mallac, 2 Sw. & Tr. «7 ;
Com. V. Graham, 1 57 Mass. 73.
168 THE CONTRACT OF MABBIAGE. § 77
the omission of religions rites, such as a celebrant in holy
orders,' etc.
The fact that the parties go abroad to contract the marriap^e
in ordex—jg evaJe^the laws of their domicil with respect to
lir>pnap, Viannp, celebrants, etc. (wh^^b nr^ TTnuilavn nf ^ii>m.), will
not invalidate the marriaprPi if yftlid ^hffrtt ^ontracfrftd, _pTirh a
marriage will be sustained even in the courts of the domicil
upon the parties' retuxn thithpr^ — But if the portioo^ ml^tfaeir
anxi^ to evade the law of their domicile go into a barbarous
or unsettled country, subject to no particular law, the law of
theiraomicil is to be consldfeTtid ma following them and as still
governing^ the contract: — And perhaps the same principfe^pplies
to marriages contracted on board vessels on the high seas, in
evasion of the domiciliary law, no matter what flag the vessel
flies."*
But the general rule that the lex celebrationis regulates the
forms and ceremonies incident to the contract of marriage, and
that a marriage invalid in these respects by the law of the
place where it is celebrated is invalid everywhere, is subject to
* Dalrymple v. Dairy mple, 2 Hagg. Cons. 54 ; Phillips v. Gregg, 10 Watts
(Penn.), 158, 36 Am. Dec. 167, 168 ; Dumaresly v. Fishly, 3 A. K. Marsh.
(Ky.) 368; Hatchings v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Jackson
V. Jackson, 80 Md. 176, 30 Atl. 752, 754 ; Clark v. Clark, 62 N. J. Eq. 650,
30 Atl. 81.
• "Where the evasion of the domiciliary law is in respect to, not a matter of
form, but a matter of capacity to marry, the courts of the domicil will some-
times, as we have seen, substitute the domestic law. See ante, § 73.
10 Norman v. Norman, 121 Cal. 620, 66 Am. St. Rep, 74. In this case,
the parties left California, where they were domiciled, in a small boat, reached
the high seas, and there agreed in the presence of the captain of the boat to
take each other as man and wife, in evasion of the California law, requiring
the consent of the parents. It was held that, the high seas being subject
to the laws of no particular State, the law of California followed the parties, and
the marriage was invalidated. The decision might, it would seem, have been
placed upon a safer foundation. The boat was a California boat, and as such
a part of the territory of California while on the high seas, and therefore sub-
ject to California law. Should a couple competent to marry elope from their
domicil and be married on board a foreign oceAU liner, in accordance with the
law of the flag, but in evasion of the law of their domicil, it could hardly be
maintained that the law of the domicil should control in formal matters.
§ 78 VALIDITY OP MABBIAGE CONTRACT. 169
an exception in the case of marriages celebrated in barbarous
countries, or in a country whose law requires religious rites op-
posed to the tenets of the faith prevailing in the country to
which the parties belong. The exception has its origin in a sort
of moral or religious necessity. If the parties, in such case,
conform to the requirements of their own domicil, the marriage
will generally be valid.*^
§ 78. Substantial Validity of Marriage Contract. — The con-
tract of marriage is an executed, not an executory contract, and
is fully performed as soon as it is entered into. There can be
no question of its performance elsewhere.^ For the same reason
there can be no question of its breach at any other time or place
than when and where it is entered into. K a "violation of the
marriage contract " is alleged to have taken place after the mar-
riage, as in case of desertion, cruelty, adultery, etc., it is an
inaccurate and misleading use of words. In such cases, it is
the marriage status or relation whose obligations have been
broken, not the marriage contract.
Owing to this misconception, some courts have held that in
u Story, Confl. L. § 118 ; Whart. Confl. L. §§ 175, 176 ; Ending «. Smith,
2 Hagg. 390 ; Harford v. Morris, 2 Hagg. 430.
* Many cases, it is trae, speak of the performance of the marriage contract
in places other than that where the marriage is solemnized, usually the par-
ties' domicil. See Warrender v. "Warrender, 2 CI. & F. 488, 536 ; Vischer r.
Vischer, 12 Barb. (N. Y.) 640, 646 ; Campbell v. Crampton, 2 Fed. 417, 425 ;
Shreck v. Shreck, 32 Tex. 578, 5 Am. Rep. 251. These cases refer for the
most part to the law governing the personal rights and obligations of the mar-
ried pair, such as the violations of duty which may be grounds to dissolve the
marriage. Another group of cases which fall into the same inaccuracy deal
with the law governing the marital rights of the parties in property of the
consort, subsequently acquired. See Le Breton v. Miles, 8 Pai. Ch. (N. Y. )
261, 265 ; Mason v. Homer, 105 Mass. 116 ; Harral v. Harral, 39 N. J. Eq.
379, 51 Am. Rep. 17, 23, 24 ; Kneeland v. Ensley, Meigs (Tenn.), 620, 33
Am. Dec. 168, 169.
In all questions of this character, arising after the marriage contract is en-
tered into, the marriage contract itself has no influence. It is the marriage
status, resulting from the contract, upon which these rights depend, and the
law which controls that status, not that which governs the contract, is the
" proper law " to determine such rights. The status may exist or "be per-
formed " elsewhere, but the marriage contract must in its nature be performed
where it is entered into.
170 VALIDITY OP MARRIAGE CONTEACT. § 78
divorce cases the law of the place where the marriage was con-
tracted must be looked to in order to determine on what grounds
the marriage may be dissolved.^ It is now well established how-
ever that such matters are not violations of the marriage con-
tract^ but of the marriage relation and its obligations, and as
such are controlled by the law which governs that status, that
is, the law of the parties' domicil at the time of the divorce, re-
gardless of the law of the place where the marriage was cele-
brated or where the acts complained of occurred.'
But if the marriage is alleged to be voidable by decree of court
for a cause existing at the time of the marriage contract, though
not void per se, quite different considerations present themselves.
Here the invalidating matter goes to the very root of the con-
tract itself and renders it voidable. The status in this case
may be dissolved, if at all, not for any violation of the marriage
relation, for the parties may have been exemplary in their con-
duct towards each other, but merely because the contract upon
which it is dependent may be avoided. This is a very different
case from that of supervenient causes for divorce.
The subject is not free from difficulty. If the marriage is
valid and free from objection in the State where it is solemnized,
there can be no doubt that it will be held free from objection
elsewhere, even though the parties should be domiciled in, or
should afterwards remove to, another State, by whose laws such
a marriage would be voidable ab initio*
2 This was substantially the view taken in England by the earlier decisions.
See Dicey, Confl. L. 270, note (1); Lolley's Case, 2 CI. & F. 567; McCarthy
V. De Caix, 2 CI. & F. 568 ; Tooey v. Lindsaj-, 1 Dow. 117. See Arrington
V. Arrington, 102 N. C. 491, 9 S. E. 200, 207.
* This is now the rule even in England. See Dicey, Confl. L. 270 ; Wilson
17. Wilson, L. R. 2 P. & D. 435, 442 ; Shaw v. Gould, L. R. 3 H. L. 55, 85.
And it is so held in America with great unanimity. See Harteau v. Harteau,
14 Pick. (Mass.) 181, 25 Am. Dec. 372 ; Chase v. Chase, 6 Gray (Mass.), 157,
161; Watkins v. Watkius, 135 Mass. 83; Hunt v. Hunt, 72 N. Y. 217, 228,
28 Am. Rep. 129; Roth v. Roth, 104 111. 35, 44 Am. Rep. 81, 83; Van
Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507, 508 ; Felty. Felt, 57 N. J.
Eq. 101, 40 Atl. 436. But see Prosser v. Warner, 47 Vt. 667, 19 Am. Rep.
132, 134 ; Norris v. Norris, 64 N. H. 523, 15 Atl. 19. The last two cases
qualify the rule somewhat, — it is believed, erroneously.
♦ Such would be the case if the marriage were absolutely void in the latter
§ 78 VALIDITY OF MARRIAGE CONTRACT. 171
If the marriage is voidable where contracted (but is not there
annulled), and the parties remove to another State, the question
becomes more complex. If void or voidable by the laws of the
latter State also, it would seem reasonable that it should be
held to be voidable there. * However this may be, it is certainly
not void in the latter State, so as to be susceptible of collateral
attack in its courts.'
Finally, if the marriage is valid by the law of the latter State,
while voidable (though not annulled) in the State where it was
contracted, it would seem, upon principle, that it should be
voidable in the latter, for the invalidity relates to the marriage
contract, and not to the status merely.''
In Cummington v. Belchertown,* a woman residing in Massa-
chusetts married there, and afterwards became insane. Her
Fusband, leaving her in Massachusetts, went to New York,
where he applied to have the marriage annulled on the ground
of fraud in its procurement, alleging that his wife had been in-
sane before her marriage and that this fact had been concealed
from him. The New York court annulled the marriage for the
fraud alleged (which was not a ground for annulling the mar-
riage in Massachusetts), and the validity of the New York decree
coming in question in Massachusetts, the court held it invalid.
One of the grounds of its decision was that the validity of the
marriage contract, entered into in Massachusetts, should have
been governed byMassachusetts, not by New York, law.
In Sutton V. Warren,^ an Il^nglishman married in England
State, except, according to some authorities, when it is the actual domicil of
the parties at the time of the marriage. See ante, § 73. A fortiori should it
be so (probably without even the exception just adverted to) when the mar-
riage is voidable only in the latter State. See Cummington v. Belchertown,
149 Mass. 223, 226, 21 N. E. 435.
6 Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435.
* Sutton V. Warren, 10 Met. (Mass.) 451 ; Com. v. Lane, 113 Mass. 458,
463, 18 Am. Rep. 509.
■^ See Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435. But
it is possible that the general favor shown towards marriages would prevent
this result.
« 149 Mass. 223, 226, 21 N. E. 435.
^ 10 Met. (Mass.) 451, already quoted, ante, § 75.
172 MARRIAGE STATUS OR MATRIMONIAL UNION. § 79
his mother's sister, the English law at that time rendering
such a marriage merely voidable. The parties afterwards (the
marriage not having been annulled meanwhile) removed to
Massachusetts, where such marriage was absolutely void. The
husband having brought suit upon a chose in action belonging
to the wife, it was objected that the marriage was void under
Massachusetts law, but the court held that it could not be sub-
jected to collateral attack.
§ 79. The Marriage Status or Matrimonial Union — Its
Commencement cind Continuance. — As has been already ob-
served, the status of marriage, the legal union between man
and wife, is justly deemed one of the most important, if not the
most important, of all the relations recognized by the law.^
The discussion of the proper law regulating the marriage
status may be divided into the following heads: (1) The law
governing the commencement of the status; (2) That govern-
ing the continuance of the status, with the incidents arising
therefrom; and (3) The law governing the dissolution of the
status, or divorce, — a separate chapter being devoted to the
latter.
The commencement of the marital relation is to be found, as
has been already pointed out, in the marriage contract, the
proper law governing which, both as to the capacity to enter
into it, and as to the formal and substantial validity thereof,
has been heretofore sufficiently considered."
The status once acquired under a marriage contract valid by
the proper law, the marriage relation is recognized and continues
to exist in every State whither the parties may wander, until it
is terminated by the death of one, or the divorce of both.
The marriage status is essentially a mode of life, and it is
peculiarly appropriate therefore that it should be governed in
all particulars by the law of the place where the parties live,
that is, by the law of their domicil, and that when their dom-
icil changes the law governing their status should change
with it.* But this principle, like most others whose object is
1 Ante, § 76. » Ante, §§ 73, 77, 78.
» Cook V. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 86 ; CUrk
9. CUrk. 8 Gush. (Mass) 385.
§ 80 INCIDENTS OF THE MAERIAGE STATUS. 173
the determination of the "proper law," is subject to the oper-
ation of the great exceptions mentioned in the second chapter,
in which the lex fori will be substituted for a proper foreign
law, whenever the policy or interest of the forum or its citizens
demands such a course.
Hence, the fact that the law of the legal situs or domicil of
the parties gives the husband extraordinary rights over the per-
son of the wife, not authorized by the laws of the State where
they happen to be, such as the right of personal chastisement,
the right to deprive her of liberty, etc., will not justify the
husband in resorting to such measures in the latter State. Its
courts and conservators of the peace will interfere in such cases
to the same extent as if the parties were residents of the forum.
For purposes of police, the law of the actual situs of the per-
son will always govern.*
§ 80. Incidents of the Marriage Status — Marital Rights in
Consort's Property — Lands. — The incidents of the marriage
tie arise by operation of law from the marital relation, not from
the marriage contract, and are to be determined and controlled
in general by the same law that controls that relation, the lex
domicilii, unless the particular case is one of the great excep-
tions. As has been said by a learned judge : ^ " When the con-
tracting parties have entered into the married state, they have
not so much entered into a contract as into a new relation, the
rights and duties and obligations of which rest, not upon their
agreement, but upon the general law of the State, statutory or
common, which defines and prescribes those rights, duties, and
obligations. They are of law, not of contract."
Marital rights in the property of the consort are incidents of
the matrimonial status implied by law^ and in this aspect may
be regarded as partaking of that status. In another aspect,
they may be regarded as mutual transfers of interests in prop-
* Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227, 232 ; Maguire v.
Maguire, 7 Dana (Ky.), 181, 186 ; Prosser v. Warner, 47 Vt. 667, 19 Am.
Rep. 132, 134; Blackinton v. Blackinton, 141 Mass. 432, 43&-436. Se«
Whart. Confl, L. §§ 166, 167.
1 Appleton, J., in Adams v. Palmer, 51 Me. 481, 483. See State v. Tutty,
41 Fed. 753, 758.
174 INCIDENTS OF THE MAKKIAGE STATUS. § 80
erty by operation of law. In either aspect it will be found that
they are in general to be determined and regulated by the same
law that regulates the status itself, namely, the law of the parties'
legal situs or domicil, at least if the property in question is
■personalty.^ But marital rights may arise not only as incidents
of the marriage status, but also from marriage settlements or
contracts entered into between the parties. In such cases the
rights of the parties are regulated by their contract, not by
the law.
In respect to immovable propftr^y, i<- ^'° -^^^IT qpftled that in
this, as in every other tri^nsfer or link; in thr rhain nf titlo; the
lex situs of the property in question will control. Hence, as to
such property, if there be no nuptial contract the lex situs will
govern; if there is a nuptial contract, it will operate only so far
as the lex situs permits.
Thus, the dower right of ^^^^^_^jffi (^"'^ th*^ /'nrt.ft^j r.f-tlu^ynia.
band)-tfi thr* Inu'ds nt thti cEs^!!!!!" ^^^^ ^® determined and regu-
lated by the law of the place where the land lies, not where the
parties live.* '~~
In Lamar v. Scott,* a man domiciled in Georgia died. He
had been seised during the coverture of land in South Carolina,
by whose law a seisin at any time during the coverture sufficed
to give the wife dower. He had aliened the land without join-
ing his wife in the deed. By the law of Georgia (his domicil)
the wife was dowable only in the lands of which the husband
died seised. The South Carolina court held that the lex situs
should govern, and that the wife must be endowed of the lands
there situated.
In Depas v. Mayo,^ Depas of Louisiana married in Pennsyl-
vania a woman resident in Pennsylvania. They immediately
proceeded to Louisiana, where they resided for several years.
» Post, § 81.
8 Ante, § 12 ; Lamar v. Scott, 3 Strob. L. (S. C. ) 562 ; Newcomer v. Orem,
2 Md. 297, 56 Am. Dec. 717, 718 ; Moore v. Mayor, etc., 8 N. Y. (4 Selden)
110, 59 Am. Dec. 473, 474 ; Kneeland v. Ensley, Meigs (Tenn.), 620, 33 Am.
Dec. 168, 169 ; Depas v. Mayo, 11 Mo. 314, 49 Am. Dec. 88, 90-91.
* 3 Strob. L. (S. C.) 562.
'11 Mo. 314, 49 Am. Dec. 88.
§ 81 RIGHTS IN PERSONALTY OP CONSORT. 175
Both parties at the time of the marriage were destitute of prop-
erty, but soon by their joint exertions accumulated a consider-
able amount. By the laws of Louisiana, one half of all property
acquired during the coverture belonged to the wife, and could
not be disposed of by the husband. Afterwards Depas and his
wife removed to St. Louis, and Depas purchased (with money in
part belonging to his wife under Louisiana law) a lot in St.
Louis, taking the title in his own name. The parties were
afterwards divorced in Louisiana, and the wife claimed one half
of the St. Louis lot by way of implied trust. The Missouri
court held that the Louisiana law governed as to the personalty
acquired while the parties were domiciled there, and that the
wife was therefore entitled to one half of such property; but
that, as to the land in Missouri, the lex situs must govern.
But since, under Missouri law, if one purchased land with the
funds of another, the conveyance being made to the former, he
was deemed a mere trustee for the latter, the court adjudged
that Depas was a trustee for his wife to the extent of one half
the St. Louis lot.
So, also, if there be an express ante-nuptial or post-nuptial
contract touching the marital rights in land, its effect and
validity must be controlled by the lex situs of the laud, not
by the law of the place where such contract, or the contract
of marriage, was entered into, nor by the lex domicilii of the
parties.*
§ 81. Marital Rights in Fersoneilty of Consort — In Absence
of Express Contract. — We have already had, and will hereafter
« Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974 ; Heine v. Ins.
Co., 45 La. Ann. 770, 13 So. 1 ; Besse v. Pellochoux, 73 111. 285, 24 Am.
Rep. 242 ; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180, 181 ; Castro v. lilies,
22 Tex. 479, 73 Am. Dec. 277, 281. But if the contract is valid and suf-
ficient under the lex situs, and is capable of specific enforcement there, the
contract will confer an equitable title to the land, without a deed. See Castro
V. lilies, 22 Tex. 479, 73 Am. Dec. 277, 281 ; Fuss v. Fuss, 24 Wis. 256,
1 Am. Rep. 180, 181. In Poison v. Stewart, 167 Mass. 211, 45 N. E. 737, it
was held that the law of the place of contract, not the lex situs, should con-
trol in this respect. But this case related to a contract for the relinquishment
of marital rights, not for the acquisition of them. This case ia discussed
post. S 174.
176
RIGHTS IN PERSONALTY OF CONSORT.
§81
still further have, occasion f^ nht^^jfire an important principle
generallj^applicable to personal property (except in case of
conve3^anii£S~aS^otheTvoluntary transactions with respect to it),
namel^^jthat it has its legal sitits atthe leffaTli}tn%) nr dormrilj
of^e owner. ^ Marital rights in the personalty of the consort,
if regarded M mutual transfers of interests in the property, are
transfers by operation of law, not by the voluntary act of the
parties, and, like other transfers by act of the law, such as the
suecGscion to a dticwdeuL^s personalty, are to be tuiJt>i?olIje.d by
the law of the IpgalRrtnn cff thr ownrT^ mil lij llin liiwof his
acfual situs, nor bjjhue law tyj th6 aclual"'8itafi o;f^he property.^
The law of the domicil will govern the marital rights of the
parties in personal property, not only because of the general
principle just pointed out, but also because these rights are in-
cidents of the mairiage status, and governed therefore by the
same law that regulates that status in other respects. And it
should be particularly observed that the domicil whose law gov-
erns in these matters (supposing the married pair to have
changed their domicil several times) is that domicil possessed
by them at the time the particular marital right in question
became vested. A mere contingency cannot be said to be either
a transfer, or an incident of the status.
Hence, j°i tr ri f;h*"f Tiyq^^'Tfj ^y either in the personalty of
the c<>aa^t upon his or her death, ^° ^^"Mhutee or otherwisej
the law of their domicil at the time of th^^ d^^tll,^'^^^ c:nr\\.Tn\ ^ nnf:
that nf thp. domir.i) at tbft time of the acquisition of the prop-
erty, nnr ijiat nf fbft pinrc M'hftrft tho fjpftth tnnir plriiro Such
rights 'donot vest until the death occurs. Indeed this is merely
one instance of the rule that the law of the last domicil of a
decedent controls the succession to his personal property.*
1 See ante, § 14 ; post, §§ 120 et seq. This applies to involuntary ix&us'
fers and dealings with personalty. If the owner voluntarily deals with it, as
by conveyance, it is the actual, not the legal, situs of the owner that, for the
purposes of that transaction, gives the situs to the property. Post, §§ 128
et seq.
' That the lex domicilii is the proper law governing succession, see post,
§§ 139 et seq.
» See White v. Tennant, 31 W. Va. 790, 8 S. E. 696, 699 ; Steer's Succe«-
§ 81 EIGHTS IN PERSONALTY OF CONSORT. 177
As to those marital rights in pfiraonalty whirh vpat at oi
during marriage, such as the husband's fiQinTnnn 1a^ ^^gHl to
the wife's chattels and choses in action^the law of ^he domicil
at the time the right vests will contror If the consort in whose
property the right is claimed owned it at the time of the mar-
riage, the marital right vests immediately upon the marriage,
and the law of the parties' domicil at that time (that is, the
law of the husband's domicil at that time) will determine the
character and extent of the rights in question.*
It is sometimes said that these marital rights in property
owned by the consort at the time of the marriage are to be con-
trolled by the law of the "matrimonial domicil," which is de-
fined to be "the country where the husband is domiciled at the
time of the marriage, or in which he intends to settle imme-
diately/ after the maiviage." ^
But it is submitted that to hold the country where the hus-
band intends to settle (the factum not combining with the ani-
mus) to be his domicil, whether " matrimonial " or otherwise,
is violative of one of the leading principles governing the ac-
quisition of a domicil of choice. This doctrine has recently
sion, 47 La. Ann, 1551, 18 So. 503 ; Succession of Hernandez, 46 La. Ann.
962, 24 L. R. A, 831 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530 ;
Hegeman r. Fox, 31 Barb. (N. Y.) 475. See post, § 139 et seq.
* Mason v. Homer, 105 Mass. 116 ; Graham v. Bank, 84 N. Y. 393, 400,
88 Am. Rep. 528 ; Kneeland r. Ensley, Meigs (Tenn.), 620, 33 Am. Dec. 168,
169 ; Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717, 718 ; Fuss v. Fuss,
24 Wis. 256, 1 Am. Rep. 180. See Ford v. Ford, 2 Mart. N. 8. (La.) 574,
14 Am. Dec. 201, 203 ; Townes v. Durbiu, 3 Met. (Ky.) 352, 77 Am. Dec. 176.
The lex celebrationis of the marriage, as such, has nothing to do with the
question, for the sole eflFect of the executed contract of marriage, standing
alone, is to create the marriage relation or status. See ante, §§ 76 et seq.
6 Story, Confl. L. § 193 ; Fuss v. Fuss, 24 "Wis. 256, 1 Am. Rep. 180, 181;
Besse r, Pellochoux, 73 111. 285, 24 Am. Rep. 242, 246, 247-248 ; Ford v.
Ford, 2 Mart. N. s. (La.) 574, 14 Am. Dec. 201, 203 ; Larquie v. Larquie, 40
La. Ann. 457, 4 So. 335, 336 ; Champon v. Champon, 40 La. Ann. 28, 3 So.
397, 399; Routh v. Routh, 9 Rob. (La.) 224, 41 Am. Dec. 326; Allen ».
Allen, 6 Rob. (La.) 104, 39 Am. Dec. 553 ; Le Breton v. Nouchet, 3 Mart.
(La.) 60, 5 Am. Dec. 736 ; Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep.
17, 23 ; Castro r. lilies, 22 Tex. 479, 73 Am. Dec. 277 ; State v. Barrow, 14
Tex. 179, 65 Am. Dec. 109.
12
178 HIGHTS IN PERSONALTY OF CONSORT. § 81
been disapproved in England, where it has been adjudged that
there is no such thing as a " matrimonial domicil."'
A somewhat similar question has arisen with respect to prop-
erty acquired by either consort, while the married pair are
actually in transitu from one State to another, having abandoned
one domicil and not yet reached the other. It has been held in
several cases, in analogy to the theory of the "matrimonial
domicil," that the law of the intended domicil should govern.
It will not be attempted to reconcile these cases with prin-
ciple.^
In general.^with respect to aftfr nrquired prppprtyj the
marital rights will depend Upon the law ff th^ ftftunl domicil
of the parties at the time of such acquisition, for at that time,
if at all, the rights vest.^
It must be constantly remembered however that these rules
for the determination of the ' ' proper law " are subject to the
general exceptions discussed in the second chapter, and that
the proper law will be substituted by the lex fori (the law of the
« Le Mesurier v. Le Mesurier, App. Cas. 517, 11 Rep. 527 [1895]. It
should be further observed that if the theory is correct that the law of the
intended domicil should control the marital rights of the parties, then there
must be substituted for the doctrine of the transfer of these interests by opera-
tion of law, or as an incident of the marriage status, that of a transfer by tacit
or implied contract, for it is only upon that theory that the law of an intended
domicil can govern. Yet Judge Story, who is one of the strongest advocates
of the •' matrimonial domicil," has also placed the seal of his disapproval upon
the theory of any implied or tacit contract with reference to marital rights.
Story, Confl. L. § 190. See Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec.
530. And even Story admits that if the property is acquired ajier marriage,
the marital rights are governed by the law of the actual domicil at the time
of the acquisition. Story, Confl. L. § 187 ; State v. Barrow, 14 Tex. 179,
65 Am. Dec. 109 ; Castro v. lilies, 22 Tex. 479, 73 Am. Dec. 277 ; Fuss v.
Fuss, 24 Wis. 256, 1 Am. Rep. 180.
' See Ford v. Ford, 2 Mart. n. s. (La.) 574, 14 Am. Dec. 201 ; State v.
Barrow, 14 Tex. 179, 65 Am. Dec. 109.
8 McLean v. Hardin, 3 Jones' Eq. (N. C.) 294, 69 Am. Dec. 740 ; State v.
Barrow, 14 Tex. 179, 65 Am. Dec. 109; Ford v. Ford, 2 Mart. N. s. (La.)
574, 14 Am. Dec. 201 ; Castro v. lilies, 22 Tex. 479, 73 Am. Dec. 277 ; Fuss
r. Fuss, 24 Wis. 256, 1 Am. Rep. 180; Murphy v. Murphy, 5 Mart. (La.) 83,
12 Am. Dec. 475; Hicks v. Pope, 8 La. 554, 28 Am. Dec. 142 ; Succession
of Packwood, 9 Rob. (La.) 438, 41 Am. Dec. 341.
§ 82 CONTRACT TOUCHING MARITAL RIGHTS. 179
actual situs of the property) whenever the interest or policy of
the forum, or the welfare of its own citizens, demand it.'
Thus, in Smith v. McAtee," upon a partition of land in
Maryland, the land was sold, the proceeds in part belonging to
a woman who, with her husband, resided in Illinois. By the
law of Illinois the wife's personalty vested in the husband abso-
lutely and was liable for his debts. By the law of Maryland
it was the property of the wife, free from the husband's debts.
A creditor of the husband attached the fund in Maryland, but
it was held that the lex fori should govern, on the ground that
to enforce the Illinois law would contravene the established
policy of Maryland.^^
§ 82. Same — Express Contract touching Marital Rights.
— If there be a contract T^Q^^^»^oQTlTvMo>>3,pfl ar>A wifp. t,nnr.bipg tho
mnritTil rightn nf ^nrh itLjLJifijproperty of the other, and such con-
tract embraces only personalty owned at the time of the marriage,
the contract, if valid by the law of the place where it is maC
will govern as to the personalty owned at that time, wherever it
be actually situateHT' But in auoh caco, ao to pui'auua,lLy Lho'i'e-
after acquired, Wie contract not embracing it, the marital rights
will be determined by the same law as if there had been no con-
tract, that is, by the law of the actual domicil at the time of
the acquisition.*
If the contract embraces personalty then owned or thereafter to
be acquired by the parties, and is valid where made, it will fur-
9 Story, Confl. L. § 189 ; Le Breton v. Nouchet, 3 Mart. (La.) 60, 5 Am.
Dec. 736 ; McLean v. Hardin, 3 Jones' Eq. (N. C.) 294, 69 Am. Dec. 740;
Smith V. McAtee, 27 Md. 420, 92 Am. Dec. 641.
10 27 Md. 420, 92 Am. Dec. 641.
11 It is the more remarkable that the court should have followed the lex
fori instead of the proper law, since the attaching creditor was a citizen of
Maryland, while the married woman was not. The decision was based entirely
upon the State's policy.
1 Subject to the great exceptions to the proper law. See Story, Confl. L.
§§ 183 et seq. ; Castro i;. lilies, 22 Tex. 479, 73 Am. Dec. 277; Fuss v. Fuss, 24
Wis. 256, 1 Am. Rep. 180 ; Wilder's Succession, 22 La. Ann. 219, 2 Am.
Rep. 721.
« Story, Confl. L. §§ 183, 184 et seq. ; Fuss v. Fuss, 24 Wis. 256, 1 Am
Rep. 180 ; Castro v. lilies, 22 Tex. 479, 73 Am. Dec. 277.
180 BIGHTS AND DUTIES OP PABENTS. § 83
nish the rule by which their marital rights will be determined
throughout their wedded life, though they subsequently remove
to or acquire property in another State, where such a contract,
if made there, would not be upheld.'
§ 83. Rights and Duties of Parents towards Children. — The
rights and duties of parents with respect to their children may
be regarded as an incident of the marriage relation, or the rela-
tion of parent and child may be treated as a distinct status or
condition. In either aspect the result is the same.
So far as the rights of personal control, treatment, or chas-
tisement are concerned, these are usually considered questions
of local policy or police, the extent of which must be determined
and fixed in each State by its own laws, as to all persons within
its borders, regardless of their legal situs or domicil.^ No State
could be justly expected to permit persons within its limits to
violate its police or criminal laws, because they are given a right
so to act by the law of their legal situs or domicil. Comity is
not to be carried so far. It is a case for the substitution of the
proper law by that of the forum and actual situs of the party. ^
But save ^^\_fnrh v'^'^flpt^''^""^ ', *'^'" [jo^'^^nT pi-^nr.ipia is
that the law of the Zeffa?_sitfllR ^^ iliiinii 11 i'l Ili<" ^^piiipiijm "
governing the relation of parenj; a"'^ r\\^M\^ j»st as in other cases
of status.
Thus where a mother domiciled in England had a child born
in Scotland, which by the Scotch law she was bound to support
(but not by the English law), the Scotch Court of Sessions re-
fused to hold her liable therefor, on the ground that ''she has
the status of an English woman, and it is the law of the coun-
try of her domicil that must determine her obligations now." •
» Fuss V. Fuss, 24 Wis. 256, 1 Am. Rep. 180 ; Castro r. lilies, 22 Tex.
479, 73 Am. Dec. 277; Le Breton v. Miles, 8 Pai. Ch. (N. Y.) 261 ; Decouche
V. Savetier, 3 Johns. Ch. (N. Y. ) 190, 8 Am. Dec. 478 ; Schefferling v. HufiF-
man, 4 Ohio St. 241, 62 Am. Dec. 281 ; McLeod v. Board, 30 Tex. 238, 94
Am. Dec. 301 ; Young v. Templeton, 4 La. Ann. 254, 50 Am. Dec. 563.
1 Woodworth v. Spring, 11 Allen (Mass.) 321; Jac. Dom. § 33. See
Blackinton v. Blackiuton, 141 Mass. 432, 435-436.
2 See Whart. Confl. L. §§ 166, 167. See also De Boimont t>. Penniman,
10 Blatchf. 436, for other applications of the lex fori.
» Macdonald v. Macdonald, 8 Bell & Murray (2d series), 331-334; Whart.
Confl. L. § 168.
5 53 RIGHTS AND DUTIES OF PARENTS. 181
The legitimacy of the issue has no necessary connection with
the status of marriage, since in some States children may be
legitimate without an intermarriage of the parents, nor is it a
necessary incident of the relation of parent and child, sinca
that relation may exist without it. The truth is, legitimacy
forms a distinct instance of status, and as such will be treated
separately in a subsequent chapter.
182 CAUSES FOB DIYORCJE. § 84
CHAPTER VII.
DISSOLUTION OF THE MARRIAGE STATUS BY DIVORCE.
§ 84. Causes for Divorce. — The supreme importance of the
marriage status to the State as well as to the parties has been
adverted to. The interest of the State in this relation leads it
not only to demand that it should not be entered into unad-
visedly or lightly, and to prescribe with great care who may or
may not enter into the contract, as well as the ceremonies ac-
companying its solemnization, but also to prohibit its dissolu-
tion at the mere will or caprice of the parties. The consent of
the State thereto must first be obtained through its legislature
or its courts, and only for the particular causes assigned by the
]fl,w-making power.
If the parties abandon their domicil in one State and acquire
a residence in another, the interest of the first State in the mar-
riage status ceases; that interest is now transferred to the sec-
ond State, which will see to the preservation or regulation of the
relation with the same zeal that inspired the former State so
long as the parties remained domiciled there. The latter State
will now permit the status to be dissolved only for causes which
seem to it proper, and only with its consent (through its courts).
For the marriage relation is essentially a status, a mode of life,
and just as the incidents thereof are determined by the law of
the place where the parties live (lex domicilii), so also the dis-
solution thereof is to be regulated by the same law.
TTon^o if jg g wftll established general principle of private
intrrnati^T^^l ^^^ thfit a djvorceobtaiuod in a- State other than
the domicil is of no biading.effecnn Other States, as will pres-
ently appear. ~ ~ ~"
The^same principle applies to the causes for which a divorce
Is asked for. If the parties have always resided in the same-
§ 84 CAUSES FOR DIVORCE. 183
State, and have never lived elsewhere, no difficulty arises. It
is manifest that the State where they have always lived (their
only domicil) should be the State where the divorce is prose-
cuted, and upon its municipal law must depend the question
whether or not there is sufficient ground to dissolve the mar-
riage relation.^
But if the parties since the marriage have lived in several
States, a question may arise as to which law shall determine
whether there is ground for divorce. So also, if the act on ac-
count of which the divorce is asked occurs in another State, by
whose law it is no cause of divorce, though constituting a suffi-
cient cause in the State of the divorce forum, or vice versa;
especially if the parties at the time of the act were domiciled
in the State where it was done, one or both of them removing
afterwards to the State of the forum. What law should prop-
erly determine such points has been the subject of considerable
debate.*
Upon priacipl*^, ^^ ^^^n1/l — gooaa — clear — that — thgouestion
wTiPfliPiw>7- anf ^ pnrfinnlftr gr>f. or nTy^iaainn ia a grnuSTTrtr
divorc«.^ould be determined by the rules of the mupi^ipgl law
of thft^fjiynrfft forum. The iact that the alleged offense occurs
m another State, or even that the parties were domiciled in the
latter State when the offense occurs there, should not be suffi-
cient, in the absence of explicit legislation of the forum to the
1 Hunt V. Hunt, 72 N. Y. 217, 228, 28 Am. Rep. 129.
2 Various theories will be found advocated in the following cases, some
holding that the law of the place where the marriage contract is entered into
should regulate the causes for dissolving the status ; others holding that the
law of the place where the offence is committed should prevail ; others are in
favor of the law of the domicil of the parties at the time the oflFence was com-
mitted ; and others in favor of the law of the parties' domicil at the time the
divorce is sought. See LoUey's Case, 2 CI. & F. 567 ; Arrington f. Arrington,
102 N. C. 491, 9 S. E. 200, 207 ; Norris v. Norris, 64 N. H. 523, 15 Atl. 19 ;
Prosser v. "Warner, 47 Vt. 667, 19 Am. Rep. 132, 134 ; Harteau v. Harteau,
14 Pick. (Mass.) 181, 25 Am. Dec. 372 ; Watkins v. Watkins, 135 Mass. 83 ;
Colbum V. Colburn, 70 Mich. 647, 38 JT. W. 607 ; Lyon v. Lyon, 2 Gray
(Mass.), 367; Cook v. Cook, 56 Wis. ]95, 43 Am. Rep. 706, 14 N. W. 33 ;
Hai-ding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Shreck v. Shreck,
32 Tex. 578, 5 Am. Rep. 251 ; Jones v. Jones, 67 Miss. 195, 6 So. 712, 713.
184 PROCEEDINGS IN PERSONAM AND IN REM. § 85
contrary, to deprive its courts of the full and complete right to
preserve, regulate, or dissolve the marriage status of the citizens
of the forum in accordance with its laws.'
But if the object of a suit is not to dissolve a-marriago status
valid in thebegmning, but ^opronounce the union invalid ab
initio for a cause renderinpf th^ rnftmagp rnntr-nrt. votdable, the
principles by which to determine the ^^ proper law '^ are differ-
ent. In~8uch cases the lex celebratioais of tl
tract is the proper law.*
In Conclusion, it should be observed, that the mere fact that
the cause of divorce arises in the State where the divorce is ob-
tained (neither party being domiciled there at the time of the
divorce), will not suffice to make the decree of divorce binding
in other States, although by the municipal law of the divorce
forum jurisdiction is thereby conferred upon its courts inde-
pendently of the domicil of the parties. Domicil (of one of the
parties at least) is an essential prerequisite to give a divorce
exterritorial effect.*
§ 85. Proceedings in Personam and in Rem distinguished.
— As preliminary to a discussion of the principles governing
the effect of foreign divorce, it is necessary to observe the im-
portant distinctions between judicial proceedings in personam
and in rem.
The purpose of a proceeding in personam is to impose,
» Hunt V. Hunt, 72 N. Y. 217, 228, 28 Am. Rep. 129 ; Kinnieri;. Kinnier,
45 N. Y. 535, 539, 6 Am. Rep. 132 ; Pennoyer v. Neff, 95 U. S. 714, 734-735 ;
People V. Dawell, 25 Mich. 247, 12 Am. Rep. 260, 272 ; Colburn v. Colburn,
70 Mich. 647, 38 N. W. 607, 608 ; Shreck v. Shreck, 32 Tex. 578, 5 Am.
Rep. 251 ; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Hood
V. Hood, 11 Allen (Mass.), 196, 87 Am. Dec. 709 ; Arlington v. Arrington,
102 N. C. 491, 9 S. E. 200, 207. But see Norris v. Norris, 64 N. H. 523,
15 Atl. 19 ; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134 ; Harteau
V. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372. In Massachusetts and
Illinois there are statutes more or less affecting this general rule. See Lyon
V. Lyon, 2 Gray (Mass.), 367 ; Smith v. Smith, 13 Gray, 209 ; Watkins t;.
Watkins, 135 Mass. 83 ; Chapman u. Chapman, 129 111. 386, 21 N. E. 806.
* Ante, § 78.
' Yan Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507, 508. See po«t
§§ &9 et seq.
§ 86 PBOCBEDINGS IN PERSONAM AND IN REM. 185
through the judgment or decree of the court whose aid is in-
voked, some responsibility or liability directly upon the person
of the defendant. Of this character are criminal prosecutions,
suits to compel a defendant to perform some specific act, or
actions to fasten a general pecuniary liability upon him. A
proceeding in rem, on the other hand, is aimed not at the per-
son of the defendant, but at his property or some other thing
within the power and jurisdiction of the court.
Most important consequences flow from the distinction be-
tween these modus of procedure. The fourteenth amendment
to the federal constitution provides that no State shall deprive
any person of life, liberty, or property without due process of
law ; that is, without notice and a reasonable opportunity to be
heard in his own behalf. But the notice required under this
constitutional provision is very different in the two modes of
procedure.
In r^or'^'^^'^g" iix^ersonam, no judgment or^d^cree against
a drfnndwnt ii yfilifl nnlftnn h^ has been pejaonally oorited with
nntifift of ^h^ a-^.tjon or suit wijjiin the territorial limits of the
court's jurisdiction, or has volu"*^<»Tlly <ippQ^^o^ This much /
is always required, and in some instances even more.^ But in
prr>/>PP^iTigg^t>«-^w i£.jJrt(^ '»'<'s_^e withju the court'sjurJadictiqin'
duCLprocess of law does J^f)^ ^c|]nanf} fTia± antngr^iiotirA-ftf the
suit shoulaB^^-6erSe^-Hpoi]_t^ defendant personall^»_Even
tboiTg^b^bft^TiQii-rgsTj^ajii: jvMiift fnriTrrTpfeg^^ft^-ipfeSPSX^ that
he keeps in touch with his propertY«jvhereverit may be sjjaiated,
and that he will be straightway informed if any peril threatens
it. Hence in such case the law contents itself with requiring
a general proclamation or publication of the fact that a suit has
been instituted with respect to the defendant's property, or with
a personal notice served upon him outside the limits of the
court's territorial jurisdiction.
In either form of procedure, if there has been no such due
process of law as is demanded under the federal constitution,
the court is without jurisdiction, and its decree is absolutely
void within the limits of its own State as well as elsewhere.
1 As in the trial of felony cases, in which no material step can validlj
be taken unless the accused is personally present in court
H..
186 EFFECT OF FOREIGN JUDGMENTS. § 86
The leading case of Pennoyer v. Neff * furnishes an excellent
illustration of these principles. In that case, an attachment
was issued in Oregon upon an order of publication against prop-
erty there belonging to a non-resident defendant. An Oregon
statute permitted the court in such cases to subject the prop-
erty/, and if that proved insufficient to satisfy the debt, to make
a personal decree for the balance against the absent debtor.
The court pursued this course, and the case was carried on
appeal to the United States Supreme Court. That court held
that, so far as the attachment of the property was concerned,
the proceeding was in rem, and that the presence of the prop-
erty there gave the court jurisdiction, though the owner was a
non-resident, had not appeared, and had been notified of the
pendency of the cause no otherwise than by advertisement in a
newspaper. But it was also held that the personal decree for
the balance of the money due by the non-resident defendant
was beyond the court's jurisdiction, and that the statute au-
thorizing such a course contravened the federal constitution.
§ 86- Exterritorial Effect of Foreign Judgments and De-
crees. — The federal constitution, in its requirement that no
State shall deprive any person of life, "liberty, or property with-
out due process of law, is no stricter than are the principles of
private international law, when those principles begin to oper-
ate upon judicial proceedings. While the above mentioned
clause of the federal constitution is a part of the municipal
law of each State of the Union and operates intra-territorially
upon domestic proceedings, the rules of private international
law come into play only when the inquiry extends to the effect
to be given, in one State or country, to the judicial proceedings
of another. But the federal constitution and the rules of pri-
vate international law both unite in declaring that, in order to a
valid exercise of jurisdiction by a tribunal, there must be given
to the defendant a reasonable notice and opportunity to defend
himself; there must be **due process of law." What consti-
tutes such due process in respect to proceedings in personam as
well as in rem has already been shown.
2 95 U. S. 714. See also Alley v. Caspar!, 80 Me. 234, 6 Am. St. Rep.
185, note.
§86
EFFECT OF FOREIGN JUDGMENTS.
187
Hence in orderjhat effect may he given abroad to a. judgment
in rsrnoiin personam, the coart rendering the ju3gment in
question must have jurisdiction of the cause, and such juriadic-
tion of the defendant or of the property threatened as "aue
process of law " demands, it the judgttiuiil ui dccrco bo in rdnij^
it is only necessary that the res be within the court's jurisdic-
tion md Llial a general uiiblication ot notice of the snitZha
given. If in personam, it is essential that fhp. rnnrt _^hfrn^c\
have obtained jurisdiction of the defendant's person, either by
his voluntary appearance and submission to the court's jurisdic^L
tion, or by a personal service of process "p"" bim ^fjjvinflio
territorial limits of the C"iir^'« Qnfbnrify
If these conditions are complied with, the foreign judgment
-will in general be given effect everywhere ; if not complied
"with, the judgment or decree, even though valid where ren-
dered, will in general be regarded as void and of no effect out-
side the jurisdiction where it is rendered.
But,^suppe»iug the -«aiiiitions complied with, it does not
necessaril}^ follow that the foreign^jtldgment or dooroo will be
gi-p-Qja-^^^rr^ifofit^^ pfFftf»f: in nt.hf^f States. In case th^ j'ldgm^nt
or decree be in rem, it is true, the effect given to it is generally
conclusive everywhere, if the res is within the court's jurisdic-
tion,Torthe sovereignty of a State over everything within its
limits is supreme, and will usually be respected in other
•States.^ "^ ' "^
But with respe^tJ;Q,.j«d:gmeuts aTrd^ecrees in personam^axmh.
as judgments for money, private internatiTTrrai-lftw-gogs"^ fur-
fther tha^nto~declare them a yrima facie evidence of indebted-
ness, permitting the merits of the cause of action to be again
inquired into, at least where such is the eiiect that would be
1 This is universally conceded in the case of decrees in admiralty. See
The Rio Grande, 23 "Wall. 458 ; Williams v. Armroyd, 7 Cr. 423 ; Gelstou t;.
Hoyt, 3 Wheat. 246 ; China Mat. Ins. Co. v. Force, 142 N. Y. 90 ; Street
i;. Ins. Co., 12 Rich. (S. C.) 13. And generally also in attachment and other
proceedings m rem. Freeman v. Alderson, 119 U. S. 185 ; Pennoyerr. NeflF,
-95 17. S. 714; Green v. Van Buskirk, 7 Wall. 139; Noble v. Oil Co., 79
Penn. St. 354 ; Amdt v. Amdt, 15 Ohio, 33. But see Hornthall v. Burwell,
109 N. C. 10, 13 S. E. 721 ; Singer Mfg. Co. v. Fleming, 39 Neb. 679, 42 Am
St. Rep. 613.
188 EFFECT OF FOREIGN JUDGMENTS. § 86
given to foreign judgments in the State where the judgment in
question was'rendereHT' ~~ -—
Ss between the States of this Union, the comity enjoined by
private international law touching the effect to be given to for-
eign judgments is reinforced and supplemented by the clause in
the federal constitution providing that full faith and credit shall
be given in each State to the judicial proceedings of every other
State,* and by the act of Congress, made in pursuance thereof,
declaring that the judgments of the courts of each State shall
have the same faith and credit in other States as they have in
the States where they are rendered.*
Under these provisions, the judgments and decrees of the
courts of one State, if valid and conclusive there, are for the
most part valid and conclusive iu every other State of the Union,
Without them the judgments of each State would be regarded
as strictly foreign judgments in every other State.*
But it is to be observed that it is not the design of these pro-
visions to confer any new power upon the States, but simply to
establish a just rule of comity by which may be regulated the
effect of their admitted jurisdiction over the persons and things
within their borders. They do not propose to make the judg-
' Hilton V. Guyot, 159 U. S. 113. It is probably otherwise if foreign
judgments are given conclusive effect in the State where the particular judg-
ment in question is rendered. Ritchie v. McMullen, 159 U. S. 235 ; Wunstan
V. Higgins, 138 N. Y. 70 ; Rankin e. Goddard, 55 Me. 389. But this rule is
subject to qualification where the foreign judgment is based on matters of
mere local policy. See Hohner v. Gratz, 50 Fed. 369 ; De Brimont v. Penni-
man, 10 Blatchf. 436. Upon the effect of foreign judgments, see a learned and
full discussion in Story, Conil. L. §§ 598 et seq., and notes.
8 U. S. Const. Art. 4, § 1.
* U. S. Rev. Stats. § 905.
6 Slack V. Perrine, 164 U. S. 452; McElmoyle v. Cohen, 13 Pet. 312;
Carpenter i;. Strange, 141 U. S. 87 ; Guthrie v. Lowry, 84 Penn. SL 533 ;
Elsasser v. Haines, 52 N. J. L. 10, 18 Atl. 1095 ; Edwards v. Jones, 113 N. C.
453, 18 S. E. 600 ; Dorsey v. Maury, 10 Sm. & M. (Miss.) 298. These pro-
visions apply not only to judgments of State courts, but also to the judgments
of the federal courts, when litigated in the State courts. Pennoyer v. Neff,
95 U. S. 714 ; Southern Ins. Co. v. Hardware Co. (Tex.) 19 S. W. 615 ;
Barney v. Patterson, 6 Har. & J. (Md.) 182 ; Niblett v. Scott, 4 La. Ann.
246L
§ 86 EFFECT OF FOREIGN JUDGMENTS. 189
ments of other States domestic judgments to all intents and
purposes, but merely give a general validity, faith, and credit
to them as evidence.' No execution is to issue upon such for-
eign judgment without a new suit in the tribunals of the State
where it is sought to be enforced. Nor does it enjoy any pri-
ority, privilege, or lien which may be accorded it in the State
where it is rendered, but only such as the lex fori gives it in its
character of a foreign judgment.''
Under these provisions, the judgment is to be given the same
effect in other States as in the State where it is rendered, and
since it is in general conclusive there upon the rights litigated,
until reversed, it will also be held to be conclusive in other
States, as to the original merits of the controversy.
It is immaterial what the nature of the controversy is. The
judgment is equally conclusive, whether it be in rem or in per-
sonam; whether it fastens a personal liability upon the defend-
ant, or whether it only affects his property or his status. Thus,
the valid judgment of a competent court determining the dom-
icil of a testator and probating his will of chattels is conclusive
in every State in the Union.^ So also the judgment of the
courts of the domicil declaring a child to have been lawfully
adopted is in general conclusive.' And so it is with almost
every kind of judgment ; such as judgments for money, or in
divorce or attachment proceedings, etc., provided only the
court pronouncing the judgment has jurisdiction of the cause,
of the person, and of the res. To this general principle there
seems to be only one exception. It does not apply with fuU
force to foreign judgments tor the enforcement of a penalty.^"
It follows from what has been already said that When an
« Story, Confl. L. § 609 ; McElmoyle v. Cohen, 13 Pet. 312 ; D'Arcy v.
Ketchuin, 11 How. 165.
^ "Wood V. Watkinson, 17 Conn. 500 ; McElmoyle v. Cohen, 13 Pet. 312 ;
Stoty, Confl, L. § 609.
8 Thomas v. Morissett, 76 Ga. 384 ; In re Gaines, 45 La. Ann. 1237, 14
So. 233.
» Van Matre v. Sankey, 148 111. 356, 36 N. E. 628. See Foster v. Water-
man, 124 Mass. 592.
10 Huntington ». Attrill, 146 U. S. 657, 672. See ante, § 10.
190 DIVORCE, PROCEEDING QUASI IN REM. § 8T
actionals brought in one of the States of this Union to enforce
a judgment rendered in another, only such defenses can be
inhfle thprf'to in jM^TtMlV^' !im ivFTTTTrFin mftrln in the Statp^vyherp it
WH*^ p^'^^"""''''^j i" an 'K-tion thftrp on aiiah— jrrrK^rrwnf:.
Thus in an action in one State of the Union upon a judgment
rendered in another, the defendant may show that the court
pronouncing the judgment had not jurisdiction of the cause, of
the subject-matter, or of the parties; ^^ or that the judgment is
not responsive to the pleadings — at least, if the defendant does
not appear at the trial. ^* So the defendant may show matters
ex post facto that go in release or discharge of the judgment,
according to the law of the place where the judgment is
given.^'
But an exception to this principle arises where the defend-
ant pleads the statute of limitations to the action upon the
judgfljent. The scope and effect of this defense isTn^-general
determined" by the l&w ot the State where the action~XrpoH the
judgment is brought (lex fori)."
§ 87. Divorce Causes, Proceedings Quasi in Rem. — In
divorce causes, the actual subject-matter of the litigation is
the marriage status itself. The design is to affect or dissolve
the marital relation, not to impose a general personal liability
upon either party, or to give personal relief. Hence they par-
take of the nature of proceedings in rem rather than of pro-
ceedings in personam, the res being the status. And this is
true whether the suit be for divorce a mensa ^ or divorce
" Harris v. Hardeman, 14 How. 334; Cheever v. Wilson, 9 Wall. 108;
Thompson v. Whitman, 18 Wall. 457; Grover & B. M. Co. v. Radcliffe, 137
U. S. 287.
" Reynolds v. Stockton, 140 U. S. 254.
" McElmoyle v. Cohen, 13 Pet. 312 ; D'Arcy ». Ketchum, 11 How. 165.
1* Jacquetter. Huguiron, 2 McLean, 129; Bauserman v. Charlott, 46 Kan.
480, 26 Pac. 1051 ; Packer w. Thompson, 25 Neb. 688, 41 N. W. 650. See
post, § 210. But if the statute of the State where the judgment is rendered
declares that the judgment shall not he good after a certain period of years,
that law, not the lex fori, must govern. Bowersox v. Gitt, 12 Penn. Co.
a. 81.
1 See De Meli r. De Meli, 120 N. Y. 485 ; Butler v. Washington, 45 1^.
Ann. 279, 12 So. 356, 19 L. R. A. 814.
§ 88 THE RES IN DIVORCE CAUSES. 191
a vinculo.^ At the same time these causes cannot be said to
be altogether proceedings in rem. There is a personal element
that enters into them, not found in suits instituted merely to
subject or affect property. Says one admirably conceived opin-
ion : *' Accurately speaking, a proceeding in rem is a proceeding
against tangible property, and actual notice is dispensed with
on the theory that the owner is bound to know where his prop-
erty is and whac is being done with it. It is manifest this
theory cannot be applied to the relation of husband and
wife." »
It results therefore that these causes constitute in some
measure a dividing line between proceedings strictly in rem
and proceedings strictly in personam, partaking in part of the
nature of each, the former however predominating. Hence
they are often very properly denominated proceedings quasi in
rem. The importance of this line of demarkation will appear
hereafter when we come to consider the exterritorial effect of
divorce.*
But a decree for the costs of a divorce suit, or a decree for
alimony, is a decree strictly in personam, since the object is to
fasten upon the defendant a general pecuniary liability, not to
affect the status.®
§88. The Res in Divorce Causes. — Divorce causes being
proceedings quasi in rem, it becomes important and necessary
« Roth V. Roth, 104 111. 35, 44 Am. Rep. 81, 84 ; Anthony v. Rke, 110
Mo. 233, 19 S. W. 423, 424 ; Dunham v. Dunham, 162 111. 589, 35 L. R. A.
70, 77 ; McGill v. Deming, 44 Ohio St. 645, 11 N. E. 118, 122. The New
York courts are peculiar in holding the view that divorce causes are proceed-
ings in personam. See Williams v. Williams, 130 N. Y. 193 ; De Meli v. De
Meli, 120 N. Y. 485; Jones v. Jones, 108 N. Y. 415; O'Dea v. O'Dea, 101
N. Y. 23 ; People v. Baker, 76 N. Y. 78. See also Prosser v. Warner, 47 Vt.
667, 19 Am. Rep. 132, 135-136.
» Doughty r. Doughty, 27 N. J. Eq. 315, 325.
* Post, 5§ 89 et seq.
6 Felt V. Felt, 57 N. J. Eq. 101, 40 Atl. 436 ; De La Montanya v. De La
Montanya, 112 Cal. 101, 32 L. R. A. 82, 85 ; Thurston v. Thurston, 58 Minn.
279, 59 N. W. 1017, 1018 ; Kline v. Kline, 57 la. 386, 10 N. W. 825, 826 ;
Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 133, 134. But see Black-
inton V. Blackinton, 141 Mass. 432. See post, 8 95-
192 THE RES IN DIVORCE CAUSES. § 86
to determine what is the res, for the court's jurisdiction i*^ pro-
ceedings in rem, depends upon its jurisdiction of the res.
It is generally admitted that the res is the marriage status,
which includes the status of both consorts, the situs of the
status of each being his or her domicil. Strictly speaking,
therefore, the jurisdiction of the status of the husband or
wife belongs to the courts of his or her domicil, and to no
other, because those courts alone have jurisdiction of the res.
But in the case of marriage the status is a double or correla-
tive status.^ There can be no such thing as a husband without
a wife, or a wife without a husband. Hence when a court as-
sumes to pronounce a decree destroying the marriage status of
one of the consorts, it must necessarily destroy, so far as its de-
cree has any effect at all, the status of the other consort also.
If then the consorts are domiciled in different States, it is a
matter of grave importance to ascertain how far the power of the
courts of either of these domicils extends in dissolving the mar-
ital union.
It must be constantly remembered that the present inquiry
relates to the extra-territorial, not the intra-territorial, effect of
a decree of divorce. It is admitted that, within its own borders,
each State has sovereign control over all persons and property
there situated either permanently or temporarily, subject only
to such restrictions as may be placed upon its courts by its own
laws or constitution, or by the constitution and laws of the
United States.^ Subject to these restrictions, it is in its power
to declare, in any form of proceeding it sees fit, that a married
man resident there, or there temporarily, or even not there at
all, shall be there deemed no longer married, and that whether
the wife be within or without the State. This is purely a
^ So it is also with the status of adoption, and hence the principles govern-
ing the exterritorial effect of decrees of adoption and the jurisdiction of courts
to grant such decrees are very similar to those regulating decrees of divorce.
See Van Matre v. Sankey, 148 111. 356, 36 N. E. 628 ; Foster v. Waterman,
124 Mass. 592.
^ The provision of the federal constitution that no State shall deprive any
person of life, liberty, or property without due process of law does not apply
to the marriage relation.
§ 88 THE RES IN DIVORCE CAUSES. 193
matter of muBicipal law, with which private international law
has no concern. And the status being a reciprocal one, since,
in that State, the husband must be considered to be without a
wife, so in thai State the woman must be deemed to be without
a husband.
But it does not follow that either will be regarded as unmar-
ried in other States. If in any other State the edict is given
sufficient effect to destroy the status of the husband as a mar-
ried man, it must also be held in that State that the woman is
unmarried. If in another State the woman's status is regarded
as unaffected by the edict, so must the man's. In other words,
a decree of divorce must, in any State, be valid as to both con-
sorts, or void as to both. It cannot be valid as to one and void
as to the other, for that would be to affirm that there might be
a husband without a wife, or vice versa.
Hence, in considering the exterritorial effect of decrees of
divorce the question is whether the court granting the divorce
has such complete jurisdiction of the entire res (the status of
both parties), as to justify other States in admitting its sover
eign right to completely regulate or dissolve the marital union.
Beyond all doubt, a divorce court has absolute and complete
jurisdiction of the res if both parties are domiciled within its
territory. The situs of the status of each party is then the
State where the divorce is obtained, and there is no ground for
any other State to complain that its sovereign rights over its
own citizens have been violated. Generally full effect will be
given to foreign divorces under such circumstances.'
On the other hand, if neither husband nor wife is domiciled
in the State where the divorce is obtained, its courts are com-
pletely without jurisdiction of the res. Other States, especially
those wherein the husband and wife are respectively domiciled,
might and would justly complain that the State of the divorce
had usurped sovereignty that it should not have exercised.
Though admitting the validity of the divorce within the bor*
ders of the divorcing State, it would be given no exterritorial
effect by the courts of other States.*
' Post, § 89. * Post, § 90.
13
194 THE RES IN DIVORCE CAUSES. § 88
An intermediate case (and the most difficult) presents itself
in those instances where one of the parties is domiciled in the
State granting the divorce, while the other is domiciled else-
where. Here the divorce court has jurisdiction of part of the
res (the status of its citizen) hut has no jurisdiction of the
other part of the res (the status of the non-resident). The
whole res is the status of both parties^ and owing to the reci-
procity of the relation it cannot be severed, so as to give the
court complete jurisdiction of the part within its limits.
Except for the personal element involved in the dissolution of
the marriage status and the marital rights and obligations, the
case is analogous to a proceeding strictly in rem against a ship
or other chattel (which we may suppose to be indivisihle, like
the status of the two parties to the marital union). Let us sup-
pose the ship, at the time of the proceeding in rem, to be partly
in one State and partly in another. The court would have juris-
diction (theoretically) of so much of the ship as is within its
territory, but would have none over that part within the territory
of another State. But practically (the ship being supposed to
be inseparable, like the marriage status) the question would
have to be decided whether the court, by virtue of its jurisdic-
tion over part of the ship, might draw it all into its power, or
whether, since it has no jurisdiction (theoretically) over a part,
it should renounce jurisdiction over so much as is within its
control. It must do one or the other; it must exercise juris-
diction over the whole or over none.
Such for the most part is the situation in which a divorce
court finds itself in cases where only one of the parties is domi-
ciled in the State of the divorce. It is not difficult to imagine
that in general the court would resolve the problem in favor of
its own jurisdiction, holding that by virtue of its jurisdiction
over a part it might draw the whole res into its control. So
the court would probably argue in the case of the ship, and
accordingly would assume control of it in its entirety. But a
more serious question would then arise. What effect would be
given to this action of the court in respect to the ship in the
other State from which the ship has in part been drawn away?
Would that State regard its withdrawal from its own territory
§ 89 DIVORCE IN DOMICIL OF BOTH PARTIES. 195
as a proper and lawful exercise of power, or would it deem the
action of the court impertinent, in contravention of its own
sovereignty, and therefore void within its limits ? •
Precisely these questions have agitated the courts with respect
to the effect to be given foreign divorces, where one of the par-
ties (usually the defendant) is a non-resident of the State of
divorce. How they have been solved will be seen hereafter.'
§ 89. Exterritorial Ilffect of Divorce — Both Peu-ties Domi-
ciled in State of Divorce. — "VKIjere both consorts are domiciled
in the State where the divorgA is obtained, the court has com-
plete juri§dicti^«--©f--ihajz:fiV-ajidJim:e:S^i_i^^ of
judgments in rem, the decree will be binding everywhere, if
binding in the State of the domicil and divorce.-^
From the standpoint of private international law it is imma-.
terial whether or not the parties be actually present within the
jurisdiction at the time of the divorce, if only they are there
domiciled; ^ nor is it material how long the residence has con-
tinued, even though it be not long enough, under the municipal
law of the domicil, to give jurisdiction to its courts.'
Generally speaking, it is the laws and courts of the bona
fide present domicil of the parties that regulate the divorce,
not those of the country of residence (merely), nor of citizen-
5 See Plumraer v. Hatton, 51 Minn. 181, 53 N. W, 460. Bat in this case
the res was severable, consisting of a wagon in one State, while the tongue
was in another. See also Thurston v. Thurston, 68 Minn. 279, 59 N. W.
1017.
« Post, §§ 89-94.
1 Clark V. Clark, 8 Cush. (Mass.) 385 ; Barber v. Root, 10 Mass. 260 ;
Hood r. Hood, 11 Allen (Mass.), 196, 200, 87 Am. Dec. 709 ; Shaw v. Shaw,
98 Mass. 158 ; Burlen v. Shannon, 115 Mass. 438 ; Loker v. Gerald, 157
Mass. 42, 31 N. E. 709 ; Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227 ;
Maguire v. Maguire, 7 Dana (Ky.), 181, 185 ; McGill ». Deming, 44 Ohio St.
645, 11 N. E. 118, 122 ; Hunt v. Hunt, 72 N. Y. 217, 228, 28 Am. Rep. 129 ;
Cheely v. Clayton, 110 U. S. 701.
* Hunt V. Hunt, 72 N. Y. 217, 237, 28 Am. Rep. 129 ; Loker r. Gerald,
157 Mass. 42, 31 N. E. 709.
» Magowan v. Magowan, 57 N. J. Eq. 195, 39 Atl. 364 ; Hill v. Hill, 166
111. 54, 46 N. E. 751, 752 ; Thurston v. Thurston, 58 Minn. 279, 59 N. W.
1017. This is not a jurisdictional defect, but an error of law to be corrected
OB appeal.
196 FOREIGN DIVORCE IN DOMICIL OF BOTH. § 89
ship,* nor of the domicil at the time of the marriage or of
the offense, nor of the place of marriage, nor of the situs of the
offense hecause of which the divorce is sought.^
As between the States of this Union, the "full faith and
credit " clause of the federal constitution holds full sway in
divorce cases, as in other judgments or decrees. Such decrees,
when rendered by a court possessing competent jurisdiction of
the subject-matter and of the persons, unless void where ren-
dered, are conclusive in every other State of the matters they
decide. It is well settled that this provision does not prevent
an inquiry into the competency of the divorce court's jurisdiction
by reason of the non-residence of the parties, or by reason of
fraud in the procurement of the divorce,® at least where the
fraud relates io jurisdictional facts.''
There is some difference of opinion among the authorities as
to the effect to be given to the recital in the decree of divorce
that the parties are domiciled within its territory, when in fact
they are not.^ Some of the courts have held that such a recital
* Save as between the States of the Union, where domicil and citizenship
are synonymous terms.
6 Dicey, Confl. L. 269 ; Cheever v. Wilson, 9 Wall. 108, 124 ; Cheely v.
Clayton, 110 U. S.701, 705 ; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 647 ;
Ellis V. Ellis, 55 Minn. 401, 56 N. W. 1056, 1058 ; Van Fossen v. State, 37
Ohio St. 317, 41 Am. Rep. 507, 508 ; Cox v. Cox, 19 Ohio St. 502, 2 Am.
Rep. 415 ; Jones v. Jones, 67 Miss. 195, 6 So. 712 ; Shreck v. Shreck, 32
Tex, 578, 5 Am. Rep. 251, 252. But see Norris v. Norris, 64 N. H. 523,
15 Atl. 19.
« Cheever ». Wilson, 9 Wall. 108, 123 ; Pennoyer v. Neff, 95 U. S. 714,
734 ; Cummington v. Belchertown, 149 Mass. 223, 225 ; Gregory v. Gregory,
78 Me. 187, 57 Am. Rep. 792, 793 ; Reed v. Reed, 52 Mich. 117, 50 Am.
Rep. 247 ; Watkins v. Watkins, 125 Ind. 163, 25 N. E. 175 ; Morgan r.
Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154.
7 Hood V. Hood, 11 Allen (Mass.), 196, 200, 87 Am. Dec. 709 ; Hunt v.
Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; Vischer v. Vischer, 12 Barb. (N. Y.)
640, 644; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549, 555 ;
Magowan ». Magowan, 57 N. J. Eq. 195, 39 Atl. 364; People v. Dawell, 25
Mich. 247, 12 Am. Rep. 260 ; Thurston v. Thurston, 58 Minn. 279, 59 N. W.
1017, 1018. In the last case, the plaintiff deceived the divorce court touch-
ing the period of his residence there. It was held that this was not jurisdio-
tional and would not avoid the decree exterritorially.
• Cheever r. Wilson, 9 Wall. 108, 123 ; Magowan v. Magowan, 57 N. J. Eq.
195, 39 Atl. 364.
§ 90 FOREIGN DIVORCE — NEITHER DOMICILBD. 197
in the decree constitutes a finding of fact, and is as binding,
until reversed in the same jurisdiction, as any other finding of
fact.' But the correct view, both upon reason and authority,
is that such a recital is not conclusive, but only prima facie
evidence of the truth of the recital, susceptible of rebuttal in
other States by parol testimony to the contrary.^"
§ 90. Neither Party Domiciled in State of Divorce. — We
have already seen that the matrimonial union is a status of
such peculiar importance to the State that it cannot be dissolved
merely by the mutual consent of the parties, but the assent of
the State interested (the domicil) must generally be obtained
in order effectually to dissolve the relation. Though it is
within the sovereign capacity of a State to enact laws whereby
parties may obtain a divorce even when neither husband nor
wife is there domiciled, such a course is condemned by the
principles of comity and private international law.
If a divorce is thus given in a State where neither party is
domiciled, whether it be that the divorcing court has been de-
ceived as to the domicil of the parties, or whether its own mu-
nicipal law permits it to divorce non-residents, it is generally
conceded that the decree is of no force in other States or coun-
tries, least of all in the State of the parties' domicil, whose
sovereignty over the permanent status of its citizens has been
9 Magowan v. Magowan, 57 N. J. Eq. 195, 39 Atl. 364 ; Fairchild v. Fair-
child, 53 N. J. Eq. 678, 34 Atl. 10 ; Waldo v. Waldo, 52 Mich. 94, 17 N. W.
710. See Morey v. Moray, 27 Minn. 265, 6 N. W. 783.
10 Sewall V. Sewall, 122 Mass. 156 ; Cummington v. Belchertown, 149 Mass.
223, 225; Adams v. Adams, 154 Mass. 290, 294; HUl v. Hill, 166 111. 54,
46 N. E. 751, 752; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248, 250;
People V. Dawell, 25 Mich. 247, 12 Am. Rep. 260 ; Reed v. Reed, 52 Mich.
117, 50 Am. Rep. 247, 250; James' Estate, 99 Cal. 374, 33 Pac. 1122, 1123;
Magowan v. Magowan, 57 N. J. Eq. 195, 39 Atl. 364; Starbuck v. Murray,
5 Wend. (N. Y.) 148 ; HoflFman v. HoflFman, 46 N. Y. 30, 7 Am. Rep. 299;
Ferguson v. Crawford, 70 N. Y. 253 ; Cross v. Cross, 108 N. Y. 628 ; Gregory
V. Gregory, 78 Me. 187, 57 Am. Rep. 792, 793 ; Thompson v. Whitman, 18
Wall. 457 ; Pennoyer v. NefiF, 95 U. S. 714, 730. If the divorcing court has
tried the question of residence upon conflicting testimony and has decided in
favor of the jurisdiction, great caution should be exercised elsewhere in over-
throwing the jurisdiction it has assumed. See Waldo v, Waldo, 52 Mich. 94|
17 N. W. 710.
19» FOREIGN DIVORCE — NEITHER DOMICILED. § 90
outraged.^ In such cases^thp rliv^^rff^ rrurt has no iurisdiction
of the res. that^S^^the gfQ>ngjvf_t^TiP parf^pq (^h^ aifna nf whi^Ti ia at
their domicil). andjience even tjirm^ hnth ptirtinn nuhmijjjjrir
cause to the divorce court, it is without pow^r to nffp.r.t thft rpx^
save within the limits of its own territorj. Tho conspnt of tha
parties canaSHgtr*^ jurisdiuLiCTn^over their foreign status, for
that would he to infringe upon the sovereignty of the domicil
which is interested in the continuation of the relation.'
These general principles of private international law are now
so clearly recognized that the municipal laws of the various
States almost invariahly require that, in order to the granting
of a divorce, at least one of the parties (generally the plaintiff)
should be bona fide domiciled within the jurisdiction.' A tem-
1 Barber v. Root, 10 Mass. 260 ; Hanover v. Turner, 14 Mass. 227, 7 Am.
Dec. 203 ; Shannon v. Shannon, 4 Allen (Mass.), 134; Sewall v. Sewall, 122
Mass. 156; Maguire v. Maguire, 7 Dana (Ky.), 181; Harrison v. Harrison,
20 Ala. 629, 56 Am. Dec. 227; Jackson v. Jackson, 1 Johns. (N. Y.) 424 ;
Kerr v. Kerr, 41 N. Y. 272 ; Neflf v. Beauchamp, 74 la. 92, 36 N. W. 905 ;
Hood V. State, 56 Ind. 263, 26 Am. Rep, 21 ; Watkins v. Watkins, 125 Ind.
163, 25 N. E. 175 ; Smith v. Smith, 19 Neb. 706, 28 N. W. 296 ; Van Fos-
sen V. State, 37 Ohio St. 317, 41 Am. Rep. 507 ; People v. Dawell, 25 Mich.
247, 12 Am. Rep. 260, 266 ; Reed v. Reed, 52 Mich. 117, 50 Am. Rep. 247 ;
Morgan v. Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154 ; Gregory v. Gregory,
78 Me. 187, 57 Am. Rep. 792 ; Gettys v. Gettys, 3 Lea (Tenn.), 360, 31 Am.
Rep. 637 ; Litowich v. Litowich, 19 Kan. 451, 27 Am. Rep. 145.
2 Jackson v. Jackson, 1 Johns. (N. Y.) 424; Pawling r. Bird, 13 Johns.
(N. Y.) 192 ; Maguire v. Maguire, 7 Dana (Ky.), 181 ; Harrison v. Harrison,
20 Ala. 629, 56 Am. Dec. 227; Smith v. Smith, 13 Gray (Mass.), 209, 210;
People r. Dawell, 25 Mich. 247, 12 Am. Rep. 260, 268, 272-273. See Loud
V. Loud, 129 Mass. 14, 18 ; Chase v. Chase, 6 Gray (Mass.), 157, 161. Some
of the courts however hold the view that, although the court does not acquire
jurisdiction over the res, the voluntary submission by the parties to its de-
cision estops them (but not third parties nor the State of their domicil) from
afterwards denying the court's jurisdiction elsewhere. See Ellis v. Ellis, 55
Minn. 401, 56 N. W. 1056, 1059 ; Watkins v. Watkins, 135 Mass. 83, 86 ;
Loud V. Loud, 129 Mass. 14, 19 ; Hood v. Hood, 110 Mass. 463 ; Ellis i>.
White, 61 la. 644, 17 N. W. 28 ; Chapman v. Chapman, 48 Kan. 636, 29 Pac.
1071. And in New York, where the theory prevails that a divorce suit is a
proceeding in personam, not in rem, the fact that both parties submit them-
selves to the jurisdiction of an alien court, is regarded as sufficient to render
its decree binding in New York. See Kinnier v. Kinnier, 45 N. Y. 535.
* Williamson v. Parisien, 1 Johns. Ch. (N. Y.) 389 ; Hoffman v. Hoffman,
§90
FOREIGN DIVORCE — NEITHER DOMICILED.
199
porary residence acquired for the mere purpose of instituting
the suit, the intfint being to remove fromllie Stale M aoon as
the suit is terminated, will not generally snffirp "r^/jpr f^e riilea
of municipal law, and is never sufficient from the international
standpoTnt.* i3ut it the animus really exists to remain there
permanently, the fact that the motive of removal iStoprocure a
divorce is immaterial. "
For the purposes of municipal law, in the absence of statute,
and always for the purposes of private international law, the
period during which the party is domiciled is immaterial. He
acquires a domicil at the moment when actual residence is
coupled with the animus manendi, and from that moment his
status should be determined by the law of that country .*
It will be remembered that in general the wife's domicil fol-
lows that of the husband, but that for purposes of divorce an
innocent wife may acquire a domicil apart from her husband, if
she desires to do so and conforms to the conditions.'' But she
is not bound to do so. She is still at liberty to treat her hus-
band's domicil as her own, though she actually resides else-
where, and may sue for divorce in the State of his domicil,
though she has never actually resided there. Thus, where the
46 N. Y. 30 ; St. Sure v. Lindsfelt, 82 Wis. 346, 19 L. R. A. 515 ; McShane
V. McShane, 45 N. J. Eq. 341, 19 Atl. 465 ; Valk v. Valk, 18 R. I. 639, 29
Atl. 499 ; Neflf v. Beauchamp, 74 la. 92, 36 N. W. 905.
* Warrender v. Warreuder, 9 Bligh, 141, 142 ; Dolphin v. Robins, 7 H. L.
Cas. 390; Dorsey v. Dorsey, 7 Watts (Penn.), 349, 32 Am. Dec. 767; Gettys
V. Gettys, 3 Lea (Tenn.), 360, 31 Am. Rep. 637, 638 ; Neff v. Beauchamp, 74
la. 92, 36 N. W. 905 ; Knowlton v. Knowlton, 155 111. 158, 39 N. E. 595 ;
Dunham v. Dunham, 162 111. 589, 35 L. R. A. 70 ; Magowan v. Magowan,
57 N. J. Eq. 195, 39 Atl. 364.
5 Fosdick V. Fosdick, 15 R. I. 130, 23 Atl. 140 ; Albee v. Albee, 141 111.
550, 31 N. E. 153 ; Colburn v. Colbum, 70 Mich. 647, 38 N. W. 607 ; Hege-
man v. Fox, 31 Barb. (N. Y.) 475, 479.
6 Hill V. Hill, 166 111. 54, 46 N. E. 751 ; Magowan v. Magowan, 57 N. J.
Eq. 195, 39 Atl. 364 ; Kern v. Field, 68 Minn. 317, 71 N. W. 393, 394 ;
Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017; Watkins v. Watkius,
135 Mass. 83, 84. But the municipal laws of most States require a person to
have been domiciled there for a more or less extended period before he or she
can institute a suit for divorce.
f Ante, §§ 50, 51.
200 FOREIGN DIVORCE — ONE A NON-RESIDENT. § 91
husband deserts the wife and goes to another State to live,
whither she follows him, it would seem upon principle that she
need not remain there the statutory time in order to acquire
such residence as will enable her to sue for divorce.*
§ 91. Only one of the Parties domiciled in State of Divorce.
— We have seen in thB.-f»fgt;g(lin^ sep:ttott9~that^ if both the par-
ties are domiciled in the State ^f ^^q ^^-^nr^gjjthe decree, if
valid-^tEere, wijlbe binding evervwherftT whatever the character
of the proceedings may be, and upon whnt^Yftr n^tif M^-ff the de-
fendant. On the other hand, if neither party is domiciled in
the State of the divorce, the court is without jurisdiction of the
res, and in the absence of a reg, according t^ thr hpftfr npinionj
flip nmiri^ |>a.nTiAf proceed in personrim> by a dnrrpp whinh will be
recognized extcrritorially; though la fad the proceedings be
ever ao-juat q.n(^ fair, and though both tbp. parHfts are personally
before the court. Although the divorce proceeding~pz>gtake8 in
somgjTneaaure oi_arproceecting in personam, the personftlgtement
it is believed is not sufiScient to supersede the necessity for some
res upon which the decree may operate. On the other hand, if
the complete res is before the court (as where both parties are
domiciled in the divorcing State), the personal element sinks out
of sight altogether, and the proceeding becomes strictly in rem,.
We now come to consider the intermediate case where one
of the parties, and only one, is domiciled in the State of the
divorce. This case has caused the courts very great difficulty,
owing to the fact that the divorcing court has partial, but not
complete, jurisdiction of the res. It has control over the status
of its own domiciled citizen, but not over the status of the
citizen of another State. Yet, owing to the mutuality of the
relation between husband and wife, it can make no decree
affecting the status of one, without simultaneously and equally
affecting the status of the other. Under such circumstances,
one of two courses is open to the court. It may either draw to
itself (usurp, as it were) jurisdiction over the status of the non-
resident, by virtue of its jurisdiction over the status of the
8 Kershaw v. Kershaw, 3 Cal. 312; Watkinsw. Watkins, 135 Mass. 83, 87.
But see Valk v. Valk, 18 R. I. 639, 29 Atl. 499 ; Wood v. Wood, 54 Ark.
172, 15 S. W. 459.
§ 91 FOREIGN DIVORCE — ONE A NON-RESIDENT. 201
resident, or it may renounce jurisdiction over the status of
the resident because it has not jurisdiction of the status of the
non-resident.
The municipal law of each State, being primarily interestfid
in and devoted to its own citizens, will usually enjoin upon its
courts the first of these courses, as being most conducive to
their protection. Accordingly we find provision in the munici-
pal laws of every State directing how divorces may be obtained
by citizens against non-resident defendants. In such cases, the
laws of many Statfia^ looking tipoli the divoi^ puxelji -in its
aspect hi a proceeding^»_rfi22V-P*"iiii'' tlmir ■eetitta.io^grant the
divorce upon no further noticetothe non-rftaidftnt f}pifftTif}ftnfj_tjia.n
is afforded by an order oi pjihli ration; ^ Trhilo otibdiu (ujilijhi liiig
sight altogether of the personal element in the divorce proceed-
ing) resort to the juster method of requiring actual notice of~the
pendency of the suit to be mailed or otherwlstj biafel)! ti'aiis-
mitted ^fiJ}}?, ahgpTtf. f^pf^TwliiTit a — The uatuic of thio notice is
regulated by the municipal law of each State, and if that law
is complied with the divorce is valid within the limits of that
State?'
But when it is sought to give effect in other States to the
divorce so obtained, it becomes a more difficult question to de-
termine the consequence of the merely partial jurisdiction pos-
sessed by the divorce court over the res.
It would manifestly be impolitic, as well as unjust, to lay
1 Ditson V. Ditson, 4 R. I. 87; Kline v. Kline, 57 la. 386, 10 N. W. 825 ;
Cox V. Cox, 19 Ohio St. 502, 2 Am. Rep- 415 ; Anthony v. Rice, 110 Mo. 233,
19 S. W. 423 ; Butler v. Washington, 45 La. Ann. 279, 12 So. 356.
2 Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549 ; Loker v.
Gerald, 157 Mass. 42 ; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248; Cham-
pon V. Champon, 40 La. Ann. 28, 3 So. 397. In a proceeding in rem, in
which the personal element does not enter, as in a proceeding against prop-
erty, the two forms of notice above given are regarded as equivalent. See
Pennoyer v. NefF, 95 U. S. 714, 727. But in a proceeding quasiin rem, where
the personal element enters to a certain extent, it cannot be properly said that
an advertisement is equivalent to actual notice. See Doughty v. Doughty,
27 N. J. Eq. 315, 325.
8 Harding v. Alden, 9 Greenl. (Me. ) 140, 23 Am. Dec. 549 ; Smith n
Smith, 43 La. Ann. 1140, 10 So. 248.
202 FOREIGN DIVORCE — ONE A NON-RESIDENT. § 91
down the general principle that a plaintiff shall never obtain a
universally valid divorce in his own country, because the de-
fendant happens to be a non-resident. To so hold would force
the plaintiff to seek out the defendant and to ask for the divorce
in a State chosen by the latter, perhaps for the very reason that
its laws are hostile to the plaintiff's cause.
On the other hand, it must be remembered that a suit for a
divorce is not a proceeding strictly in rem, but merely quasi in
rem ; and that while the res in the former proceeding is property
whose situation and condition the owner, though non-resident,
must be assumed to be familiar with, in proceedings qxi^asi in
rem, the res is a personal status, an attack upon which in a dis-
tant State cannot be justly assumed to be known by the defend-
ant without an actual notification of some sort.
Many theories have from time to time been advanced by the
courts, some of which have been incidentally adverted to in
prior sections of this work,^ and all of which have now been
pretty generally discarded, except three leading ones. The first
of these is entirely favorable to the resident •plaintiff, sacrificing
to the sovereignty of his domiciliary law all the rights of the
defendant. The second is entirely favorable to the non-resident
defendant, sacrificing the rights of the plaintiff to the sover-
eignty of the defendant's domiciliary law. It forces the plain-
tiff for the most part to sue for his divorce in the courts of the
defendant's domicil, and requires him to subject himself to its
laws. This theory is supported by the courts of New York, and
may be designated "the New York doctrine." The third strikes
a happy mean between the first and second, and while giving to
the plaintiff all the rights conferred by his own law, permitting
him to sue in the courts of his domicil, yet requires that the
defendant should receive a more substantial notification of the
existence of the suit than is afforded merely by a published
advertisement in a newspaper of the plaintiff's domicil. This
may be designated " the New Jersey doctrine," and is believed
to be the soundest. The theories thus briefly outlined will now
be elaborated more fully.
* Ante, §§ 76, note 1, 78, notes 2, 3.
§ 92 FOREIGN DIVORCE — ONE A NON-RESIDENT. 203
§ 92. First Theory — Jurisdiction over one Party confers
Jurisdiction over the other also. — According to the first theory,
in order that the divorce court may have complete jurisdiction
of the res, so that its decree will receive recognition everywhere
as dissolving the relation of husband and wife, it is only essen-
tial that one of the parties should be domiciled there — it is
immaterial which, though it will usually be the plaintiff. The
courts of that party's domicil, having jurisdiction over his or
her status, will draw to themselves, by reason of the mutuality
of the marriage relation, jurisdiction of the status of the other
party also, thus acquiring jurisdiction of the status of both.
The case (under this theory) is practically identical with that
where both parties are domiciled within the limits of the State
of the divorce, and the proceeding, as in that case, is regarded
as one strictly in rem, the personal element of the proceeding
being disregarded altogether. H^iice (under this theory) only
such notice is reqni]-pd tp hp givftu thf* n^n-rpsidf'nt df^ff'ndanti
as is required by tb^ pinmVipcil l^w nf fhp Sf^,tp ^^f divorce in
order to give its courts jurisdiction — frequently nothing more
thaiiTan adverjifiPTrP"^ pnblinhf^d in n^mf^ i^lrnfurn ncw^ipfiiprr ^^
that_State.^
It will be observed that this doctrine upholds in full measure
the sovereignty of the plaintiff's domicil with respect to his
status, but in so doing it oftentimes permits grave (and very
unnecessary) injustice to be done to the defendant, who fre-
1 Ditson V. Ditson, 4 R. I. 87; Kline v. Kline, 57 la. 386, 10 N. W. 825,
826 ; Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017, 1018 ; Morey v.
Morey, 27 Minn. 265, 6 N. W. 783 ; Thompson v. Thompson, 91 Ala. 591,
8 So. 419; Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415, 416; Doerr v.
Forsythe, 50 Ohio St. 726, 35 N. E. 1055 ; Anthony v. Rice, 110 Mo. 233,
19 S. W. 423, 424 ; Hawkins v. Ragsdale, 80 Ky. 353, 44 Am. Rep. 483 ; Dun-
ham V. Dunham, 162 111. 589, 35 L. R. A. 70, 77, 78 ; Hilbish t;. Hattel, 145
Ind. 59, 33 L. R. A. 783 ; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779. In
other cases often cited to support this theory, it appears that there was an
actual notification of the suit transmitted to the non-resident defendant. Such
cases are in reality instances of the third theory, presently to be discussed.
See Van Orsdal v. Van Orsdal, 67 la. 35, 24 N. W. 579 ; Harding v. Alden,
9 Greenl. (Me.) 140, 23 Am. Dec. 549; Smith v. Smith, 43 La. Ann. 1140,
10 So. 248 ; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709.
204 FOREIGN DIVORCE — ONE A NON-RESIDENT. § 93
quently finds himself or herself divorced, without any previous
knowledge whatever that proceedings for that purpose were
pending. The l^ws and procedure of J;hf- plaintifF^a rlnminil
are devised to pr^tprtt thpi jtlninft'ff^ \ iiili ii il ij mil thnm of
the>.^alien defendant. This constitutes the weakngsgnf this
theory. Its tendency is to violate that general principle of
private international law that no man should he condemned
unheard. It is a different case from that of a proceeding
against 'property of the defendant. In that case a general
publication is deemed sufficient because it is practically certain
that the owner will be promptly notified of any blow aimed at
his property. But his status is a more intangible thing, and
more personal in its nature.'^
§ 93. Second Theory — Divorce a Proceeding in Personam.
— So impressed have the New York courts been by the personal
element in the suit for divorce, and the dangers threatening the
non-resident defendant under the first theory that they have
adopted as extreme (and unjust) a view in the other direction.
According to this second theory, the personal element above
mentioned preponderates, and causes a proceeding whose pur-
pose is to dissolve a status to be regarded in the light of a pro-
ceeding in personam rather than a proceeding in rem ; and the
same process is required to bring the defendant before the court
as is required if the design were to fasten upon him or her a
general pecuniary liability. The New York courts hold that no
foreign divorce obtained in a State where the plaintiff alone is
domiciled will be valid exterritorially, unless the defendant vol-
untarily/ appears or is personally served with process within the
territorial jurisdiction of the divorce court}
This theory gives undue weight to the personal element in-
2 See Doughty v. Doughty, 27 N. J. Eq. 315, 325.
1 Matter of Kimball, 155 N. Y. 62 ; Williams v. Williams, 130 N. Y. 193 ;
Cross w. Cross, 108 N.Y. 628 ; Jones v. Jones, 108 N.Y. 415 ; O'Dea v. G'Dea,
101 N. Y. 23 ; Collins v. Collins, 80 N. Y. 1 ; People v. Baker, 76 N. Y. 78,
32 Am. Rep. 274 ; HoflFman v. HoflFman, 46 N. Y. 30. The New York view
has been adopted by a few other courts. Harris v. Harris, 115 N. 0. 587, 20
S. E. 187 ; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 38.
See Elder v. Reel, 62 Penn. St. 308, 1 Am. Rep. 414.
§ 94 FOREIGN DIVORCE — ONE A NON-RESIDENT. 205
volved. It magnifies the rights of the defendant, and goes far
to ensure that no injustice will be done that party ; but it will
frequently be at the expense of the plaintiff and the sovereignty
of the plaintiff's domicil. It practically, in many cases, forces
a plaintiff who desires a divorce, at the very least to seek out
the defendant, and sue in the State selected by the latter, for the
very reason perhaps that its laws are more hostile to the plain-
tiff than his or her own; and, since the municipal laws of most
States require the plaintiff to be domiciled in the State where
he seeks a divorce, this theory would often compel him to aban-
don his own State altogether, and take up his permanent resi-
dence in the domicil of the defendant, or else forego his right
to a divorce entirely. It pays no heed to the sovereignty of the
plaintiff's domicil and its control over his status, which is just
as pronounced as that of the defendant's domicil over the status
of the latter. These are serious drawbacks to this theory — so
serious indeed that it is not surprising that most courts have
rejected it as unsound.^
§ 94. Third Theory — Divorce neither in Rem nor in Per-
sonam, but Quasi in Rem — Requires Best Notification prac-
ticable to Non-Resident Defendant. — The third theoiyi
adopted by the courts of New Jersey, is the beat Inpoint of
reason, p^-in^vplo^ ^y^^ imtira tn nil piilii , I llllllliiinn^ ii~il
dneathp affvaTii-p,gpf| ni KntTi \^(^ other theories, and minimizing
the disf^dvaT)tages of both. According to this theory, the per-
sonal element entering into a divorce suit is neither disregarded
to the extent of making the divorce a proceeding in rem, nor so
magnified as to make it a proceeding in personam. It is ac-
corded its proper weight, and the divorce is regarded as a pro-
ceeding quasi in rem, that is, it is suflBciently a proceeding in
rem, to permit a court having jurisdiction of even part of the
res to adjudicate upon it, without having to bring the person of
the defendant within its jurisdiction, either by voluntary ap-
pearance or by service of process within the territorial limits of
its authority; yet sufficiently in personam to require something
more than a mere advertisement of the pendency of the suit, if
more than that is practicable.
« See Dunham v. Dunham, 162 111. 589, 35 L. R. A. 70, 77-78.
206 FOREIGN DIVORCE — ONE A NON-RESIDENT. § 94
Full effect is thus given to the sovereignty of the plaintiff's
domicil and to his or her rights. The plaintiff is permitted to
get the full benefit of the divorce laws of his own State, and is
not required to go to the State of the defendant and subject
himself to its laws in order to obtain his divorce. The juris-
diction of the plaintiff's domicil over his status is recognized
everywhere. The only limitation (and it is surely a most
reasonable one) is that the non-resident detendalrtrshould be
actually notified of the pendency of the suit, where that is
practTcabie, by mail, message, 6Y actual seivlce of notice (not
by advertisement merely).
This~affords almost every protection to the defendant which
is obtained by the New York rule, and at the same time leaves
the plaintiff's rights and the sovereignty of the plaintiff's
domicil untrammeled, save by a regulation for the protection of
the absent defendant, which, while it can do the plaintiff no
injury, affords a protection against the prostitution of justice,
which it should be the lofty aim of every system of law to
prevent.
This theory does not absolutely demand in all cases, in order
to an exterritorial recognition of divorce, actual notice to be
given the defendant, but only that the best notice practicable
be given him or her. If his address is known, actual notice in
some form is necessary ; if unknown, only reasonable notice
and opportunity to be heard is required. Of course, therefore,
the voluntary appearance of the defendant will supersede the
necessity for specific notice.^
It will be remembered that when the decree directs that the
guilty party shall not marry again, the better opinion is that
such part of the decree is in personam^ not in rem, and hence
1 Doughty V. Doughty, 27 N. J. Eq. 315 ; Felt v. Felt, 57 N, J. Eq. 101,
40 Atl. 436 ; Magowan v. Magowan, 57 N. J. Eq. 195, 39 Atl. 364 ; Flower
i>. Flower, 42 N. J. Eq. 152, 7 Atl. 669. See Whart. Confl. L. §§ 236, 237 ;
Harding r. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec, 549 ; Smith v. Smith,
43 La. Ann. 1140, 10 So. 248 ; Loker v. Gerald, 157 Mass. 42 ; Burlen v.
Shannon, 115 Mass. 438 ; Van Orsclal v. Van Orsdal, 67 la. 35, 24 N. W,
679.
2 Ante, § 74.
§ 95 FOREIGN DIVORCE — COSTS AND ALIMONY. 207
the court is without jurisdiction to make such a decree against
a non-resident defendant, unless he or she has voluntarily ap-
peared, or (perhaps) has been personally served with process
within the territorial jurisdiction of the court. And even then,
such part of the decree, being in the nature of a penalty, will
be given no exterritorial effect.*
§ 95. Exterritorial Effect of Divorce, as respects Costs and
Alimony. — We have in the preceding sections considered the
principles regulating the exterritorial effect of a divorce upon
the status of the parties. We now come to examine its effect,
as respects the incidents of the divorce, as in the matter of the
costs of the suit, alimony, or the custody of minor children.
With_regard to so much of the decree as relates to the costs
of the suit and alimony to the wife it is to be observed that,
so far as the court undertakes to decree against the defendant
for a sum of money, the decree is a proceeding in personam.
It seeks io fasten up6Ti the defendant a general pecuniary Ita-
bilitv. Hence? as in the case of other pr^i'^^v^lingi i*? jprrtrmrmj
no exterritnrinil forftn will ho givrn thp f^nnrt^^sdep.ree in this
respect unless the defendant is within the_court'a juriadictioTij
ftitbftr hy vnniTit:a.ry appftaraTipp nr hy poi"inTini1 iPtvice of process
there. ^
!Kt)r, under the constitutional provision that no State shall
deprive any person of life, liberty, or property, without due
process of law, would it be within the bounds even of the mu-
nicipal law of any State of this Union to give its courts jurisdic-
tion to make such a personal decree against an absent defendant,
not served with personal process nor voluntarily appearing.*
But if a defendant is a non-resident, it is proper, even upon an
^ Cooper V. Reynolds, 10 Wall. 308 ; De La Montanya v. De La Montauya,
112 Cal. 101, 32 L. R. A. 82, 87; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac.
779 ; Dow v. Blake, 148 lU. 76, 35 N. E. 761, 764 ; Bullock v. Bullock, 51
N. J. Eq. 444, 27 Atl. 435 ; Stewart v. Stewart, 27 W. Va. 167 ; Kline v.
Kline, 57 la. 386, 10 N. W. 825, 826 ; Prosser i'. Warner, 47 Vt. 667, 19
Am. Rep, 132, 134. See Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017 ;
Blackinton v. Blackinton, 141 Mass. 432, 436 ; Barber v. Barber, 21 How.
582.
2 Cooley, Const. Lim. 400 et seq. ; Pennoyer v. NeflF, 95 U. S. 714. But
see Blackinton v. Blackinton, 141 Mass. 432, 436.
208 FOREIGN DECREE FOR CUSTODY OF INFANTS. § 96
order of publication, without personal service or appearance, to
provide for the seizure and appropriation of the defendant's
property within the State, to make good the costs or alimony
decreed; for to the extent of the property thus seized the decree
would cease to be in personam, and would become a decree in
rem. But any part of the personal liability imposed by the
decree in excess of the value of such property would still be in
personam only, and must conform to the requirements for such
proceedings, touching the notice to be given the defendant, or
else it will be void both exterritorially and intra-territorially.'
§ 96. Exterritorial Effect of Decree for Custody of Minor
Children. — This is one of the usual incidents of a divorce.
Being nothing less than a determination of the guardianship of
the children, it is a question of doitble status, relating no less
to the status of the children than to that of the respective
parents. The decree for the children's custody therefore is as
much a decree in rem as is the divorce itself, but with a more
extended res. The res in this case is not only the status of the
parents, but of the children also. But the children being in-
fants, their domicil is necessarily with one or the other of their
parents (usually with the father), and the legal situs of their
status is at their domicil.
As we shall see however in discussing the status of Guardian-
ship,* the jurisdiction to appoint guardians of infants is not
wholly confined to the courts of the ward's domicil. The courts
of a State where an infant has his actual situs or has property
will also sometimes assume a like jurisdiction, though due
weight should always be accorded the domiciliary appointment.
Until the divorce takes place, and it is established that the
father is unfit to have the custody of the infant children, their
domicil must be presumed to follow his. Hence, primarily and
theoretically the courts of the father's domicil alone should have
the power to decree the custody of the children to the mother,
so as to give the decree any exterritorial effect; for they alone
» Cooley, Const. Lim. 406 ; Pennoyer v. Neff, 95 U. S. 714 ; Thurston v.
Thurston, 58 Minn. 279, 59 N. W. 1017 ; Van Orsdal ». Van Orsdal, 67 la.
36, 24 N. W. 579 ; Wesner r. O'Brien, 56 Kan. 724, 32 L. R. A. 289.
1 Post, §§ 114 et seq.
§ 96 FOBEIGN DECREE FOR CUSTODY OF INFANTS. 209
have complete jurisdiction of the entire res, — of the status of
the father and children by reason of domicil, and of the status
of the mother (whether resident or not) by reason of the fact
that her status as wife and mother is inseparable from that of
her husband and children. Practically, however, the control of
the courts of the husband's domicil is complete and perfect only
when the actual, as well as the legal, situs of the infant chil-
dren is within its territory. If the children are actually else-
where, the court can exercise no real control over their custody,
and it may even be doubted whether any exterritorial effect
should be accorded such a decree.'
But in the nature of things the guardianship of an infant
must be of a more or less temporary character. It is not per-
manent and continuous like the status of marriage. It never
endures longer than the minority of the ward. And even within
that period circumstances may frequently arise which demand
that a new guardian should be appointed. The ward may alter
his domicil and thus come under a new law and a new set of tri-
bunals, which may disapprove of the guardian already appointed
or of the powers conferred upon him; or the ward may be actu-
ally situated in a State other than his domicil under circum-
stances demanding that his person or his property rights should
be safeguarded there also. Thus the status of wardship is one
which is liable to shift and change with circumstances. In this
respect it differs from the marriage status or the status result-
ing from the dissolution thereof. Once validly established the
latter is permanent until dissolved by death or divorce, and once
validly dissolved, the dissolution is as permanent as the original
status, no matter into what country the parties may thereafter
come. As just shown, this is not true of the status of guardian-
ship. It is a local and temporary, not a universal and perma-
nent, status. Hence a change of domicil on the part of the
3 See Cooley, Const. Lira. 404 ; Kline v. Kline, 57 la. 386, 10 N. W. 825,
826 ; De La Montanya v. De La Montanya, 112 Cal. 101, 32 L. R. A. 82, 87 ;
Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779. See Pawling v. Bird, 13
Johns. (N. Y.) 192, 209. Indeed these authorities seem to indicate that it is
the actual, rather than the legal, situs of the children that confers jurisdic-
tion to decree concerning their custody.
14
210 FOREIGN DECREE FOR CUSTODY OP INFANTS. § 96
children, or the mere presence of the children in another juris-
diction under different circumstances, may cause the courts of
those States to assume jurisdiction to decree their custody to
another guardian of their own appointment. This does not
necessarily imply a denial of full exterritorial effect to the
first decree, for, the status being temporary only, the courts of
that very State might subsequently change the guardian.*
* See post, §§ 114 et seq.
§ 97 LEGITIMACY AND ADOPTION, DOUBLE STATUS. 211
CHAPTER VIII.
STATUS OF LEGITIMACY AND ADOPTION.
§ 97. Legitimacy and Adoption Instances of Double Status.
— We have seen that in the case of marriage, the status created
is of a double or correlative character. The status of husband
cannot exist without the status of wife also. So it is with a
parent and an infant child. It so happens however that in
these cases the duality of the status is generally immaterial,
so long as the relation continues. No conflicts of the ' ' proper
law " will usually occur, because the domicil of the wife and of
dhe infant child are in most cases identical with the domicil of
the husband and parent, and hence the same law will in general
govern the status of both.
No questions of the conflict of laws will be ordinarily likely
to arise in regard to the relation of parent and child, both for
the reason above given and for the further reason that the laws
governing that relation are pretty much the same the world over.
Occasionally, however, cases arise in which this simple relation
must be subjected to the principles of private international
law.^
Nor with respect to the marital relation and its incidents will
the duality of the status of husband and wife in general play a
prominent part, so long as the marriage remains intact, for the
reason above given. It is only when the matrimonial union is
sought to be dissolved by divorce, when the interests of husband
and wife become antagonistic, that they acquire separate dom-
icils, and the situs of their respective status become distinct.
Then the duality of the status becomes embarrassing, as has
been shown in the last chapter.
^ Inatances of this kind have been already discussed. See ante, §§ 83, 96.
212 LEGITIMACY AND ADOPTION, DOUBLE STATUS. § 97
There are still other instances of double status, two of which
at least deserve special attention. These are the status of legiti-
macy and of adoption. Whether one is the legitimate child of
a person involves necessarily the status of the parent as well as
that of the child. So it is also in the case of a legally adopted
child. In these cases, it is not only the status of the child
which is to be determined, but incidentally and necessarily that
of the parent also. These instances of double status differ from
the relation of husband and wife and from that of parent and
child, in the important point that it is not necessarily the case,
in legitimacy and adoption, that the domicil of the child and
parent should be identical. This fact complicates the situation
greatly. In such cases therefore, granting the general principle
that the law of the legal situs or domicil of the parties governs
their status, the question may still arise, the law of whose dom-
icil ? Shall it be the law of the domicil of the parents or one
of them, or the law of the child's domicil ? The status of all
is in doubt. In investigating these questions, one or two gen-
eral principles must be constantly borne in mind.
Both leigitimacy and adoption are instances of permanent and
universal stattis (as opposed tothat which is mereFp?gm7?orary
and local, as in the case of guardian ghipj ci^r- J It would be in
the highest degree inconvenient if a status of this sort, once
established, were liable to fluctuation and change with time,
place, or circumstance.'' Hence, when these relations are once
established by "the proper law," they remain in general fixed
and unchangeable, into whatsoever countries the parties may
wander, or wheresoever the question may arise, subject only
(in rare cases) to the exceptions enumerated in the second
chapter.*
It is a corollary of this principle that it is the proper law
at the time of the act or circumstance upon which is based the
claim of legitimacy or adoption, that is to determine the status.
For since the claim is based on the act or circumstance in que&-
* See Miller v. Miller, 91 N. Y. 315, 319, 43 Am. Rep. 669.
» Smith V. Kelly, 23 Miss. 167, 55 Am. Dec. 87; Miller v. Miller, 91 N. Y.
315, 319, 43 Am. Rep. 669 ; Ross v. Ross, 129 Mass. 243, 37 Am. Rep, 321 ;
A^ams r. Adams, 154 Mass. 290, 293, 28 N. £. 260.
§ 98 LEGITIMACY — CHILD BORN IN WEDLOCK. 213
tion, and since, if such act or circumstance does by the proper
law create the status, that status will be permanent and un-
changeable, it must follow that the law at that time properly
applicable must determine finally the effect of the act or circum-
stance upon the status of the persons concerned.*
The question still remains, what is the ^^ proper law" in
these cases ? Is it the lex domicilii of the parents, of the child
(supposing his domicil to be different from that of his parents
or of either of them), or of both ? If it is urged that the status
of the parent is affected, and that the law of his domicil should
govern, it might be replied that the child's status is as much, if
not more, affected, and that therefore the law of his domicil should
control. Very complicated questions sometimes arise in these
cases.
§ 98. Legitimacy — Child Born in Wedlock. — Legitimacy
may exist from birth, or it may arise subsequently from a super-
venient cause. With respect to the legitimacy of a child born
in lawful wedlock, of course no question will arise, since every
system of law that recognizes marriage regards such a child as
legitimate. Indeed one of the principal designs of the estate of
matrimony is to secure certainty of parentage and the legitimacy
of children.
The only question apt to occur here is with regard to the
validity of the marriage, and the effect of its invalidity upon
the legitimacy of the issue.*
At common law, if the marriage is void per se or declared void
by a competftnf; ^n^iyf^ thn i^guc is baotardiaetL -But m many
States, statutes have been passed abating the rigor of ^^f^ r>r>rp-
mon law in this respect, and declaring the issue of such mar-
riages legitimate. It is important tu aauti'ljaiB what offoct luch
statutes wfil have upon the status of the children of void or void-
able marriages, when the question arises in a foreign State.
* See Smith v. Kelly, 23 Miss. 167, 55 Am. Dec. 87.
1 The proper law governing the validity of marriage has been already dealt
with, both with respect to the capacity to marry (ante, §§ 73 et seq.), and
with regard to the formal and substantial validity of the marriage contract.
Ante, §§ 77, 78. See Greenhow v. James, 80 Va. 636 ; Adams v. Adams, 154
Mass. 290, 292, 28 N. E. 260.
214 LEGITIMACY — CHILD BORN IN WEDLOCK. § 98
The g&nftral riilft )>fting that the law of the domicil regulates
the status, if the father, mother, and child are all domiciled at
the time of the child's hirth in the same State^ the law of that
State wH-iiT thfi stat.^is. Tf ig ihp. law nf flip donijfi^"^^ ^^^ tim©
of the child's hiirth which controls, for the claim of Ms legitimacy
is haggj^iipnn thft riirr^nmatnnrf^ of l^i° hirth in onprllru^^\^r,n^
unlawful).
A much more difficult question might arise, if the mother's
domicil ^s different from that of the father at the~Rmg of the
child's hirth, should there be a conflict in tiie - laws]^^~the two
domicils upon this point.' The first question would be as to the
child's domicil in such case. Will it follow the~3oHrrcil of the
father or that ■rvf^hgjri^thpr '-^ 'Vo hr'ld that it takes \he father' f^
domicil^^ould be^ to n^^nmn thnt it '^<^ ft If [iritiTnatR_chi1fi, the
very point in dispute. It would seem that the child's domicil
must be h'^IH t'^ t""""wJibHit "^^ t^f^ motfi^r, M^^t^! itJsjT^?^T7tpf| by
the proper law to be legitimate.
The next question is, what is the proper law to determine
whether the child be legitimate ? The child is legally domi-
ciled with its mother, and the State of their domicil will control
their status, while the status of the father, as being a legal or
only a putative father, must be regulated by the law of his dom-
icil. !No law of one State affecting the status of those domiciled
there can run into another State and affect the status of the lat-
ter's citizens. The embarrassment of the situation is easily rec-
ognized. There are no authorities to guide us upon the point,
and any conclusions drawn must be largely speculative.
The true solution would seem to depend upon the locality of
the forum and the nature of the particular question involved.
If the case arises in the father's domicil, the courts of his domi-
cil will probably follow their own law in passing upon the status,
especially if it is the relation the child bears to the father which
is in controversy. If the mother's domicil is the forum, its
courts also will probably follow the domestic law, especially if
2 If a marriage is void per se, or avoided ab initio by a competeut court, it
might well Iiappen that the woman's domicil at the date of the child's birth is
distinct from the man's, if they actually reside in different States. See ante,
§63,
§ 99 SUBSEQUENT LEGITIMATION. 215
the child's relation to the mother is in issue. Should the ques-
tion come up in the courts of a third State where none of the
parties are domiciled, it is probable, upon principles mentioned
in the succeeding sections, that the courts, out of tenderness to
the child, will recognize his legitimacy, adopting the law of the
father's domicil or that of the mother and child, according as
one or the other advances this benevolent purpose.'
§ 99. Subsequent Legitimation — Intermarriage of Parents
of Infant Bastard. — The laws "of different States vary touch-
ing the subsequent legitimation of bastards. At common_law
no sitjpewi^nient act could legitimate one not born in wedlock.
But the cjjlL-oi' Eoman law pormittod ii7"an^ now injjmist of
f>io^gfSf^ ^f fTiiq TTninn t\nn\\ lofirjf imntinyi Ja^allrtwpH by Statute.
Even amongst those States which permit it, howevci, difftJreuces-
exist with respect to the mode of accomplishing it. By the
municipal law of some States a subsequent intermarriage of the
parents standing alone will effect this result ; in other States,
the father's acknowledgment alone suffices ; and in others there
must be both an intermarriage and an acknowledgment by the
father.
In all cases where the intermarriage of the parents precedes
or accompanies the alleged legitimation of an infant bastard,
there is no difficulty in ascertaining the domicil of the parties.
For as soon as the father marries the mother, his domicil be-
comes hers also, and the domicil of the infant bastard changes
with hers and also becomes that of the husband.^ Whether the
intermarriage alone or the intermarriage followed by acknowl-
edgment is necessary to legitimate the issue, the result is the
same ; all the domicils coincide and are identical with that of
the father. We Kn,vn ;t.lTi-.Ti-1y aAori \-\\^\. ^<the proper law" to
determine legitimation is the law of the domicil of the parties at
the time^ot tne actupon which ifl h^nflfl thn niaim ot legitimacy.'
In this case this act is the intermarriage of the parents (or the
' For the principles applicable to cases of this sort the reader is referred to
the discussion, post, § 100.
^ See ante, § 42. If the bastard is an adult, his domicil is of coarse iiiuif'
fected by the intermarriage of his parents.
« Ante, § 97.
216 SUBSEQUENT LEGITIMATION. § 99
intermarriage followed by the father's acknowledgment), and
this intermarriage gives all the parties the same domicil, — that
of the father.
It must necessarily follow, therefore, that the lex domicilii of
the father at that time is '*the proper law" to determine the
child's status, as bastard or legitimated, in all cases where an
intermarriage of the parents precedes or forms a component part
of the steps required for legitimation. If by that law he is
thereby rendered legitimate, he will be regarded as legitimated
everywhere, even in States whose laws do not recognize subse-
quent legitimation. If by that law he is not rendered legitimate,
neither will he be so regarded anywhere, even where such legiti-
mation is recognized, and though by the law of the infant's (and
mother's) domicil before the marriage the acts done would suffice
to legitimate him.'
The English courts seem to have adopted a principle with
regard to this matter, for which it is difficult to assign any
sufficient reason. They hold that it is the law of the father's
domicil at the time of the birth of the child which should
determine the effect of a subsequent marriage of the parents,
not the law of the father's domicil at the time of the act upon
which is based the claim of legitimation.* The English
» See Whart. Confl. L. § 241 ; Sheddon v. Patrick, 5 Paton, 194 ; s. c.
1 Macq. 535, 622 ; Strathmore Peerage, 4 Wils. & Shaw, Appendix, 89-91, 93,
94 ; 8. c. 6 Paton, 645 ; Monro v. Saunders, 6 Bligh, N. R 468 ; Birtwhistle
V. Vardill, 2 CI. & F. 571, 587, 592, 595, 600; Munro v. Monro, 7 CI. & F. 842,
885 ; Dalhousie v. M'Dooall, 7 CI. & F. 817 ; Aikman v. Aikman, 3 Macq. 854;
Don's Estate, 4 Drewry, 194 ; In re Grove, 40 Ch. Div. 216 ; Shaw v. Gould,
L. R. 3 H. L. 55, 70 ; Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669 ;
Smith V. Kelly, 23 Miss. 167, 55 Am. Dec. 87 ; Ross v. Ross, 129 Mass. 243,
249, 37 Am. Rep. 321 ; Loring v. Thorndike, 5 Allen (Mass.), 257 ; Smith v.
Derr, 34 Penn. St. 126, 75 Am. Dec. 641; Wolf's Appeal (Penn.), 13 Atl.
760 ; Woodward r. Woodward, 87 Tenn. 644, 11 S. W. 892, 895. See Blythe
V. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40.
♦ Dicey, Confl. L. 497 et seq. ; Jac. Dom. § 30 ; Udny v. Udny, L. R.
1 Sc. App. 441, 447 ; Wright's Trosts, 2 K. & J. 595 ; Goodman's Trusts,
L. R. 17 Ch. D. 266 ; Goodman v. Goodman, 3 Giflf. 643. See also Miller r.
Miller, 91 N. Y. 315, 43 Am. Rep. 669. But some of the English decisions
faTor the law of the father's domicil at the time of the marriage. See
Aikman v. Aikman, 3 Macq. (H. L.) 854 ; Munro v. Munro, 7 CI. & F. 842 ;
Dalhousie v. M'Douall. 7 CI. & F. 817 ; Whart. Confl. L. § 241.
§ 99 SUBSEQUENT LEGITIMATION. 217
decisions seem to rest upon the theory that the subsequent
marriage, in order to legitimate a bastard, must by relation be
considered as taking effect at the time of the child's birth, so
that he may be held to have been born in wedlock.' This is a
very unnecessary fiction, contrary both to truth and reason.
Two prominent causes may be assigned for the rule of law pro-
hibiting bastards to assume the status of legitimate children.
One is the encouragement which would otherwise be given to
illicit amours. The other is the practical difficulty of ascer-
taining with certainty who is the father of the child. Both of
these objections are in large measure removed or remedied by
a subsequent intermarriage of the parents, and it is surely
needless to go further back than the ipse dixit of the law itself
in order to pronounce the issue legitimate. The fiction that
the law in such cases '♦ assumes that what is equivalent to mar-
riage took place before the birth or conception of the child " •
is not only unnecessary, but, if it came from a less distin-
guished source, might be characterized as fantastic.
The true rule, if the legitimation is based upon the inter-
marriage of the parents as the final act necessary to complete it,
is that the law of the father's domicil at the time of the mar'
riage (which will also be that of the mother and child) should
determine the status of both father and child. But if the
marriage of the parents does not of itself complete the legiti-
mation, there being still requisite after the marriage some
other act, such as the father's acknowledgment of the child,
the law of the father's (and minor's) domicil at the time of the
last act essential to complete the legitimation should control.^
It should be observed also that since the status of legitima-
tion, once created or denied under the proper law at the time of
the act by virtue of which it is alleged to have arisen, is z. per-
manent and universal status, a subsequent removal of the par*
« See Munro v. Munro, 7 CI. & F. 842, 872.
• See Lord Chancellor Cottenham's opinion in Munro v. Munro, 7 CI. &
F. 842, 872.
^ See Ross v. Ross, 129 Mass. 243, 256, 37 Am. Rep. 321 ; Aikman n
Aikman, 3 Macq. (H. L.) 854 ; Munro v. Munro, 7 CI. & F, (H. L.) 848f
Dalhousie v. M'Douall, 7 CI. & F. 817 ; Whart. Confl. L. § 241.
218 SUBSEQUENT LEGITIMATION. § 100
ties' domicil to another State, by whose law the act in question
(if performed there) would have caused a different result, will
not alter the status. There must be some new act done in the
latter State under its law to legitimate a child not legitimated
by the former act. And if the child be legitimated under the
law of the first State, its status becomes a beneficial one which
no subsequent act of the father under any law should be per-
mitted to destroy.*
§ 100. Bastard an Adiilt vrhen Parents Marry — No Inter-
marriage of Parents. — In the preceding section we have sup-
posed the case of an intermarriage of the parents while the
bastard is an infant. If the bastard is an adult at the time of
his parents' marriage, or if no marriage occurs, a different
state of facts is presented from those appearing in the former
case. In the former case, the infant bastard's domicil becomes
by virtue of the marriage that of the father, and hence the
status of both will be governed by the same law.
But if the bastard is an adult at the time of the marriage,
or if there be no marriage between the parents (the act re-
lied upon to establish the legitimation being some act other
than the parents' marriage, such as a mere acknowledgment
by the father, or an act of the legislature), the circumstances
may be different. In such case the domicil of the bastard is
not necessarily identical with that of his father at the time of
the legitimating act, and their status may thus be subject to
different laws. Under such circumstances, shall the law of the
father's domicil govern the status of both? If so, the status
of the bastard will be permanently fixed by the law of a State
of which he is not a citizen, and which has no claim of jurisdic-
tion over him. Shall the law of the bastard's domicil govern ?
If so, the father's status will equally be fixed by a law which
has properly no control over him. It is a more difficult task to
ascertain the proper law in a case of this sort than in one like
that mentioned in the preceding section.
Two points should be noticed in this connection, which will
aid US- to determine the proper law in this case. The first ia
• Smith V. Kelly, 23 Miss. 167, 55 Am. Dec. 87.
§ 100 SUBSEQUENT LEGITIMATION. 219
that the legitimation of a bastard is the creation of a status
which is beneficial to him, and it should be presumed in his
favor whenever adequate reason exists for such a course. The
second is that this beneficial status cannot be accorded the in-
fant at the expense of a change of status on the part of the
father not warranted by his domiciliary law.^
Ajjl^lying these two principleSt-lt-follaffi&JhaLjhe law of the
father' s-domicil at the time of tbft iRjjitimating ant will bo tTTo
proper law to detfirF'T"*^ ^"br' 'nfntnn ni hn^h parties. If by that
law the act in question legitimates the bastard, the beneficial
status thus created will in general be recognized everywhere,
including the bastard's domicil, though by the law of the lat-
ter State the act would not suffice to create a legitimation.* On
the other hand, if by the law of the father's domicil legitima-
tion is not the result of the act claimed to have that effect,
though under the bastard's domiciliary law legitimation would
result therefrom, the status of legitimation should not be con-
ferred upon the bastard, for that would be to subject the status
of the father to a law to which it is not properly subject.
These principles are as yet but scantily exemplified by de-
cided cases, most of the decisions being instances of legitima-
tion by intermarriage, where the bastard was an infant. Such
as have arisen, however, have been decided in accordance with
the foregoing views.
In Scott V. Key,' a father and his illegitimate son were both
domiciled in Arkansas. The legislature of that State passed an
act legitimating the child, and it was held in Louisiana that
this legitimation should be recognized there to the same extent
as in Arkansas. The legitimated bastard was permitted to in-
1 Except perhaps that the courts of the bastard's domicil, when the ques-
tion arises there, might enforce the lex fori and legitimate him, especially
should the father do the act (upon which is based the claim of legitimation)
in the State of the bastard's domicil, thereby voluntarily submitting himself
to the operation of its law.
' Under exceptional circumstances, if the question should arise in tha
ba.stard's domicil, and the interests of the forum or of its citizens demand it,
the lex fori might still be substituted for "the proper law."
« 11 La. Ann. 232.
220 SUBSEQUENT LEGITIMATION. § 100
herit the father's land in Louisiana to the exclusion of the
father's brothers and sisters.
In Lingen w. Lingen,* the domicil of the father was not the
same as that of the bastard. The case arose in the father's
domicil (Alabama). The child's mother was a Frenchwoman, and
the child was born in France, where the father acknowledged
him to be his son, but did not marry the woman. By the law
of France, the mere acknowledgment by the father sufficed to
render the child legitimate. It was otherwise in Alabama.
Upon the death of the father, the bastard claimed a share of
his estate as his legitimate child. But the court held that his
legitimation was to be governed by the law of the father's, not
the hastard^s, domicil.
Just the opposite case arose in the recent case of Blythe v.
Ayres.^ Here too the question arose in the father's domicil
(California) upon a claim by his bastard daughter, domiciled in
England, to a share of his property in California. Her father
had acknowledged her to be his daughter, which under the law
of California sufficed to legitimate her. By the law of her own
domicil (England), no subsequent act could have legitimated
her. It was held that the daughter's status was to be deter-
mined by the law of California, her father's domicil, that she
was legitimated, and entitled to inherit her father's estate. In
this case, the status was purely a beneficial one so far as the
daughter was concerned, and even if the case had come before
the English courts instead of those of California, it is believed
the result would have been the same. But if the question had
been, not as to the right of the daughter to inherit from the
father, but the right of the father (domiciled in California) to
inherit the property of the daughter (domiciled in England),
and the case had arisen in England, the English courts might
well refuse to enforce the law of the father's domicil, when to
do so would no longer benefit the bastard and might deprive her
English relatives of the inheritance. This might be a case for
the operation of one of the exceptions to the enforcement of the
proper law, and for the substitution of the lex fori.
« 45 Ala. 410.
6 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40.
§ 101 ADOPTION. 221
If, however, the bastard's domicil is in fact the same as the
father's at the time of the legitimating act, there is no doubt
that the child, though an adult, becomes legitimated.*
§ 101. Legal Status of Adoption. — Thestatus of ad<;>jtir>n,
like that of subsequent-logitimation io unknown to tho-camnion
law.JhouE^h familiar in the jurisprudence of the Roman law,
from which it has been introduced by statute into maTiyio#-4he
States of the Union. Like subsequent legitimation also, adop-
tion presents the peculiarity of a plural status. Indeed this
may be more pronounced in the case of adoption than in that of
legitimation, since the relations of more persons are involved
therein. This plurality of the status may cause very serious
embarrassment in the solution of some of the questions which
present themselves under this head.
The result of adoption under the statutes is usually that the
adopted child ceases in law to be the child of its natural parents,
so far as their rights and obligations are concerned, and becomes
the child of the adopting parents to all intents and purposes,
with the rights and obligations incident thereto. The statutes
usually provide that the adoption shall originate in a judicial
proceeding instituted in the court of the child's residence, upon
petition filed by the party desiring to adopt it, and that the
natural parent or the guardian shall be a party to the proceeding.^
Thus it will be seen that adoption involves an alteration,
not only in the status of the person adopted and in that of the
adopting parent or parents, but in that of the natural parents
also. Here are, or may be, three sets of domicils, whose laws
may each claim some share in regulating the status of the
parties concerned. But practically these will generally be re-
duced to two, since the person adopted is usually an infant, and
hence will have the domicil of its parents.*
e Ives V. McNicoll, 59 Ohio St. 402, 43 L. R. A. 772; Scott v. Key, 11
La. Ann. 232.
1 For examples of such statutes, see Van Matre v. Sankey, 148 III. 356, 36
N. E. 628 ; Foster v. Waterman, 124 Mass. 592 ; Furgeson v. Jones, 17 Or.
204, 11 Am. St. Rep. 808.
* At the same time it is conceivable that he may be an adult, with a domi-
cil of his own apart from his parents. But in such case the domicil of the
222 ADOPTION. § 101
If the adopting parents, the natural parents (if any), and the
child are all domiciled in the State where the adoption pro-
ceedings take place, and the status is there validly created, no
doubt will arise. The status is a permanent and universal one,
and once created will continue and will be recognized as exist-
ing everywhere, until dissolved according to the law of the
parties' domicil, or so long as the recognition of the relation
does not work an injustice to the residents of the State where
the question arises (forum) or contravene its established policy.'
If thr drmrriril nf thr, Hidnp^'Tig p^r^nf is not identical with
that of the adopted child, it is believed that the law of the
child' s domicil will determine the status, if the adoption takes
place there (as it usually will), while if the adoption ahmilrl
occur in the domicil of the adopting poronf| tho low nt-^Jiis
do7rtieU-Jiu\l govern. The case is analogous to that of divorce.
In both, a decree of court is required, and, upon principles
already noticed in discussing the exterritorial force of a decree
of divorce, a court has no jurisdiction over a matter of status
unless one of the parties at least is domiciled in its territory.
It can give no decree, which will have exterritorial effect,
touching the status of non-residents. But it is not necessary
that both parties should be domiciled there.*
natural parents will only be of importance when some question of their
status, rights, or duties arises. No cases of the kind have as yet been passed
upon. All the decided cases relate entirely to the status as it exists between
the child and the adopting parent. See Furgeson v. Jones, 17 Or. 204, 11 Am.
St. Rep. 808.
« Ross V. Ross, 129 Mass. 243, 37 Am. Rep. 321 ; Melvin v. Martin, 18 E. I.
650, 30 Atl. 467 ; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A.
207; Van Matre v. Saukey, 148 111. 356, 36 N. E. 628, 23 L. R. A. 665; Kee-
gan V. Geraghty, 101 111. 26. See Woodward v. Woodward, 87 Tenn. 644,
11 S. W. 892. In most if not all these cases there were statutes in the State of
the forum permitting adoption, differing only in detail from the statutes under
which the adoption actually occurred.
* Ante §§ 88 et seq. In Van Matre v. Sankey, 148 111. 356, 36 N. E.
628, 23 L. R. A. 665, the adopting parent was domiciled in California, the
adopted child in Pennsylvania, and the adoption took place under decree of
a Pennsylvania court, in accordance with Pennsylvania law. The Illinois
court did not even inquire into the law of California (the adopter's domicil)
upon the subject of adoption, but looked only to the law of Pennsylvania.
§ 101 ADOPTION. 22a
The proper law to determine whether a particular person is
the legitimated or adopted child of another being ascertained in
accordance with the principles discussed in this and the preced-
ing sections, it still becomes necessary to consider the effect of
the legitimation or adoption in other States. In general the
status thus created under the proper law will be recognized
everywhere, unless the policy of the forum or the interests of its
inhabitants forbid its enforcement and demand the substitution
of the lex fori. Instances of this have been already seen. Thus,
the domicil of a legitimated or adopted infant at once com-
mences to follow the domicil of the father or adopting parent, as
though the child were born to the parent in wedlock.^ We
have also seen that in general he will inherit the parent's prop-
erty, whether personal or real, regardless of the law of its situs
touching adoption.'
In Foster v. Watennan, 124 Mass. 592, the Massachusetts court held that an
adopting parent there domiciled could not adopt a child domiciled in New
Hampshire under the decree of court and the statutes of the latter State, so as
to be effective in Massachusetts. But this case turns itither upon the con-
Btruction of the New Hampshire statute, which was held to be applicable
only where the adopting parent as well as the adopted child were domiciled in
New Hampshire. See Furgeson v. Jones, 17 Or. 204, 11 Am. St. Rep. 808.
6 Ante, §§ 43, 44. • Ante, § 12.
224 DUAL NATURE OF FIDUCIARY STATUS. S 102
CHAPTER IX.
STATUS OF FIDUCIARIES.
§ 102. Dual Nature of Fiduciary Status. — Under the head
of ** Fiduciary Status " will be grouped the principles regulat-
ing the law properly applicable to fiduciaries, not only with
respect to their appointment and qualification, but with regard
also to their title to property, their rights, powers, and liabili-
ties, as between them and the beneficiaries on the one hand,
and as between them and third persons on the other.
It must be carefully observed that every fiduciary occupies
two relations : one towards the beneficial owner of the trust es-
tate, and quite a different one towards third persons interested
in the administration of the trust fund, — for example, creditors.
Thus an executor, administrator, guardian, or trustee is ap-
pointed not only for the benefit of his legatee, distributee, ward,
or cestui que trust, but also in order to manage and control the
property committed to him, to collect and pay debts, to prose-
cute and defend suits, n sell and invest property, etc. Third
persons, as well as the bei. ficiaries., may be interested in the
trust. And these creditors, debtors, or other third persons
may be citizens of other States than that wherein the fiduciary
and beneficiaries reside.
It might work a serious injury to the citizens of the forum
if a foreign fiduciary were allowed to administer upon property
there situated except in accordance with its own laws (lex fori
et situs). The fact that the fiduciary is a resident of, and ap-
pointed in, another State, and that the beneficiaries also reside
abroad, is immaterial. No State can be expected to permit prop-
erty within its borders to be taken away, sold, or dealt with in
any manner by a fiduciary, a mere quasi-legal official appointed
in another State and subject to other laws, when to do so might
jeopardize the interests of some of her own citizens who might
§ 103 DUAL NATURE OF FIDUCIARY STATUS. 225
justly claim that the property should be administered by theit
own law, the law of the forum and situs of the property.
Upon these principles it ia now universally admitted that, in
the absence of statute, in any case in which third persons are
interested, the status of the foreign fiduciary is only local and
temporary. He must in general be reappointed and must qualify
in every State wherein he desires to administer the property or
rights of action committed to his charge. Third persons are
entitled to and may demand all the security and protection af-
forded by the laws of the State where the property is situated.
The general rule in thrge emr^ii in tJiat^the law of the forum and
situs of the property will rcgulAle the appuiutmcnt, qualifica-
tion, rights, title, and liabi^^^^'" ' "'^ ^^^'' fi>T'>i''<-j'y^ « ' f^r w ^n-
But so far as the relations between the fi.duciary and the bene-
ficiaries of the trust are concerned (third persons not being
interested), even when the question arises in third States, the
law of the domicil of the owner or beneficiary (the legal situs of
the owner's person and personal property) will control, both in
respect to personal rights ' and rights relating to the personal
property.*
Thus it will brjirrri thttt frith ^f^prrt tf> f]^nr>in»'ioo jtha gen-
eral rulfijsto apply the " proper litw^^s bfttwaftn fTi^^^rlnpiary
and the beneHciary, whllti, as between the fiduciary and third
parties, theTei Wi iy aubsLiLuted for the piupcr lurWr
§ 103. nitistraiiOlm ■■ ■ Vailous Classes of Fiduciaries. —
The general principles noticed in the preceding section may be
better understood with the aid of one or two examples.
1 Burbank v. Payne, 17 La. Ann. 15, 87 Am. Dec. 513 ; Speed v. May, 17
Penn. St. 91, 94, 55 Am. Dec. 540; Dawes v. Head, 3 Pick. (Mass.) 128,
145 ; Fay v. Haven, 3 Met. (Mass.) 109 ; Dial v. Gary, 14 S. C. 573, 37 Am,
Rep. 737, 738-739 ; Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534 ;
Mayo V. Equitable, etc. Society, 71 Miss. 590, 1 5 So. 791 ; Smith v. Bank,
5 Pet. 518, 525 ; Vaughn v. Northup, 15 Pet. 1 ; McLean v. Meek, 18 How.
16, 18 ; Mackey v. Coxe, 18 How. 100, 104 ; Wilkins v. Ellett, 9 Wall. 740,
742.
' See Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534.
* Mayo V. Equitable, etc. Society, 71 Miss. 590, 15 So. 791 ; Lamar »
Micou, 112 U. 3. 452.
16
226 DUAL NATURE OP FIDUCIARY STATUS. § 103
Let us suppose a man to die, leaving personalty situated in
several States. By his will he leaves his property to his chil-
dren and appoints an executor. The appointment of the execu-
tor is not solely for the purpose of preserving the estate for the
legatees and distributing it among them, but also to pay and col-
lect debts, etc. A relation is established between the legatees and
executor, and also a relation between the executor and the cred-
itors, debtors, and claimants of the estate. These creditors, debt-
ors, or claimants may reside, not only in the State where the
owner of the property (the testator) was domiciled, but in other
States as well, including those where the personalty of the dece-
dent is situated.
When the executor comes into those latter States to obtain
possession of and administer the property there situated, those
States will not usually permit him to act merely b}-- virtue of
the privileges accorded him by the law of the testator's domicil.
The creditors, debtors, and claimants of the estate, if any, who
are residents of those States, are entitled to demand that every
precaution required by their law to protect their interests shall
be taken, regardless of the law of the testator's domicil.^ They
have the right to demand that the rules of the situs and forum
shall be followed, touching the qualification of the executor,
the security to be given, the time within which claims may be
filed, etc. Hence the executor will be required to show his
authority by proving the will again by means of a certified copy
of the domiciliary probate : he will be called upon to qualify and
to give security in accordance with the law of the situs and
forum; and until he has taken all the steps required of home
executors, he will not generally be permitted to assume control
of the property there situated. The j;eneral principle of law
that the legal situs of personalty is at the domicil of~~the owner
and is sxtfajgeno "itFTaw has uu application here~rf6r, as has
1 Though the primary object of the substitution of the lex fori in these
cases is to protect citizens of the forum, yet it is conceded that a decedent's
funds in any State are liable to all creditors who may there apply for settle-
ment, regardless of citizenship or domicil. De Sobry v. De Laistre, 2 Har. &
J. (Md.) 191, 3 Am. Dec. 535, 536 ; Goodall v. Marshall, 11 N. H. 88, 35 Am.
Dec. 472, 477-479, and note.
§ 103 DUAL NATURE OF FIDUCIARY STATUS. 227
Koon , oTiAwn , flia 7fignJ^ sJtus of persopalty yields to the dctuai
situs,,.wherever any of the great exceptions to the enJorcement
of the jproper law cOme ilito play." Mere the substitution Sf
the lex fori anfl IftY situs tor the le^c <l(tihl<'.ilii of the besUtOTls
justified as a protection to the interests of the peopTe^~Xhe
forum.*
If it turns ont that nft^^ ^^^ f^^^^ ?^ft n" 21^^11^^° or other
third persons whoare interested in the administration, the rea-
8on for the substitution of the lex fori ceases. The foreign execu-
tor will then be allowe3~to assume full controT'gf-tho property:
the law of the forum and situs ceases to operate upon it, "and it
becomes subjeciLto_the lex domicilii of the testator! H none of
the legatees are citizens of the forum, it wiTTuSlially be sent on
to the domicil of the testator, to be there administered and
distributed by the executor, under the direction of the domi-
ciliary courts and in accordance with the lex domicilii.* If
there are citizens of the situs and forum who are legatees (there
being no creditors) the property will still be subject, in its dis-
tribution among the legatees, to the lex domicilii of the testator,
though it need not necessarily be sent there for distribution.*
What has been said above of executors may be repeated in
almost the same language with respect to administrators, as will
more fully appear hereafter.
Another instance of this double relationship of fiduciaries is
to be found in the relation of Guardian and Ward, though not
2 Ante, § 14 ; post, §§ 120, 121 et seq.
» See Atchison v. Lindsey, 6 B. Mon. (Ky.) 86, 43 Am. Dec. 153; Dawes
». Head, 3 Pick. (Mass.) 128 ; Fay v. Haven, 3 Met. (Mass.) 109, 114 ; Dial
r. Gary, 14 S. C. 573, 37 Am. Rep. 737 ; Vroom v. Van Home, 10 Pai. Ch.
(N. Y.) 549, 555; Petersen v. Chemical Bank, 32 N. Y. 21, 43, 88 Am. Dec.
298 ; Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116, 1117 ; Smith v. Bank,
5 Pet. 518 ; Wilkins v. EUett, 9 "Wall. 740, 742 ; s. c; 108 U. S. 256, 258.
The same principle has in some cases even been extended to resident legatees
where the assets are more than suflScient to pay all the creditors of the estate,
foreign and domestic. See Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep.
478.
* Post, § 113.
6 Harvey v. Richards, 1 Mason, C. C. 381 ; Graveley v. Graveley, 25 S. 0. 1,
60 Am. Rep. 478. See post, § 113.
228 EXECUTORS AND ADMINISTRATORS. § 104
to so marked an extent." This double relationship of guardians,
and indeed of fiduciaries generally, requires that they too should
be governed as to creditors and other third persons by the lex
fori et situs.
The several fiduciaries whose status, in respect to the crea-
tion, incidents, and termination thereof, we will now consider,
are: (1) Executors and Administrators; (2) Guardians; and
(3) Receivers.
§ 104. Executors and Administrators — Outline of Dis-
cussion. — A primary distinction is to be noted between the
administration of a decedent's estate and the distribution thereof,
the effect of which has already been alluded to in the preceding
section. The administration of a decedent's estate involves the
dealings and relations of the executor or administrator with
third persuos ; while the distribution of the estate involves
their relations and dealings with the beneficiaries^ the legatees
or distributees.
It will be rememberedtjiat-thia cntniln n cnrrrfUKrndirig dis-
tinction as to^ the law properly applicable. SolQjig-fts-the in-
fprpgfs^ gna.rf]pfl a.rp t.hnaft nnly of itxe ob^ectsof the decedent's
bounty (hi^ grantftftS; i\° it wftr^']!, the lex domicilii of the~de-
cedent will in general determine all their rights, fio" matter
where the beneficiaries or~lB3Ticia.ri«s reside, or the question
arises.*
THrE if it ia a matter of administration, the rights of third
parties intervening^^jli hpff^^mftsi a najjejor the substitution of the
lex fori for the proper larW-(the lex domicilii of the decedent).
And since administration proceedings are to a certain extent in
the nature of proceedings in rem,^ the courts willnoF~generally
itsH^imft to administer upon property not wtttrinHfebeir jurisdic-
tion.* Hence it comes about that ttie forum and the situs of
• See post, §§ 114 et aeq.
1 See post, §§ 139 et seq.
» See Reynolds V. Stockton, 140 U. S. 255, 272; Rockwell v. Bradshaw,
67 Conn. 9, 34 Atl. 758, 761.
» Stacy V. Thrasher, 6 How. 44, 58 ; Hooker v. Olmstead, 6 Pick. (Mass.)
481. Or if it ia within the jurisdiction of another court. See Byers w. Mc-
Auley, 149 U. S. 608.
§ 105 QUALIFICATION OF BEPRESENTATIVES. 229
the property administered will always coincide, and the lex fori
et situs becomes the law by which the administration of estates
is governed.
We shall develop this topic under the following general
heads : (1) The law controlling the creation of the status of
executor or administrator; (2) The law controlling the incidents
of the status ; including the powers, rights, duties, and liabili-
ties of executors and administrators in general, the order in
which the decedent's debts are to be paid, the order in which
the decedent's property is to be subjected to the payment of his
debts, and (incidentally) the rights of creditors against the real
estate of the decedent, the right of the decedent's heir or devisee
to claim exoneration out of the decedent's personal estate, and
the right of one heir or devisee paying the decedent's debts to
claim contribution from the others ; and (3) The law controlling
the termination of the fiduciary status ; including the settle-
ment of the accounts, the distribution of the residuum after the
collection and satisfaction of all claims, and the rules governing
ancillary administrations.
§ 105. Appointment and Qualification of Administrators
and Executors. — An administrator of a decedent's estate ia an
officer of the law. appniTl^f'fi by fhr nrilpr nt g. ^nmpPj^^P^^^w^nl^rf^
in a proceeding in the nature of a proceeding in rem} The
jurisdiction of the court is local, extending no further than to
embrace the property within the limits of its control. For this
reason, as well as for the reasons given in the preceding sec-
tions, the appointment is in general of no effect outside the
jurisdiction where he is appointed; and if the personalty of the
decedent is situated in several States, he must be reappointed
or a new administrator must be nominated in each State before
the property there situated can be administered.'
1 See Reynolds v. Stockton, 140 U. S. 255, 272 ; Rockwell ». Bradshaw,
67 Conn. 9, 34 Atl. 758, 761.
2 Dial V. Gary, 14 S. C. 573, 37 Am. Rep. 737, 739 ; Graveley v. Graveley,
25 S. C. 1, 60 Am. Rep. 478, 482; Stevens v. Gaylord, 11 Mass. 256, 262 ;
Merrill v. Ins. Co., 103 Mass. 245, 248, 4 Am. Rep. 548 ; Campbell v. Tousey,
7 Cow. (N. Y.) 64 ; Shultz v. Pulver, 3 Pai. Ch. (N. Y.) 182; s. c. 11 Wend.
361 ; Vroom v. Van Home, 10 Pai. Ch. (N. Y.) 549, 556, 42 Am. Dec. 94 ;
230 QUALIFICATION OF EEPRESENTATIVES. § 105
The primary nflminintrnitnr; in minh i ii j i' lli iiii ajljwntofl
by the rtoiirfg nf iho. fJf.r>PflpTif*s domicil^ and to him will ulti-
mately be remitted all the funds of the decedent in other States,
after administration there has been accomplished and the "cfed-
itors^there have been satisfied.^ in the meantime, however,
these ancillary or~alts41iary administrators are not to be consid-
ered as identical or in privity with the domiciliary administra-
tor, but as independent of him. Hence, a judgment rendered
against an administrator, and unsatisfied, will not be evidence
of the claim against another administrator of the same decedent
appointed in another State.* But if a judgment is rendered hi
favor of one administrator, it will bar an action for the same
claim brought by another administrator of the decedent in an-
other State, at least if the debtor is a citizen of the latter
State."*
The same general principles apply to administrators de bonis
non, administrators with the will annexed, curators, etc., all
of whom are appointed not by the decedent, but by the State
itself, acting through its courts.®
So also the qualification of an administrator must take place
in accordance with the law of the State where he is to act, and
if the same party has been appointed in several States, he must
qualify in each according to its laws. His proper qualification,
by taking the prescribed oath and conforming to the regulations
touching the giving of bond and security, is a very important
safeguard afforded by the law to the creditors of the decedent's
estate within the limits of each State. The notoriety afforded
by the administrator's appointment and qualification in each
Parsons v. Lyman, 20 N. Y. 103; Smith v. Bank, 5 Pet. 518, 525 ; Wilkins
V. Ellett, 9 Wall. 740, 742.
8 Post, § 113.
* Johnson v. Powers, 139 U. S. 156, 159, 160 ; McLean v. Meek, 18 How.
16 ; Stacy v. Thrasher, 6 How. 44 ; Merrill v. Ins. Co., 103 Mass. 245, 249 ;
Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482. As to executors, s«e
Hill V. Tucker, 13 How. 458 ; post, § 107.
6 Stevens v. Gaylord, 11 Mass. 256, 265. See Talmage v. Chapel, 16
Mass. 71.
• Harvey v. Richards, 1 Mason, C. C. 380 ; Shannon v. White, 109 Maas.
146 ; Selectmen of Boston v. Boylston, 2 Mass. 384.
§ 105 QUALIFICATION OF REPRESENTATIVES. 231
State is also a protection to third parties there. For these and
other reasons of like kind it is now the established rule that
an administrator, in order to act within any State, must qualify
there, though he has already qualified elsewhere.''
With respect to the qualification of foreign executors, the
same principles apply. The executor, though he has qualified
in the State of the testator's last domicil, must qualify anew in
every State where he desires to act, or if action is desired in
his absence an administrator with the will annexed must be
appointed in his stead. Here also each State will insist that
the safeguards of the interests of its own citizens shall be
observed. '
But so far as relates to the (ipj^jnfmp.nf. of tbp. p-^pr^ntnr, \h
differs from that of an administrator in that the former is the
act of thft tftatainy himself^ and is th^ref"^" "^^"pft"dqnt "f j'ln's-
dictioa^r the locality of the property, while the latter is the act
of the court of prnba.tP!, anri js Qot generally recu^ul^itjd otrtytde
of that court^irurjadiction.' Important consequences may flow
from this distinction under certain circumstances. Thus, it has
been held in some States that a foreign executor, in the absence
of statute, without a new qualification, may deal with assets of
the testator in any State as if he were a domestic executor, save
only that he must qualify before he can sue or be sued as such,
while an administrator appointed in one State can do no act in
"> See Flannery's Will, 24Penn. St. 502 ; Dawes v. Head, 3 Pick. (Mass.)
128, 144; Ex parte Picquet, 5 Pick. (Mass.) 65 ; Fayw. Haven, 3 Met. (Mass.)
109, 116 ; Sheldon v. Rice, 30 Mich. 296, 18 Am. Rep. 136 ; Dial v. Gary, 14
S. C. 573, 37 Am. Rep. 737; Morrell v. Dickey, 1 Johns. Ch. (N, Y.) 153 ;
Petersen i'. Chemical Bank, 32 N. Y. 21, 42-43, 88 Am. Dec. 298 ; Vaughn
V. Northup, 15 Pet. 1 ; Johnson v. Powers, 139 U. S. 156.
8 Armstrong v. Lear, 12 Wheat. 169 ; Dial v. Gary, 14 S. C. 573, 37 Am.
Rep. 737, 739 ; Campbell v. Tousey, 7 Cow. (N. Y.) 64 ; Vroom v. Van Home,
10 Pai. Ch. (N. Y.) 549, 555, 42 Am. Dec. 94; Petersen v. Chemical Bank,
32 N. Y. 21, 45, 88 Am. Dec. 298; Fay v. Haven, 3 Met. (Mass.) 109 ;
Richards v. Dutch, 8 Mass. 506 ; Jennison v. Hapgood, 10 Pick. (Mass.) 77,
19 Am. Dec. 258 ; Welch v. Adams, 152 Mass. 74, 25 N. E. 34.
» Vroom V. Van Home, 10 Pai. Ch. (N. Y.) 549, 555-556, 42 Am. Dec.
94 ; Dial «. Gary, 14 S. C. 573, 37 Am. Rep. 737, 739 ; Hill v. Tucker, 13
How. 458.
232 FOREIGN ADMINISTRATORS. § 106
another until he has been reappointed there.^® But other courts
make no distinction between foreign executors and administra-
tors in this respect, requiring new letters of administration in
each State before any act can be done there. The latter would
seem to be the sounder view.^^
§ 106. Incidents of Status of Personal Representatives —
Their Rights and Liabilities in general. — As a general rule,
the powers and rights of an executor or administrator, as well
as his liabilities and duties, are confined to the State where he
is appointed and qualifies as such, and do not extend to other
States or countries where assets of the decedent are situated,
unless he also qualifies there according to the law of the latter
place (lex situs et fori).^
Thus an administrator, appointed in one State, cannot sell or
possess himself by legal process of any assets of his intestate in
another State, without appointment there also. Any such action
on his part is tortious, and he may be held responsible therefor
in the latter State as executor de son tort or otherwise." Nor
can he convey a valid title to chattels situated in a State where
10 See Harper v. Butler, 2 Pet. 239 ; Rand v. Hubbard, 4 Met. (Mass.) 252 ;
Merrill v. Ins. Co., 103 Mass. 245, 248 ; Vroom v. Van Home, 10 Pai. Ch.
(N. Y.) 549, 555, 42 Am. Dec. 9 ; Campbell v. Tousey, 7 Cow. (N. Y.) 64 ;
Vermilya v. Beatty, 6 Barb. (N. Y.) 429 ; Petersen v. Chemical Bank, 32
N. Y. 21, 43, 88 Am. Dec. 298.
" See Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482 ; Glenn v.
Smith, 2 Gill & J. (Md.) 493, 20 Am. Dec. 452, 455 ; Packwood's Succession,
9 Rob. (La.) 438, 41 Am. Dec. 341, 344. See Dial v. Gary, 14 S. C. 573, 37
Am. Rep. 737, 739 ; post, § 124.
1 Vaughn v. Northup, 15 Pet. 1 ; Dial v. Gary, 14 S. C. 573, 37 Am. Rep.
737 ; Gi-aveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482 ; Cutter v.
Davenport, 1 Pick. (Mass.) 81 ; Sheldon v. Rice, 30 Mich. 296, 18 Am. Rep.
136; Flannery's Will, 24 Penn. St. 502; Morrell v. Dickey, 1 Johns. Ch.
(N. Y.) 153 ; Packwood's Succession, 9 Rob. (La.) 438, 41 Am. Dec. 341, 344.
According to the better opinion, the distinction between the modes of appoint-
ment of executor and administrator does not create any difference in the law
controlling their rights and obligations in the administration of the estate.
See ante, § 105.
2 Glenn v. Smith, 2 Gill & J. (Md.) 493, 20 Am. Dec. 452, 455 ; Camp-
bell r. Tousey, 7 Cow. (N. Y.) 64. See Andrews r. Avory, 14 Gratt. (Va.)
§ 106 FOBBIGN ADMINISTBATOBS. 233
he has not been appointed administrator; * nor (it is said) caa
he validly release a foreign debtor of his decedent.*
But with respect to the assets situated, or even transiently
found, in the State of his appointment, he can convey a title
to them, which will be upheld everywhere.'
K the goods are situated in the State of appointment and are
afterwards removed by the administrator to another State, it is
said that he may administer them, and be held liable to cred-
itors and others, in the latter State without a new appointment
there.' But if he should thus be held responsible, it seems that
the nature and extent of his liability would depend upon the
laws of the State or country from which he derived his authority
to administer the decedent's assets, not upon the law of the
State whither he has removed.'
If an executor or administrator, without a new appointment,
goes into a foreign State, collecting assets there and bringing
them back into the State of his appointment, they are to be
deemed home assets, and are to be administered and accounted
for as such, at least if there are no creditors or claimants resi-
dent in the State from which the assets have been withdrawn.'
» Glenn v. Smith, 2 Gill & J. (Md.) 493, 20 Am. Dec. 452, 455; Dial v.
Gary, 14 S. 0. 573, 37 Am. Rep. 737 ; Burbank v. Payne, 17 La. Ann. 15, 87
Am. Dec. 513, 515-516. See Russell v. Hooker, 67 Conn. 24, 34 Atl. 711, 712.
* Vaughn v. Barret, 5 Vt. 333, 26 Am. Dec. 306. This proposition is open
to doubt. The case is closely analogous to that of a yoluntary payment by a
debtor to a foreign representative, which it is generallj' conceded is a satisfaction
of the debt. Post, § 109. See also note to Vaughn v. Barret, 26 Am. Dec. 306.
s Petersen v. Chemical Bank, 32 N. Y. 21, 43, 88 Am. Dec. 298 ; Dial
V. Gary, 14 S. C. 573, 37 Am. Rep. 737, 740 ; Merrill v. Ins. Co., 103 Mass.
245, 248.
6 Gulick V. Gulick, 33 Barb. (N. Y.) 92 ; McNamara v. Dwyer, 7 Pai. Ch.
(N. Y.) 239, 32 Am. Dec. 627; Johnson v. Jackson, 56 Ga. 326, 21 Am. Rep.
285 ; Embry v. Millar, 1 A. K. Marsh. (Ky.) 300, 10 Am. Dec. 732. But
see Fay v. Haven, 3 Met. (Mass.) 109, 115-116 ; Jackson v. Johnson, 34 Ga.
511, 89 Am. Dec. 263, 268 ; Hedenberg v. Hedenberg, 46 Conn. 30, 33 Am.
Rep. 10 ; Tunstall v. Pollard, 11 Leigh (Va.), 1.
7 McNamara v. Dwyer, 7 Pai. Ch. (N. Y.) 239, 32 Am. Dec. 627 ; Evans
V. Tatem, 9 Serg. & R. (Penn.) 252, 11 Am. Dec. 717, 718.
8 Evans v. Tatem, 9 Serg. St. R. (Penn.) 252, 259, 11 Am. Dec. 717 ; An*
drews r. Arory, 14 Gratt. (Va.) 229.
284 FOBEIGN ADMINISTRATORS. § 106
It may be added that it is the duty of an administrator, who
has obtained the legal control of notes payable to his intestate,
to take the necessary steps to collect them of the debtor under
the laws of the debtor's domicil (that is, he should qualify there
himself or by agent, and sue the debtor). Otherwise he will
be held answerable as for assets received in the State of his
appointment.*
When the assets consist of choses in action, the question may
arise — where is their situs ? — in cases where the creditor and
debtor reside in different States. If the choses in action should
be held to be located at the domicil of the creditor, upon princi-
ples above adverted to the administrator of the creditor there ap-
pointed may pass a good title to them which will be recognized
everywhere. On the other hand, if the situs of the chose in
action is to be deemed the domicil of the debtor, the creditor's
administrator appointed in the creditor's domicil will have no
power to convey a good title, without having been appointed
also in the State where the debt is located. This is one phase
of the difficult question of the *' situs of debt," and will be con-
sidered at large under that head hereafter.^"
The executor at common law has no control, as such, over the
decern t's land at Eome or a15roa3[r3ln tTiose cases where he
is giv£n""TFe power to sell^pr controltEe real estate-, h« .acts
as trustee under the will, _not_ as executor. But even as trustee
appoijited"'and qualified in one State, hp yi\'\'\ nnf. bp pprmlt^*^*^
to make title to lands situated, in another, without proof of the
genuineness and ViilidiLy uf hly a.Ulhoi'izatlonTn the latter "State.
He must probate the will and qualify as executor under the
laws of the situsoTTKe land.^^
' Independently of statute, the administrator, being the ap-
pointee of the court, not of the decedent, has no authority what-
9 Shultz V. Pulver, 11 Wend. (N. Y.) 361.
10 Petersen v. Chemical Bank, 32 N. Y. 21, 43, 88 Am. pec. 298 ; Dial v.
Gary, 14 S. C. 573, 37 Am. Rep. 737, 740. See Wilkins v. Ellett, 108 U. S.
256, 259. The first of these cases supports the first view, while the second
advocates the other view. Probably both are partly right and partly wrong.
See post, §§ 121, 124.
" Williams v. Mans, 6 Watta (Penn.), 278; Bingham's Appeal, 64 Penn. St
d45 ; Whart. Confl. L. § 289.
§ 107 SUITS BY AND AGAINST REPRESENTATIVES. 235
ever to deal with the lands of his intestate. But by statute iu
some States such an authority is granted him. In these cases
also the rule is strictly applied that the lex situs is to govern
the conveyance of the land, and hence, if the lex situ^ does
not permit the administrator to deal with land, a deed by a
foreign administrator will not be given effect merely because
the law of the State of his appointment gives him control over
such property." On the other hand, if the lex situs permits an
administrator to control realty, it means an administrator ap-
pointed by the courts of the situs. A foreign administrator
can convey no title to land.^^
When a foreign executor or administrator has qualified in
another State than that of his original appointment, he may do
all acts in connection with the property there situated (and none
others) which are permitted to home executors or administra-
tors under the lex situs et fori. Thus, an executor of one dying
domiciled abroad, who has duly qualified in England, has been
allowed to sell leasehold property in England, though not per-
mitted to do so by the law of the decedent's last domicil.**
§ 107. Suits by and against Personal Representatives. —
In accordance with principles already adverted to, it is the
general doctrine both in England and America that no suit can
be brought by or against an executor or administrator iu his
official capacity in the courts of any country save that from
which he has derived an authority to act by virtue of the
letters of probate or of administration there granted him.
Should he desire to institute a suit in a foreign country, he
must first obtain new letters and qualify there anew in accord-
ance with the rules there prescribed.^ But if the executor or
" Watkins v. Holman, 16 Pet. 26.
13 Cutter V. Davenport, 1 Pick. (Mass.) 81, 11 Am. Dec. 149 ; Sheldon v.
Rice, 30 Mich. 296, 18 Am. Rep. 136.
" Hood V. Bamngton, L. R. 6 Eq. 218.
1 See Kerr v. Moon, 9 Wheat. 565 ; Vaughn v. Northup, 15 Pet. 1 ; Smith »•
Bank, 5 Pet. 518, 527 ; Johnson v. Powers, 139 U. S. 156 ; Cutter v. Daven-
port, 1 Pick. (Mass.) 81, 85-86, 11 Am. Dec, 149 ; Ex parte Picquet, 5 Pick.
(Mass.) 65 ; Goodwin v. Jones, 3 Mass. 514, 3 Am. Dec. 173 ; Merrill v. Ins.
Co., 103 Mass. 245, 248 ; Judy v. Kelley, 11 fll. 211, 50 Am. Dec. 455 ; Mc-
Namara v. Dwyer, 7 Pai. Ch. (N. Y.) 239, 32 Am. Dec. 627 ; Vroom v. Van
236 SUITS BY AND AGAINST REPRESENTATIVES. § 107
administrator has already obtained a judgment in the State of
his appointment, he may bring an action upon such judgment
in another State without a new qualification there, for he is
then responsible to the estate as if the debt had been collected,
and thus the judgment becomes his own property upon which he
may sue in his own right.''
If a creditor of a decedent wishes to sue in a foreign State to
reach assets situated there, he must have letters of administra-
tion taken out there, before the suit can be instituted. He can-
not in general sue a domestic administrator in a foreign court or
a foreign administrator in a domestic court.'
If an administrator, appointed in one State, removes with the
assets of the estate into another State, the courts are divided
upon the question whether or not the decedent's creditors may
sue the administrator in the latter State without a reappoint-
ment, the weight of authority seeming to favor the right of the
creditors to sue.* But if the administrator should only come
into the State transiently or temporarily, the better opinion
would seem to be that no action will lie against him there
without a new appointment.®
It should be observed that if the creditor desires to subject the
land of the decedent, instead of suing his personal representa-
Home, 10 Pai. Ch. 549, 42 Am. Dec. 94 ; Petersen v. Chemical Bank, 32
N. Y. 21, 40-41, 88 Am. Dec. 298.
* Talmage v. Chapel, 16 Mass. 71, 73 ; Lewis v. Adams, 70 Cal. 403, 59
Am. Rep. 423. See Moore i;. Jordan, 36 Kan. 271, 59 Am. Rep. 550 ; Hall v.
Harrison, 21 Mo. 227, 64 Am. Dec. 225, 228.
« Story, Confl. L. § 513 ; Vaughn v. Northup, 15 Pet. 1; Reynolds v.
Stockton, 140 IT. S. 255 ; Vermilya v. Beatty, 6 Barb. (N. Y.) 429 ; Richards
V. Dutch, 8 Mass. 506 ; Hooker v. Olmstead, 6 Pick. (Mass.) 481.
* Evans v, Tateni, 9 Serg. & R. (Penn.) 252, 11 Am. Dec. 717, 718 ; Atch-
ison V. Lindsey, 6 B. Mon. (Ky.) 86, 43 Am. Dec. 153 ; Embry v. Millar,
1 A. K, Marsh. (Ky.) 300, 10 Am. Dec. 732 ; Johnson v. Jackson, 56 Ga. 326,
21 Am. Rep. 285; Gulick v. Gulick, 33 Barb. (N. Y.) 92; McNamara ».
Dwyer, 7 Pai. Ch. (N. Y.) 239, 32 Am. Dec. 627. But see Fay v. Haven,
3 Met. (Mass.) 109, 115-116 ; Hedenberg v. Hedenberg, 46 Conn. 30,33 Am.
Rep. 10 ; Jackson v. Johnson, 34 Ga. 511, 89 Am. Dec. 263, 268.
6 Evans v. Tatem, 9 Serg. & R. (Penn.) 252, 11 Am. Dec. 717, 719. Sea
Jackson v. Johnson, 34 Ga. 511, 89 Am. Dec. 263 ; Johnson v. Jackson, 56
6a. 326. 21 Am. Rep. 285.
§ 107 SUITS BY AND AGAINST REPRESENTATIVES. 231
tive, his rights against the real estate are, in accordance with
the general rule, to be determined by the lex situs of the
land.«
If there are two or more administrators of a decedent,
appointeoTn'^lSerent States, there is no privity between them,
and hence no action will lie against one of them^ upon a judg- ^
mentoBtamea against another in the State of his appointment, ^^"^V
at least so far as concerns assets received by the former in thit ""^^^
course of his own administration and not remitted to him by
the adea4»istrator~against whom the judgment is obtained.'
Upon the same principle, a judgment against an administrator
of the deceased in one State will not be received in another in a
suit brought by the same plaintiff against third persons, citi-
zens of the latter State, having assets of the deceased, real or
personal, in their possession.'
But __with respect to executors the rule is different. Th^
interest of an administrator inhis intestate's estate is only that
whip.h~Thp! law of the Slate u£ hla appointment authorizes, while
the interest of an executor in the estate Of his te'statpr if? thnt ^.
which the testator gives iiim. Hence where there are several >v
executors, though citizensof^ and qualifying in, different ^
States, they are m privity aa to the debts of the testat^ all
bearing towards the creditors the same responsibility as if
there were only pne exegnt/^r. It follows therefore, m such
case, that a judgment obtained against one executor in one
Stafe^iii be ev^^°^rP 'n a ouit nrgftwtst-aQother executor of the
same testator in another State.®
The same distinctions run through the cases where judg-
ments are obtained by administrators and executors instead of
against them. An administrator cannot sue upon a judgment
obtained in another State by another administrator of the same
6 See Story, Confl. L. § 489 h.
7 Stacy V. Thrasher, 6 How. 44, 58 ; McLean v. Meek, 18 How. 16, 18 ;
Merrill v. Ins. Co., 103 Mass. 245, 249.
8 Johnson v. Powers, 139 U. S. 156, 160. The " full faith and credit " clause
of the federal constitution does not affect these principles, as between the
several States of the Union. Stacy v. Thrasher, 6 How. 44, f 9»
» Hill V. Tucker, 13 How. 458, 466, 467.
238 SUIT FOE TORTIOUS DEATH. § 108
intestate.^" The doctrine is believed to be otherwise with
respect to executors.
In conclusion, notwithstanding the general rule that adminis<
trators and executors must qualify in a State before they can
sue or be sued there, if the representative misapplies the
funds in his hands in a State where he has not qualified, it
must be observed that the courts of equity of that State may
assume jurisdiction of a suit against him instituted by persons
injured by the misapplication. In such cases the administra-
tor or executor is sued in his personal, not his representative,
capacity, and the suit may be brought in any court having
jurisdiction of his person and of his fraud. ^^ But the nature
and extent of his liability is still Ho be fixed by the law of the
country whence he derived his powers and authority.**
§ 108. Right of Foreign Representative to Sue for Dece-
dent's Death by "Wrongful Act. — The reader will recall the
common law rule that "personal actions die with the person."
This rule has been altered by statute in England and in most
of these States, so as to permit suit to be instituted for the
tortious killing of a person. But the various statutes differ
greatly in detail, and perhaps upon no point more than as to
who shall be authorized to sue in such cases. Some of the
statutes provide that the suit shall be brought by the personal
representative of the deceased for the benefit of his or her con-
sort, children, family, or next of kin (exclusive of creditors),
or for the benefit of his general estate; other statutes give the
right to sue only to the consort or children ; others to the next
of kin, etc. If a foreign element enters into the transaction,
such as that the death occurs in one State while the action
therefor is brought in another, questions of considerable diffi-
culty sometimes arise.
The main discussion of this subject, a fruitful source of con-
flicts of laws as well as of decisions, will be postponed to a
1" Talmage v. Chapel, 16 Mass. 71, 73. See ante, § 105.
11 Montalvan v. Clover, 32 Barb. (N. Y.) 190, 192-193 ; McNamara v.
Dwyer, 7 Pal. Ch. (N. Y.) 239, 32 Am. Dec. 627; Leach v. Buckner, 19
W. Va. 36.
M McNamara v. Dwyer, 7 Pai. Ch. (N, Y.) 239, 32 Am. Dec. 627.
§ 108 SUIT FOE TORTIOUS DEATH. 239
later period, when the proper law governing toHs in general
will be examined.^ We shall here consider the subject only as
it relates to the right of the personal representative to bring
such an action. A few general principles however must be pre-
mised, for the substantiation of which the reader is referred to
the subsequent fuller discussion already alluded to.
The general rule is that the law of the place where the tort
resulting in death is committed (lex lnp-i~deHr:ri > will determine
whether an action can be brought therefor, and thg-^iacty^who
is to bring ^t^ ^^ wrII ap ^^^ ^^^ma ^]t;|^m which the suit is to
be brought, the limit of daipa^gftSj ^^f^ ^^^'^() pgrsnnT-frrr- wbnaft
benefit the damages are to be given. These rights are the
creatures of statute, and the lex T(3Tji>-delicti must be strictly
followed. The only qualification is that the lex delicti will
not be enforced in other States whose laws or policy would be
thereby seriously violated.'
In general, therefore, if the lex loci delicti gives the adminis-
trator or executor of the decedent the right to sue in such
cases, he and he alone will have the right to sue in a foreign
State, though the lex fori gives that right to some person other
than the representative, for instance, the widow, the heirs, etc'
But the statutes give this right to the representative in his
official capacity, not as a personal right. It is only as the
duly qualified executor or administrator of the decedent that
he can sue for the latter's death. This much is generally con-
ceded, and at this point the difficulties of the subject begin.
As we have seen, in order that the authority of a represent-
ative may be recognized in other States, the general princi-
ple is that he must qualify in each State where he desires to
act or to sue; and on the other hand, if he has qualified in
the State where he desires to act or to sue, he need not qualify
elsewhere.*
But this principle cannot perhaps be accepted so freely in
1 See post, §§ 200-202.
2 Post, §§ 200-202.
» Usher v. R. R. Co., 126 Penn. St. 207, 17 Atl. 597 ; Wooden w. B. R. Co,
126 N. Y. 10. But see Stewart v. R. R. Co., 168 U. S. 445.
* Ante, §§ 105 et seq.
240 SUIT FOR TORTIOUS DEATH. § 108
these cases of death by wrongful act. Since the lex delicti de-
termines who is to sue, and since we have supposed that law to
confer the right upon the personal representative of the deceased,
must this not be the personal representative appointed by the
lex loci delicti itself ? Could the legislature of the locus de-
licti have had in mind representatives appointed or qualifying
abroad ? If not, since the lex delicti is to be strictly followed,
can any person other than the one named by the statute of tlie
locus delicti sue for the tort committed there, even though the
action be instituted in another State ? Will it be necessary for
the representative, having qualified in the locus delicti, to
qualify anew in the State of the forum before instituting his
action ? Or is it needful for a representative, who has qualified
in the forum, to have also qualified in the locus delicti in order
that he may sue for the death in the forum ? If required to
qualify in the State of the forum, can he qualify there if there
is no property of the deceased located there ? Can the repre-
sentative's right to sue for his decedent's death be regarded as
property belonging to the decedent f
These are some of the questions that present themselves in the
solution of this problem, and it must be confessed that the an-
swers are rather dimly shadowed in the decisions of the courts.
The adjudged cases present many conflicts of opinion and some-
times confusion of thought, so that it is hardly possible to
formulate a general rule that can be safely followed in all
cases.
In the leading case of Dennick v. R. E,. Co.^ the question was
squarely presented whether it is the representative of the locus
delicti or the representative of the forum who should bring the
action. In that case, the death by wrongful act occurred in
New Jersey, and the action therefor was instituted in New York,
by a New York administrator, the laws of both States conferring
upon the personal representative the right to sue. It was con-
tended that the New Jersey statute included only personal rep-
resentatives there appointed, and that it did not contemplate
conferring the right upon foreign representatives. But the Su-
* 103 U. S. 11. The doctrine of this case has since been followed and ex-
tended in Stewart ». R. R. Co., 168 U. S. 445.
§ 108 SUIT FOR TORTIOUS DEATH. 241
preme Court of the United States took the opposite view and
sustained the right of the New York administrator to sue in the
courts of New York. This case (and those succeeding it) must
probably be taken as settling the first questions above mentioned,
at least in those cases where both the lex delicti and the lex fori
give the representative the right to sue.*
It must be admitted that the weight of recent authority,
whether or' not it can be entirely justified in principle, is in
favor of the right of the personal representative of the forum
to sue (though he has not been appointed in the locus delicti)
wherever the lex delicti confers that right upon " the personal
representative " of the deceased, though the dead man has no
property in the forum, and the only purpose of the appointment
of the administrator is to sue for the damages for his death.''
The fact that the lex fori permits the administrator to sue is im-
material, if the lex loci delicti gives the power to another, as the
widow, children, heirs, etc. The last named persons are then
* And the later case of Stewart v. R. R. Co., 168 U. S. 445, carries this
doctrine still further, laying down the proposition that an administrator ap-
pointed in the State of the forum, whose law confers upon him the right to
sue for the death of his decedent, may sue there for such death occurring in
another jurisdiction, whose law does not give the right to sue to the personal
representative of the deceased, but to the State for the benefit of the dead man's
family.
7 See Mo. Pac. R. R. Co. v. Lewis, 24 Neb. 848, 40 N. W. 401 ; Leonard v.
N»v. Co., 84 N. Y. 48, 38 Am. Rep. 491 ; Bums v. R. R. Co., 113 Ind. 169, 15
N. E. 230 ; Morris v. R. R. Co., 65 la. 727, 23 N. W. 143 ; Nelson v. R. R.
Co., 88 Va. 971, 14 S. E. 838. In Limekiller r. R. R. Co., 33 Kan. 83, 52 Am.
Rep. 523, an administrator appointed in Missouri sued in Kansas for the death
of his intestate occurring in Kansas. The Kansas statute authorized " the
personal representative " to sue in such cases, but the Missouri statute did not.
It was held that the action would not lie. If the Missouri statute had author-
ized the representative to sue, it would still be exceedingly doubtful whether
the representative of the locus delicti would have been permitted to sue in the
forum without a new appointment there. See Perry v. R. R. Co., 29 Kan. 420 ;
Kansas Pac. R. R. Co. v. Cutter, 16 Kan. 568. Some of the earlier cases have
refused on one ground or another to permit the representative of the forum to
sue. Vawter v. R. R. Co., 84 Mo. 679, 54 Am. Rep. 105 ; Ash v. R. R. Co.,
72 Md. 144, 19 Atl. 643 ; Richardson v. R. R. Co., 98 Mass. 85 ; Taylor v.
Penn. Co., 78 Ky. 348, 39 Am. Rep. 244. But see Bruce r. R. R. Co., 83
Ky. 174.
16
242 PAYMENTS TO FOREIGN iiEPKESENTATIVE. § 109
the proper plaintiffs wherever the forum may be.' Thus, in a
leading New York case, Wooden v. R. R. Co.,' the death oc-
curred in Pennsylvania, whose law authorized the widow to sue,
and suit was brought by the widow in New York, whose law re-
quired suit to be brought by the executor or administrator. It
was held that the widow was entitled to sue in New York, with-
out being appointed administrator there.
The very converse of this case was decided in Usher v. R. R.
Co.^* The New Jersey statute provided that the personal repre-
sentative should sue for death by wrongful act. The Penn-
sylvania statute called for suit by the widow. Upon a death
occurring in New Jersey, the widow sued in Pennsylvania, with-
out appointment as administrator. It was held that the suit
could not be maintained.
§ 109. Voluntary Payment of Debts to Foreign Represent-
ative. — In England it is held that, since the administrator has
no authority to act outside of the jurisdiction from which his
powers are derived, the payment of a debt to a foreign adminis-
trator will be no bar to a suit by an ancillary administrator in
the debtor's domicil, unless the debt be made payable in the
country of such foreign administrator.^
But in the United States the general rule is that if there is
no need of an ancillary administration in the domicil of the
debtor, and if the foreign administrator may lawfully receive
the payment under the laws of his appointment, a payment to
him in another State will operate as a discharge of the debt.'
Not only is such a payment, though made to a foreign executor
or administrator, a discharge of the debt, so far as the debtor ia
8 But if the plaintiff named by the lex delicti is merely a nominal plaintiff,
— as the State itself, — the party named by the lex fori, it seems, may bring
the suit. Stewart v. R. R. Co., 168 U. S. 445.
» 126 N. Y. 10.
10 126 Penn. St. 207, 17 Atl. 597.
1 Preston v. Melville, 8 CI. & F. (H. L.) 12, 14.
2 Doolittle V. Lewis, 7 Johns. Oh. (N. Y.) 45, 11 Am. Dec. 389, 392;
Williams v. Storrs, 6 Johns. Ch. (N. Y.) 353, 10 Am. Dec. 340, 341-342 ; Dial
V. Gary, 14 S. C. 573, 37 Am. Rep. 737, 741-742 ; Hall i;. Harrison, 21 Mo.
227, 64 Am. Dec. 225, 227; Wilkins v. Ellett, 9 Wall, 740 ; a. c. 108 T7. S.
256 ; Mackey v. Coxe, 18 How. 100.
§ 110 ORDER OF PAYMENT OF DEBTS. 243
concerned, but it also operates to charge the fiduciary with the
same. He may even be charged as executor de son tort in the
State where the payment was made, at the instance of creditors
there.* And if no attempt is made there to hold him answer-
able, he will at least be accountable therefor in the State of his
appointment.*
§ 110. Order of Payment of Decedent's Debts — Marshall-
ing of Assets. — In some countries, all debts are of equal rank
in the settlement of a decedent's estate, and are to be paid pari
passu. In other countries, certain debts are privileged and
take priority over others, and the laws of such countries will
differ among themselves as to the debts which shall be
privileged.
In general, the lex fori, which, if property is sought to be
subjected, will also be the lex situs, will govern the order in
which creditors are to be paid. This is essentially a question
of administration, to be controlled by the local law. Credit-
ors attempting to subject property in the decedent's domicil
will be governed as to their relative priorities by the law of the
domicil, for that is the forum and situs of the fund to be dis-
tributed. If an ancillary administrator is to pay the debts,
then their order will be determined by the law of the State
where he is administering the fund (the situs and forum), not
by that of the decedent's domicil.^
Thus in Smith v. Bank,^ R was domiciled in Norfolk, Va.,
» Campbell v. Tousey, 7 Cow. (N. Y.) 64; Glenn v. Smith, 2 Gill & J.
(Md.) 493, 20 Am. Dec. 452, 455 ; Story, Confl. L. § 514.
* Parsons v. Lyman, 20 N. Y. 103 ; Fay v. Haven, 3 Met. (Mass.) 109, 115,
116. See Story, Confl. L. § 514 o.
1 Story, Confl. L. §§ 524, 525 ; Whart. Confl. L. § 624 ; Harrison v.
Sterry, 5 Cr. 289 ; Smith v. Bank, 5 Pet. 518, 526-527 ; Dawes v. Head,
3 Pick. (Mass.) 128 ; Miller's Estate, 3 Eawle (Penn.), 312, 24 Am. Dec. 345,
350 ; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 191, 3 Am. Dec. 535, 542:
Holmes v. Remsen, 20 Johns. (N. Y.) 229, 11 Am. Dec. 269, 280 ; Derringer
V. Derringer, 5 Hous. (Del.) 416, 1 Am. St. Eep. 150. The same principle is
applicable even to judgments rendered in a State other than that of adminis-
tration, and that, too, despite the ' ' full faith and credit " clause of the federal
constitution. McElmoyle v. Cohen, 13 Pet. 312.
2 5 Pet. 518.
244 OBDER OF PAYMENT OF DEBTS. § 110
and there contracted a debt on bond to T. He was also in-
debted to the Union Bank of Georgetown, D. C., on simple
contract. He died intestate, leaving personalty in Washing-
ton, of which administration was there granted. By the law
governing the District of Columbia, all debts were of equal
dignity in administration, but by the law of Virginia, where
R was domiciled, debts on bond were preferred. The assets in
the hands of the administrator were insufficient to discharge
both debts. It was held that the law of the District (the situs
and forum) should prevail, and that the two claimants should
share part ^assM. In the course of its opinion the court said:
" Every sovereign has his own code of administration, varying
to infinity as to the order of paying debts ; and almost without
exception asserting the right to be himself first paid out of the
assets. And the obligation in the administrator to conform to
such laws is very generally enforced, not only by a bond but
on oath. On what principle shall we insert into all those laws
an amendment in favor of foreign creditors ? "
The same principles govern the marshalling of the decedent's
assets (that is, the arrangement of them in such a way as to
make them go as far as possible towards the payment of all his
debts and charges).
The rules regulating this subject, in common with all the
other incidents attending the administration of a decedent's
estate, are those prescribed by the law of the place where the
assets administered are situated (lex fori et situs).* But no
attempt should ever be made by a court, in the course of admin-
istration, to marshal assets in whole or in part outside of its
jurisdiction. The injustice which may result from such a
course (leaving out of consideration the court's lack of jurisdic-
tion in the premises) is most forcibly illustrated by the case of
Bice V. Harbeson.*
8 Story, Confl. L. § 524. See Harvey v. Richards, 1 Mason, C. C. 380,
422.
♦ 63 N. Y. 493. In that case, M, an Irishman domiciled in New York,
died there possessed of personalty in New York, and also of certain land in
South Carolina, upon which he had placed a mortgage. By his will he left
all his property, after payment of his debts, to be divided into seven shares,
§ 111 creditor's rights against the heir. 245
Pari ratione, the lex fori et situs will determine the nature
of the assets there situated, as whether they are to be deemed
real or personal, legal or equitable. Indeed this is in the main
but an application of a familiar rule, presently to be discussed,
that the lex fori controls matters of procedure, pertaining
merely to the remedy.*
§ 111. Right of Creditor to Subject Decedent's Laud in
Hands of the Heir. — Questions of this character, though not
one to go to the children of his deceased sister, J, and the other six shares to
go to other relatives, all of whom except the children of J were aliens. The
will was probated in New York as a will of personalty and realty, but was
void in South Carolina as a will of lands, because the South Carolina law
required three witnesses to such wills, there being only two in this case.
Moreover, the law of South Carolina not permitting aliens to inherit land, all
the relatives of M were cut off from inheriting the South Carolina land as
heirs, except the children of J. They therefore brought suit against the ex-
ecutor to recover the land as the sole heirs of M. The South Carolina court
gave judgment for J's children, and ordered the executor to pay the mortgage
out of M's personal estate (which was in New York). Upon a final account-
ing by the executor in Neio York, the mortgagee presented his claim, which
was allowed by the surrogate and ordered to be paid out of the personal
estate. This was reversed by the General Term, and its decision was con-
firmed by the Court of Appeals, upon the ground that the testator intended
that his whole estate should bear the burden of his debts, not the personalty
only, which latter view would deprive the foreign legatees of their portions,
since they were cut out of all participation in the South Carolina land. The
New York court therefore decreed that the assets should be marshalled, and
that the mortgagee, having two funds for his security, must select that one
which would least impair the testator's intent. The result was, that, while
protecting the foreign legatees, the court deprived the mortgagee by its action
of all recourse, notwithstanding the established principle that the marshal-
liug of assets, as well as exoneration, is subsidiary to the payment of debts,
which is the first of all the duties of administration.
The mere statement of this conclusion suflBces to show that either the South
Carolina or the New York court was guilty of error.
It is respectfully submitted that both courts acted in part beyond their
jurisdiction. The South Carolina court had no authority to decree exonera-
tion of South Carolina land out of New York personalty, and the New York
court had no authority to marshal assets which were in South Carolina and
outside its own jurisdiction. It could lawfully enforce the testator's inten-
tion only so far as the property in New York was concerned.
6 Post, §§ 205-207. See Dickinson v. Hoomes, 8 Gratt. (Va.) 353, 410;
post, § 111.
246 creditor's rights against the heir. § 111
strictly a part of the administration of a decedent's estate, are
so closely connected with it that they may very appropriately
be discussed in this connection.
It is the better opinion that the rights of a creditor against a
decedent's land are to be determined by the lex situs of the
land sought to be subjected, or in respect to which the right is
claimed, not by the law of the place of contract, nor by the lex
domicilii of the decedent or creditor.
The very question whether a party claiming the right to sub-
ject the decedent's land is a creditor at all, so far as the realty
is concerned, is to be determined by the lex situs of the land.
Thus, in a Kentucky case,^ an Ohio probate court, under the
law of that State, gave a widow an allowance of $4,000 for her
support for one year, declaring it a lien on her deceased hus-
band's lands. Upon her seeking to enforce the lien so created
upon some of her husband's land in Kentucky, the court held
that, according to Kentucky law (the lex situs), the allowance
was not a debt of the estate, and would not be enforced there
against the lands in the hands of the heir.
In Dickinson v. Hoomes,* land in Virginia had been conveyed
with a covenant of general warranty on the part of the grantors
and their heirs. Subsequently the heirs set up title to the land
under a prior will, and sued to recover part thereof from an as-
signee of the original grantee. The defendant set up by way of
lebutter certain lands in Kentucky descended upon the plain-
tiffs from their ancestor, the grantor. It was held that the
question whether or not the Kentucky lands were assets for the
payment of what might be due upon breach of the covenant,
was to be determined in accordance with the law of Kentucky
(lex situs).
Conflicts too sometimes arise between the lex domicilii of a
deceased debtor, or the lex loci contractus of a debt or contract,
and the lex situs of the decedent's lands, as to whether certain
lands are to be applied to the payment of his debts before
others; or where by one law the heirs are liable to the ances-
tor's debts in proportion to their shares only, while by the other
» Short V. Galway, 83 Ky. 501. ^ g Gf^tt. {Va. ) 353, 410.
§ 112 EXONERATION AND CONTRIBUTION. 247
each heir is liable for the whole debt to the extent of the land
descended upon him. In all such cases, it would seem that the
lex situs of the particular land in question should govern, since
the question is one of charging the land with the debt. All
liens, transfers, and charges upon real estate, it is believed, are
governed by the lex situs of the land.'
§ 112. Exoneration of Realty out of Personalty, and vice
▼ersa — Contribution bet'ween Heirs or Devisees. — Cases
sometimes occur in which a decedent dies, possessed of lands in
one country and personalty in another, the heirs or devisees
succeeding to the land and the personal representative to the
personalty. The laws of one of these countries may make the
personalty primarily liable for certain debts, while the laws of
the other may make the land primarily liable for them.
If under these circumstances the creditors of the decedent
subject his lands in one State (in the hands of his devisees or
heirs), perplexing questions will arise as to the right of the
heirs or devisees to exoneration and reimbursement out of the
personalty situated in another State for the loss imposed iipon
» Whart. Confl. L. § 291 ; Story, Confl. L. §§ 489 a, 489 b ; La Selle v.
Woolery, 14 Wash. 70, 32 L. R. A. 75. But see Story, Confl. L. § 268 ; Brown
V. Richardson, 1 Mart. N. s. (La.) 202. These last references relate to a case
of a somewhat different character, where the question is not as to the manner
in which the land shall be subjected, but whether it can be subjected to the
decedent's debt at all. In Brown v. Richardson, supra, the decedent, owning
lands in Louisiana, contracted a debt in another State by whose law (the com-
mon law) heirs were not bound by the simple contracts of their ancestor. By
the law of Louisiana, the heirs were bound by such contracts. In a suit by
the creditor in Louisiana to subject the lands in the hands of the heir, it was
held that this pertained to the obligation of the contract, and was to be deter-
mined by the law governing the contract itself (lex loci contractus). This
decision receives the approval of Judge Story ; but its soundness is doubtful,
since a charge is thereby established upon the land, contrary to the lex situs.
It is closely analogous to the case of the charge created by a married woman's
contract upon her equitable separate estate in land, which, according to the
better opinion, is governed by the lex situs, not by the lex loci contractus.
La Selle v. Woolery, 14 Wash. 70, 32 L. R. A. 75 ; Wick v. Dawson, 42
W. Va. 43, 24 S. E. 587; Johnston v. Gawtry, 11 Mo. App. 322 ; Bank v.
Williams, 46 Miss. 618, 12 Am. Rep. 319 ; Cochran v. Benton, 126 Ind. 58,
25 N. E. 870. But see Spearman v. Ward, 114 Penn. St. 634, 8 Atl. 430 ;
Story, Confl. L. § 267.
248 EXONERATION AND CONTRIBUTION. § 112
them ; and on the other hand, if the personalty is first subjected,
a similar question will arise touching the rights of the parties
succeeding thereto to exoneration out of the realty.^
Let us suppose, for instance, that A, domiciled in Virginia,
mortgages land owned by him in Scotland, and dies possessed
of the Scotch land and Virginia personalty. By the law of Vir-
ginia (lex domicilii) the personal estate is primarily bound to
pay the mortgage debt, while under the Scotch law (we will
suppose) land mortgaged is primarily liable to pay the mortgage.
Under these circumstances, the heirs in Scotland pay off the
mortgage and release the land. Are they entitled to relief in
Virginia out of the decedent's personalty ? ^
In solving this problem, and others similar to it, it must be
observed first of all that the general creditors of the decedent
are not interested; the decedent's debts have been paid, and it
is purely a contest between the successors to the land and the
successors to the personalty of the decedent, as to who shall
ultimately bear the burden of the debt. But the very fact that
one of the decedent's representatives is claiming exoneration
out of the estate in the hands of the other constitutes the first a
quasi-creditor of the latter estate, in equity, should his claim
be valid.
An heir or devisee claiming exoneration out of the person-
alty cannot claim to be such a quasi-creditor of the personalty,
unless the lex situs of the land makes the real estate only sub-
sidiarily liable.' In the latter event he can in that State
doubtless claim exoneration out of the personalty, and should
there be any personal estate actually situated there the courts
of that country (the situs of the land) will probably administer
1 In such cases (all creditors being paid) the personalty of the decedent,
wherever it may be actually situated, must be deemed in law to be situated
at the domicil of the owner (the decedent). The law of his last domicil there-
fore will furnish the law governing the primary liability of the personalty.
* This case nearly resembles the case of Drummond v. Drummond, 6 Bro.
P. C. 601, quoted by Sir "William Grant in Brodie v. liarry, 2 Ves. & B. 127,
132 ; infra, note 11.
' Drummond v. Drummond, 6 Bro. P. C. 601, cited in Brodie r. Barry,
2 Ves. & B. 127, 132 ; Elliott v. Lord Minto, 6 Madd. 16 ; Earl of "Win.
ehelsea v. Garetty, 2 Keen, 293, 308-309.
? 112 EXONEBATION AND CONTRIBUTION. 249
it in accordance with its own laws, whether or not the same
right he given hy the lex domicilii of the decedent. Here the
situs of the realty is identical with the actual situs of the per-
sonalty, and the lex situs will prevail.
But if there should be no personalty in the situs of the land,
or not enough to exonerate the heir or devisee, the two sorts of
property may be subject to different laws. Yet if by the lex
domicilii of the decedent, as well as by the lex situs of the land,
the heir or devisee under such circumstances is entitled to ex-
oneration out of the personal estate, the courts of the decedent's
domici!, or of any third State where the personalty may be
found, will recognize his status as a quasi-creditor of the per-
sonalty created by the lex situs of the land, and exoneration
will be decreed him.*
If, however, the lex domicilii of the decedent does not recog-
nize, under such circumstances, the heir's or devisee's right to
exoneration, the mere fact that the lex situs of the realty gives
him that right will not be sufficient. ^
In other words, the true rule would seem to be that both laws
must concur in making it a case for exoneration, before exoner-
ation will be decreed the heir or devisee out of the personalty
(situated elsewhere than in the situs of the land).
The same result must also be reached in cases where the per-
sonalty is first subjected, and the successor to the personalty
thereupon claims exoneration out of the realty situated else-
where. If under the lex domicilii of the decedent and the lex
situs of the land also the land is primarily responsible, exoner-
ation will be decreed ; but if by either law the personalty ia
primarily liable, it must bear the loss, and no exoneration will
be permitted.®
E converso, it was held in New York that if a debt of a dece-
dent domiciled in New York is not permitted to be made out of
land in South Carolina, because the personalty in New York is
by the law of South Carolina primarily liable therefor, neither
* Anonymous, 9 Mod. 66 ; Earl of Winchelsea r. Garetty, 2 Keen, 293.
6 Rice V. Harbeson, 63 N. Y. 493.
* Earl of WincheLsea v. Garetty, 2 Keen, 293, 308-310. See Story, Confl,
L. § 26«o, But see In re Hewit, 3 Ch. 568.
250 EXONERATION AND CONTRIBUTION. § 112
can the debt be made out of the personalty in New York, which
is there made subsidiarily liable only. The result was that the
creditor lost his debt entirely. The mere mention of this con-
sequence is to state that there must have been some error in the
conclusion.'^
Several illustrations may be given of the general principle
regulating these cases; namely, that, in order for the doctrine
of exoneration to apply, the lex situs of both the realty and the
personalty must permit it.
In an English case,^ a testator domiciled in Holland owned
land there and personalty in England. He devised all his real
estate to one person and all his personalty to another, whom
he appointed his executor. The testator owed some specialty
debts and some simple contract debts to persons in Holland, to
satisfy which he had no property in Holland but the land. By
the laws of Holland, if decedent had no other assets, his land
might be subjected to the payment of his debts, both by spe-
cialty and simple contract, and the land in Holland was sub-
jected accordingly. The devisee then sued the executor and
legated of the personalty in England for exoneration out of the
personalty. The law of both countries made the personalty
primarily responsible, and exoneration was accordingly decreed
out of the English personalty.*
In Earl of Winchelsea v. Garetty,^" one domiciled in Eng-
land and possessed of personalty there, owned real estate in
' Rice V. Harbeson, 63 N. Y. 493. The facts of this case have already
been given, and what is believed to have been the error of the court pointed
out. Ante, § 110, note 4. It is to be observed that this case was not strictly
one of exoneration. The question there did not arise between the successors
to the land and the successors to the personalty, but the creditor was a party.
It was he who bore the loss.
8 Anonymous, 9 Mod. 66.
9 In this case, it is to be noted that the domicil of the testator was in Hol-
land, where the land was situated. The legal situs of the personalty was
therefore in Holland also, except for purposes of administration. It is prob-
able that even if the law of England had not made the personalty ultimately
liable for the debts, the law of Holland would have prevailed, at least unless
the legatee of the personalty were domiciled in England.
w 2 Keen. 293. 308-310.
§ 112 EXONERATION AND CONTRIBUTION. 251
Scotland. He contracted certain debts and died. The cred-
itors went against the land in Scotland and subjected it, and
the heirs sought exoneration out of the English personalty.
The Scotch law distinguished between "heritable bonds" and
"movable debts," making the former primarily chargeable on
the land, and the latter on the personal estate. The decedent's
debts belonged to the latter class. The English law made the
personalty primarily liable for all debts. The English court
held that exoneration should be decreed on the ground that the
heir was made a quasi-creditor of the personal estate by the law
of Scotland (the situs of the land), and the English law coin-
ciding, there was no reason why exoneration should be denied.
On the other hand, in Drummond v. Drummond," a person
domiciled in England owned real estate in Scotland, upon which
he granted a "heritable bond" to secure a debt contracted in
England. He died intestate; and the question was whether
this debt was ultimately to be borne by the real or personal
estate. By English law the personal estate was the primary
fund for the payment of all debts. By the law of Scotland, the
real estate was the primary fund for the payment of " heritable
bonds." It was said for the heir that the personal estate must
be distributed according to the law of England (the decedent's
domicil), and must bear all the burdens to which it is by that
law subject. But in answer to th^p it was said that the land
must go to the heir in accordance with the law of Scotland,
bearing all the burdens to which it is by that law subject. The
•court refused to decree exoneration. In this case the laws of the
situs of the two funds were in conflict.
In Staigg V. Atkinson, ^^ a testator, after charging his lands
with the payment of his debts, provided for his widow, without
expressing an intention to bar her of her dower. He owned
lands in Minnesota and certain mortgaged lands in Massa-
chusetts. The executor, under a power in the will, sold the
Minnesota land and brought the proceeds to Massachusetts. By
" 6 Bro. P. C. 601, cited in Brodie ». Barry, 2 Ves. & B. 127, 132, and ia
Story, Conft. L. § 487.
13 144 Maas. 564, 12 N. £. 854.
262 EXONERATION AND CONTRIBUTION. § 112
the Minnesota law, the provision for the wife in the will did
not har her dower in the land there in the absence of an ex-
pressed intention to that effect in the will. That law also pro-
vided that her dower should be subject, in its just proportion
with the other real estate, to such debts of the deceased as were
not paid out of his personal estate. By Massachusetts law her
dower was free from the debts of her husband. By the common
law of both States, when mortgaged land and other land of a
decedent were both charged together with debts, they were
bound to contribute ratably to the payment. The widow sued
the executor in Massachusetts for her dower share in the pro-
ceeds of the Minnesota lands, claiming that she was entitled
thereto free from any duty to contribute to pay off the mortgage
on the Massachusetts land. But the Massachusetts court held
that she must contribute, since under the lex situs of the Min-
nesota land she was bound to contribute, in the absence of per-
sonalty sufficient to pay the husband's debts, and since by the
laws of both States mortgaged land was entitled to exoneration
pro rata out of the other lands of the decedent."
The equitable principle of contribution between heirs or devi-
sees in the administration of their deceased ancestor's estate
is closely assimilated to that of exoneration, and in the main
would seem to be governed by similar rules, when the lands
in possession of the several heirs or devisees are in different
States, whose laws are conflicting touching the order in which
the lands are to be primarily liable for the debts. Indeed, con-
tribution in these cases is but a partial exoneration.
The same general principles are applicable here. If the heir
'^f land in one State, subjected to a debt of his ancestor, claims
exoneration or contribution from the heir of the lands in an-
other State, not only must he show himself entitled to such
relief by the law of the place where his own land is situated,
whereby he is constituted a quasi-creditor of the other heir,
but the same relief must also be open to him under the law of
the State where the land in the hands of the second heir is
situated.^*
18 See also Maxwell v. Hyslop, L. R. 4 Eq. 407.
M See Staigg v. Atkinson, 144 Mass. 564, 12 N. E..354.
§ 113 ANCILLARY ADMINISTRATIONS. 253
§ 113. Termination of Status of Executors or Administra*
tors — Auxiliary or Ancillary Administrations. — It has already
been observed that the fiduciary status is peculiar, being recog-
nized by the law, not for the benefit of the fiduciary himself,
nor chiefly for the benefit of the legatees or other beneficiaries,
but mainly for the purpose of dealing with third persons, cred-
itors, debtors, or claimants of the estate. Such third persona
may be residents of the decedent's domicil or of other States,
and the decedent's personalty may have its actual situs in his
domicil or elsewhere.
The primary or principal administration is that conducted at
the domicil of the decedent, for there is the legal situs of his
personal property. But the legal situs of the personalty yields
to the actual situs wherever, under the general exceptions to
the ''proper law," the lex fori may be substituted for the lex
domicilii. Administration proceedings constitute one of these
exceptions, for the protection of residents of the forum.
Hence, as we have seen, the domiciliary or principal admin-
istrator will not ordinarily be permitted to administer assets iu
another State, merely by virtue of his domiciliary appointment
and qualification, but there must be a fresh appointment and
qualification in every State where there are assets.
These are known as ancillary administrations because they
are subordinate and auxiliary to the principal or primary or
domiciliary administration, and after their purposes are served
by satisfying all creditors and claimants in the State of their
creation, they are ultimately responsible to the principal ad-
ministration for the balance of the assets unadministered, and
are generally bound to remit such balance to the domicil for
distribution. Such is the general theory of ancillary adminis-
trations.^
1 Wilkins v. Ellett, 9 Wall. 740, 742 ; Harvey v. Richards, 1 Mason, C. C.
380, 409 ; Parsons v. Lyman, 20 N. Y. 103 ; Despard v. Churchill, 53 N. Y.
192, 200; Cross r. Trust Co., 131 N. Y. 330, 346; Graveley r. Graveley,
25 S. C. 1, 60 Am. Rep. 478, 482 ; Stevens v. Gaylord, 11 Mass. 256 ; Dawes
V. Head, 3 Pick. (Mass.) 128, 145, 147 ; Davis v. Estey, 8 Pick. 475 ; Jenni-
son V. Hapgood, 10 Pick. 77, 19 Am. Dec. 258 ; Fay v. Haven, 3 Met. (Maas.)
109, 114 ; Merrill v. Ina. Co., 103 Mass. 245, 248; Welles' Estate, 161 Pena
St 218, 28 Atl. 1116.
254 ANCILLARY ADMINISTRATIONS. § 113
The rights, duties, and liabilities of the principal and ancil-
lary administrators, while administering the funds in their
hands, have already been considered in preceding sections,^ and
will not be here repeated. It may be observed however in this
connection that although it is often assumed that ancillary ad-
ministrations are created solely for the benefit of such claimants
as are residents of the forum,* and although that in truth is
the real basis upon which they rest, yet such administrations
being once created, both convenience, comity, and justice re-
quire that the courts of the forum should be open to all claim-
ants who choose to prove their claims there, provided such
liberality would not work an injury to those who are actually
citizens of the forum, as by exhausting the assets and forcing
the citizens themselves to resort to the domiciliary forum.*
But it is especially to the relations between the ancillary and
domiciliary administrations that attention will now be directed.
Generally speaking, it is the duty of the ancillary adminis-
tration to collect and pay all debts and claims by or against the
estate, arising in the State of such administration, and then to
make a settlement before the courts of that State pursuant to
its laws,* finally remitting any balance found to exist to the
» Ante, §§ 105 et seq.
« See Despard v. Churchill, 53 N. Y. 192, 199-200 ; Graveley v. Grareley,
26 S. C. 1, 60 Am. Rep. 478, 483 ; "Welles" Estate, 161 Penn. St. 218, 28 Atl.
1116, 1117 ; Stevens v. Gaylord, 11 Mass. 256, 269.
4 De Sobry v. De Laiatre, 2 Har. & J. (Md.) 191, 3 Am. Dec. 535, 536;
Goodall V. Marshall, 11 N. H. 88, 35 Am. Dec. 472, 477-479 and note;
Dawes r. Head, 3 Pick. (Mass.) 128, 145 ; Harvey v. Richards, 1 Mason, C. C.
880, 407. See Bank v. Lacombe, 84 N. Y. 267 ; Atherton Co. v. Ives, 20
Fed. 894 ; Sturtevant v. Armsby Co., m N. H. 557, 23 Atl. 368. In the last
case a distinction is taken between citizens of one of the States of the Union
and citizens of foreign countries. This question or one closely analogous is
discussed hereafter. Post, § 138.
s Lamar v. Micou, 112 U. S. 452 ; Vaughn v. Northup, 15 Pet. 1 ; McLean
V. Meek, 18 How. 16, 18 ; Harvey v. Richards, 1 Mason, C. C. 380, 414 ; Ste-
vens V. Gaylord, 11 Mass. 256, 269 ; Dawes v. Head, 3 Pick. (Mass.) 128, 144 ;
Parsons v. Lyman, 20 N. Y. 103 ; Despard v. Churchill, 53 N. Y. 192, 199 ;
Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482 ; Russell v. Hooker, 67
Conn. 24, 34 Atl. 711, 712. The cases show that in general the accountability
cf an ancillary administrator is solely to the courts of his own State. See
§ 113 ANCILLARY ADMINISTRATIONS. 265
domiciliary administration, there to be administered and dis-
tributed as the lex domicilii of the decedent directs.
But it must not be supposed that the courts of the State of
ancillary administration are always bound to remit, that they
have no jurisdiction to retain and themselves distribute the
balance. It seems to have been supposed at one time that there
was no other step save to remit the balance to the courts of the
domicil, and that legatees or distributees, though residing in
the State of ancillary administration, must apply to the domi-
ciliary courts for the distribution.® But the modern and more
reasonable doctrine is that it is not a matter of jurisdiction, but
lies within the sound judicial discretion of the court adminis-
tering the fund, whether after administration it shall proceed
to assign their shares to resident legatees or distributees, oi
remit the fund to the domicil of the decedent, and thus force
these parties to resort thither. Though the usual rule is to
remit, circumstances may justify the other course.' The dis-
cretion will usually be exercised in favor of the local distribu-
tion of the balance only in those cases where the legatees or
distributees are citizens of the forum, where the funds are not
needed by the domiciliary administration for the payment of
debts, and where to remit them would cause inconvenience,
trouble, and perhaps loss to the legatees or distributees resident
in the forum.
Vaughn v. Northup, 15 Pet. 1 ; Fay v. Haven, 3 Met. (Mass.) 109, 116.
And until he has satisfied all the creditors in his own jurisdiction, no other
administrator, not even the domiciliary administrator, can oust him of hi«
authority or lay claim to any property situated there, or recover there of any
debtor of the estate. Merrill v. Ins. Co., 103 Mass. 245. But if the ancil-
lary administrator has been guilty of fraud so that he may be sued upon his
personal responsibility, as for a breach of trust, he may be held accountable
therefor in any forum acquiring jurisdiction over him. In such case the
accountability is in the court of chancery for breach of the trust. Leach v.
Buckner, 19 "W. Va. 36 ; McNamara v. Dwyer, 7 Pai. Ch. (N. Y.) 239,
32 Am. Dec. 627 ; Powell r. Stratton, 11 Gratt. (Va.) 792, 797.
6 Richards v. Dutch, 8 Mass. 506 ; Dawes v. Boylston, 9 Mass. 337.
' Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116, 1117 ; Graveley ».
Graveley, 25 S. C. 1, 60 Am. Rep. 478 ; Harvey v. Richards, 1 Mason, C. C.
380, 409 ; Despard v. Churchill, 53 N. Y. 192, 200 ; Parsons v. Lyman, 20
N. Y. 103.
256 ANCILLARY ADMINISTRATIONS. § 118
In Graveley v. Graveley,' a testator domiciled in England
bequeathed a legacy to a resident of South Carolina, to be paid
when he became twenty-one, with interest. The fund was in-
yested by the English executor in British consols, bearing three
per cent interest. The South Carolina rate of interest was seven
per cent. The executor qualified also in South Carolina, where
there were sufficient assets to pay the legacy. All debts and
other legacies had been paid. The legatee sued the executor
in the South Carolina courts for his legacy with South Carolina
interest. It was held to be a case for the exercise of the court's
discretion, and the court decreed in favor of the legatee, giving
him seven per cent interest.'
If in a case of this kind there should be serious doubt aa to
wh&t is the lex domicilii, it will generally be the duty of the
court of ancillary administration to remit to the domicil for
distribution, so that the domiciliary courts may interpret their
own law."
Even with respect to creditors of the estate, though residents
of the State of ancillary administration, the importance of the
domiciliary administration, as affording a broader view of the
total assets and liabilities of the decedent, is recognized by
some of the decisions to the extent that, if the estate is reported
insolvent by the domiciliary administration, the creditors in
the States of ancillary administration will only be allowed their
debts pro rata with all other creditors. They will not be paid
in full at the expense of other creditors who have filed their
claims in the domiciliary courts. ^^ This is certainly a liberal
» 25 S. C. 1, 60 Am. Rep. 478.
' It is submitted that in the matter of interest the court erred. For it
is generally conceded that the distribution, even if it occurs in the State of
ancillary administration, should be made in accordance with the law of the
domicil. See cases supra. The interest the legacy was to bear was not a
question of administration, but of distribution. Or if it be taken as a ques-
tion of the interpretation of the will, it is well settled that ambiguous phrases
in a will ("interest") should be interpreted in accordance with the law of
the testator's domicil. Post, § 145.
w Rockwell V. Bradshaw, 67 Conn. 9, 34 Atl. 758, 761 ; Parsons v. Lyman,
20 N. Y. 103.
u Dawes v. Head, 3 Pick. (Mass.) 128; Davis v. Estej', 8 Pick. 475.
§ 114 STATUS OP QUABDIAN8. 257
doctrine, but it would seem rather to overlook the real basis of
all ancillary administration, the protection of home creditors.^'^
After the completion of the administration of the decedent's
estate, both ancillary and domiciliary, follows the distribution
of the residuum. The proper law governing this distribution,
whether it is made in the State of ancillary administration or
in the domicil, is the lex domicilii of the decedent, as will more
fully appear hereafter."
§ 114. Status of Guardians. — These fiduciaries, like ad-
ministrators, are quasi-officers of the law, even when appointed
by the individual, as in the case of testamentary guardians.
They are also clothed in some measure with a like dual char-
acter, being created partly for the protection of the ward and
partly for the protection of third persons in their dealings with
the ward. Again, the status of guardianship, like that of ad-
ministration, is a local and temporary status, not a permanent
and universal one, and hence the powers and liabilities of the
guardian are for the most part local to the place of his appoint-
ment and qualification.
There are however several important distinctions between the
two classes of fiduciaries. In the first place, the relation of
guardianship applies as well to the custody and control of the
person of the ward, as of his property, while the status of ad-
ministration is applicable only to property. In the second
place, while the status of administration is created chiefly for
the benefit and protection of creditors of the decedent, and other
third persons, the main purpose of the guardian is to protect
the infant, and the relation towards third persons, though ex-
istent and recognized, is only incidental. In the third place,
as respects property rights, there is a distinction between the
two classes of fiduciaries with regard to the title to the property
held by them. As it has been expressed by the Supreme Court
of the United States in a leading case on this subject: ^ '' The
case of a guardian differs from that of an executor or trustee
12 The United States Supreme Court has taken the opposite view, giving
resident creditors precedence in such cases. Smith v. Bank, 5 Pet. 518, 527.
» Post, §§ 139 et seq.
1 Lamar r. Micou, 112 TJ. S, 451.
17
258 STATUS OP GUARDIAN — WAKD'S PERSON. § 115
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 prop-
erty is in the ward, and the guardian has only the custody and
management of it, with power to change its investment. The
executor or trustee is appointed at the domicil of the testator,
the guardian is most fitly appointed at the domicil of the ward,
and may be appointed in any State in which the person or prop-
erty 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 testator's domicil, in the other case it is the lex domicilii
of the ward."
Whether the guardian be viewed as the custodian of the
ward's person or of his property, it is unquestionably true that
he is "most fitly appointed at the domicil of the ward," for
that is the legal situs both of the ward and of his personalty.
The guardian there appointed is regarded generally as the prin-
cipal guardian, to whom other guardians appointed elsewhere
are answerable and ultimatelj' accountable with respect to the
ward's property.^
Since the guardian, in the absence of a parent, is intrusted
with the custody of the ward's person and the care of his edu-
cation, as well as with his property, the proper law governing
the relation may best be examined with reference to (1) The
care of the ward's person; (2) The care of his estate.
§ 115. Status of Guardian with respect to Ward's Person.
— The legal situs of the ward being his domicil, the guardian
appointed there is regarded as having peculiar powers with re-
spect to the ward's person. Although the status is not a per-
manent one, and other guardians, upon occasion, may be
appointed in other States where the ward may happen to have
his actual situs, even when his property is not in question, or
though he have no property there, yet the authority of such
a guardian is always local only. He has no general authority
over the ward's person which will be recognized in other States.^
But the authority of the domiciliary guardian over the ward's
2 Lamar v. Micou, 112 U. S. 452; Earl v. Dresser, 30 Ind. 11, 95 Am. Dec.
660, 665. See Grimmett v. Witherington, 16 Ark. 377, 63 Am. Dec. &Q, 71.
1 Johnstone v. Beattie, 10 CI. & F. (H. L.) 42 ; Woodworth v. Spring,
§ 115 STATUS OF GUARDIAN — WARD's PERSON. 259
person, even when the latter is actually in another State, is to a
certain extent recognized everywhere. Though a local guar-
dian has been appointed in the State of the ward's actual situs,
it is believed to be the better view that the authority of the
domiciliary guardian over the ward's person is paramount, un-
less the welfare of the child or some other very grave reason
intervenes.' ,
The English case of Nugent v. Vetzera * strongly illustrates
the respect shown to the authority of the domiciliary guardian
even when the ward is in a foreign country. An Austrian
subject of wealth and position married an Englishwoman, and
had ten children. The husband died, and the mother sent
some of the children to England to be educated. One of the
daughters married an Englishman. The mother died, and a
guardian was appointed by an Austrian court, which ordered
that the children should be brought back to Austria to be edu-
cated. The married daughter caused herself to be appointed
the guardian of the children in England, and resisted the at-
tempt to take them back to Austria. Both guardians were fit
and suitable persons, and the children desired to remain in
England. But the English court held that it would be con-
trary to comity as well as to policy to refuse the domiliciary
guardian leave to remove them, as it would tend to check inter-
course between the nations, and would react harshly upon Eng-
lish infants abroad.
4 Allen (Mass.), 321 ; People v. Baker, 76 N. Y. 78, 85, 32 Am. Rep. 274. See
Kelsey v. Green, 69 Conn. 291, 37 Atl. 679 ; Rogers v. McLean, 31 Barb.
(N. Y.) 304.
2 Kraft V. "Wickey, 4 Gill & J. (Md.) 332, 23 Am. Dec. r)69, .571 ; Towus-
end V. Kendall, 4 Minn. 412, 77 Am. Dec. 534, 537 ; Woodwoith v. Spring,
4 Allen (Mass.), 321 ; Wood v. Wood, 5 Pai. Gh. (N. Y.) 596, 28 Am. Dec.
451 ; Grimmett v. Witherington, 16 Ark. 377, 63 Am. Dec. 66, 71 ; In re
Rice, 42 Mich. 528, 4 N. W. 284, 285 ; Kelsey v. Green, 69 Conn. 291, 87
Atl. 679 ; Nugent v. Vetzera, L. R. 2 Eq. 704 ; Dawson v. Jay, 3 DeG. M. &
G. 764. This is denied outright by some of the decisions, which hold that no
foreign guardian has any control whatever over the person or property of his
ward in another State, and that he must be first reappointed there as guardian.
Story, Confl. L. § 499 ; Johnstone v. Beattie, 10 CI. & F. 42 ; Rogers v.
McLean, 31 Barb. (N. Y.) 304. See Hoyt v. Sprague, 103 U. S. 613, 631.
» L. R. 2 Eq. 704.
260 STATUS OF GUARDIAN — WARD's PERSON. § 115
In Woodworth v. Spring,* a child domiciled in Illinois, and
there under guardianship, was brought to Massachusetts with
the consent of his guardian, by an aunt who there caused
herself to be appointed his guardian, without the knowledge
or consent of the domiciliary guardian. The latter after-
wards sought to recover possession of the child by a habeas
corpus proceeding. The court, while denying the petition on
the ground that such a course was best for the child, remarked :
"But it by no means follows that the foreign guardian's claim
to the care of the child and the control of his person and the
privilege of removing him from this State is to be absolutely
denied. On the contrary, it is the duty of the courts of this
State, in the exercise of that comity which recognizes the laws
of other States when they are consistent with our own, to con-
sider the status of guardian, which the petitioner holds under
the laws of another State, as an important element in determin-
ing with whom the child is to continue. It would not do to
say that a foreign guardian has no claim to his ward in this
State. If such were the rule, a child domiciled out of the State,
sent hither for purposes of education, or brought here by force
or fraud, or coming by stealth, might be emancipated from the
control of his rightful guardian. Kor does the appointment of a
guardian in this State operate to bar any decree of the court in
favor of the foreign guardian."
Kelsey v. Green ® was a contest between a New York and a
Connecticut guardian over the custody of a child actually located
in Connecticut. The child had lived there several years with
its mother (now dead). The father and the family had lived in
New York, where he was convicted of felony and confined in
the penitentiary. Upon his release he caused a man in New
York to be appointed there the guardian of the child. This
man, claiming that he was the domiciliary guardian, petitioned
the Connecticut court for a habeas corpus to recover the posses-
sion of the child from the Connecticut guardian. The court
denied the petition in the interests of the child.
In conclusion, it may be not amiss to state that, however
confined the authority of a domiciliary guardian may be ovei
* 4 AUen (Mass.), 321. » 69 Conn. 291, 37 Atl. 679.
§116 STATUS OP GUARDIAN — WARD'S PROPERTY. 26:|
the person of his ward in another State, the parents (natural
guardians) have no such restricted authority. It is universally
conceded that they have in general the same control over their
children when abroad that they have at home.®
§ 116. Status of Guardian with respect to "Ward's Prop-
erty. — So far as concerns the ward's property, the appointment
of a guardian, though primarily, is not solely for the protection
and benefit of the ward. He may be brought into business re-
lations with third persons, whose rights the law must protect.
It follows therefore, as in the case of executors and adminis-
trators, nowithstanding the general legal fiction that person-
alty has its legal situs at the domicil of the owner, that if the
ward should own personalty in other States, before any one can
deal with the property there as guardian of the ward, he must
be appointed guardian with all the formalities and securities
required by the law of the actual situs of the property. It is
generally admitted that the appointment of a guardian, whether
in the ward's domicil or elsewhere, gives him no exterritorial
authority over the ward's personal property.^
And if such is the rule with respect to personal property,
a fortiori is it the rule where the ward's property is immovable.
Here it is well settled that the lex situs of the land governs,
and that law usually requires a guardian to qualify there before
he can act with respect to land.''
6 Johnstone v. Beattie, 10 CI. & F. 42 ; Townsend v. Kendall, 4 Minn. 412,
77 Am. Dec. 534. But see ante, § 83.
1 Kraft V. Wickey, 4 Gill & J. (Md. ) 332, 23 Am. Dec. 569, 571 ; Rogers
V. McLean, 31 Barb. (N. Y.) 304 ; Morrell v. Dickey, 1 Johns. Ch. (N. Y.)
153, 156 ; Lamar v. Micou, 112 U. S. 452 ; Hoyt v. Sprague, 103 U. S. 613,
631. There is some tendency to give effect to the domiciliary guardianship
in cases where citizens of the situs are not interested. See Lamar v. Micou,
112 U. S. 452 ; Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534 ; Grim'-
mett V. Witherington, 16 Ark. 377, 63 Am. Dec. 66 ; Earl v. Dresser, 30 Ind.
11, 95 Am. Dec. 660, 664-665.
2 Whart. Confl. L. § 268 ; Hoyt v. Sprague, 103 U. S. 613, 631 ; Grim-
mett i;. Witherington, 16 Ark. 377, 63 Am. Dec. 66, 69 ; Rogers v. McLean,
31 Barb. (N. Y.) 304. It is said that a guardian appointed in one State haa
no right even to receive the profits of the ward's real estate located elsewhere,
unless he has been duly appointed guardian in the State where the land lies,
Story, Confl. L. § 504. See Smith v. Wiley, 22 Ala. 396, 58 Am. Dec. 262.
262 STATUS OF GUARDIAN — WARD's PROPERTY. § 116
But after the claims of all third persons are disposed of, or if
none arise, the general principle, as between guardian and ward,
is the same that regulates the accountability of the executor or
administrator to the legatees or distributees. The law of the
legal situs of the personalty controls questions arising solely
between guardian and ward; that is, the lex domicilii of the
owner (the ward).
Thus, in Lamar v. Micou,' the guardian was appointed in New
York, while the wards were domiciled in another State. He
invested the wards' money in a manner that was lawful under
the New York law, but rendered him responsible for its safety
under the law of the wards' domicil. The court held that he was
accountable according to the latter law. In the course of the
opinion, Mr. Justice Gray says : ' ' The form of accounting, so
far as concerns the remedy only, must indeed be according to
the law of the court in which relief is sought; but the general
rule by which the guardian is to be held responsible for the in-
vestment of the ward's property is the lex domicilii of the
ward."
If the ward has property in his domicil, it is generally the
duty of the domiciliary, rather than of an ancillary, guardian
to maintain him, even though he be actually in another State,
and a fortiori, if he is in the State of his domicil.* But if he
has no property in the State of his domicil, so that the principal
guardian is unable to maintain him, an ancillary guardian will
then be permitted to give or send him funds for his mainten-
ance, subject to a strict accountability.®
The principles regulating the powers, duties, and liabilities
of the committees or guardians of idiots, insane persons, con-
victs, etc., are closely analogous to those controlling the ordi-
nary relation of guardian and ward. In general, however, only
the property interests of the ward, not his person, are intrusted
to this class of fiduciary.*
» 112 U. S. 452.
< Kraft V. Wickey, 4 Gill & J. (Md.) 332, 23 Am. Dec. 569.
' Stephens v. James, 1 Mylne & Keene, 627.
• See Rogers v. McLean, 31 Barb. (N. Y.)304; Glaser v. Priest, 29 Mo.
App. 1 ; Schneller v. Vance, 8 La. 506, 28 Am. Dec. 140.
§ 117 STATUS OP BBCEIVERS. 263
§117. Status of Receivers — In General. — Receivers are
fiduciaries appointed by a competent court to take charge of and
control property litigated, pending the litigation. The appoint-
ment of such a fiduciary is usually incidental to the winding
up of insolvent partnerships and corporations. Through the ap-
pointment of a receiver the court obtains possession and control
of the litigated property, preserves it from waste and destruc-
tion, secures and collects the proceeds and profits, and ulti-
mately distributes it according to the rights and priorities of
those entitled.
A receiver is nothing more than an officer or creature of the
court that appoints him. His acts are the acts of the court,
whose jurisdiction may be aided, but not in general enlarged or
extended, by his appointment. His powers are for the most part
only coextensive with the authority of the court conferring
upon him his official character.^
It will be observed that the status of a receiver is to a certain
extent assimilated to that of the fiduciaries already discussed.
But the dual character of the status is in this instance mini-
mized, if not altogether lost. His appointment is principally,
if not exclusively, for the benefit and protection of creditors;
only in a very slight degree, if at all, do the original owners
of the property profit by his appointment.
It follows therefore that the receiver's status is more strictly
local than that of either administrator or guardian. Even here,
however, there is the distinction between primary or principal
and ancillary receiverships. The first court which assumes
jurisdiction and appoints a receiver is the court of " principal "
administration, while the courts of other States may appoint
"ancillary receivers" of the property there situated.^ The
position of a receiver may be likened to that of an assignee in
involuntary bankruptcy, rather than to that of an administrator
or guardian.'
Receivers, being mere officers of the court appointing them,
it will be readily seen that, inherently and as a matter of right,
1 Catlin V. Wilcox Silver Plate Co., 123 Ind. 477, 8 L. R. A. 62.
2 Reynolds v. Stockton, 140 U. S. 255.
» See Booth w. Clark, 17 How. 32S2 ; post, §§ 137, 138.
264 STATUS OP BBCEIVERS. § 117
they can have no title, power, or authority beyond the limits of
that court's jurisdiction.*
But upon principles of comity, always recognized and in
general acted upon, receivers appointed in one jurisdiction are
permitted elsewhere to protect interests and enforce claims of
which they are the custodians.* But the title of the foreign re-
ceiver to property in a State whose residents are creditors of the
insolvent concern will not be recognized there as against them,
at least if they are not parties to the foreign litigation out of
which the receivership grew,* In order to give him such rights
against citizens of the State where the property in question is
located, he must be appointed a receiver by its courts.'
So, if the recognition of the foreign receivership would con-
travene the policy of another State, it will not be recognized
there.* Nor will it be recognized, even as against non-resident
creditors who have attached or otherwise secured a lien upon the
property before it was actually vested in the receiver,* unless
perhaps where the lien creditor is a citizen of the same State
whose court has appointed the receiver.^"
Property situated in the State of his appointment becomes
vested in the receiver by the very fact of his appointment, with-
out possession thereof actually taken by him ; but as to property
outside of that State, in those cases where the authority of a for-
* Catlin V. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62 ; Boulware r.
Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189 ; Booth v. Clark, 17
How. 334.
6 Boulware v. Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189 ;
Oilman v. Ketcham, 84 Wis. 60, 54 N. W. 395, 397; Pond v. Cooke, 45 Conn.
126, 29 Am. Rep. 668; Willetts r. Waite, 25 N. Y. 577; Chicago, etc. R. R.
Co. V. Packet Co., 108 111. 317, 48 Am. Rep. 557; Cagill v. Wooldridge,
8 Baxt. (Tenn.) 580, 35 Am. Rep. 716.
« Catlin r. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62; Humphreys
V. Hopkins, 81 Cal. 551, 6 L. R. A. 792 ; Boulware v. Davis, 90 Ala. 207^
9 L. R. A. 602, 6 Am. St. Rep. 189 ; Willetts v. Waite, 25 N. Y. 577.
' See Farmers' Loan & T. Co. v. Tel. Co., 148 N. Y. 315, 31 L. R. A. 403,
42 N. E. 707.
» Boulware v. Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189.
» Catlin V. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62.
" Oilman v. Ketcham, 84 Wis. 60, 54 N. W. 395. See post, § 138.
§ 117 STATUS OF BECEIVBBS. 265
eign receiver will be recognized, he will not be regarded as hav-
ing acquired title until he has actually gained control over the
property. ^^
If, being vested with the title to the property in the State of
his appointment, the receiver should afterwards remove it to
another State, where it is attached by creditors, whether resi-
dent or non-resident, his title having already fully vested is
superior.^'
In the absence of conflicting claims of creditors in other juris-
dictions, it is generally conceded that a foreign receiver may deal
with the insolvent's property as if it were in the State of his ap-
pointment.^' As between two courts of concurrent jurisdiction,
such as a Federal court and a State court in the same State, both
having jurisdiction of the cause, the settled rule now is that the
court first obtaining jurisdiction of the res is entitled to retain
it until the litigation is terminated, whether or not a receiver
actually has possession of the property.^* Indeed the same prin-
ciple applies in other cases also where a conflict of jurisdiction
between the two classes of courts is threatened. ^^
While these general powers are usually recognized as conferred
upon foreign receivers, it will sometimes be convenient, and
even necessary, to appoint ancillary receivers in other jurisdic-
" As against citizens of the State of his appointment, he stands vested with
the title to all the property, even that which is outside the court's jurisdiction.
See Oilman v. Ketcham, 84 Wis. 60, 54 N. W. 395 ; Osgood v. Maguire, 61
N. Y. 524 ; Bagby t;. R. R. Co., 86 Penn. St. 291.
12 Pond V. Cooke, 45 Conn. 126, 29 Am. Rep. 668 ; Cagill v. Wooldridge,
8Baxt. (Tenn.) 580, 35 Am. Rep. 716; Chicago, etc. R. R. Co. v. Packet
Co., 108 111. 317, 48 Am. Rep. 557. See Humphreys v. Hopkins, 81 Cal. 551,
6 L. R. A. 792 ; Alley v. Caspari, 80 Me. 234, 6 Am. St. Rep. 185, note.
18 Willetts V. Waite, 25 N Y. 577, 584.
1* Shields v. Coleman, 157 U. S. 168 ; Hamilton v. Chouteau, 6 Fed. 339.
But where the State receivership ceases before the new cause of action arises,
the federal courts may then assume jurisdiction. Andrews v. Smith, 5 Fed.
833. And where a receiver of a State court acts unlawfully he maybe sued in
tort in a federal court. Curran v. Craig, 22 Fed. 101.
16 Thus, in Byers v. McAuley, 149 U. S. 608, it was held that property in
the hands of an administrator appointed by a State court could not be di»
tarbed by process issued from a federal court.
266 SUITS BY AND AGAINST RECEIVERS. § 118
tions where there is property of the insolvent.^* In such case,
as in the corresponding case of administrators, the two receivers
are not in privity, and a judgment obtained against one in the
State of his appointment will not be binding upon the other."
The ancillary receiver, after settling with the creditors within
his jurisdiction, is accountable to the principal receiver for the
balance, as in other cases of administration.
§ 118. Suits by and against Receivers. — A receiver, strictly
speaking, has no more right to sue in a foreign State than to do
any other act. But if a suit instituted by a foreign receiver will
not work a detriment or an injustice to the citizens of the forum,
he will generally, upon principles of comity, be permitted to ap-
peal to its courts.^
And upon going into a foreign jurisdiction, or sending the
trust property thither, he will be protected by the courts of that
State in his right to the property which, in the performance
of his duty, he has carried or sent thither. In such cases the
courts, while protecting their own citizens from wrong, will not
permit them to infringe the comity of nations and themselves
perpetrate a wrong upon the receiver and the court that has
appointed him.*
In respect to suits instituted against receivers, it is a general
rule that these officials cannot be sued without the leave of the
appointing court. A suit instituted without such leave is a
contempt of the appointing court, which, if it can reach the
plaintiff's person, may restrain him by an injunction or attach
M Farmers' Loan & T. Co. v. Tel. Co., 148 N. Y. 315, 325, 31 L. R. A. 403,
42 N. E. 707; Reynolds v. Stockton, 140 U. S. 255.
" Reynolds v. Stockton, 140 U. S. 255.
1 Booth V. Clark, 17 How. 322 ; Oilman v. Ketcham, 84 Wis. 60, 54 N. W.
395, 397; Boulwarer. Davis, 90 Ala. 207, 9 L. R. A 602, 6 Am. St. Rep. 189;
Petersen v. Chemical Bank, 32 N. Y. 21, 43, 88 Am. Dec. 298 ; Toronto, etc.
Trust Co. V. R. R. Co., 123 N. Y. 37, 47, 25 N. E. 198 ; Woodward v. Brooks,
128 111. 222, 20 N. E. 685 ; Humphreys v. Hopkins, 81 Cal. 551, 6 L. R. A.
792 ; Catlin r. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62.
2 Pond V. Cooke, 45 Conn. 126, 29 Am. Rep. 668 ; Chicago, etc. R. R. Co.
V. Packet Co., 108 111. 317, 48 Am. Rep. 557; Cagill v. Wooldridge, 8 Baxt.
(Teun.) 580, 35 Am. Rep. 716. But see Humphreys v. Hopkins, 81 Cal. 551,
6 L. R. A. 792.
§ 118 SUITS BY AND AGAINST BBCEIVERS. 267
him for contempt, or both, or may render the proceedings insti-
tuted by the plaintiff of no effect within its jurisdiction.' Such
is the view taken by the courts of the State where the receiver
is appointed.
Whether or not a foreign court will take the same view if a
creditor attempts to seize the property of the insolvent in its
jurisdiction without leave of the court appointing the receiver,
is a matter about which there is some conflict of opinion. It
would seem quite clear that such foreign court would not regard
the appointment of the receiver in cases where its own citizens
attach the property within its jurisdiction.*
But opinion is divided upon the question whether citizens
of the State where the receiver is appointed shall be per-
mitted to disregard the orders and jurisdiction of their own
home courts, and without their leave sue the receiver in another
State. Some of the courts take the view that want of leave to
sue the receiver is not a jurisdictional defect; but that such
suit may be maintained, the plaintiff taking the risk of the
appointing court being able to reach him effectively by injunc-
tion or contempt proceedings.^ But the more recent and the
better opinion is in favor of denying to foreign courts all juris-
diction of suits by home creditors against a home receiver ap-
pointed by the home courts, without the latter's leave first
obtained.®
• Winswall v. Sampson, 14 How. 65; Peale v. Phipps, 14 How. 368;
Davis V. Gray, 16 Wall. 203 ; Barton v. Barbour, 104 U. S. 126 ; Farmers'
Loan & T. Co. v. Tel. Co., 148 N. Y. 315, 31 L. R. A. 403, 42 N. E. 707.
* Catlin V. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62 ; Boulware v.
Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189 ; Booth v. Clark, 17
How. 322; Reynolds v. Adden, 136 U. S. 353, 354. It is believed also that
the same rule will prevail where the attaching creditors are citizens of States
other than that where the receiver is appointed. Cole v. Cunningham, 133
U. S. 107, 127. See post, § 138.
' Kinney v. Crocker, 18 Wis. 74 ; St. Joseph, etc. R. R. Co. v. Smith, 19
Kan. 225 ; Allen v. Central R.R. Co., 42 la. 683.
6 Barton v. Barbour, 104 U. S. 126, 128 ; Peale v. Phipps, 14 How. 368 ;
Kennedy v. R. R. Co., 3 Fed. 97; Melendy v. Barbour, 78 Va. 544, 558 ; Gil-
Dun V. ketcham, 84 Wis. 60, 54 N. W. 395. See post, § 138.
268 SITUS OF PERSONALTY. § 119
PART IV.
SITUS OF PERSONAL PROPEBTT.
§119. Preliminary — Outline of Discussion. — It has al-
ready been observed that the legal and the actual situs of land
or immovable property, by reason of the quality of immova-
bility, are one and the same. By no fiction of law nor theory
of public policy can land be regarded as constructively located
at any other place than its actual situs. It naturally follows
that every question affecting the title to land must be governed
by the law of the place where the land is situated.^
But with that class of property known as personal property
it is otherwise. Tangible chattels are movable, and may be
carried or sent from one State to another, and therefore may
at different times be subjected to different laws at the will or
caprice of the owner. By reason of its movability, personal
property cannot be said to have any fixed and definite locality
like lands. And if this is true of tangible chattels, how much
more true is it of those intangible interests known as choses in
action, or debts. These cannot be said in strictness to have
any situs at all.
Yet it is essential, for the purposes of business, that some
situs should be assigned to all these classes of property. They
are as susceptible of being dealt with in the ordinary transac-
tions of life as real property; in fact transactions with respect
to them are much more frequent. Such transactions must be
Pleasured by some law, and that law can only be furnished by
the situs of the property and of the transactions relating to it.
We shall devote the next chapter to a* consideration of the
rules by which to determine the situs of tangible chattels and
1 Ante, §§ 11, 12.
§ 119 SITUS OP PERSONALTY. 269
debts, and in the succeeding chapters we will inquire into "the
proper law " governing the various transactions that may arise
with regard to personal property, including (1) voluntary trans-
fers of personalty inter vivos ; (2) involuntary transfers of per-
sonalty inter vivos ; (3) transfers by succession to an intestate's
personal estate; (4) transfers by will.
270 SITUS OF TANGIBLE CHATTELS. § 120
CHAPTER X.
SITUS OF CHATTELS AND OF DEBTS.
§ 120. Legal and Actual Situs of Tangible Chattels. — Be*
cause of their characteristic of movability, it has been a time-
honored maxim both of the common and the Roman law, arising
from considerations of general convenience, that chattels are to
be presumed in legal contemplation to follow the situs of the
owner, since it is always in his power to carry or have them
sent thither. This maxim is expressed in the phrase, "Mobilia
personam sequuntury
As was said by an eminent English judge, ^ ''It is a clear
proposition, not only of the law of England, but of every
country in the world where the law has the resemblance 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 respect to
the transmission of it, either by succession or act of the party,
it follows the law of the person."
The legal situs of chattels then is the situs of the owner.
But, as has been shown in a previous section,^ the owner may
possess, for different purposes, two different localities at the
same time. For some purposes, the actual situs of the person
at a given time will furnish the applicatory law (though he re-
sides in another State). For other purposes, the legal situs
(or domicil) of the party will furnish the proper law.
It will be remembered also that the actual situs of the person
is looked to whenever the transaction to whicli the law of his
situs is applied is voluntarily and deliberately entered into bjf
1 Lord Loughborough, in Sill v. Worswick, 1 H. Bl. 690.
« Ante, § 18.
§ 120 SITUS OF TANGIBLE CHATTELS. 271
him, because he thereby deliberately submits himself to the
sovereignty of that State, which is complete within its own
territory, and which a just and proper comity demands should
be respected in other States. But if the matter in question is
the result, not of his own voluntary and deliberate act, but of
some act of the law, if his participation in the transaction is
involuntary, it is his legal situs or domicil that provides the
governing law, not his actual situs ; for without his deliberate
and voluntary submission to the temporary sovereignty of an-
other State, his domiciliary law follows him, whithersoever he
may go.'
It follows, therefore, since the legal situs of chattels is the
situs of the owner, that the legal situs of the chattels will be
either the actual situs of the owner or his legal situs (or domicil),
according as the particular transaction affecting the chattels is a
voluntary or an involuntary transaction, that is, according as
his participation therein is active, deliberate and voluntary, or
passive and involuntary.
Thus where the owner of chattels, being domiciled in one
State, goes into another State and there voluntarily enters into
a transaction disposing of them to another, the chattels, for the
purposes of that transaction, are to be regarded in general as
legally situated in the State where the transaction takes place,
whose law accordingly will govern its validity and effect.* But
8 Ante, § 18.
* Crapo V. Kelly, 16 Wall. 610, 622 ; Barnett v. Kinney, 147 U. S. 476,
481 ; Langworthy •». Little, 12 Cush. (Mass.) 109, 111 ; Frank v. Bobbitt, 155
Mass. 112, 29 N. E. 209 ; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac.
1148, 1150 ; Emery v. Clough, 63 N. H. 552, 4 Atl. 796 ; Hornthall v. Bur-
well, 109 N. C. 10, 13 S. E. 721, 722; Long v. Girdwood, 150 Penn. St. 413,
24 Atl. 711, 23 L. R. A. 33 ; Fowler's Appeal, 125 Penn. St. 388, 17 Atl.
431 ; Mackey v. Pettijohn, 6 Kan. App. 57, 49 Pac. 636 ; Guillander v.
Howell, 35 N. Y. 657, 663 ; Butler v. Wendell, 57 Mich. 62, 23 N. W. 460,
462 ; Sullivan v. Sullivan, 70 Mich. 583, 38 N. W. 472 ; Weinstein v. Freyer,
93 Ala. 257, 9 So. 285 ; Marvin Safe Co. v. Norton, 48 N. J. L. 412, 57 Am.
Rep. 566, 568, 7 Atl. 418 ; Cronan v. Fox, 50 N. J. L. 417, 14 Atl. 119 ; Dial
V. Gary, 14 S. C. 573, 37 Am. Rep. 737, 738 ; State v. O'Neil, 58 Vt. 140, 5«
Am. Rep. 557 ; Ames Iron Works v. Warren, 76 Ind. 512, 40 Am. Rep. 258.
Many of these are cases where the owner was in his domicil at the time of the
272 SITUS OP TANGIBLE CHATTBLS. § 120
for the purposes of involuntary transactions touching the chat-
tels, matters arising by operation of law, without the consent or
against the will of the owner, as transfers by marriage, by in-
voluntary assignments in bankruptcy, by succession to a dece-
dent, etc., the legal situs of the chattels is the legal situs of the
owner (his domicil), regardless of his actual situs, and hence
the law of his domicil, not of his actual situs at the time the
transfer occurs, is the ** proper law" to regulate the validity
and effect of such transfer.'
But although the legal situs of the chattels will furnish the
"proper law" to regulate all kinds of transactions relating
thereto, yet there are occasions when the lex fori will be substi-
tuted for the proper law, in the cases where the general excep-
tions to the enforcement of a foreign law apply. In such cases
the forum and the actual situs of the chattels will usually be
identical, and hence it comes about in these exceptional cases
that the transaction may after all be governed by the law of the
actual situs of the chattels, which may be entirely distinct both
from the legal and from the actual situs of the owner. Indeed,
these exceptional cases arise so frequently as almost in some
cases to obscure the operation of the law of the legal situs of the
chattels altogether,' leading a few authorities to aver that the
transaction, so that his legal and actnal situs coincide, while others are cases
in which the owner was abroad when he dealt with the chattels.
^ Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530 ; Williams v. Saun-
ders, 5 Coldw. (Tenn.) 60, 76-77 ; Union Bank v. Hartwell, 84 Ala. 379,
4 So. 156 ; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442 ; Russell v.
Hooker, 67 Conn. 24, 34 Atl. 711, 712 ; Ames Iron Works y. Warren, 76 Ind.
512, 40 Am. Rep. 258, 259 ; Graham v. Bank, 84 N. Y, 393, 399, 38 Am.
Rep. 528 ; Cross v. Trust Co., 131 N. Y. 330, 339 ; Guillander v. Howell, 35
N. Y. 657, 658 ; Petersen v. Chemical Bank, 32 N. Y. 21, 46, 88 Am. Dec.
298 ; Speed v. May, 17 Penn. St. 91, 55 Am. Dec. 540 ; Milne v. Moreton,
6 Binn. (Penn.) 353, 361, 6 Am. Dec. 466 ; Black v. Zacharie, 3 How. 483,
514 ; Sickles w. New Orleans, 52 U. S. App. 147, 80 Fed. 868, 874.
« Green v. Van Buskirk, 5 Wall, 307, 312 ; Smith v. Bank, 5 Pet. 518,
524 ; Homthall v. Burwell, 109 N. C. 10, 13 S. E. 721, 722 ; Speed v. May, IJ"
Penn. St. 91, 94, 55 Am. Dec. 540 ; Paine v. Lester, 44 Conn. 1P6, 26 Am.
Rep. 442, 444 ; Edgerly v. Bush, 81 N. Y. 199, 203 ; Barth v. Backus, 140
N. Y. 230, 29 N. E. 209 ; May v. Wanuemacher, 111 Mass. 202, 209 ; Ames
Iron Works r. Warren, 76 Ind. 512, 40 Am. Rep. 258 ; Toof v. Miller, 78
§ 120 SITUS OF TANGIBLE CHATTELS. 273
law of the actual situs of chattels is the " proper law " to govern
transactions relating to them.'
But cases may arise in which it becomes impossible to assign
an actual situs to chattels, that is, a situs subject to any par-
ticular law. In such cases, the chattel is relegated to its legal
situs at the actual or legal situs of the owner. Thus a ship
upon the high seas, though actually situated upon the seas, can-
not be said to have an actual situs there or elsewhere, in the
sense here used, because the high seas are subject to no particu-
lar law.*
With respect to chattels aboard a ship on the high seas, they
are generally deemed to be actually located in the country to
which the ship belongs, and whose flag she flies, upon the well
known principle of international law, that while upon the high
seas even a merchant vessel is a floating part of the territory to
which she belongs.'
But as to the vessel itself, when upon the high seas, though
for purposes of international law it is to be regarded as part of
the territory of the State to which it belongs, yet from the
standpoint of a mere chattel, property owned by an individual,
it is believed that it must be regarded as located at the actual
situs or at the legal situs (or domicil) of the owner, according
as the ^transaction respecting it is voluntary or involuntary,
even though the owner's situs be a State other than that wherein
the vessel is registered." But after the ship, if it be a mer-
Miss. 756, 19 So. 577; Cronan v. Fox, 50 N. J. L. 417, 14 Atl. 119; In re
Dalpay, 41 Minn. 532, 43 N. W. 564.
7 Whart. Confl. L. §§ 345, 346 ; Guillander v. Howell, 35 N. Y. 657. See
ante, § 14.
8 The same may probably be affirmed of chattels situated in a barbarous or
unpopulated territory, subject to no civilized law. See Thuret v. Jenkins,
7 Mart. (La.) 318, 353, 12 Am. Dec. 508.
» Whart. Confl. L. § 356 ; Crapo v. Kelly, 16 Wall. 610, 625. In the
United States, whose flag covers many States, the State where the vessel is
registered seems to be the one to which she legally belongs. Whart. Confl. L,
§357.
w Crapo V. Kelly, 16 Wall. 610, 622 ; Thuret r. Jenkins, 7 Mart. (La.j
318, 353, 12 Am. Dec. 508; Moore v. Willett, 35 Barb. (N. Y.) 663, 665.
But see Whart. Confl. L. § 357.
18
274 SITUS OP DEBTS. § 121
chant vessel, has arrived in a port, or within marginal waters,
it (and probably its cargo also) will be deemed to have its actual
situs in the country in whose territory it is.^^
In conclusion, it must be observed that the actual situs of
chattels will always be looked to, where the question is one of
jurisdiction of a court over a 7'es. It is the actual, not the legal,
situs of property that gives a court jurisdiction to pronounce
a judgment or decree concerning it. Thus the court of the
owner's domicil or of his actual situs will not assume jurisdic-
tion, in a proceeding in rem, over chattels actually situated in
another jurisdiction; nor will a court of a State where a chattel
is actually situated refuse jurisdiction of such a proceeding with
respect thereto, merely because the actual or legal situs of the
owner is elsewhere, and the chattel has its legal situs in another
State.i2
§ 121. Iiegal and ActUcil Situs of Debts. — As has been
shown in the preceding section, there is usually no difficulty in
ascertaining the actual situs of tangible chattels, whenever it
becomes necessary to discriminate between the actual and legal
situs thereof. A tangible chattel occupies space, and may have
a definite locality of its own.
But with respect to intangible chattels and choses in action,
such as bonds, notes, bills of exchange, accounts, and debts of
all sorts, certificates of stock, etc., different principles must be
applied. Of course, the material evidence of the right, that is,
the paper on which the promise to pay is written, may have an
actual locality : it may occupy space. But this is merelj' the
evidence of the right, the value of which lies in the fact that it
will suffice to entitle the owner to the valuable property it rep-
resents. The value of the property itself lies in the right of
the creditor to enforce the obligation of the debtor to pay the
debt. Such intangible rights can of course have no real situs,
since they exist only in the mind's eye, but it frequently be-
" Crapo V. Kelly, 16 Wall. 610, 622 ; Olivier v. Townes, 14 Mart. (La.) 98.
I'* This proposition scarcely needs authority for its support. See Rock-
well V. Bradshaw, 67 Conn. 9, 34 Atl. 758, 761 ; Cronan v. Fox, 50 N. J. 417,
14 Atl. 119 ; Reynolds v. Stockton, 140 U. S. 255, 272 ; Byers v. McAuley,
149 U. S. 608 ; Stacy v. Thrasher, 6 How. 44, 68. See ante, § 14.
§ 121 SITUS OF DEBTS. 275
comes necessary to assign them a situs somewhere, in order to
ascertain the law properly applicable to them.
Before laying down any rules for the determination of the
situs of debts, it will repay us to notice briefly the dual mean-
ing of the term ''debt." The phrases "chose in action" and
"debt" are often used as synonymous. But they are rather
correlative than synonymous. They represent the same tiling,
but viewed from opposite sides. The "chose in action " is the
right of the creditor to be paid, while the " debt " is the obli-
gation of the debtor to pay. This distinction is brought out in
the common phrase, "the choses in action and debts of a part-
nership, upon the death of one of the partners, survive." Here
both terms are used in the same sentence, but with opposite
meanings: the former term signifying the firm's right to be
paid certain sums of money, the latter signifying the firm's
obligation to pay certain sums of money. Yet the term "debt"
is often used indiscriminately to convey both these ideas. ^
Much confusion has resulted from the failure to observe this
distinction, and perhaps still more from the failure to notice
carefully the essential characteristics of these several con-
ceptions.
The chose in action, or right of the creditor, is a personal
right which adheres to him wherever his situs may be. It may
for some purposes be his legal situs (or domicil), for others his
actual situs. Just as, in the case of tangible chattels, though
the title thereto follows the owner, and its transfer will be
regulated by the law of the owner's situs, yet his or his trans-
feree's ability to enforce that title may be in the exceptional
cases determinable by a different system of law should the chat-
tels be actually situated elsewhere; so also in the case of debts,
though the right to enforce them follows the owner (the creditor),
and his transfer is therefore to be governed by the law of his
situs, actual or legal, yet his or his transferee's ability to en-
force that right may depend upon another jurisdiction and sys-
tem of law, if he has to resort to another State to sue the
debtor. In other words, though the situs of the creditor's right
1 See Dial v. Gary, 14 a C. 573, 37 Am. Rep. 737. 740.
276 SITUS OP DEBTS. § 121
follows the creditor, the situs of the debtor's obligation follows
the debtor, in the sense that the debtor's legal obligation exists
only in the State where it can be enforced against him.
The debtor's obligation may be enforced in a proceeding in
rem in any State where he has property, though he be absent
or a non-resident ; or if in a proceeding in personam, the debtor
must have been actually found within the court's jurisdiction
and process served upon him there, or else he must have volun-
tarily appeared. It is not essential that the debtor's obligation
should be enforced where he resides, though that will ordinarily
be the place of its enforcement.
It will be seen therefore that, while the situs of the creditor's
right (chose in action) follows the creditor and corresponds to
the legal situs of tangible chattels, the situs of the debtor's
obligation follows the actual situs of the debtor, or of his prop-
erty (in case of a proceeding in rem to enforce it), and corre-
sponds to the actual situs of tangible chattels.
If these principles be kept clearly in mind there will be no
difficulty in solving most of the problems that present them-
selves involving the situs of debt, a subject upon which the
decisions of the courts present the utmost confusion. The
analogy between the situs of tangible chattels and the situs
of debts is complete at every point. The legal situs of a debt,
as in case of chattels^ is the actual or legal situs of the owner
(the creditor) according as the particular transaction in question
involves the creditor's voluntary or tnvoluntary participation
thSrerilT The actual situs of the debt at a particular moment
is_the place_J8ghere payment thereof mayat that moi
enf nrcedjuwhetber^by proceeding in rem ovhj proceedig,g_jn^ggr^
(sonam. If the former procedure is used, the actual situs of the
debt will be the actual situs of the res subjected to its payment ;
if the latter, it will be the domicil of the debtor or some other
State, according as he is sued in his own State or in the courts
of another which have acquired jurisdiction over him by due
process of law.
And, as in the case of tangible chattels, the legal situs of the
debt will furnish the "proper law" governing transactions
touching the transfer of the creditor's right, while, in the ex-
§ 121 SITUS OF DEBTS. 277
ceptional cases mentioned in the second chapter, the actual
situs of the debt (and the forum) will be substituted therefor.
The actual situs of the debt will be looked to also, as in the
case of chattels, when the debt is the res in a proceeding in rem,
the question being whether or not the court has jurisdiction of
the res.
These points will all be brought out more fully in the fol-
lowing sections.
It will be observed that the fact that the debt is contracted or is
made payable by the debtor in a particular State, other than that
of his domicil, though regarded as a circumstance of importance
by some of the decisions,* in reality has nothing to do with the
question, save only in so far as the law of that place may deter-
mine whether or not the debt is valid. It has no bearing upon
the situs of a valid debt. That is independent of the place of
contract.'
Nor does the mere fact that the debt is secured upon land or
chattels by mortgage, deed of trust, or otherwise affect its situs,
save only where the debt is sought to be recovered by proceed-
ing in rem against the debtor's property, and not by personal
proceeding against the debtor; in which case the situs of the
debtor's obligation (which is the actical situs of the debt) will
be the actual situs of his property.*
« See Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 737, 741 ; Osgood v. Ma-
guire, 61 N. Y. 524, 529 ; 111. Cent. R. R. Co. v. Smith, 70 Miss. 347, 12 So.
461 ; American Ins. Co. v. Hettler, 37 Neb. 849, 56 N. W. 711 ; Smith v.
Taber, 16 Tex. Civ. App. 154, 40 S. W. 156 ; Reimers v. Seatico Mfg. Co.,
70 Fed. 573.
8 Hardware Mfg. Co. v. Lang, 127 Mo. 244 ; Cross v. Brown, 19 R. 1. 220 ;
33 Atl. 147; Mashassuck Felt Mill v. Blanding, 17 R. I. 297, 21 Atl. 538 ;
Wyman v. Halstead, 109 U. S. 656 ; Union Pac. R. R. Co. v. Baker, 5 Kan.
App. 253, 47 Pac. 563 ; Neufelder v. Ins. Co., 6 Wash. 341, 33 Pac. 870 ;
Owen V. Miller, 10 Ohio St. 136, 75 Am. Dec. 507 ; East Tenn. R. R. Co. v.
Kennedy, 83 Ala. 462 ; Pomeroy v. Rand, 157 111. 185, 41 N. E. 636 ; Berry
V. Davis, 77 Tex. 191, 13 S. W. 978 ; Ins. Co. v. Portsmouth, 3 Met. (Mass.)
420 ; Sturtevant v. Robinson, 18 Pick. (Mass.) 175 ; Harwell v. Sharp, 85 6a.
124 ; Rowland v. R. R. Co., 134 Mo. 474, 36 S. W. 29 ; Ins. Co. v. Chambers,
53 N. J. Eq. 468, 32 Atl. 663.
* Vroom V. Van Home, 10 Pai. Ch. (N. Y.) 549, 555, 42 Am. Dec. 94 ;
Doolittle V. Lewis, 7 Johns. Ch. 46, 11 Am. Dec. 389 ; Hoyt v. Thompson, 19
278 SITUS OF DEBT — VOLUNTARY TRANSFER. § 122
§ 122. Situs of Debt for Purposes of Voluntary Transfer.
— The term "voluntary" transfer is here used to indicate a
transfer by the act and agreement of the creditor himself, by
indorsement, assignment, or otherwise, in contradistinction to
the " involuntary " transfer which takes place by act of the law, as
in the case of the succession to the property of a decedent, trans-
fers of the wife's personalty to the husband upon marriage (as
under the common law), and compulsory assignments for the
benefit of creditors under bankrupt and insolvent laws.
It is also to be observed that the voluntary transfer or assign-
ment of a debt, which passes title to the claim, is an executed
contract, and must be distinguished carefully from the execu-
tory contract which usually accompanies it, whereby the assignor
engages to make good the debt to the assignee upon the failure
of the original debtor. This executory contract is governed by
different principles, which will be considered when we come to
investigate the proper law controlling executory contracts. At
present we shall confine our attention to the law regulating the
executed transfer of the creditor's chose in action.
The "voluntary" transfer of choses in action includes not
only the transfer of the legal title to negotiable paper by indorse-
ment, but also the assignment thereof without indorsement,
the assignment of choses in action not negotiable, with or with-
out indorsement, and the voluntary assignments of choses in
action for the benefit of creditors.
In these cases there is no dispute as to the general principle
that the law of the legal situs of the chose in action is the
" proper law " to govern its transfer. We have seen that the legal
situs of the chose in action is the situs of the creditor. But is
it the actual or the legal situs (or domicil) of the creditor ?
Many of the decisions will be found to state it as a general
proposition that the lex domicilii of the creditor (that is the law
of his legal situs) controls voluntary transfers or assignments of
choses in action.^
N. Y. 207, 224 ; Dial v. Gary, 14 S. C. 673, 37 Am. Rep. 737 ; Van Wyck v.
Read, 43 Fed. 716.
1 Speed V. May, 17 Penn. St. 91, 94, 55 Am. Dec. 540 ; Black r. Zacharie,
3 How. 483 ; Van Wyck r. Read, 43 Fed. 716 ; Catlin v. Wilcox Plate Co., 12JJ
§ 122 SITUS OF DEBT — VOLUNTARY TRANSFER. 279
But it must be remembered that the transfer is effected by the
voluntary and deliberate act of the owner; and in choosing to
enter into the transaction at a particular place, he chooses to
submit himself to the sovereignty and laws of that place. He
may, and usually will, make the transfer in his domicil, and in
such case the law of his domicil will control, not because it is
the law of his domicil however, but because it is the law of the
place where the transfer is made (lex loci contractus).^ But he
may choose to enter into the transaction in a State other than
his domicil, under a law different from that of his domicil.
There can be little doubt that freedom of locomotion and of ac-
tion, as well as the demands of trade and commerce, require
that the chose should, for purposes of voluntary assignment
under the contract of the owner, be generally deemed to be at the
actual situs of the creditor at the time of the assignment, and
that the transfer should be regulated by the law of the place
where he deals, to which the parties must be regarded as sub-
mitting themselves for that purpose. The true rule therefore is
that the lex loci contractus (which may or may not be identical
with the lex domicilii of the creditor) should control voluntary
transfers.'
Ind. 477, 8 L. R. A. 62 ; Clark v. Peat Co., 35 Conn. 303 ; Paine v. Lester,
44 Conn. 196, 26 Am. Rep. 442 ; Fowler's Appeal, 125 Penn. St. 388, 17 Atl.
431 ; Long v. Girdwood, 150 Penn. St. 413, 24 Atl. 711, 23 L. R. A. 33 ;
Butler V. Wendell, 57 Mich. 62, 58 Am. Rep. 329 ; Woodward v. Brooks, 128
111. 222, 20 N. E. 685 ; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590 ; Birds-
eye V. Underhill, 82 Ga. 142, 7 S. E. 863 ; Fuller v. Steiglitz, 27 Ohio St.
355, 22 Am. Rep. 312. But in all these cases, as well as in others laying
down the same rule, the assignment was made by the creditor in the State of
his domicil. Hence the legal situs and the actual situs of the assignor are
identical, and these cases prove nothing. This is an instance of the looseness
of phraseology which has tended so much to add to the intrinsic difficulties of
this branch of the law.
^ See cases cited supra, note 1.
8 Dial V. Gary, 14 S. C, 573, 37 Am. Rep. 737, 738 ; Hoyt v. Thompson,
19 N. Y. 207, 224 ; Milne v. Moreton, 6 Binn. (Penn.) 353, 369, 6 Am. Dec.
466 ; Tyler v. Strang, 21 Barb. (N. Y.) 198 ; Butler v. Wendell, 57 Mich. 62,
58 Am. Rep. 329 ; Woodward v. Brooks, 128 111. 222, 20 N. E. 685, 686 ;
First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696 ; Egbert v. Baker, 58
Conn. 319, 20 Atl. 466; May v. Wannemacher, 111 Mass. 202. In the last
280 8ITU8 OF DEBT — VOLUNTABY TRANSFER. § 122
But in ascertaining the "proper law" regulating voluntary
transfers and assignments of choses in action, and in fixing it
as the lex loci contractus, the reader must not overlook the ex-
ceptions to the enforcement of the proper law, already so fre-
quently referred to.* In these cases, it will be remembered, the
lex fori will be substituted; and since the question will always
arise upon an attempt to enforce the debtor's obligation to pay,
the lex fori and the actual situs of the debt will coincide.
The most usual instances of these exceptions are those which
arise from danger to the interests of the forum or its citizens,
should the proper law be enforced. Hence, if the assignment of
the chose in action, though valid where made, would injuriously
affect the interests of the State where the debt is sought to be
enforced (forum and actual situs of the debt),* or the interests of
its citizens,* or would contravene its settled policy or express
statutory provisions,' or would be contra bonos mores,^ or if such
assignment is rendered invalid where made, as a penalty for
wrong-doing;' in all these cases, the law of the actual situs of
the debt, that is, the actual situs of the debtor when sued (in a
proceeding in personam), being also the forum, will be substi-
tuted for the "proper law." If the debt be sought to be recovered
three of these cases the transfer occuiTed in a State where the owneas (or some
of them) were not domiciled. The situs of the debts assigned was held to be
at the place of transfer. In the last two cases the creditors assigning the debts
were partners living in different States. Much difficulty might be experienced
in such cases if the debt were placed at the creditor's domicil. It will be re-
membered also that the cases cited supra, note 1, are not against this position ;
the domicil and the locus contractus were in those cases identical.
* Ante, Chapter IL
* Harrison v. Sterry, 5 Cr. 289, 299 ; Holmes v. Remsen, 4 Johns. Ch. (N. Y.)
460, 488, 8 Am. Dec. 581.
« Blake r. Williams, 6 Pick. (Mass.) 286, 17 Am. Dec. 372 ; Milne v. More-
ton, 6 Binn. (Penn.) 353, 361,6 Am. Dec. 466; Speed v. May, 17 Penn. St.
91, 94, 55 Am. Dec. 540 ; Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 737, 741.
7 Savings Bank v. Nat. Bank, 38 Fed. 800 ; Black v. Zacharie, 3 How. 483,
614 ; Atty. Gen. v. Dimond, 1 C. & J, 356 ; Atty. Gen. v. Hope, 1 C. M. & R.
530, 8 Bligh, 44 ; Atty. Gen. v. Bouwens, 4 M. & "W. 171. See Story, Confl.
L. § 383.
8 See Savings Bank v. Nat. Bank, 38 Fed. 800.
» See Scoville v. Canfield, 14 Johns. (N. Y.) 338.
§ 123 SITUS OP DEBT — TAXATION. 281
by a proceeding in rem, the actual situs of the res (and the
forum) will be the actual situs of the debt.
§ 123. Situs of Debt for Purpose of Taxation. — It may
perhaps be said to be contrary to the general practice for a State
to tax the tangible chattels of a non-resident situated within its
limits, such taxation being left to be imposed by the State of the
owner's domicil, upon the theory that the property has its legal
(though not its acttial) situs at the owner's domicil.* But tax-
ation is emphatically an instance where a State has the right to
throw aside all fictions and look at things as they are. Accord-
ingly States frequently tax the tangible personalty of non-resi-
dents when actually situated within their borders. In such cases,
however, the State of the actual situs only imposes the tax bur-
den upon the property within its jurisdiction. It cannot con-
stitutionally impose a personal liability upon the non-resident
owner.*
But where the property is intangible, such as debts, more dif-
ficulty is experienced in ascertaining the situs where it may be
taxed. The general practice is to treat debts as located, for pur-
poses of taxation, at the creditor's domicil, and there is no doubt
that they may have their situs there for that purpose.* On the
other hand, it would seem that, if the creditor were domiciled in
one State and the debtor in another, there should be no reason
why the latter State (which is the situs of the obligation and
1 Coolcy, Taxation (2(1 ed.) 372 ; People v. Com're, 23 N. Y. 224, 240 ;
Com, r. B. R. Co., 27 Gratt. (Va.) 344 ; Buck v. Miller, 147 Ind. 586, 45 N. E.
647, 648 ; Thoradike v. Boston, 1 Met. (Mass. ) 242. See Borland r. Boston,
132 Mass. 89, 42 Am. Rep. 424.
2 Mills r. Thornton, 26 111. 300, 79 Am. Dec. 377; Com. r. Gaines, 80 Ky.
489 ; Leonard v. New Bedford, 16 Gray (Mass.), 292 ; Dow v. Sudbury, 5 Met.
(Mass.) 73 ; Buck v. Miller, 147 Ind. 586, 45 N. E. 647, 648 ; People v. Com'rs,
23 N. Y. 224, 240.
8 Hunt V. Perry, 165 Mass. 287, 43 N. E. 103 ; Dykes v. Lockwood, 2 Kan.
App. 217, 43 Pac. 268 ; Bradley v. Bander, 36 Ohio St. 28, 3 Am. St. Rep. 547;
Com. V. R. R. Co., 27 Gratt (Va.) 344 ; Herron v. Keran, 59 Ind. 472 ; Ins.
Co. V. Assessors, 47 La. Ann. 1544, 18 So. 519 ; Wilcox i;. Ellis, 14 Kan. 589,
19 Am. Rep. 107; Baltimore v. Hussey, 67 Md. 112 ; Ferris v. Kimble, 75 Tex.
476 ; State Bank v. Richmond, 79 Va, 113 ; Tax on Foreign Held Bonds, Ifi
Wall. 300.
282 SITUS OF DEBT — TAXATION. § 123
the actual situs of the debt) cannot lay a tax upon the creditor's
property actually situated there, namely, the debtor's obligation
to pay, provided in so doing it does not impair the obligation of
contracts. And some courts have upheld such taxation.* But,
strangely enough, the general trend of judicial opinion seems to
be in the direction of regarding such taxation as unlawful, upon
the ground that the debtor has no property in the debt which can
be taxed.* This idea would certainly seem to be founded on a
misapprehension. It is conceded that the debtor hdis no property
in the debt belonging to the creditor, but his obligation to pay
is itself valuable property belonging to the creditor, at least after
the debt becomes due and enforceable, and no reason is perceived
why the State could not compel the debtor to pay a tax thereon,
crediting him with the amount so paid on his debt. But, at best,
this form of taxation is cumbersome, and has been but little
used, most States leaving debts of all sorts to be taxed at the
domicil of the creditor.
Thus shares of stock in a corporation are usually taxable at
the domicil of the owner, not of the corporation ; ^ but the right
of the State of the corporation's domicil also to lay a tax upon
such stock is admitted.''
In States whose policy is to tax choses in action at the dom-
icil of the creditor, a question has sometimes arisen whether this
includes negotiable instruments. Some courts, regarding them
as actual currency, have sustained taxation upon them where
* Bridges «;. Griffin, 33 Ga. 113 ; Railroad Co. v. Collector, 100 U. S. 595 ;
United States v. R. R. Co., 106 U. S. 327 ; Finch v. York County, 19 Neb. 50,
6 Cooley, Taxation (2d ed.), 22 ; citing State Tax on Foreign Held Bonds,
15 Wall. 300, 319, 320 ; Oliver v. Washington, 11 Allen (Mass.), 268 ; Com.
». R. R. Co., 27 Gi-att. (Va.) 344 ; and other cases.
6 Bradley u. Bander, 36 Ohio St. 28, 38 Am. Rep. 547; Nashville v. Thomas,
5 Coldw. (Tenn. ) 600 ; Worth v. Ashe Co., 90 N. C. 409. And this, even though
a tax has already been paid on the stock in the domicil of the corporation. See
McKeen v. Northampton Co., 49 Penn. St. 519, 88 Am. Dec. 515 ; Dwight
V. Boston, 12 Allen (Mass.), 316 ; Dyer v. Osborne, 11 R. I. 321, 23 Am. Rep.
460 ; Seward v. Rising Sun, 79 Ind. 351.
^ Tappan v. Bank, 19 Wall. 490 ; Faxton v. McCosh, 12 la. 527; American
Coal Co. V. Allegheny County, 59 Md. 185. But see Union Bank v. Stat«,
9 Yerg. (Tenn.) 490.
§ 124 SITUS OF DEBT — ADMINISTRATION. 283
the paper evidences of indebtedness happen to be, regardless of
the locality of the creditor's residence.' But this view is incon-
sistent with the real facts and with general principles, and
the better opinion is that they should be taxed at the cred-
itor's domicil."
§ 124. Situs of Debt for Purpose of Administration. — In
connection with the subject of executors and administrators, we
have seen that wherever a decedent's assets are actually situated
in a State other than his domicil, it is a general principle that
such assets must be first of all administered in conformity to the
lex fori and lex situs of the property, in the interest of the citi-
zens of the forum and actual situs of the property, before it is
to be regarded as subject to the lex domicilii of the decedent.
It will be remembered that the executor or administrator must
qualify anew in every jurisdiction where the deceased has left
assets, and that until such qualification no act of the domiciliary
administrator will be of any effect, as to property situated in
another State, at least if there are any citizens of that State
who may be injured by such action.^
Little diflSculty is experienced in applying these principles
when the assets are tangible chattels, capable of occupying
space, and therefore possessing an actual situs of their own.
But the ascertainment of the situs of a debt for these purposes
has given the courts some trouble, which has arisen in large
measure from the failure to observe the distinction between the
legal and the actual situs of debts, already adverted to.*
Thus we find the courts divided in opinion upon the question
whether an executor or administrator appointed in the State
of a deceased creditor's domicil can there assign the debt to a
third person so as to enable him to sue the debtor in another
State.
8 Redmond v. Rutherford, 87 N. C. 133; Wilcox v. Ellis, 14 Kan. 588, 19
Am. Rep. 107 ; Poppleton v. Yamhill County, 18 Oregon, 377.
9 State Tax on Foreign Held Bonds, 15 Wall. 300 ; Boyd v. Selma, 96 Ala.
144, 11 So. 393 ; State Bank v. Richmond, 79 Va. 113; New Orleans v. Ins.
Co., 30 La. Ann. 876, 31 Am. Rep. 232 ; Lanesborough v. Berkshire County,
131 Mass. 424.
1 Ante, §§ 105 et seq.
a See Wyman v. Halstead, 109 U. S. 656.
284 SITUS OP DBBT — ADMINISTRATION. § 124
In Dial v. Gary,' it was held that the assignee could not sue,
since that would he practically to permit a foreign administrator
to administer upon the decedent's property in South Carolina,
without having qualified therein or administered there, whereby
its own citizens might be injured.
On the other hand, in Petersen v. Chemical Bank,* the debtor
was sued in his domicil (New York) by the assignee of an ad-
ministrator appointed in Connecticut, the creditor's domicil, and
it was held he was entitled to recover. In this case, however,
the court states that there were no creditors of the deceased in
New York, and that there was no motive for forbidding the
withdrawal of the assets.*
Upon principles already noted, the law of the actual situs of
the debt (and the forum) will govern the administration, so long
as the enforcement of that law is necessary to the protection of
its citizens. And the actual situs of the debt in the cases given
above was the domicil of the debtor, for that was where his obli-
gation to pay was sought to be enforced. No assignment of the
debt therefore in its legal situs (the creditor's domicil) could
operate to pass title to a debt actually situated in another State
(the debtor's domicil) any more than the transfer of a tangible
chattel under similar circumstances. To this extent therefore
the South Carolina decision was clearly correct." But if there
are no creditors of the decedent in the forum and actual situs,
the reason for looking to the actual situs of the debt ceases, and
the proper law (lex domicilii) will once more be applicable.'
In this aspect of the case, the New York decision was also
correct.
It has been said that the first branch of the rule does not
apply to negotiable instruments, and that an administrator may
« 14 S. C. 573, 37 Am. Rep. 737.
* 82 N. Y. 21, 88 Am. Dec. 298.
' 32 N. Y. 48. The court seemed to consider that fact of little importance,
but it is submitted that it is the point upon which the decision should turn.
• See also Stearns ». Bumham, 5 Greenl. (Me.) 261 ; Vroom v. Van Home,
10 Pai. Ch. 549, 42 Am. Dec. 94 ; Hall v. Harrison, 21 Mo. 227, 64 Am.
Dec. 225. But see Harper v. Butler, 2 Pet. 239.
T Petersen v. Chemical Bank, 32 N. Y. 21, 48, 88 Am. Dec. 298 ; Harvey
V. Richards, 1 Mason, C. C. 380, 413.
§ 125 SITUS OF DEBT — GARNISHMENT. 28&
freely dispose of them, though the debtor lives in another State,
since to refuse the assignee the right to sue the debtor upon
such a note would put a stop to its negotiability.*
Another point, upon which the courts are divided, the solu-
tion of which is dependent upon the actual situs of a debt, is
whether an administrator may sue a debtor of the estate domi-
ciled elsewhere, but whom he finds transiently in the State of
his appointment." Since, as we have seen, the actual situs of a
debt is any State where the obligation to pay may be enforced
by suit, and since in this case the debtor has come within the
jurisdiction of the administrator, there is no doubt that, stricto
jure, he is entitled to sue him there. The case is analogous to
that of a tangible chattel of a decedent, to which one admin-
istrator of the deceased is entitled, transiently passing through
the State of another administrator of the same decedent. There
can be no doubt that the administrator of the latter State may
lay hold of such property for the benefit of its own resident
creditors. But such action would appear to be closer akin to
robbery than to justice, and would hardly comport with the
comity that should regulate the relations of States to each
other."
If there are no creditors of the deceased, or the administration
has been completed, the creditors paid off, and the only thinr*
remaining is to distribute the residuum, the actual situs of the
debt ceases to furnish the applicatory law, and its legal situs (in
this case the legal situs, or domicil, of the creditor) resumes its
sway."
§ 125. Situs of Debt for Purpose of Attachment and Qar-
nishment.^ — Perhaps on no one point has there been a greater
» Story, Confl. L. §§ 258, 259 ; Petersen v. Chemical Bank, 32 N. Y. 21,
42, 88 Am. Dec. 298. Here there is a conflict of policies, the relative impor*
tance of which the courts of the forum must decide.
' See Merrill v. Ins. Co., 103 Mass. 245 ; Stevens v. Gaylord, 11 Mass.
256 ; Hall v. Harrison, 21 Mo. 227, 64 Am. Dec. 225, 227.
w See Crouch v. Dabney, 2 Gratt. (Va.) 415.
" Mayo V. Equitable Society, 71 Miss. 590, 15 So. 791 ; Petersen v. Chem.
ical Bank, 32 N. Y. 21, 88 Am. Dec. 298 ; Harvey v. Richards, 1 Mason,
C. C. 380, 413. See Dawes v. Boylston, 9 Mass. 337.
* In the preparation of this section, the writer has been much aided by
286 SITUS OF DEBT — OABNISHMENT. § 125
variety of judicial opinion than upon the topic now to be exam»
ined. Briefly, the question may be thus stated: A of New York
owes B of Massachusetts $1000. B owes C of New York or
Virginia a like sum. B has no property save A's debt. C de-
sires to sue out an attachment against B in New York, and to
summon A before the New York courts upon process of garnish-
ment. Have the New York courts jurisdiction of the proceeding,
B being a non-resident and not personally before the court ?
The attachment proceeding being in rem, and not in per-
sonam, if the res is before the New York courts, it is not neces-
sary that the owner of the property seized should be within their
jurisdiction. The fact that he is a non-resident is immaterial.'
Hence in these cases the sole question to be determined is this :
Is the res within the jurisdiction of the attaching court ? The
res is the debt due to B by A, and hence we are confronted
with the pregnant question, what is the situs of A's debt to
B? Has it its situs with the creditor (B) at his domicil, or at
the domicil of the debtor (A), or at the actual sihis of B or A,
respectively ? If the debt is to be regarded as with the creditor
(B), the fact that A is within the jurisdiction of the court will
be of no avail. But if the debt is with the debtor, then the
presence of A within the jurisdiction is all important, and the
locality of B is immaterial.
Owing to the great confusion that has existed in respect to
this subject, it has frequently happened that a debtor, who in
one jurisdiction has been garnished in attachment proceedings
and been compelled to pay his debt to his creditor's creditor,
has been subsequently compelled in another jurisdiction to pay
the same debt over again to another creditor of his creditor, on
the ground that the first court had no jurisdiction of the res.
Such a state of affairs is a disgrace to the law, calling for a
speedy recognition of some principle upon which the question
of jurisdiction may be determined once for all.
Many theories have been advanced by the various courts as to
reference to an able thesis on the subject by J. L. Templeman, Esq., formerly
a student of the University of Virginia, now a practitioner in Butte, Montana
For the assistance thus given, grateful acknowledgment is here made,
a Ante, §§ 85, 86 ; Pennoyer v. Neff, 96 U. S 714.
§ 125 SITUS OP DBBT — GAENISHMENT. 287
tiLe situs of debts under circumstances like these, some of the
more important of which will now be examined briefly. In
considering the merits of these various theories, one important
principle, already discussed, must be constantly borne in mind:
that principle is, that, for purposes of ascertaining the jurisdic-
tion of a court over a res, the actual situs of the res is re-
garded, not its legal or constructive situs.*
^irst Theory. — Many of the courts have declared in favor of
the extreme view that the situs of a debt is at the domicil of
the creditor, and that it cannot be attached in another State for
want of jurisdiction over the res. In the example above given,
these courts would hold that A's debt to B could only be at-
tached by C in Massachusetts (B's domicil).* This view dis-
regards altogether the dual nature of debt, which, while placing
the creditor's Hffht to sue (or chose in action) with the creditor,
places the debtor's obligation to pay and the creditor's abiUtij to
exact payment with the debtor. In other words, though the
question is one of jurisdiction over a res, these courts dis-
regard the actual situs of the property, and look only to its
legal or constructive situs. This view would clearly seem to be
erroneous.
Second Theory — Legislative Fiat. — Another line of cases,
while recognizing the same general principle as those holding
the first theory, yet for purposes of garnishment, in order to do
effectual justice, find it necessary to resort to phraseology which,
if interpreted literally, seems wholly unjustifiable. These cases
hold that a debt for most purposes has its situs at the creditor's
domicile but for purposes of garnishment a State may hy legisla-
tive fiat fix its situs at the debtor's domicil.*
« Ante, §§ 14, 120.
4 Railroad Co. v. Nash, 118 Ala. 477, 23 So. 825; Railroad Co. v. Chum-
ley, 92 Ala. 317, 9 So. 286; Bucy v. R. R. Co. (Miss.), 22 So. 296;
Railroad Co, v. Smith, 70 Miss. 344, 12 So. 461 ; Railroad Co. v. Sharritt, 48
Kan. 375, 23 Pac. 430; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630;
Smith V. Eaton, 36 Me. 298, 58 Am. Dec. 746; Central Trust Co. v. R. R.
Co., 68 Fed. 685 ; Mason v. Beebee, 44 Fed. 556. See also Railroad Co. v.
Maggard, 6 Colo. App. 85, 39 Pac. 985 ; Caledonia Ins. Co. v. Wenar (Tex.
Civ. App.), 34 S. W. 385.
* Williams v. IngersoU, 89 N. Y. 523 ; Douglas v. Ins. Co., 138 N. Y. 208 :
288 SITUS OF DEBT — GARNISHMENT. § 125
It can hardly be supposed, however, that the courts mean to
say that a legislature, by mere decree, can cause a thing to be
situated where in fact it is not. All that is meant probably is
that, though ordinarily the law will adopt the fiction that debts
are located at the situs of the creditor, this fiction may be disre-
garded, and the actual situs of the obligation substituted there-
for, whenever policy may require it. Under this view, the
rules governing the situs of debts are assimilated to those gov-
erning the situs of tangible chattels, and the theory becomes
identical with the fourth theory hereafter mentioned.'
Third Theory — Another theory (which may be denomi-
nated the fund theory) distinguishes between the chose in action
(following the creditor) and the money owing (in the hands of
the debtor), which constitutes a fund held by the debtor but be-
longing to the creditor, which fund is the res in the attachment
proceeding; holding that, since the debtor's funds are to be pre-
sumed to be at his domicil, the attachment can only issue there.
This theory rests upon the idea that the creditor has the right
to recover of the debtor a certain specific sum of money, and
that by his attachment the attaching creditor becomes subro-
gated to this right, and may proceed to recover the debt in the
place of the original creditor, and in the same jurisdiction.'
It is submitted, however, that this view is fallacious, in that it
requires as a basis one of two suppositions (or both) : (1) That
there is specific property belonging to the original creditor
now in the debtor's hands ; (2) That the court, which seizes the
right of the original creditor to sue and turns it over to the
attaching creditor, has jurisdiction of that right, for otherwise
it could not attach it. But it is admitted by all the authorities
Swedish-American Bank v. Bleeker, 72 Minn. 383, 75 N. W. 740, 71 Am. St.
Rep. 492 ; Bragg v. Gaynor, 85 Wis. 468, 55 N. W. 919 ; Morawetz v. Sun
Ins. Office, 96 Wis. 175, 71 N. W. 109; Renier r. Huilbut, 81 Wis. 24, 50
N. W. 783 ; Reimers v. Mfg. Co., 70 Fed. 673.
« See Mooney v. Buford, 72 Fed. 38 ; Railroad Co. v. Nash, 118 Ala. 477,
23 So. 325 ; National Ins. Co. v. Chambers, 53 N. J. Eq. 468, 32 Atl. 663 ;
Lancashire Ins. Co. v. Corbett, 165 111. 592, 46 N. E. 631.
'' This seems to be in part the theory upon which Mr. Waples bases his in-
teresting treatise on the Situs of Debt. Waples, Debtor and Creditor. See
Berry v. Davis, 77 Tex. 191, 13 S. W. 978.
§ 125 SITUS OP DEBT — GARNISHMENT. 289
that the right of the original creditor to sue is with the creditor
(who is not within the jurisdiction of the courts of the debtor's
domicil). And it must be conceded also that there is with the
debtor no specific fund or money belonging to the creditor, but
only a general liability or obligation to pay.
Fourth Theory. — Another theory, which has been accepted
and adopted by many of the courts, is that the legal situs of the
creditor's right is to be distinguished from the actual situs of
the debtor's obligation ; that as the former is located with the
creditor at his domicil, so the latter is situated at the debtor's
domicil ; and that, for purposes of jurisdiction in rem, the court
must regard the actual situs of the debt,^
The fallacy of this theory is that it treats the obligation of
the debtor as local instead of transitory, as fixed at his domicil,
instead of following his person whithersoever he may go. In
other words, this view regards the actual situs of the debt as at
the legal rather than the actual situs of the debtor. This is
fallacious. The creditor is not confined to the debtor's domicil
for the purpose of enforcing the obligation to pay, but may
proceed against him wherever he finds him, unless the municipal
law forbids. All that is necessary is that the court should have
jurisdiction of the debtor's person, by his voluntary appearance
or by process served upon him within the territorial limits of
the court's jurisdiction.
Fifth and True Theory. — The fourth theory, as we have
just seen, is erroneous simply because of the narrow limits it
allows to the actual situs of a debt, confining it to the debtor's
domicil. The true theory is that the situs of a debt, for pur-
poses of garnishment, is not only at the domicil ofT;he debtor,
mishee may be found, providecl
tlie municipal law ot that State permits the debtor to oe gar-
msKed, Uiid ptoviaea ilie court acquires jurisdiction over tna"
8 Bragg V. Gaynor, 85 Wis. 468, 55 N. W. 924 ; Cross v. Brown, 19 R. I.
220, 33 Atl. 147 ; Lawrence v. Smith, 45 N. H. 533, 86 Am. Dec. 183 ; Ting-
ley V. Bateman, 10 Mass. 343 ; Lerkin v. Wilson, 106 Mass. 120 ; Craig v.
Gunn, 67 Vt. 92, 30 Atl. 860 ; Newland v. Reilly, 85 Mich. 151, 48 N. W.
544. See Chicago, etc. R. R. Co. v. Sturm, 174 U. S, 710 ; King v. Croas,
175 U. S. 396.
to
290 EXEMPTIONS. § 126
garnishee, through his voluntary appearance or actual serrice
""ofpTocess upon him within the State. Of course in most cases
the question will arise in the garnishee's domicil."
Sixth Theory. — A few cases will be found, which regard the
place where the debt is payable as important in fixing its situs
for the purpose of garnishment.^*' But these have no basis of
principle upon which to rest, and may be disregarded, as founded
upon a misapprehension of the question involved. ^^
§ 126. Same — Exemptions. — A question incidental to gar-
nishment proceedings sometimes arises as to the law which
•hould govern the legal exemptions to be claimed by the attach-
ment defendant. The question has usually arisen with respect
to the wages of laborers, exempt by law from their debts, in
cases where the law of the attachment defendant's domicil en-
titles him to exemption of wages, while the law of the forum
(the place of the attachment and garnishment) does not, or not
to the same extent; or where there is a difference on this point
between the law of the place where the defendant entered into
his contract of service and the law of the forum. In such cases,
» Morgan v. Neville, 74 Penn. St. 52, 57-58 ; Neufelder v. Ins. Co. , 6 Wash.
341, 33 Pac. 870 ; Mooney «;, R. R. Co., 60 la. 346, 14 N. W. 343 ; Harvey ».
R. R Co., 50 Minn. 405, 52 N. W. 905 ; National Ins. Co. v. Chambers, 53
N. J. Eq. 468, 32 Atl. 663 ; Howland v. R. R. Co., 134 Mo. 474, 36 S. W. 29;
Manufacturing Co. v. Lang, 127 Mo. 242, 29 S. W. 1010 ; Burlington, etc.
R. R. Co. V. Thompson, 31 Kan. 180, 47 Am. Rep. 497 ; Railroad Co. ».
Crane, 102 111. 249, 40 Am. Rep. 581. See also Chicago, etc. R. R. Co. p.
Sturm, 174 IT. S. 710 ; Mooney ». Mfg. Co., 72 Fed. 32. In the last case
the court announces the doctrine that a garnishmei^: is a proceeding *» per-
sonam. This is contrary to the usually accepted idea, but it is believed the
court is correct. The attachment is a proceeding in rem, the res being the
general liability of the debtor, which general liability upon its seizure by
the attaching creditor can be rendered fixed and definite only by a proceeding
in personam against the debtor, that is, by garnishment. See Fithian v. R. R.
Co., 31 Penn. St. 114.
1° See Manufacturing Co. v. Lang, 127 Mo. 242, 29 S. W. 1010 ; Lawrence
V. Smith, 45 N. H. 533, 86 Am. Dec. 183 ; Tuller v. Arnold, 93 Cal. 166, 28
Pac. 863 ; American Ins. Co. v. Hettler, 37 Neb. 849, 56 N. W. 711 ; McBee
V. Purcell Bank (Ind. Ter.), 37 N. W. 65 ; Mo. Pac. R. R. Co. v. Sharritt,
43 Kan. 375, 387, 23 Pac. 430.
" Chicago, etc. R. R. Co. v. Sturm, 174 U. S. 710, 716-717.
§ 126 EXEMPTIONS. 291
the decisions of the courts as to what law shall govern the
exemption to be accorded have not been uniform.
If the court where the attachment issues has jurisdiction of
the res (that is, of the garnishee), following the rule that ex-
emptions usually pertain to the remedy, and that the lex fori
therefore ordinarily regulates them,^ the general principle is
that the law of the forum will usually determine what exemp-
tion the attachment-defendant is entitled to. This subject is
fully treated hereafter, and its consideration had better be
postponed until then.'
1 Post, § 209. 3 PoBt, % 209.
V
. ■/
n/
292 VARIOUS KINDS OF TRANSFER. § 127
CHAPTER XI.
VOLUNTARY TRANSFERS OF PERSONALTY INTER VIVOS.
§ 127. Preliminary — Various Kinds of Transfer. — We
have seen that the legal situs of personalty will usually furnish
the ** proper law" to govern transfers thereof, while the law of
the actual situs of the property or the lex fori will be substi-
tuted for the proper law whenever the interests of the forum or
its citizens demand such a course, and indeed in all cases
where the exceptions to the operation of the proper foreign law
come into play.
It will also be remembered that the legal situs of personalty
follows the actual or the legal situs of the owner, according as
the personalty is dealt with in a transaction in which the owner
"Voluntarily participates or in a transaction in which his par-
ticipation is involuntary or compulsory, a transaction resulting
merely by operation of law. In case of voluntary transactions,
the actual situs of the owner furnishes the proper law. In case
of involuntary transactions, the law of the legal situs of the
owner prevails. But both are liable to be substituted by the
law of the actual situs of the property under the circumstances
mentioned.
Voluntary transfers are always the result of the owner's
agreement, made in the exercise of his jus disponendi, such as
absolute conveyances, executed sales, chattel mortgages and
deeds of trust, conditional sales with reservation of title, deeds
of assignment for the benefit of creditors, etc.
Involuntary transfers are those resulting not from the volun-
tary agreement of the owner, but from the mere operation of
law, independently of the parties' will. Some of these trans-
fers are effected by the law solely in the interests of creditors
and other third persons, as in the case of involuntary assign-
ments in bankruptcy and insolvency. Others are effected upon
§ 128 CONVEYANCES AND SALES OF PERSONALTY. 293
grounds of public policy, entirely irrespective of the rights of
creditors and third persons, as in the case of the husband's
common law title to the wife's personalty upon marriage. And
still others are based upon both grounds, as in case of the suc-
cession to a decedent's estate, in which case the title of the ad-
ministrator belongs in the main to the first head, while the title
of the distributees to the residuum belongs to the second.
If the purpose of the involuntary transfer is the protection
of creditors, each State wherein any of the property is located
looks first of all to the protection of its own citizens, and a
transfer of the owner's property in another State for such pur-
pose, even in the State of the owner's domicil, will be given in
general no effect in any other State as to property actually
situated there, so long as there are creditors there unsatisfied.
The law of the actual situs of the personalty, not of its legal
situs (lex domicilii), is applied so regularly in such cases as
to obscure and almost wipe out the general principle that in
all cases of involuntary transfer the lex domicilii of the owner
furnishes the "proper law."
But the latter principle again clearly shines forth when we
come to deal with the second class of involuntary transfers, re-
sulting from general motives of policy, not for the protection of
creditors. In such cases the substitution of the lex fori et situs
for the proper law (lex domicilii) is comparatively rare.
§ 128. Absolute Conveyances and Executed Sales of Per-
sonalty. — An unbroken line of authority sustains the general
proposition that, as between the parties, the law of the actual
situs of the owner at the time of the transfer, that is, the law
of the place where the transfer is made (lex loci contractus),
governs the validity and effect of absolute conveyances of per-
sonalty, including assignments of choses in action and executed
sales. The conveyance, assignment, or sale, if valid where
made, will be upheld, as between the parties, in every juris-
diction in which it may be called in question; if invalid where
made, it will not be sustained elsewhere.*
1 Black V. Zacharie, 3 How. 483, 514 ; Kerr v. Urie, 86 Md. 72, 37 Atl.
789 ; Fowler's Appeal, 125 Penn. St. 388, 17 Atl. 431 ; Marvin Safe Co. v.
Norton, 45 N. J, L. 412, 57 Am. Rep. 566, 7 Atl. 418 ; Weinstein v. Freyer,
294 CONVEYANCES AND SALES OP PERSONALTY. § 128
It must be observed however that while the validity of the
substantial provisions and of the formalities of the transfer, as
between the parties, is to be tested by the lex loci contractus,
its validity, so far as it depends upon the legality of the con-
sideratioUf may be governed by a different law, in cases where
the situs of the consideration is a State other than the locus
contractus.
Hence, although in case of articles prohibited to be sold in
one State, a sale thereof made in another State and valid there
will not be held invalid even in the prohibiting State, and even
though the goods were purchased to be resold in the forum and
the vendor knew that fact,* yet if the vendor not only knew that
the goods were to be resold in the forum, but knew also that such
sale was contrary to the law of that State, the vendor will not be
allowed, according to the better opinion, to recover the price in
the courts of the State whose laws he has deliberately helped to
violate.* A fortiori, he would not be entitled to recover there,
if he should take any active steps to aid the vendee in disposing
of the articles in the prohibiting State, in conscious violation of
its law.* Nor indeed should he be permitted to sue in any State
upon a contract the deliberate purpose of which is to violate the
laws of a sister State.*
Difficulty is sometimes experienced in ascertaining the locus
contractus in case of sales. This topic will be fully developed
93 Ala. 257, 9 So. 285 ; In re Dalpay, 41 Minn. 532, 43 N. W. 564. So ex-
ecuted sales of personalty, as between the parties, are governed by the lex loci
contractus as to their validity and effect. Suit v. Woodhall, 113 Mass. 391 ;
Tarbox v. Childs, 165 Mass. 408, 43 N. E. 124 ; Erman v. Lehman, 47 La. Ann.
1651, 18 So. 650 ; Claflin v. Meyer, 41 La. Ann. 1048, 7 So. 139; Sullivan v.
Sullivan, 70 Mich. 583, 38 N. W. 472 ; Webber v. Howe, 36 Mich. 150, 24
Am. Rep. 590 ; Fred Miller Brewing Co. v. De France, 90 la. 395, 57 N. W.
959 ; Boothby v. Plaisted, 51 N. H. 436, 12 Am. Rep. 140 ; Beverwyck Brew-
ing Co. V. Oliver, 69 Vt. 323, 37 Atl. 1110.
' Merchants' Bank v. Spalding, 9 N. Y. 53.
• Webster v. Munger, 8 Gray (Mass.), 584 ; Graves v. Johnson, 156 Mass.
211, 30 N. E. 818, 32 Am. St. Rep. 446, 450, note. But see Hill v. Spear, 5(i
N. H. 253, 9 Am. Rep. 205 ; Mclntyre v. Parks, 3 Met. (Mass.) 207.
• Pratt V. Adams, 7 Pai. Ch. (N. Y. ) 615, 632 ; Knowlton v. Doherty, 87
Me. 518, 47 Am. St. Rep. 349 ; Hill v. Spear, 50 N. H. 253, 9 Am, Rep. 205.
• Weil ». Golden, 141 Mass. 364.
§ 128 CONVEYANCES AND SALES OF PERSONALTY. 296
hereafter in examining the locus contractus of executory con.
tracts. Only a few general principles will here be mentioned.*
The locus contractus of a sale is the place where the sale is
finally completed. Until that time the contract is in fieri, the
title has not passed. It is not until the vendor has done every-
thing in connection with the transfer necessary to pass title that
the sale is completed. The place where the final act essential to
this result is performed is the locus contractus. The place at
which the order is given, or from which the order is sent to the
vendor, however important to the determination of the locus
contractus of an executory contract, furnishes no safe guide in
fixing the place of an executed sale.' /^
In Dolan v. Green,^ ihe plaintiff purchased intoxicating
liquors from the defendant, paying him for them, and then
sought under the Massachusetts statute to recover the price he
had paid, the sale being invalid by the law of Massachusetts.
It appeared that the defendant, who resided in Khode_ I'sland,
agreed with the plaintiff in Massachusetts to sell the liquors;
from time to time he 'selected them from his stock in Rhode
Island and delivered them there on board the cars, the plaintiff
paying the freight. It was held that the sale was made in
Rhode Island, and being valid there was to be deemed valid in
Massachusetts. The plaintiff was not permitted to recover.
On the other hand, in Weil v. Golden,® it appeared that an
order was taken from Golden in Rhode Island by an agent of a
liquor house in Philadelphia. The liquors were delivered at the
vendee's place of residence in Rhode Island, the agent paying
the freight to the place of delivery. It was held that Rhode
Island was the place of the sale, the vendor's last act in com-
6 See post, §§ 157, 158.
7 See Sullivan v. Sullivan, 70 Mich. 583, 38 N. W. 472; Suit v. Woodhall,
113 Mass. 391; State v. O'Neil, 58 Vt. 140, 56 Am. Rep. 557; Beverwyck
Brewing Co. v. Oliver, 69 Vt. 323, 37 Atl. 1110 ; Boothby i;. Plaisted, 51 N. H
436, 12 Am. Rep. 140; Tegler v. Shipman, 33 la. 194, 11 Am. Rep. 118:
Abberger v. Marrin, 102 Mass. 70 ; Erman v. Lehman, 47 La. Ann. 1651, U
So. 650 ; Newman v. Cannon, 43 La. Ann. 712, 9 So. 439 ; Claflin i;. Meye^
41 La. Ann. 1048, 7 So. 139.
8 110 Mass. 322.
* 141 Mass. 364.
296 CONVEYANCES AND SALES OP PERSONALTY. § 128
pletion of the sale being the carriage of the goods to Rhode
Island.
In State v. O'Neil," a resident of Vermont purchased liquor
of dealers in New York, upon an order by mail, the goods to be
shipped by express, C. 0. D. It was held that the sale took
place in Vermont, since the shipment C. 0. D. indicated an in-
tention to make the payment of charges a condition precedent
to the vesting of title in the vendee.-'^
In sales, as in other transactions, the acts of an agent within
the scope of his authority are the acts of his principal. If the
agent has authority to sell, and does so, the sale takes place at
the place where the agent acts, not where the principal lives or
does business. But if the agent has no authority to pass the
title, but only to forward orders, which are subject to the prin-
cipal's approval, the contract is not completed until such ap-
proval; and the place of the contract must be referred to the
place where the approval is given. ^'^
It is to be observed furthermore, in connection with convey-
ances and sales of personalty, that not only does the lex loci
contractus govern the substantial validity of the transfer as
between the parties, but it also determines the effect of the
contract, and in general the interpretation to be placed upon
the terms used, when an ambiguity arises touching the legal
signification to be attached to them."
10 58 Vt. 140, 56 Am. Rep. 557.
" But see State v. Carl, 43 Ark. 353, 51 Am, Rep. 565.
1* Ennan v. Lehman, 47 La. Ann. 1651, 18 So. 650; Newman v. Cannon,
43 La. Ann. 712, 9 So. 439. In these cases the agent had absolute authority
to sell. Compare with these Claflin v. Meyer, 41 La. Ann. 1048, 7 So. 139,
where the agent had only authority to forward orders. See also Tegler v. Ship-
man, 33 la. 194, 11 Am. Rep. 118.
13 Erman v. Lehman, 47 La. Ann. 1651, 18 So. 650 ; Newman v. Cannon,
43 La. Ann. 712, 9 So. 439; Claflin r. Meyer, 41 La. Ann. 1048, 7 So. 139.
In all of these cases the question involved was the vendor's right to a lien or
"vendor's privilege " under the law of Louisiana. The vendor's right to the
privilege was held dependent upon the law of the place of sale. In Codman v.
Krell, 152 Mass. 214, 218, it was held that the lex loci contractus should deter-
mine the legal interpretation of the phrase " heirs at law," used in a deed con-
veying personalty. See also Meyer v. Richards, 163 U. S. 385, where it was
§ 129 TRANSFERS OF CHATTELS — CREDITORS. 297
§ 129. Same — As to Third Persons. — Notwithstanding
the general rule that the lex loci contractus regulates absolute
conveyances and sales of personalty, there are some cases in
which the ''proper law " for this purpose will be substituted by
the law of the forum and actual situs of the property. These
cases are the exceptional cases mentioned in the second chapter
of this work.
But only two of the exceptions there mentioned have much
practical bearing in this particular instance. It is in general
only where the enforcement of the proper law would work an
injury, loss, or injustice to the citizens of the forum, or would
contravene its policy, that the law of the actual situs of the
property will prevail over the lex loci contractus ; though it is
conceivable that a transfer valid by the latter law might be
refused recognition in another State because the consideration
therefor is contra honos mores,^ or that a transfer, invalid where
made because of a penal disability imposed upon the assignor,
might still be enforced in other States.^ In the main, however,
the operation of the lex fori et situs will be confined to the two
cases first mentioned.
Instances of the application of the lex fori et situs (instead
of the lex loci contractus), though numerous enough in cases of
chattel mortgages and assignments for the benefit of creditors,'
are much more infrequent with respect to absolute conveyances
and executed sales of personalty, for the reason that there are
comparatively few differences of policy between the various
States respecting the latter transactions, and therefore conflicts
of laws are not so apt to arise. The few cases that have been
decided, however, indicate that the lex fori et situs will be
applied in these cases in the same way and to the same extent
as in the case of chattel mortgages and voluntary assignments
held that the law of the place of transfer should govern the question whether
the vendor of certain bonds warranted their validity. For similar questions
touching warranties implied in sales of chattels, see Mcllvaine u. Legare, 36
La. Ann. 359 ; Maillard v. Nihoul, 21 La. Ann. 412.
1 See Savings Bank v. National Bank, 38 Fed. 800.
a See Scoville v. Caufield, 14 Johns. (N. Y.) 338.
' 8 Post, §§ 132-134.
298 TRANSFERS OF CHATTELS — CREDITORS. § 12^
for the benefit of creditors, whenever the circumstances call for
the substitution of the lex fori for the proper law.
The mere fact that the property conveyed or sold is in another
jurisdiction than the locus contractus, and that citizens of the
actual situs may incur loss by reason of the transfer, is not in
itself sufficient to call for the overthrow of the transfer, where
it is voluntary and contractual.* In order that the lex loci con-
tractus and the transfer validly made thereunder should be set
aside, the transfer must be positively invalid as to third per-
sons under the law of the actual situs of the property. The
courts of the latter State must be able, by substituting their
own law, to pronounce the transfer invalid there. There must
be an actual substitution of the lex fori for the proper law, as
well as a setting aside of the lex loci contractus.
A leading case, in which the lex fori et situs was applied to
an absolute conveyance of personal property, arose in Louisiana.*
In that case, a transfer of part of a ship was made in Virginia,
where the owner resided, the ship at the time of the sale being
at the New Orleans port. Before delivery to the vendee she
was attached by creditors of the vendor resident in Louisiana.
By the common law (prevailing in Virginia), it was argued,
a sale of goods is, or may be, complete without delivery, if de-
livery is impossible at the time and is made within a reasonable
time after it becomes possible. On the other hand, by the civil
law (prevailing in Louisiana), delivery is absolutely essential to
a valid title in the purchaser. The vendor's creditors, attaching
the ship before any delivery to the vendee, claimed that the
title was still in the vendor (under the Louisiana law), and that
they took priority over the vendee. The vendee claimed that he
had already, before the attachment, acquired a good title under
the law of Virginia (lex loci contractus). There being thus
a conflict between the "proper law " on the one side and the lex
fori et situs on the other, the court held that since the attaching
creditors were citizens of Louisiana and would be injured by the
* It is otherwise where the transfer is compulsory, as in involuntary assign-
ments in bankruptcy. See post, §§ 137, 138.
' Olivier v. Townes, 14 Mart. (La.) 93. See also Union Bank v. Hartwell,
84 Ala. 379, 4 So. 156, 157.
§ 129 TRANSFERS OF CHATTELS — CREDITORS. 299
enforcement of the Virginia law, the law of the forum must be
substituted, and the attachment was accordingly sustained.
In contrast with this another Louisiana case may be pre-
sented. In Thuret v. Jenkins,' the circumstances were similar
to those above given, except that the ship was at sea at the time
of the transfer. It was attached by the vendor's creditors upon
reaching port in Louisiana. The court, dismissing the attach-
ment and upholding the "proper law," said: "In transferring
the ship, it did not work any injury to the rights of the people
of another country; it did not transfer the property of a thing
within the jurisdiction of another government. If two persons
in any country choose to bargain as to the property which one
of them has in a chattel, not within the jurisdiction of the place,
they cannot expect that the rights of persons in the country in
which the chattel is will be permitted to be affected by their
contract. But if the chattel be at sea, or in any other place, if
any there be, in which the law of no particular country prevails,
the bargain will have its full effect eo instanti, as to the whole
world. And the circumstance of the chattel being afterwards
brought into a country, according to the laws of which the sale
would be invalid, would not affect it."
A fortiori would this be true if the chattel were in the locus
contractus at the time of the transfer (which is valid there), and
were afterwards brought by the vendee into another State, ac-
cording to whose law the sale, if made there, would be invalid.
In such case the lex loci contractus should clearly prevail over
the lex fori.'
So also cases may be found holding that where the policy of
the forum and situs would be contravened by the enforcement
of the lex loci contractus, the latter must give way to the
former law.'
Upon principle, it would seem, in these cases, if the suit
should be instituted in the locus contractus and not in the State
« 7 Mart. (La.) 318, 12 Am. Dec. 508.
7 Davis V. Williams, 73 Miss. 708, 19 So. 352 ; Walker v. Marseilles, 70
Miss. 284, 12 So. 211 ; Bank v. Lee, 13 Pet. 107.
8 Matthews r. Lloyd, 89 Ky. 625, 13 S. W. 106. See Hoyt v. Thompson,
19 N. Y. 207.
300 CHATTELS — RESERVATIONS OF TITLE. § 130
where the chattel is situated (such cases would be rare), that
the court should follow the lex loci contractus, the lex situs of
the property usually governing only because it is also the forum.
Hence when, instead of the forum and the situs at the time of
the transfer being identical, it is the locus contractus and the
forum that are identical, the exceptional operation of the law of
the actual situs of the property at the time of the transfer should
cease, and the lex loci contractus should reign supreme.* And
so, if the forum is a third State, neither the situs nor the locus
contractus.
§ 130. Sale of Personalty, with Reservation of Title in
Vendor. — At common law a reservation of title in the vendor
of a chattel until the purchase price is paid is sustained even
as against a purchaser from the vendee for value and without
notice of such reservation. But in many States by statute
the reservation is void as against third persons unless it is
recorded.
If therefore we suppose a chattel sold with such reservation
in one State while the chattel is actually situated in another
State subject to a different law, or is subsequently removed
thither by the vendee, where it is afterwards sold by the vendee
to a purchaser for value and without notice of the reservation,
which law is to govern the title of the vendee's purchaser ?
The policy of the laws which set at nought the contract for
the reservation of the title in favor of creditors of and purchasers
from the vendee, must be kept in mind in the solution of this
question. Some avoid the reservation of title absolutely as
» See Martin v. Hill, 12 Barb. (N. Y.) 631, 633 ; Edgerly v. Bush, 81
N. Y. 199 ; Homthall v. Burwell, 109 N. C. 10, 13 S. E. 721 ; Boehme v.
Rail, 51 N. J. Eq. 574, 26 Atl. 832. This result however is denied in one
New York case, in which it was held that even though the suit was brought
in the locus contractus, the transfer being valid there, it would not be sus-
tained if invalid by the law of the actual situs of the chattels at the time of
the transfer. This case would seem to go too far in support of the lex situs.
Guillander v. Howell, 35 N. Y. 657. Mr. Wharton also goes to great lengths
in giving eflfect to the lex situs, claiming that it is the " proper law." Whart.
Confi. L. §§ 297 et seq. The true rule is that the law of the actual situs is
effective only when it is also the lex fori, the lex loci contractus, or the lex
domicilii. Standing alone, it is of no significance.
§ 130 CHATTELS — RESERVATIONS OP TITLE. 801
against such creditors and purchasers ; * while others avoid it
as to such third persons, unless the reservation is in writing and
recorded.'^ The purpose of these laws is to protect persons within
the State where they are in force in advancing money to the
vendee on the faith of an apparently complete title which is in
reality defective, or in their purchasing the chattel from the ven-
dee upon the faith of his title. It is not the purpose of such a
law to protect third persons dealing with the property beyond
the limits of the State, for with respect to such dealings that
State has no authority to legislate. On the other hand it would
seem to be the policy of these laws to embrace all dealings by
third persons with the property situated within the limits of
their authority, regardless of the law of the place where the
vendee obtained the property and regardless of the question
whether or not by that law the reservation of title in the ven-
dor is valid as against third persons.
Thus it will be seen that the real scope of these laws when
they exist in a particular State is to embrace all personalty
within that State^ whether the vendor's reservation of title was
created there or elsewhere; and they do not apply to personalty
elsewhere, or to dealings therewith elsewhere by third parties,
even though the original sale and reservation of title took place
in the former State.
It follows from what has been said and from the policy of
these laws invalidating reservations of title in the vendor as
against creditors of and purchasers from the vendee, that it is
usually the law of the State where the purchaser buys from th^
vendee or where his creditors seek to subject his interest that^"^
will determine the validity of the vendor's reservation of title,
the law of the place of the vendor's contract of sale being im-
material. And this is true whether the chattel sold is situated
at the time of the transfer in, or is subsequently removed by the
vendee into, the State where the subsequent dealings occur.
Ordinarily, therefore, in such cases, it is safe to follow the rule
1 See Marvin Safe Co. v. Norton, 48 N. J. L. 412, 57 Am, Rep. 566, 7 Atl.
418.
3 See Public Parks Amnsement Co. v. Carriage Co., 64 Ark. 29, 40 S. W.
»82.
302 CHATTELS — RESERVATIONS OF TITLE. S 130
that the law of the place where the subsequent dealings occur
will govern.'
Thus, in Hervey v. Locomotive Works,* a Rhode Island com-
pany delivered a locomotive in Rhode Island to a contractor on
a railroad in Illinois, reserving the title until the payment of
the price. By the law of Rhode Island the reservation of title
was valid as against subsequent creditors of the vendee. By
'.he law of Illinois it was invalid as against them until recorded.
The engine was attached in Illinois by subsequent creditors of
the vendee, and sold to Hervey. In a contest between Hervey
and the vendor, it was held that the law of Illinois must gov-
ern. Here the reservation of title was valid by the lex loci
contractus, but invalid by the law of the place where the sub-
sequent dealings therewith were had.
On the other hand, in Weinstein v. Freyer,* the circumstances
were just reversed, but the same law was held to govern. In
that case the vendor sold the vendee a piano in Georgia, reserv-
ing title. By the law of Georgia, such a reservation was in-
valid as to purchasers from the vendee, unless recorded. In
this case there was no recordation. Then the vendee removed
the chattel to Alabama, and there sold it to a bona fide pur-
chaser. The common law, prevailing in Alabama, held such res-
ervation valid, without recordation. It was held that the rights
of the vendee's purchaser were to be determined by the law of
Alabama; that the contract reserving the title in the vendor
gave the vendee a defective title in Georgia, as between the
parties ; that when the vendee brought the piano into Alabama,
he came with a defective title under the Georgia law ; that when
he sold the piano in Alabama, that defect had not been cured
by the Alabama law, which recognized the vendor's rights ; and
that the vendee could convey the purchaser no better title than
he himself possessed.'
• Hervey v. Locomotive Works, 93 17. S. 664 ; Marvin Safe Co. v. Norton,
48 N. J. L. 412, 57 Am. Rep. 566, 7 Atl. 418 ; Weinstein v. Freyer, 98 Ala.
257, 9 So. 285 ; Public Parks Amusement Co. v. Carriage Co., 64 Ark. 29, 40
S. W. 582 ; The Marina, 19 Fed. 760.
• 93 U. S. 664. » 93 Ala. 257, 9 So. 285.
• See also Marvin Safe Co. p. Norton, 48 N. J. L. 412. 57 Am. Rep. 566,
§ 181 DONATIONS MORTIS CAUSA. 303
§ 131. Donations Mortis Causa. — If property, trangferred by
donation mortis causa, is situated apart from the dying owner in
another State, in determining the "proper law " to govern the
validity of the donation, it becomes necessary to consider whether
it shall be deemed a transfer inter vivos or a testamentary dispo-
sition. In truth, it is neither the one nor the other, though
partaking of the nature of both. The title of the donee is not,
strictly speaking, contractual, since the transfer is conditional
and revocable, nor is it, in strictness, testamentary.
But in ascertaining the ''proper law " to govern such a trans-
fer it is not so necessary to observe whether the transfer is con-
tractual or not, as to observe whether it is the result of the
voluntary act of the owner. If it is, the *' proper law " will be
the law of the actual situs of the owner at the time of the trans-
fer. On the other hand if the transfer result without the active
participation of the owner, it is involuntary, and the " proper
law" is the law of the legal situs (or domicil) of the owner.
Thus a title arising under the will of a testator, though at first
glance it appears to be the result of the testator's voluntary act,
in reality takes effect only by his death (an involuntary act),
and is therefore classed with involuntary transfers, to be regu-
lated by the lex domicilii of the testator.^
Whether a donation mortis causa is to be considered a volun-
tary transaction, like a conveyance, to be regulated by the law
of the actual situs of the owner (lex loci contractus), or whether
it is to be deemed an involuntary transfer, like a will, because
not taking effect until the donor's death, and therefore to be reg-
ulated by the lex domicilii, is still a doubtful matter. Only one
case has been found which deals with the question, in which the
view was taken that the vendee's title vests immediately upon
the donation," but that the title is defeasible by reclamation, de-
liverance from the peril, etc.
In that case, the decedent was domiciled in New Hampshire.
While temporarily in Vermont, he was taken ill, and before his
death delivered certain personalty to the defendant mortis causa.
7 Atl. 418 ; Public Parks Amusement Co. v. Carriage Co., 64 Ark. 29, 40 S. W.
582 ; The Marina, 19 Fed. 760.
1 Post, § 142.
S04 CHATTEL MOKTGAGBS — LIENS. § 132
The donation was valid by the law of Vermont where it was
made, but the law of New Hampshire, the donor's domicil, re-
quired that such donations should be proved by the testimony of
two indifferent witnesses, upon petition by the donee to the pro-
bate court to establish the gift, filed within sixty days after the
owner's decease. These conditions were not complied with, and
the question arose in New Hampshire as to the validity of the
gift, and the ''proper law" governing it. The court held that
the donation was a voluntary and contractual, rather than a tes-
tamentary, disposition, and that the lex loci contractus, not the
lex domicilii, was the proper law.'^
§ 132. Chattel Mortgages — Liens upon Personalty. — Chat-
tel mortgages are voluntary, though qualified, transfers, and
being the result of contract are governed as between the parties
thereto, like other contractual transfers, by the lex loci contrac-
tus, not by the lex domicilii of the owner, nor the lex situs of
the chattels unless that happens to be identical with the forum,
as will usually be the case.^
But with respect to creditors of and purchasers from the mort-
gagor, if the chattels are situated in a State other than the locus
contractus at the time of the mortgage, and by the law of the
actual situs and forum the chattel is void as to creditors and
purchasers, the lex fori et situs will usually be substituted for
the proper law, upon the ground that the enforcement of the
* Emery v. Clough, 63 N. H. 652, 4 Atl. 796.
1 In many of the cases, the language of the opinions would seem to indicate
that the lex domicilii is to govern as between the parties, but it will be found
in these cases that the transfer was made in the domicil of the owner, and
hence the lex loci contractus and lex domicilii are identical. See Green v. Van
Buskirk, 5 Wall. 307, 311, 312 ; Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec.
62 ; Nichols v. Mase, 94 N. Y. 160 ; Martin v. Hill, 12 Barb. (N. Y.) 631,
633 ; Langworthy v. Little, 12 Gush. (Mass.) 109 ; Edgerly v. Bush, 81 N. Y.
199 ; Hornthall v. Burwell, 109 N. C. 10, 13 S. E. 721, 722; Boehme v. Ball,
51 N. J. Eq. 674, 26 Atl. 832 ; Cronan v. Fox, 50 N. J. L. 417, 14 Atl. 119 ;
Barker v. Stacy, 25 Miss. 477 ; Ames Iron Works v. Warren, 76 Ind. 512, 40
Am. Rep. 258, 259 ; Fowler v. Bell, 90 Tex. 150, 85 S. W. 822 ; Richardson
V. Shelby, 3 Okl. 68, 41 Pac. 378 ; Bank v. Hill, 99 Tenn. 42, 41 S. W. 349 ;
Mackey v. Pettijohn, 6 Kan. App. 57, 49 Pac. 636 ; Handley v. Harris, 48
Kan. 606, 29 Pac. 1145 ; Miles v. Oden, 8 Mart. n. s. (La.) 214, 19 Am. Dec.
177. See Stirk v. Hamilton, 83 Me. 624, 22 Atl. 391.
§ 132 CHATTEL MOETGAGES — LIENS. 305
proper law would contravene the policy of the forum or would
work a detriment to its citizens.'^
In Green u. Van Buskirk,' a leading case, Bates, the owner of
certain iron safes, situated in Chicago, executed and delivered
in New York to Van Buskirk a chattel mortgage upon them.
Afterwards and before recordation of the mortgage as the law of
Illinois required, Green attached the safes in Illinois as the
property of Bates. The mortgage was valid by the law of 'New
York as to Green, who was a citizen of that State, but by the
law of Illinois it was invalid as to him until recorded. The
Illinois courts sustained the attachment and ordered the safes to
be sold and the proceeds paid to Green, which was done. Van
Buskirk afterwards sued Green in the courts of New York for
the value of the safes upon the ground that the property belonged
to him and not to Bates, under the law of New York. The court
held that by the law of New York the property was Van Bus-
kirk's and permitted him to recover against Green.* From this
decision an appeal was taken to the Supreme Court of the United
States upon the constitutional ground that full faith and credit
had not been shown by the New York courts to the Illinois judg-
ment, and upon this ground the decision was reversed. The Su-
preme Court held that Van Buskirk possessed a title under the
law of New York eqital but not superior to that of Green under
the law of Illinois; and that, although Van Buskirk was not a
party to the attachment in Illinois, that fact did not permit him
to set up anywhere a title which was not superior to that of the
attaching creditor. In this case, it will be observed. Green was
a citizen of New York, not of Illinois. The court of Illinois
proceeded upon the supposition that the intent and policy of the
2 See Green v. Van Buskirk, 5 Wall. 307; Smith v. Smith, 19 Gratt. (Va.)
545 ; Ghillingworth v. Eastern Tinware Co., 66 Conn. 306, 33 Atl. 1009 ; Miles
V. Oden, 8 Mart. N. s. (La.) 214, 19 Am. Dec. 177. If the ground of the ex-
ception is the upholding of a general policy of the forum, the citizenship of the
third parties is immaterial. The operation of the lex situs is just as extensive
as the legislature intended it should be, no more and no less. See Green v.
Van Buskirk, 5 Wall. 307; Miles v. Oden, 8 Mart n. s. (La.) 214, 19 Am.
Pec. 177.
» 5 Wall. 307; s. c. 7 Wall. 139.
* Van Buskirk v. Warren, 2 Keyes (N. Y.), 119.
20
306 CHATTEL MORTGAGH6 — LIENS. § 132
Illinois statutes of registry was not merely to protect its own
citizens against secret liens, but to prohibit such liens altogether
in that State. And the Supreme Court affirmed the sovereign
right of the State of Illinois to deal with property within its
limits in whatever manner it should see fit, though the owner
lived and contracted elsewhere with reference to the property, at
the same time admitting the equally sovereign right of the State
of New York to make such regulations as it should deem proper
touching the persons, transactions, or property within its limits.
But the right of New York was only equal to that of Illinois,
not superior to it.
On the other hand, where a transfer of chattels in one State is
alleged as the result of a contract made in another, the fact
that the transfer is valid under the law of the actual situs of the
chattels cannot make it a valid agreement, if invalid by the lex
loci contractus. In other words, the lex situs cannot make that
a valid executed contract which is no contract at the time and
place it is entered into.
Thus, in Wattson v. Campbell,^ a chattel mortgage was ex-
ecuted in Pennsylvania upon a ship situated in New York. By
the law of Pennsylvania such a mortgage was invalid as to
creditors if unaccompanied by actual change of possession. Be-
fore the mortgagee obtained possession the vessel was attached
in New York by a Pennsylvania creditor. The court held that
the lex loci contractus, not the lex situs, should govern.
Most of the cases however present the question as to the law
to be applied in cases where the property mortgaged was at the
time of tKe mortgage in the locus contractus, but was subse-
quently removed to another State without the consent of the
mortgagee, the mortgage being valid as to the whole world by
the lex loci contractus, but invalid'as to third persons by the
law of the State to which the chattels have been removed, which
will also in most instances be the forum. It will be observed
' 38 N. Y. 153. But if the invalidity is created by a statute of the locus
contractus, which has no exterritorial force, such as an insolvent or a penal
law, it has been held that the invalidity will not be regarded in other States.
Hoyt V. Thompson, 19 N. Y. 207 ; Scoville •. Caufield, 14 Johns. (N. Y.)
338.
§ 132 CHATTEL MORTGAGES — LIENS. 307
that we now have on the side of the validity of the mortgage aa
against third persons the lex loci contractus and the lex situs of
the chattels at the time of the transfer, while on the side of its
invalidity as to third persons we have the law of the actual
situs at" the time the mortgagor's creditors subject the property
or the property is purchased from him and (usually) the lex
fori.
The decided weight of authority is in favor of the view that
since the actual situs of the chattels at the time of the transfer
coincides with the lex loci contractus, and since by those united
laws the mortgagee takes a title valid as against the whole
world, no subsequent removal of the chattel without the mort-
gagee's consent into the dominion of a different law will divest,
in whole or in part, the mortgagee's title once vested thus as
against the world under the law of the only State which at the
time of the transfer could possibly have exercised any sover-
eignty over the transaction. Under such circumstances, the lex
loci contractus should prevail over every other law.'
Especially has this view been taken where the question arises
in the locus contractus, so that the locus contractus, the former
situs of the property, and the forum all coincide.'
Thus, in Edgerly v. Bush,' a mortgage of horses situated in
« Barker v. Stacy, 25 Miss. 476, 477 ; Ames Iron Works v. Warreu, 76
Ind. 512, 40 Am. Rep. 258, 259 ; Nichols v. Mase, 94 N. Y. 160 ; Langworthy
V. Little, 12 Cush. (Mass.) 109 ; Bank v. Hill, 99 Tenn. 42, 41 S. W. 349 ;
Richardson v. Shelby, 3 Okl. 68, 41 Pac. 378 ; Handley v. Harris, 48 Kan.
606, 29 Pac. 1145 ; Kaoaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62 ; Mum-
ford V. Canty, 50 111. 370, 99 Am. Dec. 525, 529 ; Craig v. Williams, 90 Va.
500, 505 ; Bank v. Lee, 13 Pet. 107. But there are a few cases which regard
a chattel mortgage as a mere li^n, not as a transfer of title. These cases hold
that the lien given by the lex loci contractus, though valid, as between the
parties, in other States whither the chattels are removed, will not be given
priority over the claims of third parties recognized by the law of the last situs
of the chattels and of the forum. See Corbett v. Littlefield, 84 Mich. 30, 4/
N. W. 581, 22 Am. St. Rep. 681 ; Cronan v. Fox, 50 N. J. L. 417, 14 Atl
1 19. See Hervey v. Locomotive Works, 93 U. S. 664 ; Walworth v. Harris
129 U. S. 355.
T Edgerly v. Bush, 81 N. Y. 199 ; Martin v. HUl, 12 Barb. (N. Y.) 631 J
, Hornthall v. Burwell, 109 N. C. 10, 13 S. E. 721.
8 81 N. Y. 199.
808 CHATTEL MOBTOAGBS — LIENS. § 132
New York was there executed, which was valid under the laws
of New York against the world. The mortgagor subsequently
carried the horses to Canada and had them sold there in
■market overt by a horse trader. They were sold to a party in
Canada, who there sold them to the defendant, a resident of
New York. The mortgagee sued the defendant in New York
for the conversion of the horses. By the law of Canada a sale
in market overt passed an unimpeachable title. The court held
that the New York law should govern, and that the action
might be maintained.
The case of Hornthall v. Burwell,' though somewhat similar
to Edgerly v. Bush, presents one important variation from it.
In the North Carolina case, a mortgage was executed and duly
recorded in North Carolina upon certain horses there situated.
The mortgagor subsequently took the horses into Virginia,
where they were seized and sold under an attachment sued out
by creditors of the mortgagor. The mortgagee thereupon sued
the attaching creditors in North Carolina to recover the debt
secured by the mortgage, and the court held that he was enti-
tled to recover. This case is more complicated than Edgerly
V. Bush, in that the element of a judicial proceeding in an-
other State is here presented, which, under the "full faith and
credit " clause of the federal constitution, must be given the
same effect in other States as in the State in which it is ren-
dered. The court, in Hornthall v. Burwell, notices these prin-
ciples, but holds that they did not apply, because the judgment
in the attachment proceeding would have been deemed void
even in Virginia, since the mortgagee was not a party, and
his title had been perfected in North Carolina as against the
world, and could not be divested by the act of a third per-
son. ^° This case differs from Green v. Van Buskirk, above
cited, in that here the North Carolina title was not only equal,
» 109 N. C. 10, 13 S. E. 721. The case of Martin v. Hill, 12 Barb. (N. Y.)
631, exhibits a similar state of facts, except that in the latter case the oflScer
levying the attachment was the defendant, instead of the attaching creditor.
The same result was reached in both cases.
1" See Mumford v. Canty, 50 111. 370, 99 Am. Dec. 525 ; Craig ». Williams,
»0 Va. 500.
§ 133 VOLUNTARY ASSIGNMENTS FOR CREDITORS. 309
but superior, to the claim of the attaching creditor under the
Virginia law.
A distinction is to be observed between a transfer of title and
a mere lien. With respect to liens on personalty, whether ac-
quired by the contract of the parties, "or by implication of law,"
it may be laid down as a general proposition that while the lex
(oci contractus will regulate them as between the parties, regard-
less of the lex situs of the chattels, as part of the effect or obli-
gation of the transfer, " yet when the question is whether the
lien shall take priority over the claims of other persons, the lex
loci contractus must yield to the law of the situs and the
forum."
§ 133. Voluntary Assignments for Benefit of Creditors —
General Principles. — Assignments for the benefit of creditors
may be divided into two classes, — those which result from the
voluntary/ transfer by contract of the insolvent debtor, and those
which result from an involuntary or compulsory transfer by the
act and operation of law to persons named by the law, as in the
11 Corbett V. Littlefield, 84 Mich. 30, 47 N. W. 581, 22 Am. St. Rep. 681.
12 Erman v. Lehman, 47 La. Ann. 1651, 18 So. 650.
1* Erman o. Lehman, 47 La. Ann. 1651, 18 So. 650 ; Newman v. Cannon,
43 La. Ann. 712, 9 So. 439 (cases of "vendor's privilege").
1* See Harrison v. Sterry, 5 Cr. 289, 298 ; Hervey v. Locomotive Works,
93 U. S. 664 ; Corbett v. Littlefield, 84 Mich. 30, 47 N. W. 581, 22 Am. St.
Rep. 681. But see Walworth v. Harris, 129 U. S. 355. In the last case, the
lien did not arise by contract but by a statute of Arkansas. It was a lien upon
crops for rent. The crops were in Arkansas when the lien for rent attached,
and Arkansas loas the forxi.m. The lessee consigned the crop to a creditor of
his in Louisiana, to whom he had given a deed of trust upon his crops to se-
cure advances, the creditor having no notice of the lien for rent. The lessor
sought in Arkansas to enjoin the trustee in the deed of trust from selling the
crops, but the Supreme Court held that the title obtained by the Louisiana
consignees was superior to the lien for rent conferred by the Arkansas statutes.
If Louisiana had been the forum, the rationale of this decision would be easily
discernible. But with the suit brought in an Arkansas court (a federal court,
it is true, but none the less sitting to enforce the municipal law of Arkansas),
and the chattels situated there at the time the lien attached, it is difficult to
discern the principle upon which the decision was reached. The fact that the
lien was statutory and not contractual might be a good reason for not giving
it an exterritorial effect ; but why should it not have been recognized is
Arkansas ?
310 VOLUNTARY ASSIGNMENTS FOR CREDITORS. § 133
case of statutory assignments to assignees in bankruptcy and
insolvency. It is our purpose here to examine the law regu-
lating the former class only. The latter subject will be dis-
cussed hereafter.^ Suffice it to say that the distinction between
the two is clearly recognized by most of the decisions.*
For the very reason that these assignments are voluntary and
contractual, they are subject to principles analogous to those
controlling absolute conveyances and transfers of personalty,
save only that, since they are primarily made for the benefit of
creditors, questions as to the rights of the grantor's creditors
are much more likely to arise than in cases of absolute transfer.
But here, as there, the general leading principle is that the lex
loci contractus is the "proper law" to regulate the transfer,
though the property conveyed thereby is situated elsewhere,
except when the enforcement of the lex loci contractus would
contravene the established policy of the actual situs and forum,
or would result in injury or injustice to its citizens.* It is also
true here, as there, that many of the decisions use language
indicating that it is the lex domicilii, not the lex loci con-
tractus, that is the "proper law." But it is believed that in
1 See post, §§ 137, 138.
2 Crapor. Kelly, 16 Wall. 610, 622; Barnett r. Kinney, 147 U. S. 476,
481 ; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148, 1150, 1151 ;.
Frank v. Bobbitt, 155 Mass. 112, 115 ; May v. Wannemacher, 111 Mass. 202,
208 ; May v. Bank, 122 111. 551, 13 N. E. 806, 807 ; Barth v. Backus, 140
N. Y. 230, 235 ; Moore v. Willett, 35 Barb. (N. Y.) 663 ; Long v. Girdwood,
150 Penn. St. 413, 24 Atl. 711, 23 L. R. A. 33, note; Speed v. May, 17
Penn. St. 91, 94, 55 Am. Dec. 540 ; Milne v. Moreton, 6 Binn. (Penn.) 353,.
361, 369, 6 Am. Dec. 466; Butler w. Wendell, 57 Mich. 62, 23 N.W. 460,
462, 58 Am. Rep. 329 ; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466, 467 ;
Hervey v. Edens, 66 Tex. 420, 6 S. W. 306, 309 ; Walters v. Whitlock, 9 Fla.
86, 76 Am. Dec. 607, 608.
8 Barnett v. Kinney, 147 U. S. 476; Frank v. Bobbitt, 155 Mass. 112,
115 ; May v. Wannemacher, 111 Mass. 202, 208 ; Williams v. Dry Goods Co.,
4 Okl. 145, 43 Pa«. 1148, 1150 ; Butler v. Wendell, 57 Mich. 62, 58 Am.
Rep. 329, 23 N. W. 460, 462; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466;
In re Dalpay, 41 Minn. 532, 43 N. W. 564 ; Law v. Mills, 18 Penn. St. 185 ;
Speed V. May, 17 Penn. St. 91, 94, 55 Am. Dec. 540 ; Fuller v. Steiglitz, 27
Ohio St. 355, 22 Am. Rep. 312 ; Walters v. Whitlock, 9 Fla. 86, 76 Am. Dec.
607; Schuler v. Israel, 27 Fed. 851 ; Atherton Co. v. Ives, 20 Fed. 894.
§ 133 VOLUNTARY ASSIGNMENTS FOB CREDITORS. 31]
b11 these cases the assignment was made at the domicil, or else
the statement is a mere dictum,*
Furthermore, if land situated abroad is the subject of the
assignment, notwithstanding the general principle that the lex
situs governs the validity and effect of all transfers of real
estate, the better opinion is that, so far as the mere effect of the
assignment as such is concerned, it is to be governed also by
the lex loci contractus. The lex situs of the land, it is true,
will govern so far as to determine the effect of the assignment
in operating to pass the title to the assignee : it must be such a
conveyance, in respect to the parties, the form, and the sub-
stance, as would operate to transfer the title to land under the
lex situs. But these points being settled, it does not necessarily
follow, because the deed would fail as an assignment for the
benefit of creditors, if executed in the situs of the land, that it
will there be considered invalid if valid by the lex loci con-
tractus. In other words, its validity as a conveyance to pass
title must be determined by the lex situs, but its effect as an
assignment is to be determined by the lex loci contractus, unless
the enforcement of the lex loci contractus would contravene the
policy of the situs (and forum), or would injure its citizens.®
* See Cole v. Cunningham, 133 U. S. 107, 128 ; Speed v. May, 17 Penn.
St. 91, 55 Am. Dec. 540 ; Barth v. Backus, 140 N. Y. 230, 234, 235 ; Ocker-
man v. Cross, 54 N. Y. 29, 32 ; Guillander v. Howell, 35 N. Y. 657, 658 ;
Moore v. Land Co., 82 Md. 288, 33 Atl. 641, 642; Fuller v. Steiglitz, 27
Ohio St. 355, 22 Am. Rep. 312.
6 Ante, § 11 ; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671»
675 ; "Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148, 1151 ; May v.
Bank, 122 111. 551, 13 N. E. 806 ; Juilliard v. May, 130 111. 87, 22 N. E.
477; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306 ; Thurston v. Rosenfield, 42
Mo. 474, 97 Am, Dec. 351 ; Chafee r. Bank, 71 Me. 514, 36 Am. Rep. 345.
But some of the decisions are uncompromising in holding that the lex situs of
the realty is to control under all circumstances. See Loving v. Pairo, 10 la.
282, 77 Am. Dec. 108; Moore v. Church, 70 la. 208, 59 Am. Rep. 439 ; Bank
V. Stelling, 31 S. C. 360, 9 S. E. 1028. So far as principle is concerned, the
diCFerence between these two lines of decision is more apparent than real. It
is in reality a question of the construction of the statutes of the situs, and of
the importance to be attached to their policy. Both lines of decision agree
that the lex situs is the final arbiter, but they diverge upon the question as
to what are the requirements of the lex situs in respect to foreign assign*
312 WHAT CREDITORS MAY ATTACK ASSIGNMENT. § 134
The same general rule is also applicable where the subject of
the assignment is a chose in action. Subject to the exceptions
already mentioned, the lex loci contractus is the ''proper law,"
and will control.®
If at the time of the transfer the property passing under the
assignment is situated in the locus contractus, the assignment
being good there, the subsequent removal of the property into
another State, by whose law the assignment is invalid, will not
affect the operation of the lex loci contractus ; and it seems that
this is true, whether or not the assignee has actually acquired
possession of the property prior to the removal. The union
of the lex loci contractus and the lex situs at the time of the
assignment bestows upon the assignee a title unimpeachable even
in the courts of the State whither the property is removed.''
In the following sections we will consider the cases in which
the ''proper law " will be substituted by the lex fori et situs.
§ 134. What Creditors may Attack a Voluntary Assign-
ment. — The mere fact that an assignment, valid where made,
would have been invalid if the assignment had been mad« in
the situs, does not of itself necessarily lead the courts of the
situs to pronounce it invalid. The lex loci contractus is the
proper law, and will prevail, unless one of two states of facts
exists. The lex fori et situs may be substituted for the proper
law, and may invalidate an assignment valid where made
(though it will not validate an assignment invalid where
made) in the following cases : (1) Where the creditors attack-
ing the assignment are citizens of the forum, and rely upon
merits. Is the iex situs to be applied literally in the case of assignments
made in another State as well as in the case of domestic assignments, or is
the lex situs intended to apply only to assignments made in the situs ? See
Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671, 675 ; Chafee v.
Bank, 71 Me. 514, 36 Am. Rep. 345, 351.
6 Black V. Zacharie, 3 How. 483, 511 ; Butler v. "Wendell, 57 Mich. 62, 23
N. "W. 460, 58 Am. Rep. 329 ; Ingraham v. Geyer, 13 Mass. 146 ; Speed v.
May, 17 Penn. St. 91, 55 Am. Dec. 540 ; Woodward v. Brooks, 128 111. 222,
20 N. E. 685 ; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466 ; Askew v. Bank,
83 Mo. 366, 53 Am. Rep. 590 ; In re Dalpay, 41 Minn. 532, 43 N. W. 564.
T May V. Wannemacher, 111 Mass. 202, 209; Moore v. Willett, 35 Barb.
(N.Y.) 663, 665; Vamum v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dec. 476.
§ 134 WHAT CBEDITORS MAY ATTACK ASSIGNMENT. 318
the lex fori as applicable to the transfer; (2) Where the enforce*
ment of the lex loci contractus would contravene a pronounced
policy of the forum. The first case is but one instance of the
second, and they frequently merge into each other; but for the
purposes of discussion here, they will be treated separately.
With respect to the first of these cases, it may be said that if
the lex fori et situs invalidates an assignment valid where made,
the policy of the law of the situs is at the very least to protect
creditors who are its own citizens. It may or it may not intend
to extend this protection to citizens of other States also, but it
always goes to the former extent. Otherwise there would be no
object in invalidating the assignment. Hence there will be
found but few cases which, as against resident creditors, sup-
port a voluntary assignment declared invalid by the lex fori et
situs, though valid by the lex loci contractus.^ The overwhelm-
ing current of authority is to the effect that resident creditors
may always take advantage of the invalidity (under the lex fori
et situs) of an assignment validly executed elsewhere.'
1 See Speed v. Maj, 17 Penn. St. 91, 55 Am. Dec. 540 ; Law v. Mills, 18
Fenn. St. 185 ; Train v. Kendall, 137 Mass. 366 ; which seem to go to this
extreme in favor of the lex loci contractus. In the following cases the lex
loci contractus and the lex fori et situs, despite minor differences, were re-
garded as substantially similar, and hence resident creditors were denied
relief, though some of them contain dicta to the effect that resident and non-
resident creditors should always be placed upon the same footing. Atherton
Co. V. Ives, 20 Fed. 894 ; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590 ;
Fuller V. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 312 ; Law v. Mills, 18 Penn.
St. 185 ; First Nat. Bank v. Walker, 61 Conn. 154, 23 At]. 696. The last
case did not involve conflicting titles under different laws, but merely superi-
ority or priority of title. The point in that case was whether a creditor domi-
ciled in Connecticut, having notice of an assignment made in New York, could
attach goods in Connecticut embraced in the assignment. It was held that he
could not.
2 Bamett v. Kinney, 147 U. S. 476, 481 ; Frank v. Bobbitt, 155 Mass. 112 ;
Faulkner v. Hyman, 142 Mass. 53, 54, 55 ; Zipcey t'. Thompson, 1 Gray (Mass.),
243 ; May v. Bank, 122 111. 551, 13 N. E. 806 ; Woodward v. Brooks, 128 111.
222, 20 N. E. 685 ; Juilliard v. May, 130 111. 87, 22 N. E. 477 ; Vamum v.
Camp, 1 Gr. L. (N. J.) 326, 25 Am, Dec. 476 ; Bentley v. Whittemore, 19
N. J. Eq. 462, 97 Am. Dec. 671, 677 ; Green v. Iron Works, 49 N. J. Eq. 48,
23 Atl. 498 ; Walters r. Whitlock, 9 Fla. 86, 76 Am. Dec. 607 ; Egbert v.
Baker, 58 Conn. 319, 20 Atl. 466, 467 ; Williams v. Dry Goods Co., 4 OkL
314 WHAT CREDITORS MAY ATTACK ASSIGNMENT. § 134
Whether or not non-resident creditors will be accorded the
same privilege is to be determined, in the absence of express
legislative provision, by the policy of the statutes of the forum
in the particular case. It is impossible to lay down any general
rules by which this can be decided. The statute, its language,
provisions, purposes, scope, etc., are all elements which must be
reckoned with in determining the policy of the forum. More
usually, perhaps, the policy of such statutes is held to be con-
fined to the protection of domestic creditors only. But many
cases treat the policy indicated by the statutes of the forum
with such respect, when markedly opposed to the lex loci con-
tractus, as to substitute the lex fori et situs for the lex loci
contractus in all cases, regardless of the citizenship of the
attacking creditors.*
Some of the courts also distinguish between cases where the
attacking creditors are citizens of the loctis contractus and where
they are citizens of the forum or of third States. These cases,
though giving the benefit of the lex fori et situs to creditors
generally, whether resident in the forum or not, refuse it to the
citizens of the locus contractus, and require that their rights
should be determined by their own law.* It is difficult to see
any sound basis for this rule save perhaps some general princi-
145, 43 Pac. 1148, 1151 ; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306, 309;
Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345 ; Bacon v. Home, 123 Penn.
St. 452, 16 Atl. 794 ; Thurston v. Eosenfield, 42 Mo. 474, 97 Am. Dec. 351 ;
Sheldon v. Wheeler, 32 Fed. 773 ; Schuler v. Israel, 27 Fed. 85.
' Instances of this view taken of the supreme importance of the domestic
policy may be found in the following cases : Atherton Co. v. Ives, 20 Fed.
894 ; Barth v. Backus, 140 N. Y. 230; Woodward v. Brooks, 128 111. 222, 20
N. E. 685, 686 ; First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696 ;
Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345 ; Ramsey v. Stevenson, 5 Mart
(La.) 23, 12 Am. Dec. 468 ; Ex parte Dickinson, 29 S. C. 453, 7 S. E. 593;
Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028.
* See Barnett v. Kinney, 147 U. S. 476, 481 ; Cole v. Cunningham, 133
U. S. 107, 128, 129 ; Halsted v. Straus, 32 Fed. 279 ; Williams v. Diy Goods
Co., 4 Okl. 145, 43 Pac. 1148, 1150 ; Woodward v. Brooks, 128 111. 222, 20
N. E. 685 ; Richardson v. Leavitt, 1 La. Ann. 430, 45 Am. Dec. 90 ; Faulkner
V. Hyman, 142 Mass. 53, 55 ; May v. Wannemacher, 111 Mass. 202, 209 ;
Whipple V. Thayer, 16 Pick. (Mass.) 25, 2« Am. Dec. 626 ; In re Dalpay, 41
Minn. 532, 43 N. W. 564, 566.
I 134 WHAT CREDITORS MAY ATTACK ASSIGNMENT. 315
pie of estoppel.* But such an explanation loses sight of the
fact that it is the policy of the forum which is to he enforced
by its courts. That policy, it would seem clear, would gener-
ally be intended to apply to the protection either of residents of
the forum only, or of all creditors, regardless of citizenship.
It would be highly improbable that the legislature, in enacting
the statute, intended to create a shifting rule, applicable to some
non-resident creditors and not to others ; and no such presump-
tion should be made, without plain evidence that such is the
legislative intent. The better view is that all non-resident
creditors should be placed upon the same footing, whether they
reside in the locus contractus or in third States, to be either all
included in, or all excluded from, the operation of the lex fori
et situs, according as the circumstances point to one or the other
•course as that contemplated by the policy of the forum.'
The above principles are applicable to assignments valid
where made, but which, if executed in the forum, would be in-
valid as against creditors. But some of the courts have gone
further, holding that, although the assignment is not incon-
sistent either with the lex fori et situs or the lex loci contractus,
the mere fact that it is a. foreign assignment will be sufficient to
entitle creditors resident in the forum to attach the property
thereby transferred, on the ground that resident creditors are
entitled to payment out of property in the forum, before it can
be taken out of the State to be distributed according to a foreign
law.'' But the great weight of authority is in favor of the rule
that the title, once validly vested by the lex loci contractus in
' See Faulkner v. Hyman, 1 42 Mass. 53, 55.
6 See Green v. Van Buskirk, 5 Wall. 307 ; s. c. 7 Wall. 139 ; Barth v.
Backus, 140 N. Y. 230, 238 ; Warner v. Jaffray, 96 N. Y. 248 ; Moore v.
Church, 70 la. 208, 59 Am. Rep. 439 ; Chafee v. Bank, 71 Me. 514, 36 Am.
Rep. 345, 349 ; Vamum v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dee. 476,
487 ; Ramsey v. Stevenson, 5 Mart. (La.) 23, 12 Am. Dec. 468 ; Atherton Co.
V. Ives, 20 Fed. 894. See Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367. It
is probably otherwise, if the transfer is by operation of law. See post, § 138 ;
ante, § 118.
T Fox r. Adams, 5 Me. 245 ; Woodward v. Brooks, 128 111. 222, 20 N. E.
685, 686 ; Holmes v. Remsen, 20 Johns. (N. Y.) 255, 265, 11 Am. Dec. 269 .•
Ingraham v. (Jeyer, 13 Mass. 146.
316 ASSIGNMENTS — PREFERENCES, ETC. § 135
the assignee by the voluntary and contractual act of the owner
(it is otherwise in the case of involuntary assignments in bank-
ruptcy '), and not invalidated by the lex fori et situs, is not
subject to impeachment by creditors resident in the forum or
elsewhere, merely because the contract is made abroad. The
assignment is here made in the exercise of the owner's jus dis-
ponendi, which should receive exterritorial recognition, save
when the disposition is prohibited by the lex fori.^
§ 135. Policy of the Forum. — Although the invalidity of
a foreign assignment under the lex fori et situs will suffice in
general to defeat the assignment, so far as residents of the forum
are concerned, it does not necessarily follow that the lex fori et
situs will be substituted in behalf of non-resident creditors also.
Whether or not this result will follow will depend upon the con-
struction placed by the courts of the forum upon the policy of
its laws. And this in turn will depend in large measure upon
the language and scope of the domestic statutes.
Perhaps the most usual objection that has been taken under
the lex fori to voluntary assignments valid in the locus con-
tractus is upon the ground of preferences of creditors.
Under these circumstances, the lex fori et situs will generally
be substituted for the proper law, as respects resident creditors,
and the assignment will be regarded as ineffectual as to them.^
But even as to resident creditors, if the lex fori does not render
the assignment void because of preferences, but merely provides
in such case that the assignment shall be regarded as made for
the benefit of all creditors equally or pro rata, it has been
8 See post, §§ 137, 138.
9 Crapo V. Kelly, 16 Wall. 610, 622 ; Walters v. Whitlock, 9 Fla. 86, 76
Am. Dec. 607, 612 ; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590 ; Train v.
Kendall, 137 Mass. 366 ; Fuller v. Steiglitz, 27 Ohio St. 355, 22 Am. Rep.
312 ; Atherton Co. v. Ives, 20 Fed. 894 ; Law v. Mills, 18 Penn. St. 185 ;
Ockerman v. Cross, 54 N. Y. 29 ; Cook v. Van Horn, 87 Wis. 291, 50 N. W.
893 ; First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696.
1 Varnum v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dec. 476 ; Bentley v.
Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671, 674 ; Green v. Iron Works,
49 N. J. Eq. 48, 23 Atl. 498 ; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac.
1148 ; Zipcey v. Thompson, 1 Gray (Mass.), 243 ; Bryan v. Brisbin, 26 Mo.
423, 72 Am. Dec. 219
§ 135 ASSIGNMENTS — PREFERENCES, ETC. 317
sometimes held that the lex loci contractus should prevail.'
The reason is that the policy of the forum in such cases is not
sufficiently pronounced to justify the courts of the forum iu
substituting the lex fori for the proper law. But it seems that
if the property conveyed is real estate, any material departure
from the lex situs in this respect will, as against resident cred-
itors, invalidate the assignment.^
With respect to non-resident creditors, much more latitude
is shown in enforcing the assignment according to the lex loci
contractus. Indeed the lex fori must very clearly include
within its protecting scope all creditors and all transactions
wherever executed relating to the property situated within its
jurisdiction, in order for it to override the lex loci contractus
with respect to others than residents. The presumption is that
it is intended to apply only to assignments made within its own
limits or for the protection of its own citizens.*
These principles apply to other regulations of the forum as
well as to those relating to preferences of creditors. Thus where
2 Atherton Co. v. Ives, 20 Fed. 394 ; Law v. Mills, 18 Penn. St. 185 ;
Ockerman v. Cross, 54 N. Y. 29. See Bamett r. Kinney, 147 U. S. 476 ;
Varnum v. Camp, 1 Gr. L. (N. J. ) 326, 25 Am. Dec. 476.
3 Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Bentley v. "Whit-
temore, 19 N. J. Eq. 462, 97 Am. Dec. 671 ; Chafee v. Bank, 71 Me. 514,
36 Am. Rep. 345 ; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306. See Moore
V. Church, 70 la. 208, 59 Am. Rep. 439 ; Loving v. Pairo, 10 la. 282, 77 Am.
Dec. 108 ; Bank r. Stelling, 31 S. C. 360, 9 S. E. 1028.
* Bamett v. Kinney, 147 U. S. 476 ; Williams v. Dry Goods Co., 4 OkL
145, 43 Pac. 1148 ; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec.
671, 677 ; Frank v. Bobbitt, 155 Mass. 112 ; May v. Bank, 122 111. 551, 13
N. E. 806 ; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466 ; Thurston v. Rosen-
field, 42 Mo. 474, 97 Am. Dec. 351 ; Law v. Mills, 18 Penn. St. 185 ; Speed
V. May, 17 Penn. St. 91, 55 Am. Dec. 540 ; Chafee v. Bank, 71 Me. 514, 36
Am. Rep. 345. An example of a domestic policy so pronounced as to override
the lex loci contractus altogether will be found in Ex parte Dickinson, 29 S. C.
453, 7 S. E. 593, in which a foreign assignment of personalty was avoided
as to non-resident creditors under the lex fori which provided that any as-
signment by an insolvent debtor containing preferences should be absolutely
void. See also Douglas v. Bank, 97 Tenn. 133, 36 S. W. 874. Other exam-
ples may be found in some of the cases involving real estate. Bank v. Stell-
ing, 31 S. C. 360, 9 S. E. 1028 ; Moore v. Church, 70 la. 208, 59 Am. Rep. 439.
But see Atherton Co. u. Ives, 20 Fed. 894.
318 ASSIGNMENTS — PREFERENCES, ETC. § 135
the lex fori prescribes that assignments must be recorded, un-
recorded foreign assignments, valid and effectual to pass title
to the assignee where made, have been sustained or set aside
according to the view of the particular court touching the scope
of the domestic policy. The tendency is in favor of upholding
the assignment, where non-resident creditors are concerned.^
So the question whether an assignment is invalid as fraudu-
lent per se, because of reservations and conditions contained in
the deed, is to be decided by the same principles.' And so with
respect to the effect upon the validity of the assignment of a
failure of creditors to consent thereto.^
6 Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Warner r. JafiFray,
96 N. Y. 248 ; Speed v. May, 17 Penn. St. 91, 55 Am. Dec. 540 ; Birdseye v.
Underhill, 82 Ga. 142, 7 S. E. 863 ; Butler v. Wendell, 57 Mich. 62, 23 N. W.
460, 58 Am. Rep. 329 ; Cook v. Van Horn, 87 Wis. 291, 50 N. W. 893. See
Douglas V. Bank, 97 Tenn. 133, 36 S. W. 874 ; Rice v. Courtis, 32 Vt. 460,
78 Am. Dec. 597.
« Woodward v. Brooks, 128 111. 222, 20 N. E. 685 ; Livermore v. Jenckes,
21 How. 126 ; Rice v. Courtis, 32 Vt. 460, 78 Am. Dec. 597 ; Moore v. Wil-
lett, 35 Barb. (N. Y.) 663 ; Graves «;. Roy, 13 La. 454, 33 Am. Dec. 568 ;
Ramsey v. Stevenson, 5 Mart. (La.) 23, 12 Am. Dec. 468 ; Railroad Co. v.
Glenn, 28 Md. 287, 92 Am. Dec. 688. See Wattson v. Campbell, 35 N. Y.
153; Gardner v. Lewis, 7 GiU (Md.), 378, 393, 398.
' Frank r. Bobbitt, 155 Mass. 112 ; Faulkner v. Hyman, 142 Mass. (3 ;
May r Wannemacher, 111 Mass. 203.
§136 INVOLUNTARY TRANSFERS -MARRIAGE. 319
CHAPTER XII.
INVOLUNTARY TRANSFERS OF PERSONALTY INTER VIVOS
§ 136. Transfers by Marriage. — We have already observed
time and again the distinction between voluntary and involun-
tary transfers. In the former case, except where the actual
situs of the property is the forum and there is ground to substi-
tute the lex fori, the legal situs of the chattels is to be referred
to the actual situs of the owner at the time of the transfer, and
the lex loci contractus becomes the "proper law." In the case
of involuntary transfers by operation of law, on the other hand,
the legal situs of the chattels is to be referred to the legal situs
(or domicil) of the owner at the time of the transfer, and the lex
domicilii becomes the "proper law; " subject to be substituted
by the lex fori et situs of the chattels, wherever the policy of
the forum requires it.
To this class of involuntary transfers by operation of law
belong those transfers, which take place under some laws, of the
personal property of one consort to the other upon marriage.
Thus the common law conferred upon the husband an absolute
title to the chattels of the wife immediately upon the marriage,
and a similar title to her choses in action, provided he reduced
them into possession during the coverture. By the Roman law
the property of the consorts was held in community. Numerous
variations of these rules, as well as some entirely distinct, exist
in the various States, and it becomes important to observe the
law which properly governs the rights of the consorts in the
personalty of each other.
These transfers, and the law properly governing them, have
already been discussed in preceding sections, where they were
regarded in the aspect of incidents of the marriage status, and
we there saw that the lex domicilii of the parties at the time the
320 INVOLUNTARY TRANSFERS IN BANKRUPTCY. § 13T
property was acquired is (independently of nuptial agreement)
the '* proper law" to control the rights of the parties.^ Re-
garding them now in the aspect of involuntary transfers by opera-
tion of law, exactly the same result is reached. The discussion
of the principles involved need not be repeated here.
§ 137. Involuntary Assignments in Bankruptcy or Insol-
vency. — In cases of bankruptcy, where bankrupt or insolvent
laws prevail, the property of the insolvent is transferred by
order of court or by operation of law, for the benefit of all the
creditors, to an assignee, who stands to a certain extent in the
shoes of the insolvent debtor.
The primary object of such laws is the protection of cred-
itors, and it is only where the assignment takes place at their
instance that it can be termed ''involuntary." In this respect,
such transfers differ from ordinary transfers in invitum, like
transfers upon marriage, the primary purpose of which is not
the protection of creditors or third persons.
Whether the voluntary feature which appears in some bank-
rupt laws is to be referred to this head or to that of voluntary
transfers of personalty, is not entirely settled,^ and in the suc-
ceeding discussion it will be left out of consideration.
The question now to be examined is the effect to be given in
other States to an involuntary assignment in bankruptcy or in-
solvency in the State of the insolvent's domicil; whether or not
it is to be deemed of universal obligation, so as to transfer to
the assignee the insolvent's movable property wherever situated,
and thus withdraw it from the reach of creditors in the courts
of the actual situs.
1 Ante, §§ 80-82.
1 See Egbert v. Baker, 58 Conn. 319, 20 Atl. 466 ; Barth v. Backus, 140
N. Y. 230 ; May v. Wannemacher, 111 Mass. 202, 209; Harvey v. Edens, 66
Tex. 420, 6 S. W. 306, 309 ; Butler v. Wendell, 57 Mich. 62, 58 Am, Rep.
329, 23 "N". W. 460, 462 ; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442.
It would seem upon principle, since the bankruptcy proceeding even when
voluntary is in the nature of a judicial adjudication, and, as &ach, a proceeding
in rem, it could only be effectual as to such property as is within the jurisdic-
tion. Nor can such a proceeding be said to be contractual, since it is done
without the assent of the creditors whose debts are thereby released. See
Barth ». Backus, supra.
§ 137 INVOLUNTARY TRANSFERS IN BANKRUPTCY. 321
Upon this point the English decisions are directly opposed
to the overwhelming weight of American authority. In Eng-
land, it is the established doctrine that for the purposes of a
transfer of this kind the owner's chattels wherever situated
must be presumed to have their legal situs at his domicil, and
therefore the disposition of them must be governed by the lex
domicilii. If by that law the title of the assignee is valid, it
must be so held everywhere, even as against creditors resident
in the actual situs and forum. ^
It is impossible to defend the position of the English courts
upon any principle of private international law. They admit
that upon the transfer of personalty by operation of law to the
administrator of a decedent, so far as creditors are concerned,
the lex situs et fori is to govern the administration of the assets,
and not the lex domicilii. Yet the assignment in bankruptcy
is perhaps even a stronger case, for in the former case there
may be no creditors at all, whereas, in the latter, the very pur-
pose and the only purpose of the assignment is the protection
of creditors. The principle therefore which induces the rule,
for the protection of creditors, that the transfer of personalty to
an administrator by the lex domicilii has no exterritorial effect,
so long as creditors in the situs and forum remain unsatisfied,
would seem to apply with even greater force to involuntary
assignments in bankruptcy.
Such at least has been the reasoning of the American courts.
Although the great weight of Chancellor Kent's opinion was
given, in a masterly decision, in support of the English doc-
» Story, Confl. L. § 409 ; Booth v. Clark, 17 How. 322, 336 ; Holmes v.
Remsen, 4 Johns. Ch. (N. Y.) 460, 8 Am. Dec. 581; Paine v. Lester, 44
Conn. 196, 26 Am. Rep. 442, 443. With respect to land however, even in
England, it seems to be admitted that an assignment in bankruptcy will have
no effect. See Oakley v. Bennett, 11 How. 33 ; Williams v. Dry Goods Co.,
4 Okl. 145, 43 Pac. 1148, 1151 ; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306 ;
Chipman r. Peabody, 159 Mass. 420, 34 N. E. 563. In support of the Eng-
lish view it is claimed that the assignment in bankruptcy is after all a voltin-
tary assignment, since every citizen is supposed to consent to the laws of his
country. See Holmes v. Remsen, 4 Johns. Ch. 460, 8 Am. Dec. 581 ; Milne v.
Moreton, 6 Binn. (Penn.) 353, 361, 6 Am. Dec. 466. Pari ratione, an
assault or other tort is a breach of contract !
21
322 INVOLUNTARY TBANSFERS IN BANKRUPTCY. § 187
trine,* his view has been overruled in this country. It is now
thoroughly established in the United States, that assignments
in bankruptcy or insolvency of personal property are to be given
no exterritorial force ex proprio vigore.* The same general
principles are to be applied here as in the case of receivers,^
and administrators.®
But it does not follow, because ex proprio vigore the assign-
ment has no exterritorial effect, that no such effect is under any
circumstances to be accorded it. On the contrary, except with
respect to land, the general rule of comity is to recognize the
title conferred by the lex domicilii upon the assignee in every
State where the insolvent's property may be located, save only
where the interests of the forum or of creditors require that it
shall be disregarded. Hence, if the case does not affect cred-
itors in the forum, but merely relates to the title of the assignee
and his right to collect and sue for debts due the insolvent, the
transfer to the assignee under the lex domicilii is sustained.''
In Holmes v. Remsen,* the question was whether a voluntary
8 Holmes v. Remsen, 4 Johns. Ch. 460, 8 Am. Dec. 581. See Blake v.
Williams, 6 Pick. (Mass.) 286, 309, 17 Am. Dec. 372 ; Paine v. Lester, 44
Conn. 196, 26 Am. Rep. 442, 443.
* Milne v. Moreton, 6 Binn. (Penn.) 353, 6 Am. Dec. 466 ; Blake v. "Wil-
liams, 6 Pick. (Mass.) 286, 308, 17 Am. Dec. 372 ; Crapo v. Kelly, 16 Wall.
610 ; Booth v. Clark, 17 How. 322 ; Harrison v. Sterry, 5 Cr. 289 ; Paine v.
Lester, 44 Conn. 196, 26 Am. Rep. 442 ; Willetts v. Waite, 25 N. Y. 577,
584, 586 ; Barth v. Backus, 140 N. Y. 230, 235 ; McClure v. Campbell, 71
Wis. 350, 37 N. W. 343 ; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367 ;
Hervey v. Edens, 66 Tex. 420, 6 S. W. 306; Sturtevant v. Armsby Co., 66
N. H. 557, 23 Atl. 368.
6 Ante, §§ 117, 118. See Booth v. Clark, 17 How. 822.
6 Ante, §§ 106, 107.
^ Milne v. Moreton, 6 Binn. (Penn.) 353, 363, 365, 6 Am. Dec. 466 ;
Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442, 444 ; Willetts v. Waite, 25
N. Y. 577, 583, 584 ; Kirkland v. Lowe, 33 Miss. 423, 69 Am. Dec. 355,
356. But if the property assigned is a non-negotiable chose in action, the
assignee takes only an equitable title, and cannot sue thereon in his own
name unless the lex fori permits it. Kirkland v. Lowe, 33 Miss. 423, 69 Am.
Dec. 355, 356 ; Milne v. Moreton, 6 Binn. (Penn.) 353, 6 Am. Dec. 466. This
is in conformity to the general principle that the lex fori controls the remedy.
See post, § 206.
• 4 Johns. Ch. (N. Y.) 460, 8 Am. Dec. 581.
§ 137 INVOLUNTARY TRANSFERS IN BANKRUPTCY. 323
payment in England by a New York debtor to the Englisli as-
signee of an English bankrupt was a good defence to a New
York attachment and garnishment by an American creditor of
the bankrupt. Chanceller Kent decided that it was. Keason-
ing from analogy to the case of the payment of debts to a for-
eign administrator," it would seem that this decision was correct,
even supposing (as proved to be the case here) that there were
creditors to claim the debt in the New York courts. The pay-
ment was made in England, the situs of the assignee's author-
ity. This decision has been frequently disapproved in the later
American cases, in respect to its general views as to involuntary
assignments.
It w^ill be observed that the great practical difference between
voluntary assignments for the benefit of creditors and involun-
tary assignments in bankruptcy, so far as their exterritorial e:ffect
is concerned, is that the former, being contractual and an exercise
of the owner's jus disponendi, takes effect in other States ex
propria vigore, according to the terms of the disposition, unless
it is invalid and prohibited by the lex situs et fori ; while the
latter, being the result merely of an act of the law for the pro-
tection of creditors, has no more inherent exterritorial effect than
has the law creating it. Any such effect accorded to it is due
merely to comity and policy, and neither of these call for its
recognition in other States whose interests or policy dictate a
contrary course, as will be the case wherever there are creditors
there. And this is true, though there be nothing in the lex
situs et fori to invalidate such a transfer, or even though the
latter law be identical in terms with the lex domicilii. The
mere fact that there are creditors in the forum is sufficient to
induce the courts of the forum to disregard the foreign assign-
ment, until the creditors are satisfied."
But as in the case of receivers,^^ if the property is in the State
of the assignment and the assignee in bankruptcy takes posses-
9 Ante, § 109.
1° So, if there are in the forum purchasers of the insolvent's property, with-
out notice of the assignment. See Willetts v, Waite, 25 N. Y. 577, 684 j
Johnson v. Hunt, 23 Wend. (N. Y.) 88.
" Ante, §§ 117, 118.
324 WHAT CREDITORS MAY ATTACK ASSIGNMENT. § 138
sion, the fact that it is subsequently found in another State will
not deprive the assignee of his title conferred by the lex dom-
icilii and the lex situs also."
Difficulty is sometimes experienced in determining whether
a particular assignment under the insolvent laws of a State is
to be deemed voluntary or involuntary. It has been said in
some cases that if the assignment is ''statutory," it comes
within the principles above laid down.^* But this term is
likely to mislead, since it is not true that every assignment
regulated by statute is involuntary. In Barth v. Backus," it
is said that the test to determine whether an assignment shall
be given exterritorial effect is found in the query whether or
not the insolvent is thereby discharged of all further liability
for his debts. And this is believed to be the true test; for
even though the assignment in such a case is a voluntary act
on his part it is not voluntary on the part of the creditors, who
are thereby compelled to release their debts. The assignment
is not contractual, for only one party enters into it willingly.
And of course if the act is not that of the owner, but through
the intervention of a court or officer appointed by law, it is an
involuntary assignment.^^
§ 138. Creditors for -whose Benefit Assignment disregarded.
— Nothing in connection with this subject is better settled than
that transfers in bankruptcy or insolvency have no exterritorial
force, so far as concerns debts due the State of the situs and
forum in the shape of taxes, etc.,^ or due to residents of that
w Crapo V. Kelly, 16 Wall. 610, 622. 627; Cole v. Cunningham, 133 U. S.
107, 128; May v. Wannemacher, 111 Mass. 202, 209 ; Willetts v. Waite, 25
N. Y. 577, 584 ; Plestorou. Abraham, 1 Pai. Ch. (N. Y.) 236 ; Smith v. Eaton,
36 Me. 298, 58 Am. Dec. 746, 749.
18 Hervey v. Edens, 66 Tex. 420, 6 S. W. 306, 309 ; Frank v. Bobbitt, 155
Mass. 112; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442, 445 ; Butler v.
Wendell, 57 Mich. 62, 58 Am. Rep. 329, 23 N. W. 460, 462.
" 140 N. Y. 230, 237.
» See May v. Bank, 122 111. 551, 13 N. E. 806, 807 ; Kirkland v. Lowe,
33 Miss. 423, 69 Am. Dec. 355 ; Butler v. Wendell, 57 Mich. 62, 58 Am.
Bep. 329; Willetts v. Waite, 25 N. Y. 577, 587; Egbert v. Baker, 58 Conn.
319, 20 Atl. 466 ; May v. Wannemacher, 111 Mass. 202, 208, 209.
1 Harrison v. Sterry, 5 Cr. 289 ; Willetts v. Waite, 25 N. Y. 577, 586.
§ 138 WHAT CREDITORS MAY ATTACK ASSIGNMENT. 325
State.' Nor do the American courts stop there. The current
of authority is in favor of extending the same privileges to
creditors who are residents of third States and who desire to
take advantage of the remedies afforded by the situs.*
Indeed, some of the courts have gone so far as to say that to
hold a foreign assignment invalid as to the residents of the
forum, but valid as to residents of other States of this Union,
would be in contravention of the federal constitution.* Although
this position cannot be sustained, it tends to show how fixed with
us in such cases is the policy of the open door to creditors gener-
ally. No good reason can be assigned for not extending this
liberal policy to creditors resident in foreign countries as well
as in other States of this Union than the forum ; but though
some of the decisions contain statements sufficiently general to
cover alien creditors, there seem to be no direct decisions to
that effect. On the contrary, there are several cases taking
the opposite view.*
2 May V. Bank, 122 111. 551, 13 N. E. 806, 807; Cole v. Cunningham, 133
U. S. 107, 127, 128 ; Reynolds v. Adden, 136 U. S. 348 ; Crapo r. KeUy, 16
Wall. 610, 622; Blake v. Williams, 6 Pick. (Mass.) 286, 17 Am. Dec. 372 ;
Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442, 444; Speed v. May, 17 Penn.
St. 91, 94, 55 Am. Dec. 540 ; Long v. Girdwood, 150 Penn. St. 413, 24 AtL
711, 23 L. R. A. 33 ; Willetts v. Waite, 25 N. Y. 577, 586, 587 ; Sturtevant
V. Armsby Co., 66 N. H. 557, 23 Atl. 368.
« Cole V. Cunningham, 133 U. S. 107, 127; Crapo v. Kelly, 16 Wall. 610,
628 ; Harrison v. Sterry, 5 Cr. 289 ; Hibemia Nat. Bank v. Lacombe, 84
N. Y. 367 ; Willetts v. Waite, 25 N. Y. 577, 586 ; Milne v. Moreton, 6 Binn.
(Penn.) 353, 6 Am. Dec. 466; Blake r. Williams, 6 Pick. (Mass.) 286, 308,
17 Am. Dec. 372 ; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442, 444, 445 ;
Barth v. Backus, 140 N. Y. 230 ; Sturtevant v. Armsby Co., 66 N. H. 557,
23 Atl. 368.
* Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368 ; Paine r. Lester,
44 Conn. 196, 26 Am. Rep. 442, 445. But see Chafee v. Bank, 71 Me. 514,
36 Am. Rep. 345.
6 Sturtevant u. Armsby Co., 66 N. H. 557, 23 Atl. 368 ; Long v. Gird-
wood, 150 Penn. St. 413, 24 AtL 711, 23 L. R. A. 33. The last case may
possibly be explained in some measure by the fact that the assignment oc-
curred in Scotland, and the attaching creditors were citizens of Canada, both
parts of the British Empire ; or perhaps by the fact that the Pennsylvania
court considered (as it apparently did) that the foreign assignment could only
be invalidated by Pennsylvania creditors — a position logical at least, if no^
liberal.
826 WHAT CREDITORS MAY ATTACK ASSIGNMENT- § 138
But with respect to the rights of creditors who are residents
of the State in which the assignment takes place, the courts are
divided. Some of the decisions hold that they should be bound
by the laws of their own State, and that they cannot, by going
into another State, set at naught the work of their own law.®
Although this would seem to be the juster and the wiser
view,^ many decisions will be found extending the same privileges
to these as to other creditors.* However this may be, it is cer-
tain that the courts of the State where the assignment occurs
may peremptorily enjoin its own citizens from going abroad to
attach the property of the insolvent.^
6 Cole V. Cunningham, 133 U. S. 107, 128 ; Livennore v. Jenckes, 21
How. 126 ; Long v. Girdwood, 150 Penn. St. 413, 24 Atl. 711, 28 L. R. A.
33 ; Plestoro v. Abraham, 1 Pai. Ch. (N. Y.) 236; Mayu. Wannemacher, 111
Mass. 202, 209; Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368, 369.
7 In speaking of a similar question arising with respect to voluntary as-
signments (ante, § 134, note 6), it was said that the better opinion was that
the citizens of the place of assignment should be put on the same footing as
the residents of other States outside the forum. There the question was one
of the construction of the lex situs et fori. Here the question is not at all a
question of statutory construction, but of jurisdiction and submission to a
personal law.
8 Cole r. Cunningham, 133 U. S. 107, 128 ; May t>. Bank, 122 111 551, 13
N. E. 806 ; Rhawn v. Peters, 110 111. 350 ; Hibernia Nat. Bank v. Lacombe,
84 N. Y. 367 ; Willetts v. Waite, 25 N. Y. 577, 583 ; Taylor v. Badonx, 92
Tenn. 249, 21 S. W. 522 ; Commercial Bank v. Motherwell Co., 95 Tenn.l72,
31 S. W. 1002. See Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368,
369.
» Cole r. Cunningham, 133 U. S. 107 ; Dehon v. Foster, 4 Allen (IMaas.),
545. It is otherwise, if the assignment is wlv/ntary. Warner v. Jafbny, 96
N. Y. 248.
§ 139 TRANSFER BY SUCCESSION. 327
CHAPTER XIII.
TRANSFER BY SUCCESSION.
§ 139. Titles of Administrator and Distributee distinguished.
■^ It is a general rule, upon the death intestate of an owner of
property, that his personalty is to be committed to an adminis-
trator, whose first duty is to pay the decedent's debts, and after
they are paid to turn over the residuum of the estate to those
appointed by law as his successors in the ownership of the prop-
erty, known as his "distributees" or " next of kin."
The title vested in the administrator, and subsequently in
the distributees, results not from any voluntary act on the part
of the owner, but from the act of the law. Furthermore, so far
as the administrator is concerned, his title is vested in him
primarily for the protection of creditors, incidentally only for
the distribution of the estate amongst the next of kin. With
respect to its primary purpose, therefore, the title of an adminis-
trator is in many respects analogous to that of an assignee ia
involuntary bankruptcy.^ Like such assignee, the administra-
tor is a quasi-officer of the law; his authority and title, origi-
nating in an act of the law, is ex propria vigore of no exterritorial
force, and will not, as to creditors, extend to personalty situated
elsewhere than in the State of his appointment.
The principles regulating the administration of a decedent's
estate, including the law governing his appointment, title,
powers, duties, and liabilities, have been already discussed in
detail at another place, to which reference is now made.*
But if we suppose that there are no debts, or that they have
all been paid, the administration of the estate ceases, and its
distribution commences. It is the law governing this distribu-
tion into which we are now to inquire.
> Ante, §§ 137 et seq. ' Ante, §§ 105 et seq.
328 WHO DISTRIBUTEES — CAPACITY TO SUCCEED. § 140
It is the well established general rule that the law of the last
domicil of the deceased owner is the " proper law " to govern
the distribution of his personalty, not the lex situs of the prop-
erty (though that law may perhaps be applied in certain excep-
tional cases, where the situs and the forum coincide) ; nor the
law of the owner's domicil at the time he acquired the property
in question; nor the law of the decedent's actual situs at the
time of his death. The transfer is involuntary and by act of
the law, and therefore it is the owner's legal situs or domicil
that furnishes the proper law; and the transfer being effected at
the time of his death, it is his domicil at that time that is to be
looked to. Hence the general rule that the law of the last
domicil of the decedent is the proper law.*
§ 140. Persons to Take as Distributees — Capacity of Dis-
tributees to Take. — From what has been said in the preceding
section it will be seen that the classes of persons who are to
succeed to a decedent's personalty as his distributees or next of
kin will be determined by the law of the decedent's domicil at
the time of his death.^
* Sharpe v. Crispiu, L. R. 1 P. & D. 611 ; Somerville v. Somerville, 5 Ves.
750 ; Ennis v. Smith, 14 How. 400, 424 ; Wilkins v. EUett, 9 Wall. 740,
742 ; Sickles v. New Orleans, 52 U. S. App. 147, 80 Fed. 868, 874 ; Guier v.
O'Daniel, 1 Binn. (Penn.) 349, note ; Welles' Estate, 161 Penn. St. 218, 28
Atl. 1116 ; Shultz V. Pulver, 3 Pai. Ch. (N. Y.) 182 ; s. c. 11 Wend. 361 ; Vroom
V. Van Home, 10 Pai. Ch. 549, 42 Am. Dec. 94 ; Hegeman v. Fox, 31 Barb.
(N. Y. ) 475 ; Parsons v. Lyman, 20 N. Y. 103 ; Petersen v. Chemical Bank,
32 N. Y, 21, 44, 88 Am. Dec. 298 ; Despard v. Churchill, 53 N. Y. 192, 199;
White V. Tennant, 31 W. Va. 790, 8 S. E. 596 ; Mayo v. Equitable, etc. So-
ciety, 71 Miss. 590, 15 So. 791 ; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22
Am. Dec. 41, 57 ; Atchison v. Lindsey, 6 B. Mon. (Ky.) 86, 43 Am. Dec.
153, 156 ; Shannon v. White, 109 Mass. 146 ; Cooper v. Beers, 143 111. 25,
33 N. E. 61. If there are no creditors of the decedent, either local or domi-
ciliary, it is usually considered unnecessary to remit the personalty to the
owner's domicil for distribution. The local courts may distribute it, but in
accordance with the provisions of the lex domicilii. Welles' Estate, 161
Penn. St. 218, 28 Atl. 1116; Gravillon v. Richards, 13 La. 293, 33 Am. Dec.
563, 565 ; Goodall v. Marshall, 11 N. H. 88, 35 Am. Dec. 472. But see Suc-
cession of Petit, 49 La. Ann. 625, 21 So. 717. It will also be remembered
that the succession to land is always to be governed by the lex situs of the
Und, Ante, § 12.
1 Story, Coufl. L. § 481 a ; Sharpe v. Crispin, L. R. 1 P. & D. 611 ; Bruce
§ 140 WHO DISTRIBUTEKS — CAPACITY TO SUCCEED. 329
Thus, in Mayo v. Equitable, etc. Society,' a young man,
born in Virginia, went to Tennessee to seek employment, where
he remained for a year ; he then went to Mississippi, where he
remained about a year ; returned to Tennessee, where he stayed
a month; and then, on account of constant ill-health, returned
to Virginia, where he shortly afterwards died. While in Mis-
sissippi he had insured his life in the Equitable Assurance So-
ciety, and on his return to Virginia left the policy in Mississippi
for safe-keeping. The question arose in Mississippi as to the
persons entitled to the proceeds of the policy. By the law of
Virginia, where the court held the decedent to have been domi-
ciled at his death, the father (who was heavily indebted) was
the sole distributee. By the law of Mississippi other members
of his family would have shared in the distribution. Notwith-
standing the hardship of the case (which evoked much sympa-
thy from the court) it found itself constrained to hold that the
lex domicilii at the time of the death must govern; that the
youth's estate belonged to the father under the law of Virginia;
and that the impoverished family could receive only what was
left after paying the father's creditors.
So where the question is not what classes of the kin shall
succeed to the property, but whether or not a particular member
of the class named by the law of the decedent's domicil, to whom
some personal disability is attached, can succeed to the property
along with other members of the same class, the "proper law" to
determine his capacity of succession, it is believed, is the law of
the decedent's domicil, not the law of the domicil of the par-
ticular distributee whose capacity is in question. In Bruce v.
Bruce,' the inquiry was whether the decedent's half-brother was
entitled to succeed to his estate along with a whole brother.
The case was held to turn entirely upon the domicil of the de-
cedent, no mention being made of the half-brother's domicil.
By the English law, the half-brother was entitled to a share;
V. Bruce, 2 Bos. & Pul. 229 ; Ross v. Ross, 129 Mass. 243, 246, 37 Am. Rep.
321 ; Mayo v. Equitable, etc. Society, 71 Miss. 590, 15 So. 791 ; Welles' E»
tate, 161 Penn. St. 218, 28 Atl. 1116 ; Ennis v. Smith, 14 How. 400, 425.
* 71 Miss. 590, 15 So. 791.
» 2 Bos. & Pul. 229.
830 WHO DISTRIBUTEES — CAPACITY TO SUCCEED. § 140
by the law of Scotland, he was not. It was held that the
decedent's last domicil was England, and that its law must
control.
The instance in which this point has most frequently arisen
is the case of bastards claiming the right to succeed to a rela-
tive's estate. If both the decedent and the bastard are domiciled
in the same State at the time of the former's death, no question
will arise as to what is the "proper law." The two domicils
coincide, and the lex domicilii will govern.* But if the natural
child is domiciled in a State different from the deceased rela-
tive, and by the law of one State the capacity to succeed with
the other next of kin is given, while denied by the law of the
other State, the solution is not so simple. It would seem to
be clear that if the lex domicilii of the decedent should forbid
succession by the bastard, he could not inherit, because the
decedent's property is legally situated at the domicil of the
owner, and the prohibitions of that law should be conclusive.'
On the other hand, if the law of the decedent's domicil permits
the bastard's succession, while the law of the bastard's domicil
does not, a moment's reflection will show that the policy of the
latter law cannot be directed towards injuring the bastard, but
towards protecting the estates of its citizens who die intestate
from such doubtful claims. It cannot be supposed that the law
of the bastard's domicil was intended to prevent one of its own
citizens (even though he be a bastard) from being enriched by
sharing in the estate of a foreigner, since the good fortune of
the bastard can in no way impair in any way the policy of his
domicil. In other words, it would seem manifest that the in-
capacity to succeed imposed upon the bastard by the law of his
domicil, was only an incapacity to succeed to the property of
residents of his domicil.'
But in these cases of involuntary transfer, as in other cases,
there may be occasions, where the law of the actual situs and
forum may be substituted for the law of the legal situs of the
♦ Doglioni v. Crispin, L. R. 1 H. L. 301.
6 Sharpe v. Crispin, L. R. 1 P. & D. 611.
' Quite a different question arises where the bastard has been legitimated,
or in case of adopted persons. See ante, § 12.
§ 141 SHAKES OF DISTRIBUTEES. 331
personalty (lex domicilii). At least it has been so held in one
late Louisiana case, though the wisdom of the decision is, to
say the least, doubtful. In Succession of Petit,'' a father
and his natural son were both domiciled in France, by whose
law the bastard was entitled to succeed to a share of the
father's estate. The father, upon his death, left personalty in
Louisiana, by whose law the bastard was not entitled to inherit.
Some of the next of kin were residents of Louisiana, and in
their interests the Louisiana court declined to enforce the law
of France.
§ 141. Shares of Distributees. — The law of the decedent's
last domicil controls also the shares into which the personal
estate is to be divided, and the proportion that shall belong to
each distributee. So, whether primogeniture gives an exclusive
right to the succession, or a larger proportion thereof, or is to
be entirely disregarded ; whether the distributees are to take
per capita or per stirpes ; the nature and extent of the appli-
cation of the principle of representation ; the shares of a hus-
band, a widow, collaterals of the half-blood, etc., — are all ques-
tions properly to be determined by the law of the decedent's
last domicil.^
For example, in England and in some of the United States,
there is no right of representation beyond that of brother's and
sister's children in the distribution of personalty. Hence if
one domiciled in England should die, leaving a brother and the
grandchildren of a deceased brother, the latter would not take
the decedent's personalty in virtue of their representation of
the deceased brother, even though the personalty were actually
situated in a country' by whose law such representation was
admissible.*
■? 49 La. Ann. 625, 21 So. 717.
1 Story, Confl. L. § 481 a ; Bruce v. Brace, 2 Bos. & Pul. 229 ; White ».
Tennant, 31 W. Va. 790, 8 S. E. 596 ; Lawrence v. Kitteridge, 21 Conn. 577,
56 Am. Dec. 385 ; Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116 ; DeCouche
V. Savetier, 3 Johns. Ch. (N. Y.) 190, 8 Am. Dec. 478, 480; Hegeman v.
Pox, 31 Barb. (N. Y.) 475 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec.
630 ; Williamson v. Smart, Conference Rep. (N. C.) 146, 2 Am. Dec. 638 j
Ennis r. Smith, 14 How. 400, 425.
« Story, Confl. L. § 481 o.
332 TRANSFER BY WILL, INVOLUNTARY. § 142
CHAPTER XIV.
TRANSFERS OF PERSONALTY BY WILL.
§ 142. Transfer by "Will, Involuntary. — From the stand*
point of private international law, a will is to be viewed in
the light of an involuntary, rather than a voluntary, transfer
of property, and therefore the " proper law " is the law of the
legal, not the actual, situs of the testator. Though the act of
executing a will is a voluntary act, that act ex propria vigore
has no effect in transferring the title. Effect is given to it
only by and upon the subsequent death of the owner, without
revocation of the will. The real act which gives the will effect
as a transfer is the testator's death, and that is involuntary.
The fact that he is in a particular country when death over-
takes him is no indication that he has voluntarily submitted
himself or his property to its laws. So the fact that he is
in a particular State when he executes the will is no necessary
indication that he submits himself or his property to the laws
of that State, for he knows that the will is not to take effect
until his death, at which time he may have severed all connec-
tion with that State.
In its influence upon the operation of the will as a transfer
of property, the death of the testator preponderates over the
making of the will to the extent that it is in general the con-
dition of affairs at the time of the death, not that at the time
of the making of the will, which furnishes the law of the case ;
for wills of personalty speak as at the testator's death. But it
is not necessarily the State where the death occurs that fur-
nishes the law. Since the death is involuntary, there is no
reason to presume the owner's personalty to be legally situate
elsewhere than at the legal situs (domicil) of the owner. The
law of his actual situs at the time of death, as such, will not
§ 143 FORMAL VALIDITY OF WILL. 333
control, nor (except for purposes of administration) will the la\»
of the actual situs of the property have any influence.
But it does not necessarily follow that the strict letter of the
lex domicilii is always to be enforced in regard to wills. It is
indeed, as in other cases, the policy of the domicil rather than
its law which is to control. The law may be couched in such
general terms as to cover cases it was manifestly not intended
to cover, cases not at all within the scope of its policy. In
such cases the strict letter of the domiciliary law is not appli-
cable, and it may be supposed that that law intends that its
provisions may then be substituted by the law of some other
State more interested in the matter.
Instances of this have already been seen in our examination
of the proper law governing testamentary capacity,^ and other
instances will be seen in the course of the following discussion.
But this applies only to wills of personalty. With respect
to lands, it is perfectly well settled that the strict letter of the
lex situs of the land will control the validity of the devise in
all respects.^
It is to be observed that, although the will consists of dis-
positions of both real and personal estate, situated in different
States, and even though they are given in the same clause of
the will and upon the same trusts, the dispositions will in gen-
eral be severable, and the validity of one will not usually de
pend upon the validity of the other. One may be valid by the
lex situs, while the other is invalid by the lex domicilii, and
vice versa.*
§ 143. Formal Validity of Wills of Personalty. — The pol-
icy of laws controlling the formal validity of wills is directed
1 Ante, § 70.
2 Carpenter v. Bell, 96 Tenn. 294, 34 S. W. 209 ; Williams v. Saunders,
6 Coldw. (Tenn.) 60, 72; Frazier v. Boggs, 37 Fla. 307, 20 So. 245 ; Wynne
V. Wynne, 23 Miss. 251, 57 Am. Dec. 139 ; Ross v. Ross, 129 Mass. 243, 245,
37 Am. Rep. 321 ; Ford v. Ford, 70 Wis. 19, 33 N. W. 188 ; Penfield v
Tower, 1 N. D. 216, 46 N. W. 413 ; Darby v. Mayer, 10 Wheat. 465 ; Ken
V. Moon, 9 Wheat. 565 ; Ware v. Wisner, 50 Fed. 310. It is otherwise as to
the interpretation of the devise. Post, § 145.
8 Knox V. Jones, 47 N. Y. 389, 395. See Cross v. Trust Co., 131 N. Y.
830, 339.
834 FORMAL VALIDITY OP WILL. § 143
towards all wills which owe their effect to those laws, and em-
braces therefore all wills of personalty executed by persons do7n-
iciled in that State, without regard to the actual locality of the
property disposed of or the place where the will may happen to
have been actually executed. For this purpose the strict letter
of the lex domicilii of the testator at the time of his death will
control, and no foreign law can be incorporated into it for the
purpose of any particular case. ^
The result is the same if the testator makes his will in his
domicil according to the forms and ceremonies prescribed by
its laws, and subsequently removes to another State to live, by
the law of which the ceremonies accompanying the execution of
the will are not sufficient. And so, if we suppose the will in-
valid in the first State and valid in the second. It is in all
cases the law of the testator's domicil at the date of his death,
not at the time of the execution of the will, that must deter'
mine its formal validity. This is true, not only because the
will speaks as at the death of the testator, being revocable and
ambulatory up to that time, but also because the matter of
testacy or intestacy is a status fixed by his death, and as such
is to be determined by the lex domicilii at that time.'^
Thus, in Moultrie v. Hunt,' the testator domiciled in South
1 Desesbats v. Berquier, 1 Binn. (Penn.) 349, 2 Am. Dec. 448 ; Flannery's
Will, 24 Penn. St. 502; Williams v. Saunders, 5 Coldw. (Tenn.) 60, 69;
McCune v. House, 8 Ohio, 144, 31 Am, Dec. 438 ; Burlington University v.
Barrett, 22 la. 60, 92 Am. Dec. 376 ; Moultrie v. Hunt, 23 N. Y. 394 ;
Chamberlain v. Chamberlain, 43 N. Y. 424, 432 ; Kerr v. Dougherty, 79 N. Y.
327, 342 ; Hope v. Brewer, 136 N. Y. 126, 138 ; Ford v. Ford, 70 Wis. 19,
33 N. W. 188 ; Cameron v. Watson, 40 Miss. 191, 207 ; Sickles v. New Or-
eans, 52 U. S. App. 147, 80 Fed. 868 ; Yates v. Thompson, 3 CI. & F. 544,
577. In a few cases, expressions will be found to the effect that a will of per-
sonalty, if formally valid according to the law of the place where it is exe-
cuted, will be sustained everywhere. See Roberts' Will, 8 Pai. Ch. (N. Y.)
519 ; Sevier v, Douglass, 44 La. Ann. 605, 10 So. 804. But an examination
of these cases will show that the court was regarding the will as made at the
testator's domicil.
2 Moultrie v. Hunt, 23 N. Y. 394 ; Dupuy v. Wurtz, 53 N. Y. 556 ; White
V. Howard, 46 N. Y. 144 ; McCune v. House, 8 Ohio, 144, 31 Am. Dec. 438 ,
Nat V. Coons, 10 Mo. 543.
• SSH. Y,3»4.
§ 144 SUBSTANTIAL VALIDITY OF WILL. 335
Carolina there executed his will, declaring before the attesting
witnesses that it was his signature and seal. This was sufficient
in South Carolina to make it a valid will. The testator subse-
quently removed to New York, where he died. By the law of
New York, it was required that the testator should declare in
the presence of two attesting witnesses that it was his last will
and testament. It was held that the formal validity of the will
was to be determined by the law of the testator's domicil at
the time of his death, not at the date of the execution of the
will.
§ 144. Substantial Validity of the Provisions of the Will.
— In determining the substantial validity of a will of person-
alty, the general principle is unquestionably the same as in the
case of its formal validity. The law of the testator's last dom-
icil is the proper law. But elements are present here which are
absent where the investigation relates to matters of form only,
and which give rise to apparent exceptions to the operation of
the lex domicilii. But these exceptions are apparent only,
since in reality it is the temporary adoption by the lex domicilii
of another law in the particular case, which gives such other
law its effect. It has none inherently. The general rule is
still that the law of the testator's domicil at the time of his
death will regulate the validity of the testamentary provisions.^
But difficulty is often experienced in these cases in ascertain-
ing what is the law of the domicil in regard to a particular set
of circumstances. In order to determine this, the policy of the
particular statute or law of the domicil must be looked to.
Such laws may be divided into four distinct classes.
One class of these provisions may be created for purposes of
convenience and certainty in the administration of estates,
such, for example, as that vague and indefinite trusts contained
in a will are void. The main purpose of such provisions is to
relieve the courts of the domicil of the difficult task of enforcing
* Williams v. Saunders, 5 Coldw. (Tenn. ) 60, 76 ; Chamberlain v. Cham-
berlain, 43 N. Y. 424 ; Cross v. Trust Co., 131 N. Y. 330 ; Dammert v. Os-
bom, 140 N. Y. 30 ; Fellows v. Miner, 119 Mass. 541 ; Bible Society v,
Pendleton, 7 W. Va. 79 ; Ford v. Ford, 70 Wis. 19, 33 N. W. 188 ; Penfield
V. Tower, 1 N. D. 216, 46 N. W. 413.
336 SUBSTANTIAL VALIDITY OP WILL. § 144
the testator's wishes when vaguely expressed. It is ohvious that
if the will provides that these vague dispositions are to be en-
forced in the courts of some other State than the domicil, and
the courts of that State are authorized by its law to enforce
such dispositions, the strict letter of the domiciliary law is not
applicable.
Another class relates to the management and control of the
pr*>perty bequeathed, such, for example, as prohibitions against
perpetuities or accumulations, etc. Here also, if the provisions
of the will are such that these perpetuities or accumulations
relate only to property outside the domicil, the strict letter of
the lex domicilii is not applicable. The purpose of such laws
is to prevent property actually situated in the State from being
tied up and not subject to alienation. If therefore the will
thus disposes of property in another State than the domicil, the
intention being that it should remain there, the domiciliary
provisions against perpetuities, etc., are not intended to embrace
such a case. That is a question to be dealt with by the law of
the place which is the proposed situs of the property.
A third class embraces those cases wherein the policy of the
domicil is directed against the holding by certain classes of
persons of property under a will, such as corporations under
the statutes of mortmain. Here again, if the legatees live else-
where the policy of the domicil does not apply.
The last class embraces those cases wherein the domiciliary
policy is directed towards the protection of the testator or his
family from improvident dispositions, such as limitations upon
the testator's capacity to bequeath his property to charitable
purposes, except to a limited amount, or unless the will be
executed a certain period before his death; restrictions upon
the capacity of an infant, or a married woman, to make a
will, etc. The policy of this class of laws is to protect the
citizens of the State where they are enacted. They are directed
towards those testators who are resident there, and constitute
restrictions upon testamentary capacity. Their application is
entirely independent of the locality of the property transferred.
Here the lex domicilii governs in full force, without the aid of
any foreign law whatever.
§ 144 SUBSTANTIAL VALIDITY OF WILL. 387
This fourth class of laws controlling testamentary validity,
involving the capacity to make a will of personalty, and the
third class, involving the capacity of the legatee to take, have
been already discussed in connection with the law governing
personal capacities.''
With regard to the first two classes, though the older rule was
that the letter of the lex domicilii should govern in all cases,
even though the property disposed of was, under the will, to be
enjoyed in another State,* the modern tendency is distinctly in
the direction of enforcing the policy rather than the letter of the
lex domicilii, and if the property is to have its final situs in
another State, to make the law of that State a part of the lex
domicilii for the purpose of regulating that disposition.*
In Hope V. Brewer,^ a testator domiciled in New York be-
queathed property to trustees in Scotland, to establish a charity
in that country. The bequest under the law of New York was
too vague and indefinite, but was valid and capable of enforce-
ment under the laws of Scotland. The New York court decided
in favor of the validity of the bequest.
2 Ante, § 70.
» Wood V. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Am. Dec. 451 ; Sorrey v.
Bright, 1 Dev. & B. Eq. (N. C.) 113, 28 Am. Dec. 584 ; Montgomery v. Mil-
liken, 5 Sm. & M. (Miss.) 151, 43 Am. Dec. 507 ; Lowry v. Bradley, 1 Speer's
Eq. (S. C), 1, 39 Am. Dec. 142.
* Chamberlain v. Chamberlain, 43 N. Y. 424 ; Hope v. Brewer, 136 N. Y.
126 ; Fellows v. Miner, 119 Mass. 541 ; Healy v. Reed, 153 Mass. 197 ; Sohier
V. Burr, 127 Mass. 221 ; Ford v. Ford, 80 Mich. 42, 44 N. W. 1057. But
see Cross v. Trust Co., 131 N. Y. 330 ; Doty v. Hendrix, 16 N. Y. Supp. 284 ;
Dammert v. Osborn, 140 N. Y. 30 ; Bible Society i». Pendleton, 7 W. Va. 79.
In Dammert v. Osborn, supra, a testator domiciled in Peru bequeathed per-
sonalty to charitable uses in New York, invalid under the laws of New York,
prohibiting the suspension of the power of alienation for a longer period than
two lives in being at the death of the testator, but valid under the law of Peru
(lex domicilii). This bequest was sustained in New York, after a special
enactment by the New York legislatiu-e validating the charity. In the ab-
sence of this special enactment, it would seem that the general laws of New
York would have governed ; unless perhaps the policy of those laws should be
deemed so unimportant as to be superseded by the advantages accruing from
a valuable charity donated by foreigners. But the courts could hardly con-
sider such matters in reaching a decision.
6 136 N. Y. 126, 134, 135. See Bible Society v. Pendleton, 7 W. Va. 7a
22
388 INTERPRETATION OF WILL. § 145
In Chamberlain v. Chamberlain,* a N^ew York testator be-
queathed a legacy to a Pennsylvania corporation for charitable
purposes, which was violative of the New York statutes against
perpetuities. It was held by the New York court that the valid-
ity of the bequest in that respect should depend upon the law of
Pennsylvania, whither the property was to be sent for use. In
the course of its opinion the court says: "It is no part of the
policy of New York to interdict perpetuities or gifts in mort-
main in Pennsylvania. Each State determines those matters
according to its own views of policy and right, and no other
State has any interest in the question. There is no reason why
the New York courts should follow the funds bequeathed to this
Pennsylvania corporation to see whether they will be there ad-
ministered in all respects in strict harmony with our policy and
laws."
In Despard v. Churchill,^ it was held that the New York
courts would not themselves directly enforce the provisions of a
Californian's will, valid in California, disposing of personalty
in New York, the will creating perpetuities invalid under New
York law, but that the New York assets, after paying certain
legacies which were valid under the law of New York, should be
remitted to California to be there distributed. If it had been
directed by the will that this property was to go to New York
legatees and to remain there, doubtless the court would have de-
clared the disposition invalid, as not being within the purview
of the California law, but embraced in the policy of the State of
New York. As it was, however, the property was to go out of
New York, and therefore it would seem, the New York policy
not being applicable to the case, there was no particular reason
why the court should have refused to itself enforce the provisions
of the will.
§ 145. Interpretation of the Will. — In the case of any docu-
ment, whether it be a contract, a conveyance, or a will, the pri-
mary rule for the interpretation of ambiguous language is that the
^ 43 N. Y. 424. It seems impossible to reconcile with this the case of
Cross V. Trust Co., 131 N. Y. 330. But the former would seem to lay down
the correct rule.
» 53 N. Y. 192.
§ 145 INTERPRETATION OF WILL. 339
intention of the person using the language must be ascertained
and followed. The question is, what does the party mean by
the phrases or words he has used ? This will often be ascer-
tained by merely considering the context of the document itself,
but sometimes the words are such as may be given a technical
or customary meaning in one State different from that attached
to the same words by the law or custom of another State. Thus,
the technical legal words "heirs" or "next of kin," or the
words of the vernacular, such as ''dollars," ** pounds," etc., are
instances of phrases which may have different meanings in dif-
ferent countries. So the mere silence of the testator upon cer-
tain points may create different interpretations of his intention
in different States, as where the testator makes a provision for
his wife, without stating whether it is intended in lieu of her
dower, or where he makes no provision in his will for the case
of the legatee dying before himself, etc.
In such cases the question will arise, which meaning did the
grantor or testator intend should be attached to his words or to
his silence ? The answer cannot always be given with absolute
assurance of truth, and in the absence of direct evidence resort
must be had here, as in other cases, to presumptions of law. The
general proposition may be laid down that the interpretation of
such ambiguous phrases should be determined in accordance with
the laws and customs of that State most probably in the mind
of the grantor or testator when he used the words, and with
which he is to be presumed to be most familiar.
If the country whose phrases he adopts is expressly desig-
nated by the testator, or is given by implication from the
language of the will, there would then be no doubt as to his in-
tention to give his words the same meaning attached to them
in that country.*
Thus, if one domiciled in New York directs that his estate
1 Dicey, Confl. L. 696; Enohin r. Wylie, 10 H. L. Gas. 1 ; s. c. 1 DeG. F.
& J. 470 ; Anstruther v. Chalmer, 2 Sim. 1 ; Yates v. Thompson, 3 CI. & F.
544, 588 ; Harrison r. Nixon, 9 Pet. 483, 504 ; Ford v. Ford, 80 Mich. 42, 44
N. W. 1057, 1059, 1060; Ford v. Ford, 70 Wis. 19, 33 N. W. 188, 196 ; s. c.
72 "Wis. 621, 40 N. W. 502 ; Lincoln v. Perry, 149 Mass. 368 ; Merrill v.
Preston, 135 Mass. 451 ; Codman v. Krell. 152 Mass. 214.
340 INTERPRETATION OF WILL. § 145
shall be distributed among those persons who would answer the
description of his "next of kin" or ''heirs at law" under the
laws of France, the New York courts or the courts of any other
State would find no difficulty in applying the French law to
the case, and in selecting the beneficiaries in accordance with
that law. Their obvious duty would be to follow the intention
expressed by the testator.
Again, though the country whose law or usage the testator
has in mind when he uses the ambiguous phrases be not ex-
pressly designated in the will, yet where, on the face of the
instrument, it is apparent that the testator has a particular
country in mind, the law and usage of that country, wherever
it be, will control the interpretation of the ambiguous phrase.
Thus, a testator domiciled in England executes a will in
France, in the French language, expressed in all the technical
terms of French law. Such a will would generally be inter-
preted, in respect to ambiguous phrases, etc., in accordance
with French law or custom, rather than English.^
But as a general rule nothing will appear to indicate the
country whose laws and usages the testator had in mind. In
such event, if the ambiguity occurs with respect to the disposi-
tion of personalty by will, the presumption of law, in the ab-
sence of contrary evidence, is that the testator had in view the
laws and usages of his domicil, as being those with which he is
supposed to be most familiar. The actual situs of the property
disposed of, or the domicil of the legatees, will generally be
immaterial.'
* Dicey, Confl. L. 696 ; Chamberlain v. Napier, 15 Ch. D. 614 ; Enohin v.
Wylie, 10 H. L. Cas. 1 ; s. c. 1 DeG. F. & J. 470. But see Anstmther v.
Chalmer, 2 Sim. 1 ; Caulfield v. SuUivran, 85 N. Y. 153.
* Maxwell v. Maxwell, 3 DeG. M. & G. 705 ; Harrison v. Nixon, 9 Pet.
483, 504; Sickles v. New Orleans, 52 U. S. App. 147, 80 Fed. 868, 873 ; Oil-
man V. Gilman, 52 Me. 165, 83 Am. Dec. 502 ; Parsons r. Lyman, 20 N. Y.
103 ; Caulfield v. Sullivan, 85 N. Y. 153 ; Dammert v. Osbom, 140 N. Y. 30,
45 ; Bowditch v. Saltyk, 99 Mass. 136 ; Sewall r. Wilmer, 132 Mass. 131,
136 ; Merrill v. Preston, 135 Mass. 451 ; Lincoln v. Perry, 149 Mass. 368 ;
Welch V. Adams, 152 Mass. 74 ; Codman v. Erell, 152 Mass. 314 ; Adams v.
Adams, 154 Mass. 290 ; Mullen v. Reed, 64 Conn. 240, 29 AtL 478 ; Rockwell
9. Bradshaw, 67 Conn. 9, 34 Atl. 758, 759 ; Fordr. Ford, 70 Wis. 19, 33 N. W,
188, 195 ; Knights Templars Association v. Greene, 79 Fed. 461, 465.
§146 INTERPRETATION OF WILL. 341
If the property disposed of be land situated in a State othei
than the testator's domicil, some question has been made whether
the interpretation of the testator's language should be controlled
by the law and usage of the domicil or of the situs of the prop-
erty. A few cases may be found holding that the interpretation
of the devise must depend upon the lex situs.* But here too the
weight of reason and authority is in favor of the rule that the
interpretation of a devise is to be governed by the law or usage
with which the testator is supposed to be most familiar, namely,
that of his domicil ; and hence when he uses words he must be
presumed to have intended that they should be used in the sense
given them in his domicil, unless the contrary appears.* So,
also, if it becomes necessary to fill in some hiatus in the ex-
pressed intention of the testator, resulting from his failure to
provide for all contingencies, as in the case of a lapse, or the
obligation of a devisee to elect whether or not to take under the
wilL«
§ 146. Same — Beneficiaries — Property Disposed of. — If
a will gives property, real or personal, to a devisee or legatee,
not by name but describing him as one of a class, such as
"heirs at law," ''next of kin," " children," etc., these or the
* Yates V. Thompson, 3 01. & F. 544, 588 ; Jennings v. Jennings, 21 Ohio
St. 56 ; Applegate v. Smith, 31 Mo. 166 ; Richardson v. DeGiverville, 107 Mo.
422, 17 S. W. 974, 977 ; McCartney v. Osborn, 118 111. 403, 9 N. E. 210 ;
Wynne v. "Wynne, 23 Miss. 251, 57 Am. Dec. 139. It is evident that this
rule could not be applied if the testator possessed lands in several States, with
different interpretations of the words used, should the testator dispose of them
all by the same language ; for it could not be supposed that the testator
would intend the same clause to have dififerent meanings with respect to dif-
ferent tracts of land. See Crusoe v. Butler, 36 Miss. 150 ; Wilson v. Cox, 49
Miss. 538, 545. This reductio ad absurdum would seem to suffice to throw
discredit upon a rule which might produce such results.
5 Ford V. Ford, 80 Mich. 42, 44 N. W. 1057, 1059 ; Ford v. Ford, 70 Wis.
19, 33 N. W. 188, 195 ; s. c. 72 Wis. 621, 40 N. W. 502 ; Proctor v. Clark,
154 Mass. 45, 27 N. E. 673 ; Lincoln v. Perry, 149 Mass. 368.
6 Trotter v. Trotter, 4 Bligh, N. s. 502 ; s. c. 3 Wils. & Sh. 407 ; Maxwell
V. Maxwell, 2 DeG. M. & G. 705 ; Maxwell v. Hyslop, L. R. 4 Eq. 407 ; Caul-
field V. Sullivan, 85 jST. Y. 153 ; Staigg v. Atkinson, 144 Mass. 564, 12 N. E.
354 ; Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324 ; Van Steenwyk
V. Washburn, 59 Wis. 483, 17 N. W. 289.
342 INTERPRETATION OP WILL. § 146
like terms, in the absence of evidence of a contrary intention,
are to be construed according to the meaning given such terms
in the testator's domicil, as shown in the preceding section.^
So where such terms as "estate," **real estate," "movable
property," "dollars," ''pounds," etc., are used in a will, they
are to be construed in accordance with the same law. Thus, in
Enohin v. Wylie,* an Englishman, domiciled in Russia, and
possessed of large real and personal estate, including a consider-
able amount in the English funds, made a will in the Russian
language and form, disposing of all his "movable and immov-
able property," but without any other language excluding or
including his English property. In England, the phrase " mov-
able property " was usually applied to tangible chattels, while
in Russia it was the designation by which all personal property,
whether tangible or intangible, was known. The question was
whether the will passed the money in the English funds. The
court held that the meaning given to the words in Russia, the
testator's domicil, should prevail.
So also the law of the testator's domicil will determine the
meaning of ambiguous words used by him to describe the estate
or interest intended to be vested in the legatee or devisee. In
Brown v. Brown," an English case, a testator domiciled in Vir-
ginia, devised to his sister, Mary Brown, "the remaining one-
fourth share of the balance of my estate, at her death to be
equally divided among her children." The question was whether
Mary Brown took a life estate or a fee-simple. It appearing
that the Virginia courts had construed the will to give her an
absolute estate, the House of Lords followed that construction.
So whether a party takes an estate by implication of law un-
der a will ; or whether a precatory trust is raised by expressions
of hope or confidence, etc., are questions of construction to be
determined by the law of the testator's domicil.*
1 Merrill v. Preston, 135 Mass. 451 ; Proctor v. Clark, 154 Mass. 45, 27
N. E. 673 ; Lincoln v. Peny, 149 Mass. 368 ; Harrison v. Nixon, 9 Pet. 488^
504 ; Stoi7, Confl. L. §§ 479 e, 479 h.
2 10 H. L. Cas. 1 ; s. c. 1 DeG. F. & J. 470.
« 4 Wils. & Sh. 28.
* Story, Confl. L. §§ 479 b, 479 c.
§147 INTEEPRETATIONOFWILL — LAPSE — ELECTION. 343
An important corollary of the rule that the law of the tes-
tator's domicil governs the interpretation of his will should be
noted. The interpretation imposed by the lex domicilii will
carry with it in the forum all the incidents which would have
followed if the same construction would have been placed upon
the will by the lex fori itself.* Thus, in Trotter v. Trotter,"
an English case, a Scotchman, domiciled in India (by construc-
tion of English law, in England), made his will in India, being
possessed of Scotch heritable bonds,'' as well as of personal prop-
erty in Scotland. The Scotch law required an heir claiming
also personal property under the will, either to throw his heri-
tage into the common fund and take his legacy, or to elect be-
tween the two (in accordance with the presumed intention of
the testator). The will in this case was ineffectual to carry the
Scotch heritage according to the law of Scotland, and the ques-
tion thereupon arose whether the Scotch heir, claiming the heri-
table bonds as heir, was also entitled to share in the personalty
as legatee under the English will, without throwing the heri-
table bonds into hotchpot or being put to his election. It was
held that the terms of the will must be construed according to
the laws of England (lex domicilii), and that by the law of
England the terms used were not such as to import an intention
to transfer any real estate of the testator; that the law of Eng-
land did not require a legatee who was also heir to throw his
inherited lands into hotchpot or else to elect; and therefore that
the heir was entitled both to the heritable bonds and also to his
share of the personalty under the will. In this case the forum
was the domicil, but it is apprehended the same result would
have been reached had the question arisen before the Scotch
courts.
§147. Seune — Lapse — Election. — In accordance with the
general principles already alluded to, the law of the testa-
tor's domicil will determine the effect of a lapse by the death
s See Slaughter v. Garland, 40 Miss. 172, 180.
« 4 Bligh, N. s. 502 ; s. c. 3 Wils. & Sh. 407.
^ Heritable bonds, under the law of Scotland, are bonds chargeable pri-
marily on the real estate of a decedent, and descend to the heir of the creditor,
not to his uersonal representative.
344 INTKBPBETATION OF WILL — LAPSE — KLBCTION. §147
of a legatee or devisee ; that is, whether his share is to descend
to his children, heirs, or distributees, or whether as to it the
testator shall be regarded as having died intestate, or whether
it shall be added to the residuary devise or bequest, if any. It
is a contingency which the testator has not provided for, and
his silence should be interpreted in accordance with the law of
his domicil.^
Another frequent instance of the application of these prin-
ciples arises in case of provisions made for a widow by way of
jointure, in lieu of dower. This subject is largely regulated
by statute in most of the States, but the statutes vary consider-
ably with respect to the effect to be given such provisions as a
bar to the widow's dower or distributive share. If the husband
in his will provides for the wife, but the will is silent as to its
being a substitute for her ordinary marital rights, the question
whether the testamentary provision shall be so taken is a matter
of the interpretation of the will, and as such is to be determined
in general by the law of the testator's domicil. So far as her
distributive share in his personalty is concerned, the law of the
testator's domicil is supreme, wherever the property may be.
Hence, whether the widow shall be given both funds, or whether
she will be allowed only the testamentary provision, or whether
she will be required or entitled to elect between the two, is to
be determined by the lex domicilii of the testator.*
As between the testamentary provision made for her and
her dower in lands situated abroad, though the wife cannot
be barred of her dower by such a provision, unless it is per-
mitted by the lex situs of the land (since that would be to affect
the title to the land),' yet upon ordinary principles of election,
if the lex domicilii of the testator forbids the wife to take both
1 Rockwell V. Bradshaw, 67 Conn. 9, 34 Atl. 758 ; Anstruther v. Ckalmer,
2 Sim. 1 ; Thornton v. Curling, 8 Sim. 310. The hx domicilii of the legatee
or devisee, or the lex situs of the property, has no part in the solution of this
question.
3 Slaughter v. Garland, 40 Miss. 172.
* See Jennings v. Jennings, 21 Ohio St. 56 ; Staigg v. Atkinson, 144 Masi
564, 12 N. E. 354 ; Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W.
824 ; Van Steenwyk v. Washburn, 59 Wis. 483, 17 N. W. 289. '
§ 147 INTERPRETATION OF WILL — LAPSE — ELECTION. 345
her dower and the testamentary provision, the courts of the situa
of the land will require the wife to elect, though under the lej
situs, if the will were to be interpreted by that law, the widow
would be allowed both provisions.*
Furthermore, it seems to be settled that the proper course to
be pursued by the widow in such cases, in the event that the
law of the testator's domicil requires her to elect between the
testamentary provision and her marital rights, is to make her
election in the courts of the testator's domicil. Such an election
will definitely establish her status with respect to her husband's
property everywhere once for all. K on the other hand she
should be permitted to elect in the courts of another State, it
might result that she has renounced the will in one jurisdiction
and elected to hold under it in another, according as her interest
dictates. This would be both inconvenient and in direct con-
travention of the testamentary intention, as construed by the
lex domicilii. The safer rule would seem to be always to require
the widow to make her election in the courts of the testator's
domicil in the first instance.^
And if the widow is under disabilities, such as lunacy, so as
to be incapable of making an election for herself, it seems the
courts of the domicil have the sole jurisdiction to make the elec-
tion for her. At least, if the election is made by the domiciliary
courts, the decree is in the nature of a decree in rem, which will
be conclusive in the courts of all other States.'
In Slaughter v. Garland,'' a testator domiciled in Virginia,
possessed of certain personalty in Mississippi, provided for his
wife in his will. She renounced the testamentary provision
made for her in the Virginia court of probate. By the law of
Virginia she was entitled to one third of her husband's person-
alty as his distributee. The Mississippi law gave the widow
* Washburn ». Van Steenwyk, 32 Minn. 336, 20 N. W. 324.
6 Slaughter v. Garland, 40 Miss. 172 ; Washburn v. Van Steenwyk, 32
Minn. 336, 20 N. W. 324.
« Slaughter r. Garland, 40 Miss. 172 ; Washburn v. Van Steenwyk, 33
Minn. 336, 20 N. W. 324 ; Van Steenwyk v. Washburn, 59 Wis. 483, 17 N.W.
K9.
1 40 Miss. 172.
346 INTEBPRETATIONOF WILL — LAPSE — ELECTION. §147
one half the personalty as her intestate husband's distributee,
and made this applicable to all property situated in that State,
regardless of marital rights which might have accrued in other
States. The question was whether the widow's renunciation in
the Virginia courts operated to make the husband intestate in
Mississippi, and therefore made the law of that State applicable
so as to entitle her to one half instead of one third of her hus-
band's personalty. The Mississippi court held that the Virginia
court was the proper place for the wife's renunciation to be
made ; that that renunciation did not render the husband
"intestate" in the sense used by the Mississippi statutes ap-
plicable to all property of intestates within its limits, regard-
less of the owner's residence; that the general rule that the lex
domicilii of the deceased owner governs the distribution of his
personalty would therefore apply; and that the widow's share in
the husband's Mississippi personalty should be determined by
the Virginia law.
Cases of election may also arise where the testator, possessed
of real and personal property, makes a will disposing of it all,
the will being valid by the law of his domicil (as respects the
personalty) or by the lex situs of some of the realty, but invalid
as to the rest of the land by its lex situs, a beneficiary under
the will being also an heir to the property as to which the will
is invalid. In such cases the beneficiary (and heir) is generally
required to elect between the valid benefit conferred upon him
and the property to which he succeeds as heir.*
In Brodie v. Barry,' a testator domiciled in England left all
his real and personal property upon trusts for the benefit of
his nephews and nieces. The land was in Scotland, and the
will was insufficient under the Scotch law to pass the realty.
Only one of the beneficiaries could under the law of Scotland
succeed as heir to the land there. The others sought to make
her elect in the English court of chancery, and Sir William
Grant compelled her to do so.
8 Brodie v. Barry, 2 Ves. & B. 127 ; Balfonr v. Scott, 6 Bro. P. C. 550,
cited in Brodie v. Barry ; Washburn v. Van Steenwyk, 32 Minn. 336, 20
N. W. 324. See Rice v. Harbeson, 63 N. Y. 493. But see Maxwell v. Max*
irell, 3 DeG. M. & G. 705 ; Maxwell i;. Hyslop, L. R. 4 Eq. 407.
• a Ves. & B. 127.
§ 148 INTERPRETATION OF WILL — DOMICIL CHANGED. 347
§ 148. Same — Change of Domicil eifter Execution of Will
— We have heretofore supposed that the testator's domicil at
the time of the execution of the will has remained unchanged
up to the time of his death. In such case, in the absence of
contrary evidence, we have seen that he will be presumed to
have in mind, when he uses certain ambiguous words or phrases,
the meaning attached to such terms by the law or vernacular of
his domicil.
But it may be that the testator, though domiciled in one
State when he executes the will, has subsequently at some time
before his death removed permanently to another State, where
he dies, without revoking his will executed in the first domicil,
and without executing a new one in his last domicil. And the
meaning attached to the terms he has used in the will in the
last domicil may differ from that attached to the same terms in
his first abode.
Under such circumstances, it becomes a matter of extreme
difficulty to determine by which law (or usage) the ambiguous
phrases shall be interpreted, whether by the law of the domicil
at the time of the execution of the will or at the time of the
testator's death. Weighty arguments may be advanced to up-
hold either position.^ The point was raised in Harrison v.
1 Thus, in favor of the law of the last domicil, it may be said : (1 ) That
the whole subject of wills of personalty is thus made to depend upon the
same law, the law of the testator's last domicil being the law upon which de-
pends the validity of the will so far as concerns either the capacity of the tes-
tator, the formal validity of the will, or its substantial validity ; and that to
allow a different law to govern its interpretation or construction would be in-
congnious and inharmonious. See Cross v. Trust Co., 131 N. Y. 330, 349.
But this argument overlooks the fact that the interpretation of a will rests
upou a very different foundation from matters of validity. The former is
based upon the intention of the testator, while the latter is independent of
intention, and rests upon the policy of the law. Logically therefore there is
no reason why the same law should govern. (2) A second and more powerful
argument in favor of the law of the last domicil is to be found in the rule
that wills speak as of the death of the testator, not as of the time of their
execution. See Moultrie v. Hunt, 23 N. Y. 394 ; Wynne r. Wynne, 23 Miss.
251, 57 Am. Dec. 139 ; Lincoln v. Perry, 149 Mass. 368, 374. It may be
argued that although the testator may have attached to his words when ha
wrote them the meaning given them by the law of his then domicil, yof
348 INTERPRETATION OF WILL — DOMICIL CHANGED. § 148
Nixon/ but was left undecided. Notwithstanding some dicta
to the contrary,' the better view is believed to be that the law
of the domicil at the execution of the will is to govern its in-
terpretation and construction.*
when he changes his domicil to a State whose law gives a dififerent meaning
to the words used, it must be supposed that he is as familiar with the latter
law as with the first, and that if he had desired the words to have retained
their first meaning, he would have altered the language so as to convey that
meaning under the law of his new domicil. See Moultrie v. Hunt, 23 N. Y.
394, 400.
On the other hand, it may be urged in favor of the domicil at the time
the will is executed, that since the law (and usage) of that State certainly
determines primarily the meaning to be given to the words used, the will
as the testator wrote it is to be construed in accordance therewith ; that
such was the meaning intended by the testator, and such was his will ; that
he can only alter that will by revoking it, or by executing a new will or a
codicil, without which no subsequent change of intention on his part would
be of any effect ; that the will is made up, not only of the words the testator
has used, but also of the meaning to be attached to those words ; that the
words, as first written, with the meaning then attached to them, constitute
his will ; and that it cannot be revoked and a new will substituted for it,
except by the ceremonies required by law for the revocation of a will and
the execution of a new one. See Staigg v. Atkinson, 144 Mass. 564, 569,
12 N. E. 354 ; Holmes v. Holmes, 1 Russ. & Myl. 660, 662, 663.
It is tnie that a will speaks as at the death of the testator, not as at its
execution, so far as relates to the property owned by the testator, which may
pass under the terms of his will ; but this is not so much a question of the
intention of the testator — of what property he intends shall pass under the
will. It is in larger measure a question of testamentary capacity ; that is,
even supposing his intention fixed to dispose of all his property now or
hereafter owned, it is a question whether he has the capacity to dispose of
such as he acquires after the execution of the will. See Wynne p. Wynne,
23 Miss. 251, 57 Am. Dec. 139, 142. This question of testamentary capacity,
and incidentally the question of the testator's intention with respect to the
disposition of after acquired property, is settled by the rule that the will
speaks as at the death of the testator. But it leaves untouched the inten-
tion of the testator in other respects and the interpretation of language used
in other connections.
« 9 Pet, 483.
8 Ford 17. Ford, 70 Wis. 19, 33 N. W. 188, 195. See Merrill v. Preston,
135 Mass. 451 ; Story, Confl. L. § 479 g.
* Staigg V. Atkinson, 144 Mass. 564, 569, 12 N. E. 354 ; Holmes v. Holmes,
1 Russ, & Myl. 660, 662, 663. See Merrill v. Preston, 135 Mass. 451.
§ 149 REVOCATION OF WILLS. 34U
It may at least be asserted positively that the law ct usaga
of a domicil possessed prior to the execution of the will i#
not generally to be regarded, if at the time of its executior
the testator was domiciled in another State.*
§ 149. Revocation of 'Wills. — With respect to wills of reo^
estate, the effect of an act of revocation will in general be de-
termined by the lex situs, whether the revocation be express o»
implied.^ Thus, in Ware v. Wisner,* a foreign testator deviseft
certain lands situated in Iowa. Afterwards an heir was born t^
the testator. It was held that the effect of the subsequent birtfc
of the heir as a revocation of the will should depend upon thf<
lex situs of the land, and the will was declared revoked.
With respect to wills of personalty, on the other hand, th*
effect of an act of revocation will depend upon the law of the
testator's domicil, whether the revocation be express, as bv
the execution of a new will, or the destruction of the old, animc
revocandi, etc., or whether it arises by implication of law, as
by the testator's marriage, the birth of pretermitted children^
etc.*
It should be specially observed that the revocation of a will,
whether express or by implication, is not a continuing act, but
once validly accomplished the revocation is complete and final;
the will at once and forever loses its efficacy as a will, unless
afterwards republished or re-executed. It follows therefore that
no subsequent subjection of the testator to the law of a new dom-
icil will alter the effect of a revocation once validly completed
and perfected. Hence no subsequent change of domicil by the
5 Anstruther v. Chalmer, 2 Sim. 1 ; Lincoln v. Perry, 149 Mass. 368, 374.
1 Ware v. Wisner, 50 Fed. 310 ; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460,
22 Am. Dec. 41, 53, 55 ; Wynne v. Wynne, 23 Miss. 251, 57 Am. Dec. 139.
An exception will probably arise if the revocation is dependent upon the in-
terpretation of ambiguous words in a subsequent wilL As shown in the
preceding section, the interpretation of such words will depend upon the law
of the testator's domicil at the execution of the subsequent wilL
2 50 Fed. 310.
3 Price V. Dewhurst, 8 Sim. 437 ; Sneed v. Ewing, 5 J. J. Marsh. (Ky. )
460, 22 Am. Dec. 41, 55 ; Succession of Packwood, 9 Rob. (La.) 438, 41 Am.
Dec. 341, 347 ; Senac's Will, 2 Rob. (La.) 258. See Bloomer v. Bloomer,
2 Bradf. (N. Y. ) 339.
350 BEVOCATION OF WILLS. § 149
testator to a country by whose law a prior act of revocation,
effectual in a former domicil, would cease to have that effect,
will of itself suffice to revivify the will, which once legally killed
is dead forever, unless resurrected by the act of the testator him-
self, as by a re-execution of the will. It is always therefore the
testator's domicil at the time of the occurrence of the act relied
upon as a revocation, which will determine its effect.
Thus if the alleged revocation be by tearing or burning the
will, animo revocandi, the law of the testator's domicil at the
time of the acts in question will determine whether they operate
as a revocation. If the prior will be alleged to be revoked by a
subsequent will, the effect of the latter in revoking the former
would seem to depend in the first instance upon whether the
subsequent will operates immediately to revoke the first will
completely and finally, or only so operates after the testator's
death, when it has itself ceased to be revocable. If it operates
immediately, the law of the testator's domicil at the time of the
execution of the subsequent will would govern; if only after the
testator's death, the law of his Uxst domicil will control. And
whether the revoking wiU is to operate an immediate revocation
of the former, or is to operate only post mortem, must be deter-
mined by the law of the testator's domicil at the time of the
execution of the last will ; for if the first is thereby revoked
immediately, no subsequent change of domicil will revive it.*
In Price v. Dewhurst,® A and his wife, domiciled in the
Danish island of St. Croix, made a joint will (which under the
Danish law could only be revoked jointly), by which they be-
queathed certain legacies. They afterwards became domiciled
in England, and the husband made a new will bequeathing his
share of their joint property to his wife. After his death, the
wife also made a new will bequeathing her property to other
legatees than those named in the joint will. The question was
whether the testators could, under the law of a subsequent dom-
icil (England), make separate wills which would operate to re-
* All these results flow from the one principle that a revocation is not a
continuing act, but takes effect once and for alL See Cottrell ». Cottrell, L. K
2 P. fc M. 397.
» 8 Sim. 437.
§ 150 WILLS UNDER POWER OF APPOINTMENT. 351
yoke the joint will executed when they were domiciled in St.
Croix, and which, under Danish law, could only be revoked by
their joint act. It was held that the law of their domicil at the
iate of the execution of the revoking wills and at the time of
their deaths should determine the effect of those wills in revok-
ing the joint will.
The same principle applies to revocations implied from the
subsequent marriage of the testator, the subsequent birth of pre-
termitted children, etc. It is the testator's domicil at the time
of the circumstance relied upon to show a revocation that will
furnish the "proper law" to determine its effect.
Thus, in the case of an alleged revocation by reason of a sub-
sequent marriage, the law of the testator's domicil at the time
of the marriage will determine whether it has revoked the will.
The fact that the testator afterwards changed his domicil to a
State whose law would have given a different effect to the act of
marriage is immaterial, and so is the fact that the law of the
place of marriage is different.*
So, in the case of a pretermitted child, if it is the hirth of the
child which by the law of the testator's domicil at that time con-
stitutes a revocation of his will, it stands revoked, and is not
revived by removal to a new domicil whose law is different. If,
by the law of the testator's domicil at the time of the birth of
the pretermitted child, it is not the hirth of the child which re-
vokes the will, but the death of the testator, leaving the child
unprovided for (or if the child be born after the testator's death),
it is the law of the testator's last domicil that is to govern the
question.'
§ 150. Wills in the Exercise of a Power of Appointment. —
It is a peculiar characteristic of a transfer of property made in
the exercise of a power of appointment that the law overlooks
the intermediate instrument through which the appointment is
made, and regards the appointee as in possession by virtue of
a direct transfer from the original owner (by the deed or will he
« See Goods of Reid, L. R. 1 P. & D. 74.
' See Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41 ; Succe*
eion of Packwood, 9 Rob. (La.) 438, 41 Am. Dec. 341, 347.
362 WILLS UNDER POWER OF APPOINTMENT. § 150
has used to create the power), and not under the instrument
through which the appointment is made.
The original owner of the property is styled the donor of the
power; the person upon whom is bestowed the power to appoint
is the donee of the power ; and the person appointed by the donee
to take the property is the appointee. Thus, if A (the donor of
the power) by will leaves his property to B (the donee of the
power) for life, and after B's death, to whomsoever B by last
will shall appoint, and B wills it to C (the appointee under the
power), C is considered as holding the property under A's will,
and not under B's. B is merely the channel through which
A's will operates. The property given to C belongs to A, not
to B.^
Since it is the will of the donor of the power which really
operates to transfer the estate to the appointee, the law govern-
ing the donor's will, not that controlling the donee's, should
determine most of the questions that arise.
If the property disposed of be real estate, difficulties are not
likely to arise, though the donor of the power and the donee re-
side in different States ; for the lex situs of the land will usually
govern under any circumstances.^ But if it be personalty, the
lex domicilii, not the lex situs, is to be looked to. The diffi-
culty in such case is to" determine whether the proper law appli-
cable to the particular question is the lex domicilii of the donor
of the power or of the donee, if they reside in different States.
With respect to the capacity of the donee to make a will in
the exercise of the power, the better opinion seems to be that
this is not really a testamentary capacity at all, as nothing
passes under the donee's will, but is rather to be viewed as the
execution of an authority conferred upon an agent. Whether
such an authority can legally be conferred upon the donee de-
1 See Sewall v. Wilmer, 132 Mass. 131 ; Bingham's Appeal, 64 Penii. St.
345 ; Cotting v. De Sartiges, 17 R. I. 668, 24 Atl. 530.
a Poison V. Stewart, 167 Mass. 211, 218, 45 N. E. 737. See Sewall v. Wil-
mer, 132 Mass. 131, 138. Except perhaps with regard to the interpretation
of the donee's will, which is not dependent upon the lex situs, and is probably
governed by the s«me principles as if the property wei-e personalty. Ante.
1145.
§ 150 WILLS UNDER POWER OF APPOINTMENT. 363
pends (it is said) upon the law governing the validity of the
donor's will.'
So since the real disposition to be looked to is that of the
donor of the power, the substantial or essential validity of the
provisions of the donee's will in the exercise of the power must
be regulated by the law and policy of the donor's domicil, not
the donee's.*
But with regard to the proper law governing the formal valid-
ity of the donee's will in the exercise of the power, it would
seem upon principle that the donee's will in that respect should
be controlled by the lex domicilii of the donee, — at least if the
donor's will only provides for an appointment "by the donee's
will," without more. In such event, the instrument of appoint-
ment must be the donee's "will." It is difficult to see how
this provision is complied with, if the instrument is not a will;
and it would seem that the fact that it would have been a will,
if executed by one resident in the donor's domicil, does not
make it a " will " of the donee resident in another State, where
it is no will.^
With regard, lastly, to the proper law controlling the inter-
pretation of the language used in the donee's will, the question
is simply as to the meaning and intention of the donee — at
least in those cases where he has a discretion as to the estate to
be disposed of or as to the appointees ? Who are intended by
the donee to be the appointees ? What property or interest does
he intend them to take ? To what extent has the donee in-
tended to execute the power?
Upon principle it would seem that these questions should be
answered as similar ones are answered respecting the meaning
» Dicey, Confl. L. 701, 702. See Cotting v. De Sartiges, 17 R. I. 668, 24
Atl. 530. It might be otherwise in cases where, in default of appointment,
the property is to remain in the family of the donee.
* See Sewall v. Wilmer, 132 Mass. 131, 137.
6 But see Story, Confl. L. § 473 a ; Whart. Confl. L. § 590. In Sewall v.
Wilmer, 132 Mass. 131, 137, it is said that the law of the donor's domicil should
control the formal validity of the donee's will. But in that case the power
conferred was to transfer the property as the donee " should, by deed in writ-
ing, or by last will, or hy any writing purporting to be h&r last wUl, appoint.'
The court based its decision on the last clause.
28
354 WILLS UNDBK POWER OF APPOtNTMBNT. § 150
and intention of an ordinary testator, namely, by an appeal to
the law and usage of the donee's domicil, with the language of
which he is supposed to be more intimately acquainted.' And
it is probably true that the law of the donee's domicil will
furnish the answers to such questions as the first two above
mentioned.
Nor is it easy to see why the same rule should not apply to
the third question also. It is admitted that the donee, by
choice or by accident, may fail to execute the power. Whether
he executes it or not is a matter of choice, or if there is a doubt
as to his having done so, is a matter of Ms intention, not the
donor's. Yet the few cases that have passed upon the question
have held that in the event of an ambiguity or a doubt as to
whether the donee has intended by his will to include the prop-
erty over which he has the power of appointment, that doubt is
to be resolved by an appeal to the law of the donor's domicil, not
to that of the donee's.''
Thus in Sewall v. Wilmer," the donor of the power resided in
Massachusetts, while the donee, his daughter, was domiciled
with her husband in Maryland. The donee died, and by her
will left all her property to her husband, without expressly
mentioning the property over which she had a power of appoint-
ment. Under the law of Massachusetts, it passed without ex-
press mention; under the law of Maryland, it only passed where
the intent to make an appointment was manifest. The court
held that the law of Massachusetts (the donor's domicil) should
govern, upon the ground that the property was the donor's, not
the donee's, and that the lex domicilii of the former should de-
termine whether or not the power had been executed, and the
property disposed of.'
« Ante, §§ 145 et seq.
T Sewall V. Wilmer, 132 Mass. 131 ; Getting v. De Sartiges, 17 R. I. 668,
24 Atl. 530 ; Bingham's Appeal, 64 Penn. St. 345.
• 132 Mass. 131.
'In this case and the others holding the same way, it is to be noticed that
the property was actually situated in the donor's domicil, which was also the
forum.
§ 161 EXISTENCE OF CONTRACT. 355
PART V.
SITUS OF CONTRACTS.
§ 151. Contractual Liabilities Transitory — Proper Law to
determine Existence of Contract. — Before entering into a de-
tail^jd investigation of the "proper law" governing the various
questions that may arise with respect to foreign contracts, some
preliminary observations must be made.
Contracts are either executed or executory. An executed
contract is performed as soon as entered into, and being a vol-
untary act of the contracting party, the ** proper law" is always
the law of the actual situs of the party at the time of the trans-
action. We have touched upon the proper law governing such
contracts in our discussion of the contract of marriage,* and
have dealt with them much more fully in the discussion of vol-
untary transfers of property.^ The explanations there given
will suffice ; and in the future discussion we will confine our at-
tention to contracts executory. These differ from contracts exe-
cuted in that they are to be performed at another time and often
at another place than the time and place when and where they
are entered" into. This characteristic of executory contracts
raises difficulties and doubts with regard to the "proper law"
to regulate the various phases of the contract, that do not arise
at all in the case of executed contracts.
It has never been doubted that liabilities based upon a valid
contract executory are, generally speaking, transitory in their
nature, and enforceable in the courts of any country obtaining
jurisdiction of the promisor's person.' But often the effect given
1 Ante, §§ 77, 78.
* As to transfers of real property, ante, §§ 11, 12. As to transfers of per
sonalty, ante, §§ 122, 128 et aeq.
« See W. U. Tel. Co. v. Phillips, 2 Tex. Civ. App. 608, 21 S. W. 638.
356 EXISTENCE OF CONTRACT. § 151
to a contract in one State differs very materially from that given
to it in another. In such cases it becomes necessary to deter-
mine by what law the contract is to be governed in respect to
the particular question at issue. This frequently presents seri-
ous difficulties. Indeed it may be truly said that there is no
subject in the law with regard to which so much doubt, uncer-
tainty, and confusion exists. The mixed array of decisions on
the subject has been well described as " a trackless forest of
cases." *
To this confusion the decisions of the courts have contributed
no little by the vague and general expressions often used in
cases where precise and accurate language and a careful analysis
of the circumstances are essential to a correct conclusion, or at
least would render invaluable aid in dissipating the obscurity
enveloping the subject. In no branch of the law have ill-con-
sidered and conflicting dicta and decisions played such havoc
with principle. It is of the utmost importance to correct con-
clusions with regard to this subject that absolute precision of
thought and language be used.
A question which presents itself at the very outset arises
with respect to the proper law by which to determine whether
any agreement at all has been entered into between the parties.
A foreign contract is alleged by one party to have been made,
but it is denied by the other that he ever assented to it. By
the law of one State there may be a presumption that he has
assented to it, while no such presumption may arise in the other.
In such a case, the question is held to be merely a matter of
evidence (pertaining to the remedy), and as such is to be gov-
erned by the lex situs of the remedy (lex fori).^
Thus, in Hoadley v. Transportation Co.,* an engine had been
delivered to the defendant at Chicago for transportation to
Lawrence, Mass., but was destroyed at Chicago in the great fire
of 1871, without the defendant's fault. The defendant had
given a receipt, excepting liability for loss by fire while in
♦ Gross V. Jordan, 83 Me. 380, 22 Atl. 250.
* Hoadley i;. Transportation Co., 115 Mass. 304 ; The Brantford City, 29
Fed. 373, 393. See Hartmann v. R. R. Co., 39 Mo. App. 88.
• 115 Mass. 304.
§ 152 EXCEPTIONS TO LAW OF CONTEACT. 357
depot or in transit. By the law of Illinois, where the receipt
was given, the mere acceptance of a receipt did not import as-
sent to its conditions without additional proof; while by the
law of Massachusetts (forum) the acceptance of the receipt
without dissent was sufficient proof of the contract and of as-
sent to all its exceptions from losses not arising through negli-
gence. At the trial, the receipt was put in evidence without
further proof than its delivery to the shipper. The plaintiff
recovered in the lower court, on the ground that the law of Illi-
nois governed. But, on appeal, the lower court was reversed, on
the ground that the question concerned only the mode of proof
of the contract set up in the receipt, and that as a matter of
evidence the case was governed by the lex fori.
So, evidence of an oral contract may be introduced under the
lex fori, though the statute of Frauds of the State where the
contract is made provides that no action shall he brought upon
such a contract unless in writing. It is a mere matter of
remedy.'
But if a contract is alleged to be implied from the circum-
stances of the case, as an implied contract to pay for services
rendered, etc., this is not a matter of evidence, and is not to be
controlled by the lex fori. The law of the place where the ser-
vices are rendered, and the implied agreement, if any to pay
therefor springs up, determines the existence or non-existence
of the contract. Thus, in Crumlish v. Improvement Co.,® an
officer of a Pennsylvania corporation rendered it certain services
there, and afterwards sued the corporation in West Virginia on
a quantum meruit. By the law of Pennsylvania no contract
for payment was implied in the case of services rendered by an
officer of a corporation. By the law of West Virginia a con-
tract for compensation was implied. The West Virginia court
held that the Pennsylvania law should govern.
§ 152. Applications of General Ezceptions to Foreign Law
somewhat restricted in Case of Executory Contracts. — The
second chapter of this work has been devoted to a consideration
7 Post, §§ 173, 174, 210.
8 38 W. Va. 390, 18 S. K 466. See also Carnegie v. Morrison, 2 Met
(Mass.) 381, 897 et seq.
368 EXCEPTIONS TO LAW OF CONTRACT. § 152
of the exceptions to the application of a proper foreign law.
Omitting here any mention of the last of those exceptions (trans-
actions affecting title to land), it will be recalled that four gen-
eral exceptions were there enumerated : (1) Where the enforce-
ment of the foreign law would contravene the policy of the
forum ; (2) Where it would work injustice to the people of
the forum ; (3) Where it would violate the canons of morality ;
(4) Where the foreign law is penal.
Theoretically, these exceptions apply as fully in the case of
foreign executory contracts as in other cases. But, practically,
the effect of some of them is much circumscribed by the fact
that questions in connection with executory contracts usually
arise as between the parties only, third persons generally hav-
ing no interest therein ; and by the fact that such contracts are
voluntarily entered into, and are therefore controlled in large
measure by the law of the actual situs of the parties. It would
come in general with bad grace from one of the parties to after-
wards seek the protection of his own law, merely because the
performance of the contract had become burdensome.
There are instances however in which these exceptions will
be applied to contracts as well as to other matters. Indeed, the
third exception, namely, that the transaction is contra bonos
mores, has its main application in the case of executory con-
tracts.^ So the fact that the enforcement of a foreign contract
is contrary to the interests or policy of the forum will be suffi-
cient ground for substituting the lex fori, and declaring the
contract invalid, though valid by its proper law.*
The second exception, injustice or detriment to the citizens
of the forum, is of less frequent application. Indeed some of
the courts deny its existence altogether as applied to executory
contracts. Such transactions having been voluntarily entered
into abroad, and the parties having deliberately submitted
themselves to a foreign law, they will not be permitted to claim
(according to this view) in the courts of their own State that
the enforcement of their contract will work a hardship or a
detriment to them. This exception applies to executory con-
1 Ante, § 9. • Ante, § 6.
§ 152 EXCEPTIONS TO LAW OF CONTRACT. 359
tracts (and even this is denied by many coarts) only in cases of
incapacity to contract, where the law of the party's domicil has
afforded him protection, because of some legal disability, there
deemed sufficient to incapacitate him from contracting. Under
such circumstances, the protection afforded by the lex domi-
cilii against the party's domestic contracts will sometimes,
when his foreign contract is sought to be enforced in the domi-
cil (forum), be held to protect him against the effect of his for-
eign contracts also. This matter of capacity is the only one in
respect of which the second exception can be said to apply to
executory contracts. Capacity is a passive quality, not an ac-
tive step in the making of a contract.'
The fourth exception (where the foreign law is penal) also
has an occasional application to contracts, in cases where, by
way of punishment, or as the result of punishment, a person is
incapacitated to enter into particular contracts. Such is the
case of a guilty party to a divorce suit who is prohibited to
marry again.*
' This has been folly discussed in connection with the law governing capa-
city. See ante, §§ 72, 73.
* This however is a case of an executed contract. An instance of the ap-
plication of this exception to executory contracts would be difficult to find,
since punishments do not usually take the turn of prohibiting the party to
contract. Penal disabilities in general have been discussed. See ante,
§§ 10, 74.
360 SITUS OF OONTBACT — CONFLICTING VIEWS. §153
CHAPTER XV.
LOCUS CONTRACTUS.
§ 153. Conflicting Views as to Situs of Contract. — (1) If
we suppose a contract made in England, to be performed there,
in consideration of an act done there by the promisee, and an
action to be brought there for its breach, we have, from the
standpoint of the English courts, a purely domestic contract.
No foreign element whatever enters into it, and therefore there
is no room for the application of the principles of private inter-
national law.
(2) The other circumstances remaining the same, if we sup-
pose that suit is brought upon the above contract in New York,
the situs of the remedy has been shifted to New York, but the
situs of the contract remains unquestionably in England. The
most ordinary comity and sense of justice demands in such a
case that the mere accident of suit being brought in New York
should not constitute any ground for giving the parties a differ-
ent measure of justice than would be meted out to them in Eng-
land. The law of England should govern the contract in every
respect, as before, while the law of New York would now gov-
ern the remedy, and only the remedy.
(3) The other circumstances remaining as in the last case, let
us now suppose that the contract by its terms was to have been
performed in Massachusetts. Another element is thus removed
from the operation of the English law, the element oi perform-
ance, and has been given a situs in Massachusetts.
(4) If we now go a step further, and suppose the contract to
have been entered into in Scotland, yet another element has lost
its English situs. The making of the contract now has its situs
in Scotland. The only element retaining its English situs
is the consideration of the contract.
§ 153 SITUS OP CONTRACT — CONFLICTING VIEWS. 361
Thus, by this process of elimination, we have before us a
contract made in Scotland, in consideration of an act done in
England by the promisee, the contract to be performed in Massa-
chusetts, and suit brought thereon for its breach in New York.
Here the situs of the making of the contract is Scotland; the
situs of the consideration is England; the situs of the p&rformr
ance is Massachusetts; and the situs of the remedy is New
York. The only one of these which, at this stage of the dis-
cussion, we may discard as having no bearing upon the proper
law governing the contract, is the law of New York, which is
only the situs of the remedy.
In the first case mentioned the English courts would have no
difficulty whatever in declaring that the situs of the contract
was England, and that it should be governed by English law.
Most of the cases that arise in the courts are of this character.
In the second case, the New York courts would have scarcely
less difficulty in declaring the situs of the contract to be Eng-
land, and the situs of the remedy to be New York ; and that every
question pertaining to the substance of the contract, whether
relating to the making of the contract, its performance, or its
consideration, should be governed by English law, while every-
thing pertaining to the remedy should be governed by New
York law. As long as the three essential elements that go to
make up an 3xe«utory contract, the making, the performancBj
and the consideration, all have the same situs, there is no diffi-
culty in ascribing that situs to the contract as a whole.
But as soon as we begin to dissociate these elements, we meet
with difficulties that are insurmountable if we continue to view
the situs of the contract as single and indivisible. For example,
if we take the third case above mentioned, and suppose the New
York court to attempt to ascertain the situs of the contract, or
the locus contractus as the courts are fond of designating it, it is
evident that it would meet with grave difficulties. Indeed it
would be impossible upon any logical ground to fix it at any
one spot. Any attempt to do so would be mere guess-work, a
dictum ex cathedra. And still more would this be so in the
fourth case stated above. Shall the locus contractus be Scot-
land, where the parties entered into the contract ? Or in Eng'
362 SITUS OF CONTRACT — CONFLICTING VIEWS. § 153
land, the situs of the consideration ? Or in Massachusetts, the
situs of the performance ? Clearly, it is not in New York,
which is merely the situs of the remedy. In other words, if
the locus contractus is single and indivisible, is this to be con-
sidered a Scotch contract, an English contract, or a Massa-
chusetts contract ?
The courts have piled the Ossa of confusion upon the Pelion
of uncertainty in their attempts to answer these questions, in
cases where the situs of these three elements of a contract are
not identical.
Many of the courts define the lex loci contractus and its
effect in the following terms (substantially): "The validity,
the nature, the interpretation, and the obligation of contracts
are to be governed by the lex loci contractus ; that is, by the
law of the place where the contract is made," — thus holding
the situs of the making of the contract to be the locus con-
tractus, though the contract is to be performed elsewhere.^
Other courts, with equal looseness and inaccuracy, define the
"lex loci contractus" substantially as "the law of the place
where the contract is made, if to be performed there ; but if to
be performed in another State, then the law of the latter place,"
— thus making the situs of performance the locus contractus,
though the contract is entered irito elsewhere.*
Still other courts define the "lex loci contractus" as "the
1 Lindsay v. Hill, 66 Me. 212, 22 Am. Rep. 564, 566 ; Milliken v. Pratt,
125 Mass. 374, 28 Am. Rep. 241 ; Ivey v. LoUand, 42 Miss. 444, 2 Am. Rep.
606; Commercial Bank i;. Davidson, 18 Or. 57, 22 Pac. 517, 521 ; Taylor v.
Sharp, 108 N. C. 377, 13 8. E. 138, 139 ; Thomson-Houston Electric Co. v.
Palmer, 52 Minn. 174, 53 N. W. 1137, 1138. These are but a few samples of
cases using language of this character. Some of them are cases in which
the situs of the making and performance are identical, but reference is fre-
quently not made to the fact in the opinion. If this is not intended as a uni-
Tei-sal definition of the " lex loci contractus," the use of such general terms is
objectionable, because of the tendency to confuse and mislead.
2 Examples of decisions thus defining the locus contractus are : Pope v.
Nickerson, 3 Story, 465, 474 ; Curtis v. R. R. Co., 74 N..Y. 116, 120, 30 Am.
Rep. 271 ; The Brantford City, 29 Fed. 373, 386 ; Dickinson v. Edwards, 77
N. Y. 573, 578, 33 Am. Rep. 671 ; Chapman v. Robertson, 6 Pai. Ch. 627,
630, 31 Am. Dec. 264 ; Lewis v. Headley, 36 111. 433, 87 Am. Dec. 227. See
Scudder v. Bank, 91 U. S. 406, 411.
§ 154 SITUS OP CONTRACT — TRUE VIEW. 363
law with reference to which the parties contracted ; '* or as
"the law which the parties had in mind at the time they con-
tracted;" or as "the law which the parties intended should
govern the contract."*
All these definitions are defective for the reason that they
attempt to define the locus contractus or the situs of a contract,
as if it were a single and indivisible unit, to be determined in
every case by the application of a single general rule.
§ 154. True View — Locus Contractus not necessarily a
Single Place, but may consist of One Place for One Purpose,
and Another Place for Another Purpose. — The truth is that
a contract in its entirety is made up of many different elements,
each of which may be the subject of separate judicial investiga-
tion. Some of these maybe express, others implied; some may
depend for their effect solely upon the intention of the parties,
while the effect of others is to be determined by law and policy,
without regard to the parties' intention.
If the particular element in dispute is one which is dependent
entirely upon the parties' intention, the law which the parties
have in mind at the time they enter into the contract may well
• This is a favorite definition of the later English decisions and of the de-
cisions of the United States Supreme Court. See Peninsular, etc. Co. v.
Shand, 3 Moore, P. C. N. s. 272 ; Lloyd v. Guibert, L. R. 1 Q. B. 122, 123 ;
Chartered Bank of India v. Nav. Co., 9 Q. B. D. 118 ; s. c. 10 Q. B. D. 521,
529, 536, 544 ; Jacobs v. Credit Lyonnais, 12 Q. B. D. 589 ; Robinson v.
Bland, 2 Burr. 1077, 1078 ; Liverpool Steam Co. v. Ins. Co., 129 U. S. 397,
448 ; Coghlan v. R. R. Co., 142 U. S. 101, 109 ; Hall v. Cordell, 142 U. S. 116,
120 ; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251, 253 ; New England
Mortg. Co. V. McLaughlin, 87 Ga. 1, 13 S. E. 81, 82 ; Dickinson v. Edwards,
77 N. Y. 573, 578, 33 Am. Rep. 671 ; Chapman v. Robertson, 6 Pai. Ch.
(N. Y.) 627, 31 Am. Dec. 264; Thornton v. Dean, 19 S. C. 583, 45 Am. Rep.
796, 800. But see contra, American Mortg. Co. v. Sewell, 92 Ala. 163, 9 So.
143, 147. In the last case the court says : "The general rule is that the va-
lidity of the contract is determined by the place of the contract ; the intention
of the parties is only looked to in construing the contract ; or as forcibly put in
the brief of counsel, ' the venue of the agreement determines its validity, and
not the venue of the intention.'" This statement, it is believed, is much
nearer the truth than the statement found in the cases above cited. See Brauer
r. Compania, 57 Fed. 403, 411 ; The Glenmavis, 69 Fed. 472, 476 ; post,
§154.
364 SITUS OF CONTRACT — TRUE VIEW. § 154
be a potent factor in ascertaining that intention. In such cases
the last definition of the ''lex loci contractus" mentioned in
the preceding section will be applicable.
But in many instances the particular element in dispute will
not depend altogether upon the intent of the parties, but in
part at least upon rules of law and public policy, which the
intent of the parties will not be permitted to overcome. There
are many cases to which the maxim '^ Modus et conventio legem
vincunt " is not applicable. Instances of such elements are not
difficult to find in purely domestic contracts.
Thus, a Virginia married woman contracting in Virginia,
whose law prohibits her to make the particular contract, will
not be held liable in Virginia upon such contract merely be-
cause she intended to enter into a valid contract. So an oral
contract made and to be performed in a State whose law renders
the contract void if not in writing will not be enforced there
merely because the parties intended the contract to be good.
Or if one should agree to do something prohibited by the law
of the State, its courts will not enforce the contract because of
the good intention of the parties, except where the gist of the
invalidity is the intentional disregard of the law. Or if one
makes a contract, the consideration of which is condemned by
the law as immoral or illegal, the parties' intention to bind
themselves is immaterial.
These principles are axiomatic, and apply to all contracts
which the law declares to be contrary to public policy and void,
whether the invalidity arises, as in the above examples, in
respect to the capacity of the parties, the formal validity of
the contract, the performance of the contract, or its considera-
tion. The proposition would never for one moment be enter-
tained in any of these cases of a domestic contract, that the
intention of the parties may validate a contract declared by the
law to be contrary to public policy and void.
It seems manifest that the same principles should govern con-
tracts possessing a foreign element. If the contract is declared
void in some particular element (such as the mode of entering
into it, the act to be done in performance of it, or the act done
as a consideration for the promise) by the law properly govern*
§ 164 SITUS OF CONTRACT — TBUE VIEW. 365
ing that element, comity and justice unite in demanding that
the courts of every State should uphold the law and policy of
the State where the particular element in question arises or has
its situs. The fact that the parties had in view a different law
as governing the element in question should have no more in-
fluence in this case than in the case of the purely domestic
contracts above considered.^
Thus, let us suppose a man to enter into a contract in Vir-
ginia to do an act in Virginia prohibited by its laws. Of course
the fact that he intended his performance of the contract to be
governed by the law of another State would not influence the
Virginia courts to permit him to perform the prohibited act in
Virginia, nor to validate the contract otherwise void. It is
the act to be performed in Virginia which the law of Virginia
prohibits, the invalidity of which avoids the contract. If the
performance is still to take place in Virginia, can it be supposed
that the Virginia courts would less rigorously condemn the per-
formance of the contract on Virginia soil because the agreement
was entered into in another State, and the parties had in mind
the law of the latter State or of no State at all ? So far as the
Virginia policy is concerned, the contract is as contrary thereto
when entered into in another State as when entered into in Vir-
ginia. The policy is directed against the perfoirmance, and that
is to take place in Virginia in either event. The Virginia law
therefore would surely govern the Virginia courts.
This being the reasonable and necessary conclusion of the
Virginia courts, does not comity as surely demand, if the above
contract should come to be enforced in the courts of another
State, that those courts should respect the policy of Virginia
and should not enforce a contract the purpose of which is the
performance of an act in Virginia prohibited by the laws and
policy of Virginia, no matter where the contract is entered into,
nor what law the parties ''had in mind," if any ?
And what is true of the element of performance is true of the
making of the contract also, and of the consideration to support
it, as will appear hereafter.
1 See The Brantford City, 29 Fed. 373, 395 ; The Hugo, 57 Fed. 403 ; Bot-
any Worsted Mills v. Knott, 76 Fed. 582. But see Brown v. Finance Co., 31
Fed. 516, 520.
366 SITUS OF CONTRACT — TRUE VIEW. § 154
From what has been said it will be seen that, so far as the
validity of the contract is concerned, the third definition of the
"lex loci contractus" given in the preceding section is erro-
neous and misleading.^
If the question is not one of the validity of the contract, but
merely relates to the interpretation to be given its terms, as, in
ascertaining the nature of the contract, or what the promisor has
obligated himself to do (obligation of the contract), since these
matters generally depend primarily upon the intention of the par-
ties at the time of the contract (the law being invoked, in such
caseg, if at all, only where the parties have not manifested their
intention fully), if the parties have not fully expressed their
meaning, the law the parties actually or presumably had in mind
when they contracted is the proper law to look to in order to
ascertain that intention, and this is as true of domestic as of
foreign contracts. Indeed, it may be laid down as a general
proposition that wherever the maxim ''modus et conventio
legem vincunt " is applicable to the particular element of a
contract under investigation, the proper law is ''the law in the
minds of the parties " at the time of the contract, whether that
law is the law of the place where the contract is made, or the
law of the place of performance, or the lex fori, or the law of
some other State.
In such cases, however, it is manifest that unless there is
evidence that the law of some other State is in the minds of
the parties, the general presumption will be that the parties
contracted with reference either to the law of the place where
the contract is made or to that of the place of performance,
these being the places where the acts of the parties in con-
nection with the contract have been, or are to be, done.
In point of fact, the parties to a contract will usually have
no special law in view, or at least will make no mention of any,
2 It may be observed however, even in respect to the validity of a contract
that cases may arise in which the gist of the illegality of a particular act may
be the inteviion with which it is done. An act may sometimes be illegal, if
the ijUent be to violate the law, which will be regarded as legal and valid if
the intention is innocent. In such cases, the law which the parties " have in
mind " may be of importance.
§ 155 SITUS OF ELEMENTS OF CONTRACT. 367
and hence no direct evidence will be forthcoming of any par-
ticular law intended by the parties to govern the case. The
courts therefore must resort to presumptions. Naturally, the
law which parties are to be presumed to have in mind when
they do an act is the law of the situs of the act in question.
The final result of the reasoning advanced above is that, in
general at least, whether the question concerns an element of
the contract dependent upon the parties' intention or one that
is independent of their intention, the *' proper law" to regulate
it is the law of the situs of the particular element, circum-
stance, or act in dispute.
These conclusions will be amply vindicated and exemplified
in the following discussion.
§ 155. Three Leading Elements in every Contract — Eaob
may have a Separate Situs. — There are three leading ele-
ments or acts or circumstances in connection with every execu-
tory contract, all other elements or incidents being mere
resultants of these combined or of one or the other of them.
Indeed, without them, there could no more be a contract than
there can be a material substance without beginning and with-
out end.
The essential elements or circumstances, around which all
the incidents of contracts revolve, are (1) The Making of the
contract; (2) The Consideration supporting the contract ; and
(3) The Performance of the contract.
Each of these may have a different situs, or two of them may
have a situs different from the third, or all three of them may
have the same situs.^ All the incidents or qualities of the con-
tract (apart from those dependent solely upon its expressed
terms) relate to or flow from one or the other of these three
elements, and will depend upon the effect to be given by its
proper law, the law of its situs, to the leading element upon
which it depends.
Hence it comes about that, in every inquiry relating to any
incident or quality of a contract, the first step is to ascertain
whether the particular incident relates to or is dependent upon
or results from the making of the contract, or from its consider-
1 Ante, § 153.
SITUS OF ELEMENTS OF CONTRAO*. § 165
ation, or from its performance. When this is ascertained, the
law of the situs of the making or of the consideration or of
the performance, as the case may be, will regulate the par-
ticular incident.
More generally the rule may be thus stated: Everything
relating to the making of the contract is to be governed by the
law of the place where it is made ; everything relating to the
performance of the contract is to be controlled by the law of
the place of performance ; and wherever the legality or the
sufficiency of the consideration is the subject of the inquiry,
the law of the situs of the consideration is to govern.'
Sufficient has been said to show that each of the definitions
of the *' lex loci contractus, " mentioned in a previous section,
is incomplete and imperfect. The fault of each is that it as-
sumes the ** locus contractus " or situs of the contract to be
always one definite fixed locality for all purposes, regardless of
the nature of the particular inquiry. It is true that for some
purposes, in investigatiug certain incidents or qualities of the
contract, we must look to the law of the place where the corw
tract is made ; for others, we must look to the law of the place
where the contract is to be performed ; and for others, we must
look to the law " in the minds of the parties." It cannot be
said that the law of one of these places more than another is the
"lex loci contractus." What is the "proper law" for one pur-
pose connected with the contract may not be the "proper law"
for another purpose. This has been recognized in a New York
case,* where the court said: "The law of the place of contract
is not necessarily one place. It is the law of all the places to
2 See Scudder v. Bank, 91 U. S. 406, 412, 413 ; Akera v. Demond, 103 Mass.
318, 324. This general rule is subject to the qualification mentioned in the
preceding section, that is, if the particular incident is one to which the maxim
*' modus et conventio legem vincurU'^ is applicable, and the parties clearly con-
tract with reference to the law of a particular State, that law will govern as
carrying out the " conventio " of the parties. It will rarely happen however
that the parties can be shown by direct evidence to have had any particular
law in mind, in which latter event the general rule mentioned above in the
text will furnish the law which they presuiruibly had reference to.
» Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367, 378. See also Seamana
r. Knapp, 89 Wis. 171, 27 L. R. A. 362, 365.
§ 156 INCIDENTS OR QUALITIES OP CONTRACTS. 369
which and for the purposes for which it has reference. A bill
of exchange therefore is to be construed according to the law of
each place at which the contract contemplated that something
is to be done by either of the parties."
Considering therefore the double or triple meaning that may
be attached to the phrase " lex loci contractus " in connection
with executory contracts, and the inextricable confusion into
which it is apt to lead us, the wiser and safer course will be to
discard the term altogether in the discussion of contracts execu-
tory. The locus contractus should be analyzed into its con-
stituent parts, as we have done already, and to each of these
parts a distinct name should be given. In the future discussion
we will designate the place where the contract is entered iiito as
the " locus celebrationis," and the law of that place as the *' lex
loci celebrationis " or the '* lex celebrationis.^^ The place where
the contract is to be performed will be known as the " Iocils
solutionis," and its law as the " lex loci solutionis " or the *' lex
solutionis.'^ The situs of the consideration may be designated
the " locus considerationis," and its law the ''lex loci conside-
rationis."
§ 156. The Various Incidents or Qualities of Contracts. —
Upon a careful analysis, it will be found that every inquiry re-
lating to an executory contract must be directed towards one or
the other of the following circumstances or qualities : (1) The
validity of the contract ; (2) Its obligation or effect ; (3) Its
interpretation ; or (4) Its discharge.^
Some of these incidents or qualities relate to or spring from
the making of the contract, others relate to or spring from its
performance, and others are connected with the consideration.
Some depend upon the intention of the parties, express or im-
plied; others are fixed by the law and are independent of the
intention. The proper law governing each of these incidents
will be fully discussed hereafter.
1 To these may be added, (5) The remedies for its breach. But since all
questions pertaining to the remedy are governed by the law of the situs of the
remedy (lex fori), this incident may be omitted from a discussion of the " lex
loci contractus." It will be considered hereafter in connection with the Situs
of the Remedy. Post, §§ 205 et seq.
24
370 INCIDENTS OR QUALITIES OP CONTRACTS. § 156
To illustrate the dependence of these incidents upon the mak-
ing, performance, or consideration of the contract, let us examine
a little more closely the first one above mentioned, namely, the
validity of the contract.
We will suppose A and B to enter into a contract in Virginia
(locus celebrationis), by which A agrees to do a particular act
for B in New York (locus solutionis) in consideration of an act
done or to be done by B for A in Massachusetts (locus conside-
rationis). Assuming the capacity of the parties to contract, the
validity of this contract might be questioned in four distinct
ways : (1) By alleging that the making of the contract was pro-
hibited by law; for example, that it was entered into on Sunday;
(2) By alleging that it was not entered into with such formali-
ties as the law peremptorily required; for example, in case of
some contracts, that it was not in writing and was therefore void; '
(3) By alleging that the act to be done by A in New York in
performance of the contract was contrary to law; or (4) By
alleging that the act done or to be done in Massachusetts (the
consideration for A's promise) was contrary to law.
It will be seen that the first two objections to the validity of
the contract relate to the making of the contract ; the third to
its performance ; and the fourth to the consideration. We must
therefore look to Virginia (locus celebrationis) to furnish the
law governing the first two points of attack ; to New York (locus
solutionis) to furnish the law governing the third question ;
and to Massachusetts (locus considerationis) to furnish the law
governing the fourth ground of objection to the validity of the
contract.
Before considering more fully the various incidents of con-
tracts set forth at the beginning of this section, and the law
properly governing each of them, it is expedient and necessary
to examine more particularly the situs of the contract in its vari-
ous aspects, as represented by the locus celebrationis, the locus
solutionis, and the locus considerationis. To this inquiry the
next chapter will be devoted.
» See Wolf V. Burke, 18 Colo. 264, 32 Pac. 427 ; Hunt v. Jones, 12 R. I.
a«6, 34 Am. Rep. 635.
§ 157 LOCUS CELBBKATIONIS — FINAL ACT. 371
CHAPTER XVI.
LOCUS CELEBRATIONIS; LOCUS SOLUTIONIS; AND LOCUS
CONSmERATIONIS.
§ 157. Locus Celebrationis — Place where Contract be-
comes finally Binding. — In most cases, the locus celebrationis
of an executory contract is perfectly plain. There is nothing to
complicate the situation when the parties meet together in a
given State, and then and there enter into a binding agreement.
The place where the binding contract is thus entered into will
be the locus celebrationis.
But frequently cases arise in which overtures are made or the
preliminaries are discussed in one State, while the contract be-
comes finally binding only after some other act is done elsewhere;
or cases may arise where the parties to the contract are widely
separated from each other, the contract being entered into by
correspondence or telegram, or through an agent. In cases of
this sort more difficulty is experienced in ascertaining the locus
celebrationis of the contract.
It may be laid down as a general proposition that a contract
is not "made " until it becomes complete and binding upon the
promisor. As soon as the final act is done, and the minds of the
parties meet, the promisor becomes irretrievably bound, and
the contract is inade. The situs of that final act necessary to
bind the promisor is the locus celebrationis of the contract.^
1 Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Hill v. Chase, 143
Mass. 129, 9 N. E. 30 ; Shoe & Leather Bank v. Wood, 142 Mass. 563, 567,
8 N. E. 753 ; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251, 252 ; Western
Transportation Co. v. Kilderhouse, 87 N. Y. 430, 438 ; Wayne Co. Bank v.
Low, 81 N. Y. 566, 572, 37 Am. Rep. 533 ; Wood v. Ins. Co., 8 Wash. 427,
36 Pac. 267 ; Barrett v. Dodge, 16 R. I. 740, 19 Atl. 530 ; Keiwert v. Meyer,
62 Ind. 587, 30 Am. Rep. 206, 208 ; Hart v. Wills, 52 la. 56, 2 N. W. 619,
«21 ; Voorheis v. Society, 91 Mich. 469, 51 N. W. 1109 ; State Mut. Ins. Co,
V. Brinkley Co., 61 Ark. 1, 29 L. R. A. 712 ; Mut. Ben. Ins. Co. v. Robison,
372 LOCUS CELEBRATIONIS — PINAL ACT. § 157
In Waldron v. Ritchings,^ the plaintiff, who was at the time
in New York, agreed with the defendant, the manager of an
opera in Philadelphia, to go there and make her dehut. She
was assured, if she did not fail in the estimation of the public
and the press, of an engagement upon terms specified in the
negotiation between the parties. It was held that the contract
was not made in New York, but in Philadelphia, upon the ful-
filling the test of success.
Notes, deeds, and other contracts of that character do not be-
come completed and binding contracts merely by the fact of the
promisor's signing them. They must also be delivered. Hence,
if the signing occurs in one State, while the delivery takes place
in another, the latter State, not the former, is the locus celebra-
tionis.' Thus, where a bond for the purchase price of land in
Delaware was signed and sealed in Pennsylvania by a mar-
ried woman, but was delivered to the payee in Delaware, the
locus celebrationis of the bond was held to be Delaware, not
Pennsylvania.*
So, the place where an offer is accepted (until which accept-
ance it is not binding) is the locus celebrationis of the contract,
being the place where the minds of the parties meet.* Hence, if
54 Fed. 580 ; Knights, etc. Indemnity Co. v. Berry, 1 C. C. A. 561, 50 Fed.
511, 513 ; Hicks v. Ins. Co., 9 C, C. A. 215, 60 Fed. 690, 692 ; Tilden v.
Blair, 21 Wall. 241, 246. But see Beverwyck Brewing Co. v. Oliver, 69 Vt.
323, 37 Atl. 1110.
« 9 Abb. Pr. N. s. (N. Y.) 359 ; s. c. 3 Daly, 388.
« Freeman's Appeal, 68 Conn. 533, 37 Atl. 420 ; Akers v. Demond, 103
Mass, 318, 324 ; Hubbell v. Land Co., 95 Tenn. 585, 32 S. W. 965 ; Watson
r. Lane, 52 N. J. L. 550, 20 Atl. 894, 895 ; Sheldon v. Haxtun, 91 N. Y. 124 ;
Cook V. Litchfield, 9 N. Y. 279 ; Buchanan v. Bank, 5 C. C. A, 83, 55 Fed.
223. See Suit v. Woodhall, 113 Mass. 391, 394.
* Baum V. Birchall, 150 Penn. St. 164, 24 Atl. 620. See also Phipps v.
Harding, 17 C. C. A. 203, 70 Fed. 468, 471 ; Carnegie Steel Co. v. Construction
Co. (Tenn, ), 38 S. W. 102 ; Bell r. Packard, 69 Me. 105, 31 Am. Rep. 251,
252 ; Lawrence v. Bassett, 5 Allen (Mass.), 140.
6 Armstrong v. Best, 112 N. C. 59, 17 S. E. 14 ; Hydew. Goodnow, 3 N. Y.
266, 270 ; Vassar v. Camp, 11 N. Y. 441 ; Trevor v. Wood, 36 N. Y, 309 ;
Suit V. Woodhall, 113 Mass. 391, 394 ; Whiston v. Stodder, 8 Mart. (La.) 95,
13 Am. Dec. 281 ; Dord v. BonafiFee, 6 La. Ann. 563, 54 Am, Dec, 573 ;
Claflin V. Meyer, 4i La. Ann. 1048, 7 So, 139.
§ 157 LOCUS CELEBRATIONIS — FINAL ACT. 373
a person in one State sends to a person in another a letter or
telegram, containing an offer or proposal, which the latter there
accepts by letter or telegram, the contract is complete when the
letter of assent is deposited in the post ofl&ce, properly addressed,
or when the reply message is delivered to the telegraph company
for transmission. The locus celebrationis is thus definitely fixed
at the place where the letter of acceptance is mailed or the mes-
sage delivered for transmission, and not the place where it is
received or addressed, or where the offer was first made."
By parity of reason, the question whether goods shipped in
one State upon an order from another constitutes a sale in the
former State depends upon the further question whether the
parties have done every act necessary to make a binding sale
before the goods leave the former State. Thus if the consignor
there delivers the goods to a carrier as the agent of the con-
signee, the sale is complete there; if the carrier is the agent
of the consignor, the sale only becomes complete upon the de-
livery by the carrier to the consignee or his agent, and the place
where that occurs is the locus celebrationis.''^ So also, if the
goods are sent C. 0. D., the locus celebrationis of the contract
of sale is the place where the assignee accepts them.*
Upon the same reasoning, it would seem clear that a contract,
intended to create a joint obligation, made by one promisor in
one State, and by him sent to another promisor in another State
to be signed by him there, should be regarded as made in the
latter State, for only upon the signing of the contract by the
second promisor does the contract become binding upon either.'
• Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Vassar v. Camp, 11
N. Y. 441 ; "Wayne Co. Bank v. Low, 81 N. Y. 566, 572 ; Sheldon v. Haxtun,
91 N. Y. 124, 131 ; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251, 252 ;
Baum V. Birchall. 150 Penn. St. 164, 24 Atl. 620; Perry v. Iron Co., 15 R. L
380, 5 Atl. 632 ; Atlantic Phosphate Co. v. Ely, 82 Ga. 438, 9 S. E. 170 ; Gar-
rettson v. Bankj 47 Fed. 867, 869 ; Kellogg v. Miller, 13 Fed. 198, 200.
T Webber v. Howe, 36 Mich. 150, 24 Am. Rep. 590 ; Dolan v. Green, 110
Mass. 322. See ante, § 128.
« State V. O'Neil, 58 Vt. 140, 56 Am. Rep. 557. But see State v. Carl, 43
Ark. 353, 51 Am. Rep. 565.
9 In Bryant v. Edson, 8 Vt. 325, 30 Am. Dec. 472, it was said, under cir-
'cumstances of this kind, that the locus celebrationis of the contract is tht
374 LOCUS CELEBRATIONIS — AGENTS' CONTRACTS. § 158
On the other hand, if the contract is not joint, but several, or
joint and several, the locus celebrationis of the contract is sever-
able, each party's contract having its locus celebrationis at the
place where it is entered into.^**
§ 158. Same — Contracts of Agents. — Questions also fre-
quently arise as to the locus celebrationis of contracts made by
agents. It is to be noted, in the first place, that an implied
authority of an agent to enter into a contract binding upon his
principal depends upon the law of the place where the general
authority is given or the agency is created, not that of the place
where the alleged contract is entered into.^ In Pope v. Nicker-
son,* the question arose as to the authority of the master of a
ship to bind the owner by certain bottomry bonds valid by the
law of the port, but not by the law of the principal's country.
The court held that the law of the latter State must govern the
extent of the agent's authority. In the course of his opinion.
Judge Story said: ''Any other rule would subject the principal
to the most alarming responsibility, and be inconsistent with
that just comity and public convenience, which lies at the
foundation of private international law. . . . The authority
confided by the principal is in all such cases measured, as to
the interpretation and extent of that authority, by or according
to the law of the place where it is given — by the lex loci —
and not by the laws of a foreign country, of which the principal
is or may be wholly ignorant, and by whose regulations he is
not bound."
But if a person acts as an agent in one State for a person in
another, which act is unauthorized, but is afterwards ratified, or
the principal becomes otherwise estopped to deny the agent's
State where the contract is first signed. But in that case the real inquiry
was not as to the locus celebrationis, but as to the locus solutionis, which is
always a question of the partus' intention. See post, § 159.
w Glenny Glass Co. v. Taylor, 99 Ky. 24, 34 S. W. 711. See Pugh v. Cam-
eron, 11 W. Va. 523, 532 ; Findley v. Hall, 12 Ohio, 610.
1 Pope V. Nickerson, 3 Story, 465, 476 ; Freeman's Appeal, 68 Conn. 533>
37 Atl. 420, 421. See Arayo v. Currell, 1 La. 528, 20 Am. Dec. 286, note.
And so it is also with an express authority, where the question is as to tbc
principal's capacity to give the authority. Freeman's Appeal, supra.
» 3 Story, 465, 476.
§ 158 LOCUS CELEBRATIONIS — AGENTS' CONTRACTS. 376
authority, it would seem that the scope of the authority in such
case should depend upon the law of the State where the agent's
act is done. Thus, in McMaster v. Ins. Co.,' a statute of Iowa
provided that "any person who shall hereafter solicit insurance
. . . shall he held to be the soliciting agent of the insurance
company, anything in the application or policy to the contrary
notwithstanding." It was held that a foreign insurance com-
pany should be bound by the acts in Iowa of the person ** so-
liciting " the insurance, though it was expressly stipulated in
the policy that the party who brought the insurer and insured
together was the agent of the insured, and that the company
should not be held responsible for his acts or declarations.
In Brooke v. R. R. Co.,* a shipping clerk of a railroad com-
pany, in collusion with a consignor, issued in New York a ficti-
tious bill of lading, with the consignor's draft upon the consignee
attached, without the actual receipt of the goods therein speci-
fied. The consignee lived in Philadelphia. He paid the draft
and then sued the railroad company because of the fraudulent
act of its agent. It was held by the Pennsylvania court that
the liability of the principal for the agent's act was to be deter-
mined in accordance with the law of New York, the place where
the agent's fraud was committed.
The same principles apply also with respect to the liability of
a firm for the acts or contracts of a partner. If by the law
under which the partnership is created the liability of a member
of the firm is limited, this limited liability will not be increased
merely because the act or contract of another of the partners or
of the firm itself is done or made in another State, under whose
laws the members of the firm would be liable to the fullest
extent.
Thus, in King v. Sarria,^ the defendant, Sarria, resided in
Cuba, and was a special partner of a firm organized and doing
business there. The Spanish law (prevailing in Cuba) touch-
ing limited partnerships had been complied with so as to limit
3 78 Fed. 33, 37. See also Mut., etc. Ins. Co. v. Robison, 54 Fed. 680 ;
N. Y. Life Ins. Co. v. Russell, 23 C. C. A. 43, 77 Fed. 94.
* 108 Penn. St. 530, 1 Atl. 206, 208.
■ « 69 N. Y. 24, 25 Am. Rep. 128. See Baldwin v. Gray, 4 Mart. N.s. 192.
376 LOCUS CELEBRATIONIS — AGENTS' CONTRACTS. § 158
his liability to the amount of capital he had contributed. The
firm became indebted to the plaintiffs, citizens of New York, by
transactions in New York with which Sarria had no personal
connection. The New York court held that the contract of
partnership was to be interpreted and regulated by the laws
of Spain ; that the authority of the acting partner and Sarria's
liability were to be determined by those laws; and that the
defendant was entitled to set up his limited liability as a
defence.'
It is an entirely different matter when the question does not
relate to the agent's authority to make the contract, but to the
contract itself when made. Here the maxim, *' qui facit per
aliumfacitper se," applies with full force. If the agent, fully
authorized, makes a contract in a foreign State, it is the same
as if the principal were there in person, and had himself entered
into it. As was said in Milliken v. Pratt : ^ '* If the contract is
completed in another State, it makes no difference in principle
whether the citizen of this State goes in person or sends an
agent, or writes a letter, across the boundary line between the
two States. As was laid down by Lord Lyndhurst in Pattison
V.Mills, 1 Dow & C. 342, 363: 'If I, residing in England,
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.' "
In determining in such cases the principal's liability upon
the contract made by the agent, the locus celebrationis of the
contract is the place where the principal, through his agent,
enters into the contract.*
« It is to be observed in this case that the law of New York (forum) also
authorized limited partnerships. It would seem however that this is imma-
terial. But where the question is not of an intrinsic restriction upon the
liability of the part;ners, but the law of the situs of the partnership merely
provides that the limited partnership shall not be liable upon a contract unless
certain formalities are complied with, as that the contract shall be signed by
at least two managers, etc., it becomes then a question of the formal validity
of the contract. See post, § 172. In such case the validity of the contract
will be governed by the law of the place where it is entered into. Park v,
Kelly Axe Co., 1 C. C. A. 395, 49 Fed. 618, 627.
T 125 Mass. 374, 375, 28 Am. Rep. 241.
« Milliken v. Pratt, 125 Mass. 374, 375, 28 Am. Rep. 241 ; Carnegie n
§ 169 LOCUS SOLUTIONIS — NONE NAMED. 377
In many cases, however, the agent is not fully authorized to
enter at once into a complete and binding contract, but must
refer the negotiations to his principal for approval, before finally
closing the bargain; it is understood that he is authorized to
make the contract, subject to the principal's approval or ratifica-
tion. In such cases the contract does not become binding upon
the principal until the approval or ratification has taken place,
and hence the locus celebrationis is the place where such ap-
proval or ratification occurs.'
But if the other party to the contract is ignorant that the
agent has not plenary authority and believes that he is entering
into a binding contract, though it is still true that the exist-
ence of the contract will depend upon the approval or subse-
quent ratification of the principal, the ratification when given
relates back to the time of the execution of the contract, and
the place where that execution occurs is the locus celebrationis.^"
§ 159. Locus Solutionis — Optional -with the Parties — No
Place of Performance named. — In the case of executed con-
tracts (so called for the very reason that they are performed as
soon as made), the place of performance must necessarily coin-
cide with the locus celebrationis.^ But in the case of contracts
Morrison, 2 Met. (Mass.) 381 ; Baum r. Birchall, 150 Penn. St. 164, 24 Atl.
620 ; Jackson v. Mortg. Co., 88 Ga. 756, 15 S. E. 812, 813 ; Merchants' Bank
V. Griswold, 72 N. Y. 472, 481, 28 Am. Rep. 159 ; Newman v. Cannon, 43
La. Ann. 712, 9 So. 439; Arayo v. Currell, 1 La. 528, 20 Am. Dec. 286;
Hausman v. Nye, 62 Ind. 485, 30 Am. Rep. 199, 200 ; Webber v. Howe, 36
Mich. 150, 24 Am. Rep. 590 ; Hicks v. Ins. Co., 9 C. C. A. 215, 60 Fed. 690.
See Suit v. Woodhall, 113 Mass. 391,
9 Tegler r. Shipman, 33 la. 194, 11 Am. Rep. 118 ; Kling v. Fries, 33
Mich. 275 ; Keiwert v. Meyer, 62 Ind. 587, 30 Am. Rep. 206, 209 ; State,
etc. Ins. Co. v. Brinkley Co., 61 Ark. 1, 29 L. R. A 712, 713 ; Dord v.
BonafiFee, 6 La. Ann. 563, 54 Am. Dec. 573 ; Claflin v. Meyer, 41 La. Ann.
1048, 7 So. 139 ; Newman v. Cannon, 43 La. Ann. 712, 9 So. 439 ; Shuen-
feldt V. Junkermann, 20 Fed. 357.
M Golson V. Ebert, 52 Mo. 260. See Findley v. Hall, 12 Ohio, 610 ; Pugh
V. Cameron, 11 W. Va. 523.
1 Scudder v. Bank, 91 U. S. 406, 413 ; Bethell v. Bethell, 54 Ind. 428, 23
Am. Rep. 650, 654. Hence, as we have seen, the "proper law "governing
voluntary transfers of personal property is always the law of the place whpre
the transfer is made (lex loci contractus). Ante, §§ 127 et seq.
378 IX)CUS SOLUTIONIS — NONE NAMED. § 159
executory, since they are to be performed infuturo, opportu-
nity is given the parties to change their situs before the time of
performance, and to perform it elsewhere, if the contract so
requires.
The locus solutionis of a contract primarily depends upon the
intention of the parties. It is a part of the principle of freedom
of contract to choose the place where a contract shall be per-
formed. This choice may be expressed in the contract itself;
if not, it may be inferred from the surrounding circumstances.
If no place of performance is named by the parties, a very
strong presumption arises that the parties intend that it shall be
performed where it is made.^ But though this presumption is
strong, it is not conclusive, and may be rebutted by evidence,
or by clear inference from the surrounding circumstances, that
the parties intended that the contract should be performed else-
where.* Thus, if the parties are only transiently in the place
where the contract is entered into, with no intention of stop-
ping there, and the contract is to be performed at a time when,
under the circumstances of the case, the parties did not contem-
plate being within the State, this would be sufficient to rebut
the presumption that the contract was intended to be per-
formed where made.*
* Pritchard v. Norton, 106 IT. S. 124, 137 ; Clark v. Seaiight, 135 Penn.
St. 173, 19 Atl. 941 ; Tenant v. Tenant, 110 Penn. St. 478, 1 Atl. 532 ; Bar-
rett V. Dodge, 16 R. I. 740, 19 Atl. 530 ; Bell v. Packard, 69 Me. 105, 31
Am. Rep. 251 ; Lewis r. Headley, 36 111. 433, 87 Am. Dec. 227 ; Parsons v.
Trask, 7 Gray (Mass.), 473, 66 Am. Dec. 502 ; Young v. Harris, 14 B, Mon.
(Ky.) 556, 61 Am. Dec. 170 ; Bryant v. Edson, 8 Vt. 325, 30 Am. Dec. 472;
Chapman v. Robertson, 6 Pai. Ch. (N. Y.) 627, 31 Am. Dec. 264 ; Malpicaw.
McKown, 1 La. 248, 20 Am. Dec. 279 ; Thompson v. Eetcham, 8 Johns.
(N. Y.) 189, 5 Am. Dec. 332.
8 Pritchard v. Norton, 106 U. S. 124, 137.
4 Dan. Neg. Insts. § 876 ; Briggs v. Latham, 36 Kan. 255, 13 Pac. 393, 59
Am. Rep. 546, 548 ; Curtis v. Leavitt, 15 N. Y. 9, 88. See Story, Confl. L.
§ 273. But the inference should be very clear in order to change the general
rule. See Curtis v. Leavitt, supra. It is to be observed that such circum-
stances do not affect the locus celebrationis of the contract. The parties have
their choice before entering into their contract as to the State where they shall
make it, but once entered into, their choice is irrevocably laid upon the State
vhere, as a matter of fact, the contract is made. The parties, when they
§ 159 LOCUS SOLUTIONIS — NONE NAMED. 379
Paradoxical as it may seem, there is often more diflficulty in
determining the locus solutionis of a contract which expressly
designates a place of performance, than where none is named.
The reason is that the parties sometimes attempt to cover their
real intentions touching the place of performance by falsely
naming a place which they do not really intend to be the true
locus solutionis. This is done in order to evade the law of the
real place of performance, when it would condemn the contract.
In such cases, where the locus solutionis is of importance, it is
the duty of the court to disregard the false witness of the parties'
•contract, and to ascertain the place of performance really in-
tended. For though the parties have the right to choose bona
fide the place where their contract is to be performed, they have
not the right, in order to evade the law of the place they have
really chosen, to pretend that they have selected a different
place.® Thus it has been held by courts which take the view
that the validity of usurious contracts is dependent upon the
lex solutionis ' that a debt falsely pretended to be made or
payable in a particular State, so that usurious interest may be
exacted under its law, will not be enforced.''
But the mere fact that the motive for selecting a particular
place as the locus celebrationis or locus solutionis of a contract
is to evade the law of another State is immaterial, if the choice
is bona fide. The important point is that the parties have the
right to select the locus. That being conceded, the reasons
have entered into a contract in one State, cannot, merely hy intending so to do,
make it a contract entered into in another.
» Akers v. Demond, 103 Mass. 318, 324 ; U. S. Sav. & L. Ass. v. Scott, 98
Ky. 695, 34 S. W. 235. The same principle applies to the locus celebrationis
of the contract, as mentioned in the preceding note. See MuL Ben. L. Ins.
Co. V. Robison, 54 Fed. 580 ; Wall v. Equitable, etc. Society, 32 Fed. 273,
275 ; Fletcher v. Ins. Co., 13 Fed. 526 ; American Mortg. Co. v. JeflFerson, 69
Miss. 770, 12 So. 464. But see Strawbridge v. Robinson, 5 Gilm. (111.) 470,
50 Am. Dec. 420 ; Morris v. Hockaday, 94 N. C. 286, 55 Am. Rep. 607 and
note.
^ The law governing usurious contracts will be discussed hereafter. See
post, § 179.
7 U. S. Sav. & L. Ass'n v. Scott, 98 Ky. 695, 34 S. W. 235 ; American
Mortg. Co. V. Jeflferson, 69 Miss. 770, 12 So. 464. See The Energia, 56 Fed.
124, 127.
380 SEVERAL PLACES OF PERFOEMANCB. § 160
which induce them to make a particular choice are not open to
inquiry.
Some of the authorities seem to point to the conclusion that
where the contract itself designates no place of performance,
and where therefore the locus solutionis may be said to be in
doubt, a presumption will arise that the parties intended to enter
into a valid agreement, and hence, upon the principle that that
construction will be placed upon ambiguous terms which will up-
hold rather than nullify a contract, the presumption that the
locus solutionis is identical with the locus celebrationis (by
whose law the contract would be invalid) will yield to the pre-
sumption that the parties intended to perform their contract in
a State whose law would permit of its performance, provided
the circumstances point to any such State as reasonably within
the view of the parties at the time.'
§ 160. Same — Several Places of Performance. — It some-
times happens that a contract may be intended by the parties to
be performed, as to different parts thereof, in several places. If
the contract relates to several distinct and divisible acts, there
is no difficulty in perceiving that as to each of these several
acts in performance of the contract the contract may have a
separate locus solutionis. In reality, they are several contracts
in one.^
8 Pritchard v. Norton, 106 U. S. 124, 137; Bell v. Packard, 69 Me. 105, 31
Am. Rep. 251, 253 ; Dickinson v. Edwards, 77 N. Y. 573, 578, 33 Am. Rep.
671 ; American Mortg. Co. v. Jefferson, 69 Miss. 770, 12 So. 464, 465 ; Scott
V. Perlee, 39 Ohio St. 63, 48 Am. Rep. 421, 423 ; Kellogg v. Miller, 13 Fed.
198, 199. This presumption can only arise in cases where there is no clear
evidence or inference as to the place intended by the parties as the locus solu-
tionis. It does not (as many of the above cases strongly imply) furnish evi-
dence of what law the parties intend to govern their contract (for in that
respect, where the validity of the contract is in question, the parties' inten-
tions are immaterial). It merely furnishes evidence of what place the parties
intend as the locus solutionis of the contract. It is of value therefore only
in cases where the particular element of the contract urged as being contrary
to law relates to the performance of the contract, for the locus solutionis is of
no importance, where the invalidity alleged relates to the making of the con-
tract or its consideration.
1 Pope V. Nickerson, 3 Story, 465, 484 ; Curtis r. R. R. Co., 74 N. Y. 116,
30 A.m. Rep. 271; Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 454.
§ 160 SEVERAL PLACES OF PERFORMANCE. 381
But where the act contracted to be done is a continuous act,
the performance of which may run through several States, such
as a contract of through transportation, the weight of authority
seems to be to the effect that this constitutes an entire contract,
not divisible, and can only have one fixed place of performance,
namely, the terminus of the journey.*
Some of the decisions however take the view that, although
the final place of performance is the terminus of the journey,
yet there is a complete performance of part of the contract long
before the journey is ended. As each mile is covered, so much
of the contract is performed: the performance is by stages, so
to speak; and the locus solutionis of the contract of carriage
shifts from one State to another, as the goods or passengers
themselves are transferred from one State to the other.'
The latter view would seem, upon principle, to be the better;
otherwise the carrier might sometimes be subject to different
liabilities, according as he is sued in contract or in tort. The
New York case of Dike v. K. R. Co.* affords an excellent illus-
tration of the inconvenience that may result from the first view.
In that case, the plaintiff had purchased a ticket on the defend-
ant's road from Attica, N. Y., to the city of New York. In
order to reach New York, the road ran through a part of Penn-
sylvania and New Jersey. Thus the contract of carriage was
made and was to be finally performed in the State of New York.
While passing through Pennsylvania, an accident occurred and
the plaintiff was injured. A statute of Pennsylvania provided
that in such cases the amount of the recovery should be limited
to $3,000. There was no such limitation in New York. Action
was brought in New York for the breach of the contract to carry
2 Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 454 et seq. ; Dike v. R. R.
Co., 45 N. Y. 113, 117; Curtis v. R. R. Co., 74 N. Y. 116, 30 Am. Rep. 271 ;
Brown v. R. R. Co., 83 Penn. St. 316. See Phinney v. Ins. Co., 67 Fed. 493,
498 ; Hale v. Nav. Co., 15 Conn. 539, 39 Am. Dec. 398.
3 Barter v. Wheeler, 49 N. H. 9, 29, 6 Am. Rep. 434 ; Pope v. Nickerson,
3 Story, 465, 485; Curtis v. R. R. Co., 74 N. Y. 116, 30 Am. Rep. 271;
Talbott V. Transportation Co., 41 la. 247, 20 Am. Rep. 589 ; Burnett v. R. R.
Co., 176 Penn. St. 45, 34 Atl. 972 ; Baetjer v. La Compagnie, 59 Fed. 789.
* 45 N. Y. 113. See Burnett v. R. R. Co., 176 Penn. St. 45, 34 Atl. 972.
382 CONTRACTS — LOCUS CONSIDERATIONIS. § 161
the plaintiff safely, and the court held that the New York law
applied on the ground that New York was the locus solutionis
of the contract, and that the amount of damages recoverable
was not merely a matter of remedy. If the action had been
ex delicto instead of ex contractu, the lex loci delicti (Pennsyl-
vania law) would have controlled,* and a different result would
have been reached. This would be unfortunate. The New
York court attempts to evade this conclusion, but with doubtful
success. Under the second view above given the measure of
liability would have been the same whether the action was ex
contractu or ex delicto. The locus solutionis of the contract
would have shifted with the defendant's cars, and at the time
of the breach would have been in Pennsylvania.
Another question may arise as to the locus solutionis, wheix
the contract is to be performed, in the option of the promisor,
either in one State or in another. Here an alternative is given
the promisor, and it would seem upon principle that the locus
solutionis would remain undetermined until he exercises his elec-
tion. Then the place where he actually performs the contract
is the locus solutionis.* But there are difficulties in the way
of this theory, especially if the promisor never performs his
contract at either place. ^
§ 161. Locus ConsiderationiB. — The consideration of a con-
tract is a matter collateral to, not part of, the promise. It
need not appear on the face of the promise, but is in general
essential to its validity. A promise without a consideration is
a mere nudum pactum, and usually creates no legal obligation.
So a promise upon a consideration, which is itself prohibited by
law or contrary to public policy, creates no legal obligation.
Certain acts or matters may be deemed in one country to
be considerations sufficient to support a promise, though not
sufficient in another; and considerations regarded as legal in
6 See post, § 198,
« See Porter v. Price, 49 U, S. App. 295, 80 Fed. 655.
"> See Hale v. Nav. Co., 15 Conn. 538, 546, 39 Am. Dec. 398. In this
caae, the court was forced to fall back on the locus celebrationis as the locus
solutionis also. A carrier had agreed in New York to deliver the goods
sither at Boston, Massachusetts, or at Providence, R. I.
§161 CONTRACTS — LOCUS CONSIDER ATIONIS. 383
one State may be held illegal or contrary to public policy in
another.
Thus, in Pritchardv. Norton,* Norton executed and delivered
to Pritchard in New York a bond of indemnity, conditioned to
fully indemnify him against all loss arising from his liability
on an appeal bond which the latter had signed in Louisiana as
surety on behalf of a certain defendant in a judgment in the
Louisiana courts, and which he was compelled to pay. The
bond of indemnity was executed in New York, but named no
place of performance or payment. By the law of New York,
a contract under seal was only prima facie evidence of a con-
sideration, and past services constituted no consideration. In
Louisiana the law was otherwise. The question was whether
the New York bond of indemnity, the only consideration of
which was the past service of Pritchard in going upon the
appeal bond in Louisiana (no contemporaneous promise of in-
demnity having been made), was to be deemed nudum pactum.
The United States Supreme Court held that the question was to
be decided by the law of Louisiana {lex loci consider ationis).'^
Again, if the question relates to the legality of the considera-
tion, it is the lex loci considerationis, not the lex celebrationis
nor lex solutionis, which is to determine the effect and conse-
quences of the act set forth as the consideration. Except in
cases of considerations which are mala in se, or universally
deemed contra bonos mores,* the policy of a State is not usually
concerned with acts done elsewhere, and neither encourages nor
discourages them : it leaves their effect to be determined by the
law of the State where the act in question is done.
Thus, let us suppose that a note is made in Vermont and
payable there, being given in consideration of liquor sold and
1 106 U. S. 124.
* The court's decision, however, was not based upon this ground, but upon
the ground that Louisiana was the locus solutionis of the contract, though the
bond was executed in New York and named no other place for payment or
performance. It is respectfully submitted that the law of Louisiana deter-
mined the sufficiency of the consideration, not because that State was the
locus solutionis of the contract, but because it was the locus considerationis.
The question was one of consideration, not of performance.
« Ante, § 9. .
384 CONTRACTS — LOCUS CONSIDERATIONIS. § 161
delivered to the maker in New York; that the sale of liquor is
prohibited by the law of Vermont, and all notes and securities
in payment therefor are declared void ; but that by the law of
New York the sale of the liquor is valid. It is obvious that the
validity of this note is to be determined, not by the law of Ver-
mont, though that is both the locus celebrationis and the locus
solutionis of the note, but by the law of New York, the situs
of the consideration; for the law of Vermont was manifestly
applicable only to sales of liquor in Vermont. The note would
therefore be valid.* On the other hand, if the above note had
been executed and made payable in New York, the sale of the
liquor taking place in Vermont, the law of Vermont (lex con-
siderationis) would govern, not the law of New York (lex cele-
brationis et solutionis), and the note would be void.'
Wagers, gaming, lotteries, etc., are not universally con-
demned as immoral, and therefore should not be classed as
considerations mala in se.® Hence, if a contract is made, the
consideration for which is a gaming debt, or the sale of lottery
tickets, or the conduct of a lottery, the validity of the con-
tract in this respect will depend upon the law of the situs of the
consideration, which may or may not be the place where the
contract is made or to be performed.''
These examples suffice to show that the lex loci considera-
tionis plays no small part in governing the validity of a con-
tract, 80 that the rules by which the locus considerationis
or situs of the consideration is ascertained deserve attention.
* "Webber v. Howe, 36 Mich. 150, 24 Am. Rep. 590 ; Boothby v. Plaisted.
51 N. H. 436, 12 Am. Rep. 140 ; Tegler v. Shipman, 33 la. 194, 11 Am.
Rep. 118.
* Keiwert v. Meyer, 62 Ind. 587, 30 Am. Rep. 206 ; Webber v. Howe, 36
Mich. 150, 24 Am. Rep. 590 ; Suit v. Woodhall, 113 Mass. 391 ; Weil v.
Golden, 141 Mass. 364.
' The general rule is to consider these matters as subject to their " proper
law," though some of the decisions treat them as inimical to morals and contra
bonos mores, no matter what the law of their situs. See Flagg v. Baldwin, 38
N. J. Eq. 219, 48 Am. Rep. 308.
T Thatcher v. Morris, 11 N. Y. 437; Mclntyre v. Parks, 3 Met. (Mass.)
207; Feet v. Hatcher, 112 Ala. 514, 21 So. 711. See Sondheim v. Gilbert,
117 Ind. 71, 18 N. E. 687. But see Robinson v. Bland, 2 Burr. 1077.
§ 162 CONSIDERATIONS EXECUTED AND EXECUTORY. 385
For the most part they are simple enough if we recur to first
principles.'
§ 162. Same — Ck>iiaiderations Executed cind Executory.
— A consideration to support an executory contract may consist
either in an act done hy the promisee or in an agreement made
by him, and such agreement may itself be either executed or
executory; or finally it may consist in some antecedent promise
or liability of the promisor.
If the consideration be an act done by the promisee, the
maxim, ^^ locus regit actum," applies. The validity and effect
of the consideration will depend upon the lex loci considera-
tionis, and the locus considerationis in such case is a mere ques-
tion of fact. Indeed if the consideration is an act done at the
time of making the contract, the locus considerationis and the
locus celebrationis of the contract will always coincide.
If the consideration is itself an agreement on the part of the
promisee, its situs will be the situs of the promisee's contract,
and will be determined in accordance with the principles which
govern the situs of contracts generally, — the same principles
which are now being discussed in this chapter. If the consid-
eration (the promisee's agreement) is an executed contract, its
validity and the corresponding validity of the promisor's con-
tract will depend upon the law of the place where the promisee's
agreement is entered into (its lex celebrationis). If the con-
sideration (the promisee's agreement) is executory, its validity
and the consequent validity of the promisor's contract will
depend upon the lex celebrationis or the lex solutionis of the
promisee's agreement, according to the particular element at-
tacked as invalid.^
It is to be observed, in the cases above mentioned, that in
strictness the act done or the agreement made by the promisee,
if they are to form the direct consideration for the promisor's
promise, must be done or entered into at the moment when, and
therefore at the place where, the promisor's contract is entered
into. If the promisee's act or agreement is done or made after
8 Post, §§ 176 et seq.
1 See post, §§ 168-175, where the law governing the different cases of in-
validity is fully considered.
25
3b6 CONSIDERATIONS EXECUTED AND EXECUTORY. § 162
the promisor's, there is no consideration to support the promisor's
contract; if done or made before the promisor's, the considera-
tion is a past consideration, which is generally held to be equiva-
lent to none at all.
When a past act or agreement by the promisee is said to
constitute a consideration for a promise, it is an inaccurate
mode of expression. The past act or agreement may raise a
liability in the promisor, — an implied promise on his part, —
arising at the moment of the act done or the agreement made,
which implied promise may subsequently be changed into an
express promise. In such case, the consideration for the ex-
press promise is not the act or agreement of the promisee at all,
but the liability of the promisor arising contemporaneously with
that act or agreement and springing out of it. Whether such
liability legally arises from the act or agreement of the promisee
depends upon the law of the place where the act is done or the
agreement is made. If by that law it does arise, it continues a
burden upon the promisor wherever he may be, and constitutes a
valid consideration to support his express promise wherever made.
If no such liability arises in the first instance under the law of
the State where the promisee's act is done, or his agreement ia
made, there is no liability upon the promisor anywhere. In
the latter case therefore an express promise made by the prom-
isor is only for a past consideration (which is no consideration),
there being no implied liability legally resting upon him.
Hence when we spoke, in the preceding section, of a note made
in Vermont in consideration of a sale of liquor in New York, it
will be seen that, strictly speaking, such language is inaccurate.
The consideration for the note in such a case is not in reality the
sale of the liquor : that would be a past consideration. The real
consideration for the note is the promise to pay for the liquor
purchased, which promise was implied by the law of New York
(or validly agreed upon there expressly by the parties). But the
inaccuracy is immaterial, since the law of the place of the prom-
isee's act or agreement controls the validity of the liability, and
the validity of the note would depend upon the validity of the
promisor's antecedent liability, which is the consideration for
the note.
§ 162 CONSIDERATIONS EXECUTED AND EXECUTORY. 387
The result of this reasoning is that, for our purposes, we may
disregard those considerations which consist of liabilities merely
created by the law; for they will always arise, if at all, imme-
diately upon some act of the parties, and the validity of the con-
tracts for which they are the consideration will always in the
end depend upon the law governing the act out of which they
arise. We need look therefore only to the locus of the act itself,
whose law will govern the validity of the consideration. And,
to simplify matters, we may regard the act itself as the consid-
eration, though the act be done before the promise is entered
into.
Thus viewed, there will be no difficulty in ascertaining the
locus considerationis if the consideration is a mere act done by
the promisee, whether it be done in the State where the prom-
isor's contract is made or elsewhere. The validity of the prom-
isee's act, judged by the lex considerationis, will determine the
validity of the promisor's contract. And the same may be said
where the consideration consists in an executed agreement of the
promisee. But where the consideration is an executory contract
of the promisee, it may have a distinct locus celebrationis and
locus solutionis of its own, and both of these may be different
from the locus celebrationis and the locus solutionis of the
promisor's contract. In some respects the validity of the
promisee's contract may be controlled by its lex celebrationis,
in some respects by its lex solutionis. And neither of these
are necessarily coincident with the locus celebrationis or the
locus solutionis of the promisor's contract. Illustrations of
these principles will be given hereafter.^
' See post, § 176. It would be rarely the case however that the locus
celebrationis of the promisee's contract (consideration) would not be identical
with the locus celebrationis of the promisor's contract, as the two promises
will generally be made contemporaneously. But, bearing in mind the ex-
planation above given touching the eflFect of the promisor's antecedent liability
as a consideration, and our agreement to disregard it, substituting therefor the
act out of which that liability arose, we may easily conceive of a case like the
following : A promises B in Maryland to do an act for B in Pennsylvania, in
consideration of B's doing an act for A in New York. So far both contracts
have the same locus celebrationis, though diflferent loci solutionis. Now sup-
pose A, in consideration of his existing promise to B, enters into another
388 SITUS OF CONTRACTS TO PAY MONEY. § 163
§ 163. Situ* of Particular Contracts — Contracts to Pay
Money. — Having noted the general principles by which the
locus celebrationis or the locus solutionis of a contract will be
ascertained, we will now turn our attention to some particular
instances of contracts, which present more or less difficulty in
the solution of these questions. It will repay us to examine
more closely into the cases of contracts to pay money and con-
tracts of insurance.
With regard to contracts to pay money generally, there is
usually little difficulty in applying the principles heretofore
noted in determining the locus celebrationis. This will always
be the place where the last act is done necessary to bind the
promisor.-^ If the contract is oral, it will be the place where
the words of assent or promise are spoken j if written, the mere
signing or sealing will not usually be sufficient to bind the
promisor. There must be a delivery and acceptance of the in-
strument also, which is the final token of the promisor's assent.
Hence the place of delivery, not the place of signing, is the
place where the minds of the parties meet, and is the locus
celebrationis of the contract.* But if the note or bond is drawn
up by the payees, and sent by them to the maker in another
State for his signature, without instructions as to how it shall
be returned, the maker's acceptance of the payee's offer is com-
plete upon his signing the note and depositing it in the post
agreement with B in Ohio, by which A agrees to do the same act, before
agreed upon, in Virginia, instead of in Pennsylvania as the terms of the first
agreement demanded. Here we would have A's promise made in Ohio to be
performed in Virginia. The consideration of A's promise would be B's promisa
made in Maryland, to be performed in New York. There is no need to da
more than merely point out that such a case may arise. As a general rule the
loci celebrationis of the two mutual promises will coincide. It might easily
be otherwise, however, with the loci solutionis.
1 Ante, § 157.
2 Baum V. Birchall, 150 Penn. St. 164, 24 Atl. 620 ; Fant v. Miller, 17
Gratt. (Va.) 47, 59 ; Akers v. Demond, 103 Mass. 318, 324 ; Lawrence v. Bas-
sett, 5 Allen (Mass.), 140 ; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251,
252 ; Hart v. Wills, 52 la. 56, 2 N. W. 619, 35 Am. Rep. 255 ; Carnegie
Steel Co. V. Construction Co. (Tenn.), 38 S. W. 102 ; Phipps v. Harding, 17
C. C. A. 203, 70 Fed. 468, 471.
S 163 SITUS OF CONTRACTS TO PAY MONEY. 389
c
office, properly addressed to the payees, and the place of the
signature is the locus celebrationis of the contract.'
The locus solutionis of a bond or note will be the place where
the parties intend it to be paid at maturity. If the place where
it is payable is designated on the face of the instrument, that
is the locus solutionis,* unless the parties have really a different
intention as to the place of performance from that expressed on
the face of the note. It is the real intent, not the expressions
of the parties, that is looked to.'
If no place of payment is named on the face of the instru-
ment, the strong presumption is that it was intended to be pay-
able at the locus celebrationis, ' though this may be rebutted by
clear evidence or inference that the parties looked to some other
place as the locus solutionis, as where the maker executes the
note while in transit through the State.^ In such case, if the
bond or note be payable at a future day, it is reasonable to pre-
sume that the parties look to the creditor's or the debtor's domicil
• as the place of payment, rather than the State which is by mere
accident the locus celebrationis ; and since it is the duty of the
debtor to resort to the creditor's place of business on the ap-
pointed day to pay him, it would seem that the locus solutionis
should be the creditor's domicil rather than that of the debtor.*
8 Barrett v. Dodge, 16 R. I. 740, 19 Atl. 530 ; Wayne Co. Bank v. Low,
81 N. Y. 566, 572, 37 Am. Rep. 533. See Sheldon v. Haxtun, 91 N. Y. 124,
131. But see Staples v. Nott, 128 N. Y, 403, 28 N. E. 515.
* Bryant v. Edson, 8 Vt. 325, 30 Am. Dec. 472.
6 Ante, § 159. See New England Mortg. Co. v. Vaden, 28 Fed. 265.
6 Barrett v. Dodge, 16 R. I. 740, 19 Atl. 530 ; Hart v. "Wills, 52 la. 56,
35 Am. Rep. 255, 2 N. W. 619 ; Lewis v. Headley, 36 El. 433, 87 Am. Dec.
227 ; Wilson v. Lazier, 11 Gratt. (Va.) 477.
^ Ante, § 159, note 4. Even here, if the note is payable on demand, since
it falls due immediately, it would seem that the locus celebrationis and the
locus solutionis must generally be regarded as identical. Smith v. Mead,
3 Conn. 253, 8 Am. Dec. 183.
8 See Pritchard v. Norton, 106 U. S. 124, 138 ; De Wolf v. Johnson, 10
Wheat. 367, 383 ; Lanusse v. Barker, 3 Wheat. 101 ; Boyle v. Zacharie, 6 Pet.
635 ; Hickox v. Elliott, 27 Fed. 830, 839 ; Chapman v. Robertson, 6 Pai. Ch.
(N. Y.) 627, 630, 31 Am. Dec. 264. If the bond or note is given in pur-
suance of an order of court, no place of payment being designated, it seems
that it is to be regarded as payable at the situs of the court. Irvine v. Bar-
390 SITUS OF CONTRACTS TO PAY MONET. § 163
So, the fact that the bond or note, though executed in one
country, is payable in the currency of another, may be evi-
dence of the intention of the parties to make the latter State
the place of payment; or the fact that accruing interest is ex-
pressly made payable in another State may afford reasonable
ground for the presumption that the principal was intended to
be paid there.'
Some difficulty is found in ascertaining the locus solutionis
of a bond or note, naming no place of payment, made in one
State and secured by mortgage on property in another. Here
as in other cases the question is one of intent. Do the parties
intend that the bond or note shall be payable at the place where
the mortgaged property is situated ? It is not at all a neces-
sary inference that they do. The mortgage is merely a col-
lateral agreement, the object of which is to secure payment at
the time and place agreed upon, which may or may not be the
situs of the mortgaged property. Unless other circumstances
point to that place as the intended place of payment, the mere
existence of the mortgage cannot logically give rise to an infer-
ence of such an intention; and the better opinion is believed
to be that it does not.^**
If the promise to pay is not express, but implied from the ac-
ceptance of goods sold, work done, services rendered, money
loaned, account stated, etc., the indebtedness is created at the
place where the goods are sold, the services rendered, etc.; for
rett, 2 Grant's Cas, (Penn.) 73 ; Pritchard v. Norton, 106 U. S. 124, 138. In
case of the bond of a public officer, conditioned to perform public duties faith-
fully, the place of payment is the seat of government. Cox v. United States,
6 Pet. 172 ; Duncan v. United States, 7 Pet. 435; Pritchard v. Norton, 106
U. S. 124, 139.
9 Curtis V. Leavltt, 15 N. Y. 9, 86, 87. See Coghlan v. R. R. Co., 142
U. S. 101.
w De Wolf V. Johnson, 10 Wheat. 367, 383 ; Hickox v. Elliott, 27 Fed. 830,
839 ; Central Trust Co. v. Burton, 74 Wis. 329, 43 N. W. 141, 142 ; Odom v.
Mortg. Co., 91 Ga. 505, 18 S. E. 131 ; New England Mortg. Co. v. McLaugh-
lin, 87 Ga. 1, 13 S. E. 81 ; Martin v. Johnson, 84 Ga. 481, 8 L. R. A. 170, 10
S. E. 1092 ; American Mortg. Co. v. Sewell, 92 Ala. 163, 9 So. 143; Fessenden
V. Taft, 65 N. H. 39, 17 Atl. 713 ; Chapman v. Robertson, 6 Pai. Ch. (N. Y.)
•27, 633, 634, 31 Am. Dec. 264. See Kellogg v. Miller, 13 Fed. 198
§ 164 SITUS OF maker's or acceptor's contract. 391
the indebtedness, if it arises at all, must arise at the moment
the benefit is conferred, or the act done which is alleged to
create it. And the locus solutionis of the implied promise will
of course be identical with the locus celebrationis.^^
§ 164. Negotiable InstrumentB — Contract of Meiker or
Acceptor. — The situs of negotiable paper deserves special
notice. So far as the maker of a negotiable note is concerned,
the locus celebrationis and the locus solutionis of his contract
are to be ascertained in accordance with the principles men-
tioned in the preceding sections.^ There is no difference in
this respect between the maker of a negotiable note and the
maker of any other contract to pay money.
The locus celebrationis of the contract of an acceptor of a bill
of exchange is of course the place where his acceptance becomes
complete and finally binding upon him. This will usually be
the place where the acceptance is given. But if the acceptance
is for the purpose of negotiation in another State, the bill being
subsequently sent thither for that purpose, the locus celebra-
tionis of the contract of acceptance is the State where such
negotiation takes place, for only upon its delivery to the holder
does the acceptance become obligatory.^ And if the acceptance
be made through an agent, the place where the agent acts (if
he has plenary authority) will be the locus celebrationis of the
principal's contract.'
The locus solutionis of an acceptor's contract depends prima-
rily, as in other cases, upon the intention. If the acceptor
names in his acceptance the place where he proposes to pay, or
if, in the event of his silence, the bill designates a place of pay-
ment, that place will be the locus solutionis of his contract.
11 Crumlish v. Cent. Imp. Co., 38 W. Va. 390, 18 S. E. 456; Grant v.
Healy, 3 Sumner (U. S.), 523. See Porter v. Price, 49 U. S. App. 295, 80
Fed. 655 ; Lanusse v. Barker, 3 Wheat. 101 ; Merchants' Bank v. Griswold,
72 N. Y. 472, 28 Am. Rep. 159.
1 Ante, §§ 157, 158, 163.
2 TUden v. Blair, 21 Wall. 241, 247 ; Hall v. Cordell, 142 U. S. 118 ;
Farmers* Nat. Bank v. Sutton, 3 C. C. A. 1, 52 Fed. 191 ; Merchants' Bank v.
Griswold, 72 N. Y. 472, 481, 28 Am. Rep. 159 ; Lennig v. Ralston, 23 Peim.
St. 137. This applies also to the contract of the maker of a note.
» Scudder v. Bank, 91 17. S. 406 ; ante, § 158.
392 SITUS OF indorsee's or drawer's contract. § 165
But in the absence of such controlling circumstances, the gen-
eral rule is that the locus solutionis of the acceptor's contract
will be his place of residence or business, or his address on the
face of the bill.*
A contract to accept a bill or draft is usually regarded as an
actual acceptance thereof, as against a bona fide holder, unless a
specific place for the future acceptance of the bill is designated.*
But as between the original parties, it is an ordinary contract,
and governed by the same rules.*
§ 165. Indorser'B or Drawer's Contract. — Upon the iudorse-
ment of a bill or note, the indorser enters into a new contract, col-
lateral to and distinct from the original contract of the maker or
acceptor.* Indeed the contract of indorsement (unless it be merely
for accommodation) comprises two distinct contracts, one of which
is an executed assignment, operating to transfer to the indorsee
such title to the chose in action as the indorser possesses, and
such rights as he has against prior parties to the note or bill,
and the other an executory contract, by which the indorser under-
takes that the bill or note shall be paid at maturity.
So far as concerns the executed transfer represented by the
indorsement, it is an instance of the voluntary transfer of per-
sonal property, the "proper law" to govern which we have seen
to be the law of the place where the transfer is made (lex loci
contractus).' The nature of the title in the indorsee is deter-
« Lebel v. Tucker, L. R. 3 Q. B. 77 ; Scudder v. Bank, 91 U. S. 406, 413 ;
Freese v. Brownell, 35 N. J. L. 285, 10 Am. Rep. 239 ; CoflFman v. Bank, 41
Miss, 212, 90 Am. Dec. 371 ; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79,
86 ; Worcester Bank v. Wells, 8 Met. (Mass.) 107.
6 Scudder v. Bank, 91 U. S. 406 ; Hubbard v. Exchange Bank, 18 C. C. A.
526, 72 Fed. 234 ; Exchange Bank v. Hubbard, 10 C. C. A. 295, 62 Fed. 112 ;
Garrettson v. Bank, 47 Fed. 867 ; Merchants' Bank v. Griswold, 72 N. Y. 472,
28 Am. Rep. 159 ; Carnegie v. Morrison, 2 Met. (Mass.) 381, 398, 400.
« Hall V. Cordell, 142 U. S. 116.
1 Home 17. Rouquette, 3 Q. B. Dir, 514, 28 Eng, Rep. 424; Aymar w.
Sheldon, 12 Wend. (N. Y.) 439, 443, 27 Am. Dec 137 ; Everett v. Vendryes,
19 N. Y. 436, 437; Freese v. Brownell, 35 N.J. L. 285, 10 Am. Rep. 239, 241;
Nichols V. Bank, 2 W. Va. 13, 94 Am. Dec. 501; Felch v. Bugbee, 48 Me, 9,
77 Am. Dec. 203 ; Stubbs v. Colt, 30 Fed. 417, 419.
* Ante, §§ 122, 128 et seq. But in favor of creditors, and other third
persons, it will be remembered, the lex fori is frequently substituted.
§ 165 SITUS OP indorser's or drawer's contract. 393
mined by the law of the place of indorsement, and this ap-
plies equally to other choses in action as well as to negotiable
instruments.
Hence the right of the indorsee as holder of a note or bill, or
of the assignee of any chose in action, to sue the original prom-
isors, and the nature and extent of his claim against them, will
depend upon the law governing the indorsement or assignment
under which he holds. If the law of the place of the transfer
confers upon the assignee the legal title to the chose in action,
so that he may there sue the original promisors at law in his own
name, the same results will follow everywhere, even in States
by whose law, if the transfer had taken place there, only an equi-
table title would have passed to the assignee.®
Thus, in Levy v. Levy,* an assignment was made in New
York of a chose in action, which by the law of New York vested
the legal title in the assignee, with the incidental right to sue
upon it in a court of law in his own name. By the law of Penn-
sylvania (the forum) the assignment, if made there, would have
vested only an equitable title in the assignee, who could have
sued in a court of law only in the name of his assignor. The
Pennsylvania court held that, the law of New York (lex loci con-
tractus) having conferred upon the assignee the legal title, he
was entitled to sue the promisor in his own name in Pennsyl-
vania. The court admitted that if the law of New York had
merely given the assignee the right to sue at law in his own
name, without conferring upon him the legal title, this would
not have sufficed to sustain an action in Pennsylvania in his own
name, since this, standing alone, would be merely a matter per-
taining to the remedy, to be controlled by the lex fori.®
So, the indorsee or holder of a bill or note succeeds to the
rights of his assignor against the prior indorsers to the extent
3 See Brabston v. Gibson, 9 How. 263 ; Trimbey v. Vignier, 1 Bing. n. c.
151, 27 E. C. L. 336 ; Bradlaugh v. De Rin, L. R. 5 C. P. 473 ; Home v.
Rouquette, 3 Q. B. Div. 514, 517, 28 Eng. Rep. 424 ; Brook v. Van Nest, 58
N. J. L. 162, 33 Atl. 382.
♦ 78 Penn. St. 507, 21 Am. Rep. 35. See also Jordan v. Thornton, 2 Engi
(Ark.) 224, 44 Am. Dec. 546, 548.
6 Post, § 206.
394 SITUS OF indorseb's or drawer's contract. § 165
permitted by the law of the place where the transfer to him is
made, and no further. But since his assignor can hold each ia-
dorser only upon his independent collateral contract of indorse-
ment, and the liability of each such indorser depends upon the
' * proper law " governing his particular contract of indorsement,
it follows that the rights of the indorsee or holder against such
prior indorsers will also depend upon the "proper law" of the
executory contract of indorsement made by the particular in-
dorser whom he seeks to hold liable.*
This brings us to the consideration of the second contract, —
the executory contract, — created by the act of indorsement.
This contract is in the nature of a contract of guaranty, an un-
dertaking that the bill or note will be paid when properly pre-
sented at maturity. Being an executory contract, it may have
a locus solutionis distinct from the locus celebrationis.
Little difficulty is usually experienced in ascertaining the locus
celebrationis of the contract. The place where the indorser puts
his name on the paper will ordinarily be the place where his con-
tract is entered into.' But it is not the mere putting of his
name upon the paper that constitutes the indorsement. It does
not usually take effect, either as an executed or executory con-
tract, until the note so indorsed is delivered to the indorsee or
holder. The place where the note is actually indorsed is imma-
terial if the delivery or transfer occurs elsewhere.^
« Carlisle v. Chambers, 4 Bush (Ky.), 272, 96 Am. Dec. 304 ; Bradlaugh v.
De Kin, L. R. 5 C. P. 473. See Home v. Rouquette, 3 Q. B. Div. 514, 517,
28 Eng. Rep. 424 ; Trimbey v. Vignier, 1 Bing. N. c. 151. See Everett v.
Vendryes, 19 N. Y. 436 ; Reddick v. Jones, 6 Ired. L. (N. C.) 107, 44 Am.
Dec. 68 ; Lebel v. Tucker, L. R. 3 Q. B. 77, 83. This matter is discussed
more at length hereafter. Post, § 182.
"< Young V. Harris, 14 B. Mon. (Ky.) 556, 61 Am. Dec. 170 ; Douglas v.
Bank, 97 Tenn. 133, 36 S. W. 874, 876 ; Brook v. Van Nest, 58 N. J. L. 162,
83 Atl. 382.
8 Fant r. Miller, 17 Gratt. (Va.) 47; Rose v. Bank, 20 Ind. 94, 83 Am.
Dec. 306 ; Gay v. Rainey, 89 111. 221, 31 Am. Rep. 76 ; Young r. Harris, 14
B. Mon. (Ky.) 556, 61 Am. Dec. 170, 171 ; Briggs v. Latham, 36 Kan. 255,
59 Am. Rep. 546, 13 Pac. 393 ; Carnegie Steel Co. v. Construction Co. (Tenn.),
38 S. W. 102, 103; Stanford v. Pruet, 27 Ga. 243, 73 Am. Dec. 734;
Dunscomb v. Bunker, 2 Met. (Mass.) 8 ; Lee r. Selleck, 83 N. Y. 616, 618;
Cook V. Litchfield, 9 N. Y. 379 ; Stubh* v. Colt, 80 Fed. 417.
§ 165 SITUS OF INDOBSBB'S OB DBAWBR'S CONTBACT. Z%
Bo, if the indorsemeut be for accommodation merely, the notd
or bill being sent or taken to another State for negotiation, the
indorsement does not become binding upon the accommodation
indorser until the negotiation occurs. The place at which the
note goes into the hands of a holder for value is in such case
the locus celebrationis of the indorser's contract."
With respect to the locus solutionis of the executory contract
of indorsement, the views of the authorities are conflicting. Of
course no difficulty will arise if the indorser names in his in-
dorsement the place where he undertakes to pay should such a
course become necessary. But this is rarely done. Usually the
indorsement is silent upon this point.
Although the general rule is that, if the contract designates
no place of performance, the locus solutionis will coincide with
the locus celebrationis, it will be remembered that this is
founded merely upon the presumption of the intent and pur-
pose of the parties, and may yield to evidence or inference of
some other intent.
The locus solutionis of a contract of indorsement depends
upon the exact character of the promise implied from the in-
dorsement. We have seen that it constitutes an undertaking
on the part of the indorser that the bill or note will be paid upon
proper presentment at maturity. But is the indorsement a con-
ditional promise by the indorser to pay generally, or at the place
where he makes the promise, or is it a promise to pay at the
place where the money should have been paid at maturity, that
is, at the locus solutionis of the bill or note ?
Upon the answer to these questions depends the locus solu-
tionis of the contract of indorsement. And it is a very impor-
tant point to determine, for the lex solutionis of his contrac*^
will generally regulate the rights and duties of the indorser
with respect to all matters connected with the performance of
his contract.
Many of the authorities follow the general rule and hold that
the locus solutionis of the contract of indorsement, no special
place of performance being named, is identical with the locus
• See cases cited in note 8, svpra.
396 SITUS OF indouser's or drawer's contract, § 165
celebrationis. These go upon the theory that the contract of
the indorser is to pay the bill or note generally, if at all, that
is, at the place where he indorses.^**
Others hold that the indorser's contract is to make good the
bill or note at the place where it was originally designed to be
paid, and that that place therefore is the locus solutionis of the
indorsement.^^
Expediency would seem to pronounce in favor of the latter
view, and it is believed to be the better. To give every in-
dorsement its own separate locality would impair most seriously
the value of all negotiable instruments, even those which are in
fact purely domestic, since the holder could not know where the
prior indorsements were made and hence could not tell what the
liabilities of the prior indorsers are, nor what steps he must take
to secure that liability. The tendency of this rule is to destroy
or impair the negotiability of such instruments. On the other
hand, to hold the locus solutionis of each indorsement to be iden-
tical with the locus solutionis of the original contract creates one
single law by which the liabilities of all the indorsers are to be
ascertained, and would prevent the inconvenience (to use a mild
term) to the holder of having to ascertain and comply with a
number of different laws as to protest, notice of dishonor, and
other steps to be taken in order to fasten responsibility upon
the indorsers.^*
10 Story, Confl. L. § 314 ; Home v. Rouquette, 3 Q. B. Div. 514, 28 Eng.
Rep. 424 ; Musson v. Lake, 4 How. 262 ; Hunt v. Standart, 15 Ind. 33, 77
Am. Dec. 79, 84 ; Park i'. Rose Bank, 20 Ind. 94, 83 Am. Dec. 306 ; Aymar
V. Sheldon, 12 Wend. (N. Y.) 439, 443, 27 Am. Dec. 137 ; Hicks v. Brown,
12 Johns. (N. Y.) 142 ; Kuenzi v. Elvers, 14 La. Ann. 391, 74 Am. Dec. 434 ;
Powers V. Lynch, 3 Mass. 77 ; "Williams v. Wade, 1 Met. (Mass.) 82; Douglas
V. Bank, 97 Tenn. 133, 36 S. W. 874 ; Huse v. Hamblin, 29 la. 501, 4 Am.
Rep. 244.
11 Hirschfield v. Smith, L. R. 1 C. P. 340 ; Rothschild v. Currie, 1 Q. B.
43, 1 Ad."& El. N. s. 43; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367 ;
Everett v. Vendryes, 19 N. Y. 436 ; Wooley v. Lyon, 117 111. 244, 57 Am.
Rep. 867 ; Peck v. Mayo, 14 Vt. 33, 39 Am. Dec. 205 ; Carnegie Steel Co. v.
Construction Co. (Tenn.), 38 S. W. 102 ; Pierce v. Indseth, 106 U. S. 546,
550.
« Hirschfield v Smith, L. R. 1 C. P. 340, 352.
§ 165 SITUS OP indorsee's ok DBA wee's conteact. 397
The contract of the drawer of a bill is practically the same as
that of an indorser. He undertakes that the drawee will accept
the bill when presented and that he will pay it at maturity upon
due presentment ; and that if the drawee does not accept, or does
not pay at maturity, he (the drawer) will upon due notice pay
the amount named in the bill, with such damages as may result
from non-payment.
The locus celebrationis of this contract of the drawer is mani-
festly in general the place where the bill is drawn, just as in a
corresponding case the locus celebrationis of the indorser's con-
tract is usually the place where the bill or note is indorsed. And
the same qualifications are to be noted here as in the case of the
indorser.^'
With respect to the locus solutionis of the drawer's contract,
the same diversity of opinion exists as in the corresponding case
of the indorser's contract. Although there is strong authority
to the effect that the undertaking of the drawer is to make good
the bill at the place where he draws it,^* the better opinion is
believed to be that the drawer undertakes to make good the bill
at the place where it is payable." It is to be observed that there
is this difference between the contract of the indorser and that
of the drawer. The former becomes a party to a transaction in
the creation of which he has no part, while the drawer himself
w Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 443, 27 Am. Dec. 137 ;
Everett v. Vendryes, 19 N. Y. 436 ; Ereese v. Brownell, 35 N. J. L. 285, 10
Am. Rep. 239 ; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79. But see
Strawbridge v. Robinson, 5 Gilm. (111.) 470, 50 Am. Dec. 420, where the
court solemnly decides that a bill which is actually drawn in one State was
drawn in another, because the parties intended that it should be so.
" Freese v. Brownell, 35 N. J. L. 285, 10 Am. Rep. 239 ; Hunt v. Standart,
15 Ind, 33, 77 Am. Dec. 79 ; Briggs v. Latham, 36 Kan. 255, 59 Am. Rep.
546, 547 ; Crawford v. Bank, 6 Ala. 12, 41 Am. Dec. 33 ; Kuenzi v. Elvers,
14 La. Ann. 391, 74 Am. Dec. 434 ; Hicks v. Brown, 12 Johns. (N. Y.) 142.
^ Hibemia Nat. Bank v. Lacombe, 84 N. Y. 367 ; Everett v. Vendryes, 19
N. Y. 436 ; Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 27 Am. Dec. 137;
CoflFman v. Bank, 41 Miss. 212, 90 Am. Dec. 371 ; Abt v. Bank, 159 111. 467,
42 N". E. 856 ; National Bank of America v. Indiana Banking Co., 114 111.
483, 2 N. E. 401. See Wooley v. Lyon, 117 111. 244, 57 Am. Rep, 867 ;
Hirschfield v. Smith, L. R. 1 C, P, 340 ; Rouquette v. Overmann, L. R. 10
Q. B. 525.
398 SITUS OP INSURANCE CONTRACTS. § 16ft
draws the original contract, and may make it payable where he
chooses. Hence, much more in the case of the drawer than in
that of the indorser ought the locus solutionis of his contract
to be the place where the bill is payable or upon which it is
drawn."
§ 166. Sitns of InBureince Contracts. — If a place is desig-
nated for the payment of the money due upon a policy of insur-
ance (as at the principal office of the company, etc.), there will
be no difficulty in fixing upon that place as the locus solutionis
of the insurance contract. Frequently, however, contracts of
insurance are general in character, designating no particular
place for the payment of the policy. The locus solutionis will
then be generally presumed to be identical with the locus
celebrationis.*
But it is by no means always easy to ascertain the locus cele-
brationis of an insurance contract. The general principle is
still the same, namely, that the place where the last act is done
that is necessary to make the contract complete and binding is
the locus celebrationis.^
Thus if the agreement is that the policy becomes binding
upon the insurance company as soon as it is issued, or upon its
approval of the application of the insured, the place where such
issuance or approval occurs is the locus celebrationis of the
contract.'
16 See Aymar v. Sheldon, 12 Wend. (N, Y.) 439, 27 Am. Dec. 137 ; Everett
V. Veiidryes, 19 N. Y. 436 ; Powers v. Lynch, 3 Mass. 77.
1 Seamans v. Knapp Co., 89 Wis. 171, 27 L. R. A. 362. This is the better
view, though tne authorities are divided. Some have held, in the case of fire
insurance upon buildings, that the situs of the land is the locus solutionis of
the insurance policy. See Gibson v. Ins. Co., 77 Fed. 561, 564. Others have
held, in case of fire policies upon personal property, and life policies, that the
domicil of the owner or beneficiary is the locus solutionis of the contract. See
Knights Templars Ass'n v. Greene, 79 Fed. 461 ; Fletcher v. Ins. Co., 13 Fed.
526 ; Wood v. Ins. Co., 8 Wash. 427, 36 Pac. 267.
« See Ford v. Ins. Co., 6 Bush (Ky.), 133, 99 Am. Dec. 663.
» Equitable, etc. Soc. v. Trimble, 27 C. C. A. 404, 83 Fed. 85 ; Equitable,
etc. Soc. V. Nixon, 26 C. C. A. 620, 81 Fed. 796 ; Voorheis v. Society, 91 Mich.
469, 51 N. W. 1109 ; Seamans v. Knapp Co., 89 Wis. 171, 27 L. R. A. 362 ;
State, etc. Ins. Co. v. Brinkley Co., 61 Ark. 1, 29 L. R. A. 712; Hyde v.
Goodnow, 3 N. Y. 266, 270.
§ 166 SITUS OP INSURANCE CONTRACTS. 399
If the actual or constructive delivery of the policy to the in-
lured is necessary in order to make the contract binding upon
the insurance company, the place where such delivery takes
place will be the locus celebrationis of the contract.* A dis-
tinction may perhaps be taken here between the case where the
insurance company sends its policy directly to the applicant by
mail, in which case the delivery will occur where the policy is
mailed, and the case where the company mails the policy to a
third person in the State of the applicant, to be by him deliv-
ered to the insured, in which case the delivery takes place and
the insurance contract is entered into in the latter State.'
Again, the payment of the first premium is often, by the terms
of the agreement, made the event upon which the policy is to
become binding. In such case, the place where the premium is
paid is the locus celebrationis of the insurance contract.' And
upon the same principle, if it is provided that the policy is not
to be binding until countersigned by an agent, or until some
other act is done, the State where such final act is performed is
the locus celebrationis of the contract.^
The contract by which the beneficiary of an insurance policy
assigns his interest to a third person is of course entirely dis-
tinct from the contract of insurance itself. The assignment is
an executed contract, and the law of the place where the assign-
ment is made and completed (lex loci contractus) is the proper
* Equitable, etc. Society v. Clements, 140 U. S. 226 ; Hicks v. Ins. Co.,
9 C. C. A. 215, 60 Fed. 690 ; Knights Templar Co. v. Berry, 1 C. C. A. 561,
60 Fed. 511 ; Wood v. Ins. Co., 8 Wash. 427, 36 Pac. 267 ; In re Breitung,
78 Wis. 33, 46 N. W. 891 ; Perry v. Ins. Co., 67 N. H. 291, 33 Atl. 731.
5 See Equitable, etc. Society v. Clements, 140 U. S. 226; State Ins. Co. v,
Brinkley Co., 61 Ark. 1, 29 L. R. A. 712. If the insured is notified by letter
or otherwise that his application has been accepted, the contract is thereby
completed, and the place of the deliveiy of the policy is immateriaL See
Perry v. Ins. Co., 67 N. H. 291, 33 Atl. 731.
8 Equitable, etc. Society v. Clements, 140 U. S. 226 ; Hicks v. Ins. Co., 9 C.
C. A. 215, 60 Fed. 690; Mut. Ben.L. Ins. Co. v. Robison, 54 Fed. 580, 583 ;
Harden v. Ins. Co., 85 la. 584, 52 N. W. 509 ; Ford v. Ins. Co., 6 Bush
(Ky.), 133, 99 Am. Dec. 663.
' Heebner v. Ins. Co., 10 Gray (Mass.), 131 ; In re Breitung, 78 Wis.
33, 46 N. W. 891 ; Gibson v. Ins. Co., 77 Fed. 561, 563. See State Ins. Co.
V. Brinkley Co., 61 Ark. 1, 29 L. R. A. 712.
400 SITUS OF INSURANCE CONTRACTS. § 166
law to regulate it. Thus, in Miller v. Campbell,' it was held
that a married woman, who was the beneficiary of a Massachu-
setts policy of insurance, could not assign her interest therein in
New York, though the law of Massachusetts permitted it.
In a Wisconsin case,' the question was whether a person who
had procured a policy of insurance on his own life for the benefit
of another and had paid the premiums thereon, might dispose of
the insurance by will or otherwise to the exclusion of the bene-
ficiary designated in the policj'^. By the law of Wisconsin he
could do so, and that law was held to govern the assignment
(which was made there), though the insurer was a Massachu-
setts corporation, and by Massachusetts law such an assignment
could not be made.^°
8 140 N. Y. 457, 35 N. E. 65.
9 In re Breitung, 78 "Wis. 33, 46 N. W. 891.
^^ In this case the court held that the contract of insurance also was made
in Wisconsin, and seems to have based its decision largely on that fact. The
capacity of the insured to make the assignment in question may probably be
regarded as a part of the obligation of the contract of insurance, and as such
(in this peculiar instance) to be governed by the lex celebrationis of the con-
tract ; though in general the lex solutionis of the contract governs the obliga-
tion thereof, in the absence of evidence that the parties contracted with
reference to any other law. The report does not show where the policy was
payable (locus solutionis). The obligation (apart from the validity) of a con-
ti'act depends upon "the law in the minds of the parties." Post, § 181.
§ 167 VALIDITY OF CONTRACTS. 401
CHAPTER XVII.
VALIDITY OF CONTRACTS.
§ 167. Preliminary. — The validity of a contract is very dis-
tinct from its obligation, its interpretation, or its discharge.
The last three matters are reserved for future discussion. This
chapter will be devoted to an examination of the " proper law "
governing the validity of a contract.
It will be remembered that although sometimes the * ' proper
law " governing a contract in some of its aspects is " the law in
the minds of the parties, " irrespective of situs,^ a different rule
applies to questions of the validity of the contract. The design
or purpose of the parties to enter into a valid contract, standing
alone, can never suffice to validate a contract prohibited by the
law, nor to invalidate (except by mutual rescission) a contract
not legally prohibited. It is true that where the intent of the
parties is doubtful and susceptible of several interpretations, ac-
cording to one of which the contract would be legal and accord-
ing to the other illegal, that interpretation will be given to the
terms used which will give rise to a lawful, rather than to an un-
lawful, contract. But if there is no ambiguity, and it is clear
that the parties intend to enter into a contract which the law in-
validates, their innocence of design to violate the law is entirely
immaterial, except in the few cases where it is the guilty intent
alone which invalidates.*
The question therefore, where the validity of the contract is
under investigation, is not what law do the parties intend shall
govern a particular element, but what law shall actually govern
it. The answer is that the validity of the contract, in respect
1 That is, when the maxim, " modus et conventto legem vincwnt," is appli-
cable to the question. Ante, § 154. See Pope r. Nickerson, 3 Story, 465,
484.
' Ante, § 154 ; Pope v. Nickerson, 3 Story, 465, 484.
26
402 CONTRACT VOID IN THE MAKING. § 168
to each of its elements, is to be controlled by the law of the
situs of that element ; by the lex loci celebrationis, if the ele-
ment in question relates to the making of the contract ; by the
lex loci solutionis, if it relates to the performance of it ; and by
the lex loci considerationis, if it is the consideration of the con-
tract whose sufficiency or legality is disputed.
For the purposes of this discussion, an executory contract may
be defined as <* a mutual agreement, not prohibited by law to be
entered into, between two or more legally competent persons,
made in due legal form, touching a lawful subject-matter, for a
legal consideration."
A careful examination of this definition will show that a
contract in its very nature must come into contact with legal
restrictions at no less than five points. (1) The contract must
not be one the entrance into which the law prohibits ; (2) The
parties must be legally competent to contract (which is really
part of the first proposition) ; (3) The contract must be in the
form, if any, required by law (another branch of the first
proposition) ; (4) The thing agreed to be done under the con-
tract must be one not prohibited by law ; (5) The consideration
supporting the contract must not be one which the law regards
as insufficient or illegal.
The first three of these heads relate to the entering into the
contract, or the making of it; the fourth relates to the perform,-
ance oi the contract; and the fifth, to the consideration. All
these elements are included in the definition of a contract,
and if any one of them fails to measure up to the standard re-
quired by the law, the contract must fall ; it is invalid.
At all these points the contract comes into contact with
''law," and must conform itself to it. But the question re-
mains, what law ? Is it the same law for all these elements, or
may each have a separate law to govern its validity ? To this
inquiry we will now address ourselves.
§ 168. Contracts Prohibited to be entered into — In Gen-
eral — Lex Ijoci Celebrationis. — If the alleged invalidity of a
contract turns upon the question whether the law prohibits the
contract to be entered into, it is manifest that the situs of this
element of the contract is the situs of the making (locus celebra-
§ 168 CONTRACT VOID IN THE MAKING. 403
tionis). The act in this case condemned by the law is the makf
ing of the contract. With this act no State has usually any
concern save the State where the act is done, that is, the State
where the contract is made. Comity and justice unite in de-
manding that the lex loci celebrationis shall determine the
effect to be given to the act of entering into the contract,
and neither the lex solutionis nor the lex fori should be per-
mitted to supplant it.
Excellent illustrations of this principle may be found in the
case of Sunday contracts. The laws of some States avoid con-
tracts made on Sunday, while other States permit them. It is
well settled that the lex loci celebrationis will determine the
validity of the contract in this respect.^
Thus in McKee v. Jones,' suit was brought in Mississippi
upon a contract made in Louisiana upon Sunday. The defence
was that contracts made on Sunday were void under the law of
Mississippi. But the court sustained the contract, holding that
its validity in this respect must be controlled by the law of
Louisiana.
So in Brown v. Browning,' a Connecticut statute prohibited
secular business on Sunday between sunrise and sunset. A
similar Rhode Island statute prohibited business in one's ordi-
nary calling during the whole of Sunday. It was held by the
Rhode Island court that a contract made in Connecticut after
sunset, in the course of the plaintiff's ordinary calling, might
be sued upon in Rhode Island, it not being contra honos mores,
nor invalid where made.
These conclusions are eminently reasonable. The laws of
Mississippi and of Rhode Island were aimed against acts done
in those States, not against acts done elsewhere. The laws of
those States therefore were not violated by these contracts en-
tered into in other States. As the court, in Brown v. Browning,
expressed it: " The contract was valid in Connecticut, where it
1 McKee ». Jones, 67 Miss. 405, 7 So. 348 ; Brown v. Browning, 15 R. I.
422, 7 Atl, 403 ; Swanu v. Swann, 21 Fed. 299 ; Murphy v. Collins, 121
Mass. 6 ; Arbuckle v. Reauine, 96 Mich. 243, 55 N. W. 808.
« 67 Miss. 405, 7 So. 348.
8 15 R. I. 422, 7 Atl. 403.
404 CONTRACT VOID IN THE MAKING. § 168
was made, because it was not in violation of the law of that State.
The making of the contract did not violate the law of this State,
because it was not done in this State." *
On the other hand, in Arbuckle v. Reaume,^ suit was brought
in Michigan on a note executed and delivered in Michigan on
Sunday, but payable in Ohio. The court declared the note void,
holding that the law of Michigan (lex celebrationis) should
apply, and not the law of Ohio (lex solutionis). In the course
of its opinion the court said : ' ' The court below was in error
in holding that the note could be enforced here by reason of its
being made payable in Ohio. Parties cannot be allowed to defy
our laws and recover upon a contract void from its inception
under our statute by making the place of payment outside the
State." «
Another application of the same principles may be seen in
connection with champertous contracts. Champerty consists
in prosecuting a suit upon shares, and is prohibited in some
States, while permitted in others. It is the policy of the State
where the champertous suit is to be brought that will usually
determine the effect of such contracts. Hence the general rule
is that the validity of an agreement entered into in one State
to conduct a suit upon shares in another State is to be governed
by the lex solutionis of the agreement, that is, by the law of the
place where the champertous suit is to be brought.' Yet, in
Blackwell v. Webster,^ notwithstanding this general rule, it was
properly held that the lex celebrationis, not the lex solutionis,
* The fact that the lex loci solutionis of the contract would have avoided
it, if it had been made there, should not affect in the slightest the operation
of the lex loci celebrationis. Arbuckle v. Reaume, 96 Mich. 243, 55 N. W.
808. But see Murphy v. Collins, 121 Mass. 6.
6 96 Mich. 243, 55 N. W. 808.
• But, as we shall presently see, if the contract is to be performed on Sun-
day, the ground of its alleged invalidity is the performance on Sunday. The
invalidity in such case, if any, will relate not to the mxiMng of the contract,
but to its performaiux, and will be governed by the law of the situs of the
performance (lex loci solutionis). W. U. Tel. Co. v. Way, 83 Ala. 642, 4 Sa
844. See Stebbins v. Leowolf, 3 Cush. (Mass.) 137. Post, § 176.
' Post, § 175. See Hickox v. Elliott, 27 Fed. 830.
« 29 Fed. 614.
§ 169 EXEMPTIONS IN BILLS OP LADING. 40'
should govern under the circumstances following: An agree*
ment was entered into in Maine to prosecute a suit upon shares
in New York. Such an agreement was legal in New York (locus
solutionis), but a Maine statute provided that "any person
agreeing to prosecute or defend a suit at law or in equity upon
shares " should be criminally punished. It was held by a fed-
eral court sitting in New York, upon a suit brought to enforce
the champertous agreement, that since the law of Maine ex-
pressly forbade the making of such a contract, the law of Maine
(lex celebrationis) should prevail over the law of New York
(lex solutionis). The court said: " The validity of the agree-
ment is to be determined by the law of Maine, and it is void;
for the plaintiff, when he entered into the agreement, did an act
■made criminal by the law of Maine. The statute of Maine for-
bade the doing in Maine precisely what the plaintiff did. The
agreement was void at its inception, because the making of it
was made criminal by the Maine statute. . . . But the plaintiff
contends that this contract was lawful because the place of per-
formance was in New York. But it seems to me plain that
since the act of making the agreement could not be lawfully
done in Maine, the circumstance that other acts were intended
to be done in New York cannot render lawful the act that was
done in Maine."
So, though the validity of contracts made in one State to
purchase lottery tickets in another would ordinarily be governed
by the law of the latter State, since the alleged invalidity re-
lates to the performance of the contract (to be controlled by the
lex solutionis),' yet if the lex loci celebrationis expressly for-
bids contracts to be made there for the purchase of lottery tickets
elsewhere, the lex celebrationis will govern. ^'^
§ 169. Same — Ezemptions in Bills of Lading. — It is now
well established that the validity of contracts, often found in
bills of lading, exempting carriers from liability for damage
resulting from the carrier's negligence or otherwise, is to be
governed by the law of the place where the contract of carriage
• Hatch V. Hanson, 46 Mo. App. 323.
10 Goodrich V. Houghton, 134 N. Y. 115, 31 N. E. 51«.
406 EXEMPTIONS IN BILLS OF LADING. § 16iJ
is entered into (lex celebrationis). In some States, such stipu-
lations are valid, in others they are invalid. If the contract is
valid where made, it will in general be sustained even in States
where such exemptions are looked upon as contrary to public
policy and void.^ And, on the other hand, if the contract is
invalid where entered into, it will be invalid everywhere.*
It is immaterial whether this result is due to the fact that the
question of the validity of the exemption relates to the making
of the contract of carriage, and is for that reason to be controlled
by the lex celebrationis of that contract ; or whether it is due
to the fact that the contract of exemption, though entered into
at the same time as the contract of carriage, is itself a distinct
collateral contract executed, performed as soon as made, the
locus solutionis of which is necessarily identical with the locus
celebrationis. It is believed that the latter is the true explana-
tion. The fact remains that the lex celebrationis of the con-
tract of carriage governs.
This rule applies not only to exemptions from liability for
the negligence of the carrier, but also to exemptions from his
common law liability as insurer also. Thus, the question
whether a carrier may exempt himself by public notice from
1 O'Regan v. Cunard S. S. Co., 160 Mass. 356, 35 N. E. 1070 ; Fonseca v.
Cunard S, S, Co., 153 Mass. 553, 27 N. E. 665; Forepaugh v. R. R. Co., 128
Penn. St. 217, 18 Atl. 503 ; Hazel v. R. R. Co., 82 la. 477, 48 N. W. 926 ;
Talbott V. Transportation Co., 41 la, 247, 20 Am. Rep. 589 ; Meuer v. R. R.
Co., 5 So. Dak. 568, 59 N. W. 945 ; Western, etc. R. R. Co. v. Cotton Mills,
81 Ga. 522, 7 S. E. 916 ; Knowlton v. R. R. Co., 19 Ohio St. 260, 2 Am. Rep.
395 ; Boetjer v. La Compagnie, 59 Fed. 789. But see The Oranmore, 24 Fed.
922 ; The Guildhall, 58 Fed. 796 ; The Glenmavis, 69 Fed. 472; Burnett v.
R. R. Co., 176 Penn. St. 45, 34 Atl. 972. In Knowlton v. R. R. Co., mpra,
the passenger injured was travelling upon a free pass issued in New York,
containing stipulations exempting the carrier from liability for negligence.
The court sustained the exemption as valid, though invalid in Ohio, because
valid by the law of New York.
2 Liverpool Steam Co. v. Ins. Co., 129 U. S. 397; The Majestic, 9 C. C. A.
161, 60 Fed. 624; Botany Worsted Mills v. Knott, 76 Fed. 582; The Hugo,
57 Fed. 403 ; The Energia, 56 Fed. 124; Lewisohn v. National, etc. Co., 56
Fed. 602 ; The Iowa, 50 Fed. 561 ; The Brantford City, 29 Fed. 373 ; Brock-
way V. Express Co., 168 Mass. 357, 47 N. K 87; Davis v. R. R. Co., 93 WLi.
470, 67 N. W. 16.
§ 170 EXEMPTIONS IN INSURANCE CONTRACTS. 407
his liability as insurer is governed by the lex celebrationis oi
his contract of carriage.' And his right to limit his common
law liability by special contract is determined by the same
law.*
So also the lex celebrationis of the contract of a telegraph
company governs the validity of exemptions contained therein
from liability for mistakes made in the transmission of mes-
sages.*
The question has also been raised whether the same rule does
not apply to the exemptions of an employer from liability to
his employee for injuries inflicted by the negligence of fellow-
servants; it being said in such case that the employer's liability
for such wrongs or his exemption therefrom is a part of the
original contract of service.' But it is believed that such lia-
bility should be treated, not as contractual, but tortious, and
that the question of the extent of the liability is to be deter-
mined in accordance with the lex loci delicti.''
§ 170. Same — Insurance Contracts. — Instances of the ap-
plication of the lex celebrationis frequently arise also in regard
to the validity of provisions contained in insurance policies.^
Thus, it is a general rule that if, by the lex celebrationis, the
making of an insurance contract by foreign insurance companies
is prohibited in that State, unless they have complied with cer-
tain conditions imposed by that law, the policy, being void
where made, is to be deemed void everywhere, even though it
be made payable elsewhere, or though it be expressly stipulated
» Hale V. Nav. Co., 15 Conn. 539, 39 Am. Dec. 398; The Majestic,
9 C. C. A. 161, 60 Fed. 624.
* Western, etc. R. R. Co. v. Cotton Mills, 81 Ga. 522, 7 S. E. 916 ; Tal-
bott V. Transportation Co., 41 la. 247, 20 Am. Rep. 589.
6 Reed v. Tel. Co., 135 Mo. 661, 34 L. R. A. 492.
• Alexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N. E. 69, 71.
"> See Alabama, etc. R. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 807.
See post, § 197.
^ Indeed the law of the place where the contract of insurance is entered
into is usually the law which governs most questions of its validity, since the
performance of an insurance contract (that is, the payment of the money due
thereon) will never be illegal. The lex solutionis of the contract of insurance
may control the obligation and construction of the policy, but not its validity
408 EXEMPTIONS IN INSURANCE CONTRACTS. § 170
that it shall be regarded as a contract of another State.* On the
other hand, if the contract of insurance is valid where it is en-
tered into, the fact that it insures persons or property in another
State, by whose law the company could not have written the in-
surance there, is immaterial. The lex celebrationis controls.*
So the validity of particular provisions in an insurance policy
exempting the insurer from liability in certain contingencies
must in general be determined by the lex celebrationis of the
contract. Like similar clauses of exemptions in bills of lading,
they constitute independent collateral contracts executed, and
are to be regarded as having their situs at the locus celebra-
tionis of the principal contract, regardless of its locus solutionis.
Where the law of a State invalidates such exemptions, its policy
is to override the intention, and even the express agreement of
the parties. Hence the purpose of the parties, though explicitly
expressed, to submit themselves to a different law is of no avail,
if in fact the contract is made in the first State. It is not a
question of the purpose of the parties ; the applicatory law ad-
mits that purpose and explicitly overrules it.*
Thus, a stipulation that the suicide of the insurer shall dis-
charge the contract, even though the suicide be not contem-
plated at the time of the insurance, has been held to be void in
one State, if invalidated by the law of another where the in-
surance contract was made.^ And so the validity of a stipu-
lation that the non-payment of premiums shall avoid the policy
is to be determined likewise by the lex celebrationis of the in-
surance contract.®
a Reliance Ins. Co. v. Sawyer, 160 Mass. 413, 36 N. E. 59 ; Wood v. Ins.
Co., 8 Wash. 427, 36 Pac. 267; Ford v. Ins. Co., 6 Bush (Ky.), 133, 99 Am.
Dec. 663. For the rules by which to determine the locus celebrationis of an
insurance contract, see ante, § 166.
8 Seamans v. Knapp Co., 89 Wis. 171, 27 L. R. A. 362 ; State Ins. Co. v.
Brinkley Co., 61 Ark. 1, 29 L. R. A. 712 ; Hyde v. Goodnow, 3 N. Y. 266 ;
Western v. Ins. Co., 12 N. Y. 258; Huntley v. Merrill, 32 Barb. (N. Y.) 626.
* The law of the situs, not the law "in the minds of the parties," is the
" proper law " governing matters of validity. See ante, § 154.
8 Knights Templar Indemnity Co. v. Berry, 1 C. C. A. 561, 50 Fed. 511 ;
National Union v. Marlow, 21 C. C. A. 89, 74 Fed. 775.
« Hicks V. Ins. Co., 9 C. C. A. 215, 60 Fed. 690 ; Equitable, etc. Soc
§ 171 CAPACITY TO CONTRACT. 409
Another question likely to arise in this connection relates to
the proper law governing the effect of unintentional or innocent
misrepresentations in the policy touching material matters. If
the law does not prohibit the parties from stipulating in their
contract as to the ei^ect of such misrepresentations, they may
either make express stipulations in the policy as to the effect
upon it of such misrepresentations, or they may refer to a law
of their own choosing to determine the question.'
But if express stipulations would be of no avail against the
prohibitions of the law of the situs, neither may the parties
select a law, other than the law of the situs, to govern such ques-
tions ; for this would be to permit the parties to do indirectly
what the law refuses to allow them to do directly. If they
desire a different law to govern the transaction, they must take
refuge in a new jurisdiction and submit themselves to another
sovereignty.®
Upon the same principles, the question whether the party
paying the premiums has an insurable interest in the life of the
insured, relating as it does to the party's capacity to make the
contract, is an element in the making of the contract, to be
governed by the lex celebrationis.'
§ 171. Capacity to Contract — Lez Loci Celebrationis. — .
The capacity to enter into a contract, and the "proper law'*
applicable to it, has already been fully discussed in connection
with the subject of status.^ We there saw that though the gen-
eral rule is that the lex domicilii governs matters of status,
V. Nixon, 26 C. C. A. 620, 81 Fed. 796 ; Equitable, etc. Soc. v. Trimble, 27
C. C. A. 404, 83 Fed. 85 ; Wall v. Equitable, etc. Society, 32 Fed. 273. «But
see Phinney v. Ins. Co., 67 Fed. 493, where the court accepted as the guide
"the law the parties had in view."
^ Wherever the maxim " modus et conventio legem vincunt " applies, the
parties may select their own law. In such cases, "the law in the minds of
the parties " is the proper law. Ante, § 154.
8 See Perry v. Ins. Co., 67 N. H. 291, 33 Atl. 731 ; Penn Mat. L. Ins. Co,
r. Trust Co., 19 C. C. A. 286, 72 Fed. 413 ; Fletcher v. Ins. Co., 13 Fed. 526.
» Hurst «. Mut.L. Ass'n., 78 Md. 59, 20 L. R.A. 761, 26 Atl. 956 ; Voor-
heis I'. Society, 91 Mich. 469, 51 N. W. 1109; Ruse v. Ins. Co., 23 N. Y.
516. This really comes more properly under the head of the capacity to con-
tract.
1 Ante, §§ 72 et seq.
410 FORMAL VALIDITY OF CONTRACTS. § 172
including personal capacities of various kinds, yet this is not
true where the capacity in question is the power to enter into a
voluntary transaction, as in the case of contracts, except only
when the contract is sought to be enforced in the domicil of the
promisor, and the policy of that domicil is very pronounced in
favor of the protection of the promisor resident therein.
Except in this case, the lex loci contractus governs the
capacity of parties to contract, but if the contract is executory
the " lex loci contractus " furnishes no guide ; it must be fur-
ther analyzed, and a conclusion reached whether the " proper
law " is the lex celebrationis or the lex solutionis.
It is apparent that this question relates to the making of the
contract. The only law that can operate to create a contract is
the law of the place where the contract is entered into (lex
celebrationis). If the parties enter into an agreement in a par-
ticular State, the law of that State alone can determine whether
a contract has been made. If by the law of that State no con-
tract has been made, there is no contract. Hence, if by the lex
celebrationis the parties are incapable of making a binding con-
tract, there is no contract upon which the law of any other State
can operate. It is void ah initio.
This has been happily expressed in a decision of a federal
court in the following language : " Upon principle no reason
can be alleged why a contract, void for want of capacity of the
party at the place where it is made, should be held good because
it provides that it shall be performed elsewhere, and nothing
can be found in any adjudicated case or text-book to support
such a conclusion. It is a solecism to speak of that transaction
as a contract, which cannot be a contract because of the ina-
bility of the parties to make it such." '
§ 172. Formal Validity of Contracts — Lex Celebrationis —
Marriages — Stamps. — By the formal validity of a contract is
meant the necessary compliance with the forms and ceremonies
prescribed by law upon entering into certain contracts. It is
evident that if the forms and ceremonies thus prescribed by the
law of a State are essential to the validity of the contract, if
entered into in that State, there can never have been any con-
* Campbell v. Crampton, 2 Fed. 417. 423.
I 1T5J FORMAL VALIDITY OP CONTRACTS. 4H
tract if those forms are wanting. Such matters relate to the
making of the contract, and are therefore to be governed by
the law of the situs of the making (the lex celebrationis). On
the other hand, if the contract is entered into with all the forms
required by the lex celebrationis, it is equally obvious that the
omission of some of the forms demanded by the law of the place
of performance of the contract is immaterial. The law of the
latter place manifestly only applies to contracts made there ; to
hold otherwise would be to suppose its legislature intent upon
usurping the authority of other States over acts done within
their limits. It is therefore well settled that the formal va-
lidity of a contract is to be governed by the lex loci celebrationis.*
The intention or design of the parties to contract under a dif-
ferent law, or the fact that the parties " had in mind " a differ-
ent law, is immaterial. As said by Judge Story: *'The law
of the place of the contract acts upon it, independently of any
volition of the parties, in virtue of the general sovereignty
possessed by every nation to regulate all persons and property
and transactions within its own territory." ^
Ordinarily, the law does not require that contracts should be
entered into with any special solemnities. But there are some
contracts which, for one reason or another, are in many States
required to be executed with certain formalities, and to these
the principle above mentioned is applicable.
Such, for example, is the contract of marriage. It is now
firmly settled, as we have already seen, that the forms and
1 Dicey, Confl. L. 549 ; Story, Confl. L. §§ 260, 301 a ; Whart. Confl. L.
§§ 401, 418 ; Pritchard v. Norton, 106 U. S. 124, 130, 134 ; Scudder v. Bank,
91 TJ. S. 406, 411, 412-413; Park v. Mfg. Co., 1 C. C. A. 395, 49 Fed. 618,
627 ; Bowles i>. Field, 78 Fed. 742, 743; Phinney v. Ins. Co., 67 Fed. 493,
495 ; Garrettson v. Bank, 47 Fed. 867 ; Matthews v. Murchison, 17 Fed. 760,
768 ; Campbell v. Crampton, 2 Fed. 417, 420 ; Pope v. Nickerson, 3 Story,
465, 484; Burnett v. R. R. Co., 176 Penn. St. 45, 34 Atl. 972; Thomson-
Houston Electric Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137, 1138 ; Kinney
T>. Com., 30 Gratt. (Va.) 858 ; Taylor v. Sharp, 108 N. C. 377, 13 S, E. 138,
139 ; Satterthwaite v. Doughty, Busbee's L. (N. C.) 314, 59 Am. Dec. 554;
Wilder's Succession, 22 La. Ann. 219, 2 Am. Rep. 721, 724 ; Vldal v. Thomp
Bon, 11 Mart. (La.) 23 ; Carnegie r. Morrison, 2 Met. (Mass.) 381, 401.
« Story, Confl. L. § 261.
412 FORMAL VALIDITY OF CONTRACTS. § 172
ceremonies essential to the validity of the marriage ceremony
are to be regulated by the lex celebrationis, the law of the
place where the marriage is solemnized, not that of the domicil,
or intended domicil, of the parties.'
Another instance, wherein the validity of a contract may de-
pend upon a matter of form, arises under stamp laws. Some-
times, for the purpose of raising revenue, laws are passed
requiring contracts of various kinds to be stamped. Such laws
differ in their provisions, some avoiding the contract altogether
if written upon unstamped paper; others merely declaring that
the writing, under such circumstances, is not to be received in
evidence.
If the lex celebrationis renders absolutely void a contract
written on unstamped paper, the stamping becomes one of the
necessary formalities of the contract, the omission of which will
avoid the contract everywhere, even though by the lex solutionis
or lex fori the contract is valid. The alleged invalidity relates
to the making of the contract. If void for the lack of a stamp
by the lex celebrationis, it is void in its incipiency, and cannot
be made good by the subsequent application of the lex solutionis
or any other law. And so, if valid where made, the require-
ment of any other law that there should be a stamp will not
affect its validity : the contract is valid everywhere.*
But if the lex celebrationis merely prohibits a contract on
unstamped paper to be received in evidence, or provides that no
action shall be brought thereon, the law does not go to the valid-
ity of the contract at all, but only to the remedy^ and the law
of the situs of the remedy (lex fori) will govern.*
8 Ante, § 77.
* Story, Confl. L. §§ 260, 318 ; Fant v. Miller, 17 Gratt. (Va.) 47 ; Car-
negie 17. Morrison, 2 Met. (Mass.) 381, 401; Satterthwaite v. Doughty, Busbee's
L. (N. C.) 314, 59 Am. Dec. 554; Vidal i>. Thompson, 11 Mart. (La.) 23-
25 ; Campbell v. Crampton, 2 Fed. 417, 420. But in New York it has been
held that unstamped contracts made abroad, though void by the lex celebra-
tionis, will not be deemed void in New York, upon the ground that foreign
revenue laws will not be enforced. See Ludlow v. Van Rensselaer, 1 Johns.
94 ; Skinner v. Tinker, 34 Barb. 333.
6 Story, Confl. L. § 260; Fant v. Miller, 17 Gratt. (Va.) 47. See post,
§ 1 73. But if the above mentioned provisions should be found in the lex fori,
§ 173 STATUTE OP FRAUDS. 413
§ 173. Same — Contxacts in Writing — Statute of Frauds.
— There are many contracts which, by the statutes of Frauds of
the various States, or by similar statutes, are required to be in
writing. The terms of these statutes are not the same in all
the States, nor do they always apply to the same classes of con-
tracts. In the main, the English statute of Frauds forms the
basis of all of them, but there is considerable divergence in de-
tails. Certain classes of contracts embraced by the English
statute of Frauds are omitted in some of these statutes, while
other classes of contracts have been sometimes added. Some of
these provisions declare that the contracts mentioned therein
shall be void unless reduced to writing, while others affirm that
no action shall be brought on such contracts unless they are in
writing. Owing to the frequency with which these statutes are
applied and the diversity of their provisions, conflicts often
arise.
The principles governing these cases are the same as those
already considered. If it is alleged that the contract is void,
because not in writing, it is a question of the formal validity of
the contract, to be determined by the lex loci celebrationis.^
Thus, in Hunt v. Jones,* an oral contract for the sale of
goods was made in Rhode Island, but the contract was to be
performed in New York by the delivery of the goods there.
The New York statute of Frauds provided that ''every contract
for the sale of any goods . . . for the price of $50 or more shall
be void, unless a note or memorandum of such contract be in
not in the "proper law," it is probable that the question becomes one of the
obligation of the contract to be governed in general by the " proper law " of
the contract, instead of a matter of remedy to be controlled by the lex fori.
See post, § 210.
^ Story, Confl. L. § 262 ; "Wolf u. Burke, 18 Colo. 264, 32 Pac. 427 ; Hunt
D.Jones, 12 R. 1. 265, 34 Am. Rep. 635 ; Perry v. Mount Hope Iron Co., 15
R. I. 380, 5 Atl. 632 ; Miller t>. Wilson, 146 111. 523, 34 N. E. 1111 ; Wilson
V. Mills Co., 150 N. Y. 314, 44 N. E. 959 ; Scudder v. Bank, 91 U. S. 406 ;
Hubbard v. Bank, 18 C. C. A. 525, 72 Fed. 234 ; Phinney v. Ins. Co., 67 Fed.
493, 497 ; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331 ; Hausman v.
Nye, 62 Ind. 485, 30 Am. Rep. 199 ; Keiwert v. Meyer, 62 Ind. 587, 30 Am
Rep. 206, 209 ; Sullivan v. Sullivan, 70 Mich. 583, 38 N. W. 472.
8 12 R. I. 265, 34 Am. Rep. 635.
414 STATUTE OF FRAUDS. § 173
writing," etc. The oral contract was valid in Rhode Island,
Upon suit brought in Rhode Island, the defendant requested the
court to charge that as the contract was to be performed in New
York, its validity and construction were to be judged by the
law of the place of performance, and that, the contract being
void in New York, the plaintiff could not recover. But it was
held that the law of Rhode Island (lex celebrationis) should
determine the validity of the contract.
In Scudder v. Bank,' a member of a Missouri firm had ver-
bally accepted in Illinois, on behalf of the firm, a draft drawn
upon the firm. A statute of Missouri provided that " no person
in this State shall be charged as an acceptor of a bill of ex-
change, unless his acceptance shall be in writing, signed by
himself or his lawful agent." The verbal acceptance made in
Illinois, though to be performed in Missouri, was sustained.
On the other hand, if the question is not one of the validity
of the contract, but only whether or not, under the statute of
Frauds, an action may be brought upon a contract not in writing,
the requirement that it should be in writing becomes (it is said)
merely a matter pertaining to the remedy, to be in all cases
governed by the law of the situs of the remedy (lex fori).*
Thus, in Leroux v. Brown, ^ a verbal contract not to be per-
formed within a year was made in France, upon which an action
was brought in England. By the law of France the contract
was enforceable, but the English statute of Frauds provided that
no action should he brought upon a contract not to be performed
within one year, unless the contract were in writing, etc. The
court was unanimously of the opinion that the statute applied
to the remedy, and was intended to prohibit an action to be
brought in England upon such a verbal contract, no matter
where made. The action was accordingly dismissed.
» 91 U. S. 406.
« Leroux v. Brown, 14 Eng. L. & Eq. 247, 74 E. C. L. 800 ; Wolf v. Burke,
18 Colo. 264, 32 Pac. 427 ; Downer v. Chesebrough, 36 Conn. 39, 4 Am. Rep.
29 ; Hall v. Cordell, 142 U. S. 116. But see Baxter Bank v. Talbot, 154
Mass. 213, 28 N. E. 163 ; post, § 210, where this statement is qualified.
» 14 Eng. L. & Eq. 247 ; s. c. 74 E. C. L. 800. See Pritchard v. Norton,
106 IT. S. 124, 134. It may well be doubted if this decision is correct upon
principle. See post, § 210.
§ 174 CONTRACTS FOR SALE OF LAND. 4l5
In Downer v. Chesebrough, ' the case of Leroux v. Brown wa«
quoted with approval, and the court proceeded to say : "If this
decision is law, then the converse of the legal proposition must
be true. If the statute of Frauds had existed in France at the
time the contract was made, but not in England where the suit
was brought, the action would have been sustained, though it
could not have been by the law of France."
In Leroux v. Brown, supra, the court distinguished the fourth
section of the statute of Frauds (under which the case arose) from
the seventeenth section relating to the sale of goods. By the
terms of the latter section it was provided that '' no contract for
the sale of goods shall be allowed to be good," unless in writing,
etc. The court, in the course of its opinion, said that if the
French verbal contract had arisen under the seventeenth section
«f the statute, the action in England would have been sustained
for the reason that it related to the validity of the contract (which
in such case would be determined by French, not English, law),
but did not prohibit the English courts from entertaining juris-
diction of such contracts if not made in England and governed
by English law.
Tracing these principles to their legitimate conclusion, it
would follow that if the lex celebrationis of a verbal contract
should provide that *' no action should be brought" upon the
contract unless it were in writing, while the lex fori provides
that the same contract shall be "void " unless it be in writing,
the contract would be enforceable in the forum notwithstanding
both these laws ; for the formal validity of the contract would be
governed by the lex celebrationis of the contract, under which
the oral contract is not invalid, while the remedy would be gov-
erned by the lex fori. In the case supposed, the statute of the
forum relates to contracts made there, while the statute of the
locus celebrationis relates to actions brought there. Neither
statute therefore would apply to the above case."'
§ 174. Same — Contracts for the Sale of Land. — It has
been doubted by eminent authorities whether the same princi-
ples will apply in the case of contracts for the sale or lease of
e 36 Conn. 39, 4 Am. Rep. 29.
I See Wolf V. Burke, 18 Colo. 264, 32 Pac. 427.
416 CONTRACTS FOR SALE OF LAND. § 174
real estate, it being said that the lex situs of the land must con-
trol the formal validity of the contract, and not the lex celebra-
tionis. Hence where the lex situs of the land declares such
contracts void unless in writing, it is said that the lex situs
must govern, though the lex celebrationis or the lex fori does
not invalidate an oral contract of this sort ; and vice versa.^
So far as the title to the land in question is conveyed by the
contract, this is doubtless true, for the rule is general that every
link in the chain of title to .veal estate must be in accordance
with the lex situs.^
But though a verbal contract to convey land be void according
to the lex situs of the land, and is therefore incompetent to pass
the equitable title to the property, it does not follow that as a
mere personal contract it should also be treated as void, if valid
by the lex celebrationis.' Hence although, if it be attempted
to treat the contract as having passed a title to the land, its for-
mal validity must be determined by the lex situs of the land,
yet if a suit for specific performance of the contract be brought
in the locus celebrationis or in a third State, or (probably) in
the situs of the property,* the court having jurisdiction over the
promisor's person, there would seem to be no reason why it could
not, in pursuance of the executory contract validly entered into
under the lex celebrationis, decree a deed to be executed which
should conform to all the requirements of the lex situs. And if
the promisee, waiving his rights to the land itself, should treat
the contract as purely personal, suing at law for damages for its
1 Story, Confl. L. §§ 363, 364. See Dicey, Confl. L, 551 ; Cochran v.
Ward, 5 Ind. App. 89, 29 N. E. 795 ; Poison v. Stewart, 167 Mass. 211, 219,
45 N. E. 737 (dissenting opinion).
2 Ante, §§ 11, 12.
8 See Whart. Confl. L. § 276 a.
* No reason is perceived why the courts of the situs should not in such case
respect the lex celebrationis of the contract. The object of the suit is to ob-
tain a deed, the validity of which must ultimately depend upon the lex situs
of the land. The policy of the situs is thus made sure of enforcement. So
long as the promisee does not claim title to or exercise ownership over the
land by virtue of the executory contract of sale, it is a mere personal contract
like any other, to be governed, it would seem, by the same law. See Polsoo
V Stewart, 167 Mass. 211, 45 N. E. 737.
§ 174 CONTRACTS FOR SALE OF LAND. 417
breach, still less reason can be assigned for causing its formal
validity to depend upon the lex situs of the land, rather than
the lex celebrationis. In such case, the lex celebrationis should
govern, whether the action be instituted in the courts of the
situs, of the locus celebrationis, or of a third State.®
In Poison V. Stewart,* a covenant was made by a husband to
his wife, in North Carolina, where they were domiciled, to sur-
render all his rights in land owned by her in Massachusetts
The question in this case was not of the formal validity of the
covenant, but of the capacity of the parties to enter into such an
agreement. But the capacity to contract is in general governed
by the same law that governs the formal validity of the contract
(lex celebrationis).'' The covenant in this case was valid by the
law of North Carolina (lex celebrationis), but would have been
invalid if entered into in Massachusetts (the situs of the land).
A bill was filed in Massachusetts against the husband for the
specific enforcement of the covenant, and it was held that it could
be enforced. The court said : '' But it is said that the lex domi-
cilii (sic) of the parties could not authorize a contract between
them as to lands in Massachusetts. Obviously this is not true.
It is true that the laws of other States cannot render valid con-
veyances of property within our borders, which our laws say are
void, for the plain reason that we have exclusive power over the
res. But the same reason inverted establishes that the lex rei
sitae cannot control personal covenants, not purporting to be
conveyances, between persons outside the jurisdiction, although
6 See Story, Confl. L. %Z72d; Whart. Confl. L. § 276 a ; Carnegie o. Mor-
rison, 2 Met. (Mass.) 381, 397-398; Poison v. Stewart, 167 Mass. 211, 45
N. E. 737 ; Wolf v. Burke, 18 Colo. 264, 32 Pac. 427 ; Miller v. Wilson, 146
111. 523, 34 N. E. 1111. In both the last two cases the contract was made in
the situs of the land, and hence they are indecisive. But the reasoning, espe-
cially in the last case, seems to jwint to the lex celebrationis rather than the
lex situs as controlling the question. It should be noted however that even
though the lex celebrationis should declare a conti-act for the sale or lease of
land to be void unless in writing, it may perhaps be doubted whether such a
statute was intended to embrace land in other States, over which the legisla-
ture had no jurisdiction. See Gibson v. Ins. Co., 77 Fed. 561, 564.
6 167 Mass. 211, 45 N. E. 737.
7 Ante, §§ 171, 172.
27
418 CONTRACTS VOID IN THE PERFORMANCE. § 175
concerning a thing within it. Whatever the covenant, the laws
of North Carolina could subject the defendants' property to seiz-
ure on execution and his person to imprisonment for failure to
perform it. Therefore on principle the law of North Carolina
determines the validity of the contract."
The same diversity of opinion seems to exist when the statute
relating to the sale of lands provides that "?io action shall be
brought " on such contracts, unless in writing. Where a statute
uses this phrase, common sense would seem to dictate that the
legislature could not intend thereby to interdict actions brought
in other States, for it has no control whatever over the judicial
proceedings of other States. It could only have been intended
to apply to actions brought on the contract in the State enact-
ing the statute. It is manifest that the legislature must in-
tend to prescribe a rule of procedure for its own courts only.
Upon principle therefore it would seem clear that although
there is a statute of this sort in the situs of the land or in the
locus celebrationis of the contract, yet if there is no such statute
in the forum, an action may be maintained there upon the con-
tract, and this is true even though the lex fori declares such a
contract not in writing to be void; for the latter law would be
applicable only to contracts made in the forum.®
Thus, in Wolf v. Burke," suit was brought in Colorado upon
a verbal contract made in Idaho for the sale of certain mining
lands in the latter State. The Colorado statute of Frauds pro-
vided that every contract for the sale of land shall be void,
unless the contract or some note or memorandum thereof be in
writing, etc. The court, assuming the contract to be valid
in Idaho, held that an action might be maintained thereon
in Colorado.
§ 175. Performance of Contract Prohibited — Lez Loci
Solutionis. — A contract may be invalid because the act to be
done in performance thereof is prohibited by law. A makes a
8 See Wolf V. Burke, 18 Colo. 264, 32 Pac. 427. But see Cochran v.
Ward, 5 Ind. App. 89, 29 N. E. 795 ; MUler r. Wilson, 146 111. 523, 34 N. E.
1111. Where such a statute exists in the forum but not in the place of con*
tract, see post, § 210.
• 18 Colo. 264, 32 Pac. 427.
§ 175 CONTRACTS VOID IN THE PERFORMANCE. 419
contract with B in New York by which A promises to do an
act in Virginia. The act is prohibited by New York law, but
not by that of Virginia. A moment's analysis will show that
the Virginia law should govern, and that the contract should be
sustained. The legislature of New York, in prohibiting the
particular act to be done, must of course be presumed to con-
template only the doing of the act in New York: it can have
no concern with acts done in Virginia. On the other hand, if
we suppose the act agreed to be done is permitted by the law of
New York, but is prohibited by the law of Virginia, the same
conclusion must be reached. No matter in what State the va-
lidity of the contract is questioned, a decent comity will require
the courts of every State to refuse to enforce a contract, the
purpose and effect of which is the performance of an act in
another State which is prohibited by its laws.
Hence, as the situs of the making of a contract (locus celebra-
tionis) furnishes the "proper law" to govern all matters of
validity connected with the making of the contract, so the
situs of performance (locus solutionis) furnishes the law to
determine the validity of the contract in respect to matters
connected with its performance.^
Thus, just as the validity of a contract made on Sunday is to
be determined by the law of the place where it is made (lex
celebrationis *), so the validity of a contract made on a week day,
but to be performed on Sunday, is to be governed by the law
of the place where the contract is to be performed (lex solu-
tionis). For example, in W. U. Tel. Co. v. Way,' a message
containing an acceptance of an offer to purchase cotton was
delivered to the telegraph company in Alabama on Saturday for
1 Dickinson v. Edwards, 77 N. Y. 573, 581, 582, 33 Am. Rep. 671 ; W.
tr. Tel. Co. V. Way, 83 Ala. 542, 4 So. 844 ; Chambers v. Church, 14 R. I.
398, 51 Am. Rep. 410 ; Merchants' Bankw. Spalding, 9 N. Y. 53, 62; Green-
wood V. Curtis, 6 Mass. 358, 4 Am. Dec. 145, 148 ; Carnegie v. Morrison,
2 Met. (Mass.) 381, 397-398 ; Nickels v. Association, 93 Va. 380, 25 S. E. 8 ;
First National Bank v. Hall, 150 Penn. St. 466, 24 Atl. 665, 666 ; Hickoxr.
Elliott, 27 Fed. 830 ; Lehman v. Feld, 37 Fed. 852 ; Scudder v. Bank, 91
U. S. 406, 411. But see Pope v. Nickerson, 3 Story, 465, 484; Smith v.
Parsons, 55 Minn. 520, 57 N. W. 311.
« Ante, § 168. » 83 Ala. 542, 4 So. 844.
420 CONTRACTS VOID IN THE PERFORMANCE. § 176
transmission to Germany, the company agreeing to deliver it to
the addressee in Germany on Sunday. By the law of Alabama
Sunday contracts were void. The validity of this contract
being questioned in Alabama, it was held that the effect of the
act of performance (the delivery of the telegram in Germany on
Sunday) must be determined by German law.
In Chambers v. Church,* a contract was made to catch fish in
Virginia waters for the manufacture of manure and oil. This
act was prohibited by the Virginia statute. The Rhode Island
court refused to enforce the contract on the ground that it was
invalid by the lex solutionis.
So, the validity of a contract made in one State to prosecute
a suit in another upon shares (a champertous suit) will be
governed in general by the law of the place of performance;
that is, the law of the place where the suit is to be prosecuted.
If by the lex loci solutionis it is not illegal to prosecute a suit
upon shares there, the contract will usually be valid, though
the lex celebrationis prohibits it ; if it be illegal under the lex
solutionis, the contract will be invalid everywhere.®
Upon the same principle it would seem that the validity of a
contract entered into in one State not to engage in trade in
another specified State should be governed by the law of the
latter State (lex solutionis), for it is to be wholly performed
there. If the contract made in one State is not to engage in
trade in several specified States, it would seem that the promise,
as to its performance, should be regarded as severable, the validity
of the contract being determined by the law of each of the latter
States, according as an attempt is made in one or the other of
those States to enter into trade there, in violation of the
contract.®
* 14 R. I. 398, 51 Am. Rep. 410.
6 See Hickox v. Elliott, 27 Fed. 830 ; Richardson v. Rowland, 40 Conn.
566. But if the lex celebrationis prohibits the very making of such a con-
tract, that law will govern. See Blackwell v. Webster, 29 Fed. 614 ; ante,
§168.
* But if the contract restraining trade in several specified States (though
severable if sued upon) constitutes the consideration for the contract in suit,
it becomes inseverable, and if void by the law of either of its places of per*
formance, it is void in its entirety, and cannot support the contract in suiL
§ 176 CONTRACTS VOID IN THE CONSIDERATION. 421
If the contract in restraint of trade is general with respect to
locality, covering a territory embracing many different States,
but specifically mentioning none, it is quite certain that this
should be regarded as a contract to be performed generally, like
a promise to pay money naming no place of payment, and the
lex celebrationis should govern. Thus, in South African Brew-
eries V. King,' an injunction was sought against the violation
in Natal, South Africa, of a contract made in the Transvaal not
to engage in the brewing business in any part of South Africa
for five years. The injunction was refused on the ground that
the stipulation was void by the law of the Transvaal.
§ 176. Validity of Consideration — Lex Loci Considera-
tionis — Executory 'Consideration — The invalidity of a con-
tract may spring, not only from its unlawful making, or from
the illegality of the act to be performed in pursuance thereof,
but from the illegality or insufficienc}'^ of the consideration which
supports it. The legality or sufficiency of the consideration de-
pends upon the law of the situs of the consideration.^ Further-
more the consideration may be either executed or executory.'
If executory, it may be a promise to be performed where made,
or made in one place and to be performed in another, whose
validity will be determined by the lex celebrationis or the lex
solutionis of the consideration, in accordance with the principles
discussed in the preceding sections of this chapter. The locus
celebrationis of the consideration (the promisee's contract) will
usually coincide with the locus celebrationis of the promisor's
contract, but the locus solutionis of the promisee's contract
(the consideration) may be entirely distinct from the locus solu-
tionis of the promisor's contract. In such cases the validity of
the executory consideration (the promisee's contract) will de-
pend upon its lex celebrationis or its lex solutionis, according
as the invalidity alleged relates to the making of the promisee's
contract or to its performance.
In Ford v. Ins. Co.,^ suit was brought in Kentucky upon cer-
tain notes given by the defendants as premiums for insurance on
certain boats. The notes were made in Indiana in consideration
T 2 Ch. D. 173. 1 Ante, § 161.
2 Ante, § 162. « 6 Bush (Ky.), 1 33, 99 Am. Dec. 663.
422 CONTRACTS VOID IN THE CONSIDERATION. § 176
of a contract of insurance there entered into. The policy of in-
surance was one prohibited by Indiana law to be there made.
It was held that the validity of the notes depended upon
the validity of the contract of insurance ; and as that contract
was entered into in Indiana, where its making was prohibited,
it was invalid, and the notes were therefore also invalid.
So, in Blackwell v. Webster,* suit was brought in New York
upon a contract, the consideration for which was a promise made
in Maine to prosecute a suit for a legacy in New York upon
shares. The making of a charapertous contract was prohibited
by the Maine law, and though such contracts were not unlawful
in New York (the locus solutionis of the consideration) it was
held that the contract sued upon was void because of the illegal-
ity of the consideration therefor under the Maine law.
On the other hand, the lex solutionis of the executory con-
sideration will determine the validity of the promisor's contract,
whenever the performance of the promisee's contract (consider-
ation) is alleged to be illegal, without regard to the lex celebra-
tionis or lex solutionis of the promisor's contract.
Thus in Blackwell v. Webster, supra, if the Maine statute
had not interdicted the making of champertous contracts, the
validity of the champertous consideration would have depended
upon the New York law (lex solutionis of the consideration),
and the promisor's contract would have been valid or invalid,
according as the New York law permitted or condemned the
champertous contract of the promisee.*
So, in Peet v. Hatcher,® a note was made in Georgia, payable
in Georgia to certain cotton brokers of New Orleans to cover
margins upon speculations in cotton. The note was secured by
a mortgage of land in Alabama, and suit was brought there to
foreclose the mortgage. It was held that the law of Georgia
(lex celebrationis et solutionis) should not prevail, but since
the objectionable dealings with the cotton were to take place in
Louisiana, the law of Louisiana must govern the validity of the
* 29 Fed. 614. See ante, § 168.
» Hickox V. Elliott, 27 Fed. 830. See Richardson v. Rowland, 40 Conn.
666.
• 112 Ala. 514, 21 So. 711, 712.
§ 176 CONTRACTS VOID IN THE CONSIDERATION. 423
note and mortgage, the consideration for which was the specu<
lative dealings in Louisiana. The court said: "The defense
mainly relied on is that the dealings between Hatcher and Peet
& Co. (the brokers) were gambling transactions, such as the
courts will not enforce. It is pleaded and insisted that those
transactions were governed by the laws of Georgia, where the
arrangement under which they were had was entered into ... by
force of which laws the contracts made in the purchase of cotton
were mere wagers and void. It is settled by the decision of
this court in a case precisely like the present, except that the
dealings were on the New York, instead of the New Orleans,
stock exchange,'' that the contract under which the cotton deal-
ings were to be had, as to its validity, was governed by the laws
of the State wherein it was to be performed (in that case, New
York)." »
In Commonwealth of Kentucky v. Bassford,' a Kentucky
statute authorized a lottery for a certain college. The law of
New York forbade lotteries. A bond was entered into in New
York conditioned for the faithful performance of duties in Ken-
tucky touching the sale of lottery tickets authorized by the above
Kentucky statute. It was held that as the bond was valid at
the place when the consideration was to be performed, the courts
of New York would uphold it.^°
T Hawley v. Bibb, 69 Ala. 52.
' The course of this decision is very curious. The court held, as above
stated, that the law of Louisiana should govern the validity of the note. But
the law of Louisiana was not in evidence. Under these circumstances the
court assumed that the law of Georgia (where the note was made and payable)
should govern. But neither was the Georgia law in evidence. The jurispru-
dence of Georgia being based upon the common law (it was otherwise in the
case of Louisiana) the court assumed the common law to prevail there, by
which the particular transaction was sustained. See post, § 214. It is sub-
mitted that the court erred in principle in substituting the Georgia law for
that of Louisiana, merely because the latter was not in evidence. Georgia
was not the situs of the consideration, nor could it be made so merely by a
failure to prove the law of Louisiana (lex loci considerationis).
9 6 Hill (N. Y.), 526.
K' In this case there was some doubt whether the bond was executed in New
York or in Kentucky, but the court held it to be immaterial.
424 CONTRACTS VOID IK THE CONSIDBRATION. § 177
§ 177. Executed Considerations — Sufficiency of Con-
sideration. — In the majority of cases perhaps the considera-
tion is not executory, but executed, consisting either of a
pre-existing liability, an act done, or an executed contract
entered into. In such cases, the situs of the consideration is
not difficult to ascertain, and when once ascertained the same
rules prevail as before ; the law of the situs of the consideration
will determine the validity of the promisor's agreement, so far
as its validity depends upon the validity of the consideration.
If the consideration is malum in se, or universally deemed
contra bonos mores, the lex fori will generally be substituted in
the place of the lex loci considerationis.* This principle occa-
sionally creates a doubt as to what law should govern the valid-
ity of a contract for the reason that it is sometimes a matter of
doubt whether a consideration valid by its proper law, though
condemned in the forum, is so generally deemed immoral as to
give rise to the operation of the lex fori. Thus gaming, wagers,
lotteries, the sale or hire of slaves, contracts relating to the
slave-trade, etc., constitute considerations which, though con-
demned by many States, are not forbidden by all. We find the
cases somewhat divided here upon the law which should govern.
The weight of authority is in favor of the lex loci considera-
tionis as the proper law, unless the consideration is one which
the policies of all (or almost all) civilized States unite in pro-
hibiting.^ Bearing in mind the occasional operation of the
lex fori in these cases, we will proceed to examine the "proper
law" governing the validity of a contract in respect of the
consideration.
In the first place it seems clear that if there is no considera-
tion at all to support the contract, the effect of this upon the
validity of the contract must depend upon the law of the place
where the promisor's contract is entered into, not upon the lex
1 Ante, § 9.
2 Story, Confl. L. §§ 114, 258 ; Commonwealth of Kentucky v. Bassford,
6 Hill (N. Y.), .526 ; Thatcher v. Morris, 11 N. Y. 437 ; Greenwood v. Cur-
tis, 6 Mass. 358, 4 Am. Dec. 145 ; Roundtree ft Baker, 52 111. 241, 4 Am. Rep
597. But see Flagg v. Baldwin, 38 N. J. Eq. 219, 48 Am. Rep. 308 ; Gist v.
Tel. Co., 45 S. C. 344, 23 S, E. 143 ; Oscanyon v. Arms Co., 103 U. 8. 261.
§ 177 CONTRACTS VOID IN THE CONSIDERATION. 425
solutionis; for if the contract is invalid in the locus celebra-
tionis, it will be void a6 initio, just as in the case where a con-
tract is formally invalid by the lex celebrationis ; • there will
never have been any contract to perform, and therefore nothing
for the lex solutionis to operate upon. On the other hand, since
the matter of the want of consideration enters into the making
of the contract, so to speak, in other words, since its effect
operates upon the contract at the time it is made, if the contract
is then and there valid the want of consideration should not be
open to question thereafter or under any other law. Thus, if a
bond is given in one State without any consideration, no con-
sideration being there required to support a contract under seal,
and the bond is payable in another State where a contract, even
though under seal, must be supported by a consideration, the
proper law to determine the validity of the contract is the lex
celebrationis of the contract, not the lex solutionis.*
If the question is not one of a total want of consideration in
the incipiency of the contract, but of a subsequent failure of the
consideration, the lex celebrationis having performed its func-
tion in determining the original validity of the contract, it
would seem that the subsequent failure of consideration must be
regarded as affecting not the making of the contract but the
obligation to perform it, and the lex solutionis of the contract
3 Ante, § 172.
* In Pritchard v. Norton, 106 U. S. 124, 135, 136, a somewhat similar
question was decided in accordance with the law of the assumed place of per-
formance of the contract. But in that case there had been a benefit conferred
upou the promisor. There was a past consideration, and the question was
whether it was sufficient. This case will be presently explained.
The example given above in the text is based upon the theory that the effect
of a seal in importing a consideration is part of the contract itself, which is
the view taken in Pritchard v. Norton, supra. Upon the theory that the
presence of the seal only affords a conclusive pi-esumption that there is a con-
sideration, it may be that as a mere matter of evidence, relating to the remedy,
the lex fori would control. If by that law no such presumption obtains, there
must be other proof. See Williams v. Haines, 27 Iowa, 251. But even if
this view is sound (as it is believed not to be), no progress is here made. The
question still remains, if there is no proof of consideration, what law shall
govern the effect of a want of consideration. The first theory seems altogether
preferable.
426 CONTRACTS VOID IN THE CONSIDERATION. § 177
should determine its effect upon the right to enforce perform-
ance.* But the question — what constitutes a subsequent failure
of consideration — would seem to depend upon the lex loci con-
sideratiouis, and not upon the lex solutionis of the contract.'
So, the question of the sufficiency of certain acts or pre-exist-
ing liabilities to constitute a consideration should be deter-
mined, upon like principles, either by the lex celebrationis of
the promisor's contract (since the validity of the contract in its
very incipiency depends upon it) or by the law of the place
where the act is done or the liability is incurred (since that law
determines the effect of the consideration). Ordinarily these
laws will be identical.'
But if an act done in one State constitutes a past considera-
tion for a contract made in another, we are forced to chiaose
between them. The very question arose in Pritchard v. Nor-
ton,' and it was held that the locus considerationis, not the
locus celebrationis, should furnish the "proper law." In that
case, Pritchard had signed an appeal bond in Louisiana, no
' There seems to be no case directly in point, but it is a general principle
that the obligation and the discharge of contracts by operation of law are in
the main governed by the lex solutionis of the contract. See post, §§ 181,
190. In Glenn v. Thistle, 23 Miss. 42, 49, a note was made and payable in
Mississippi for the purchase of land in Louisiana. Suit was brought upon the
note, and the defense was set up of a failure of consideration by reason of de-
fects in the title to the land. The court said : " The law of Louisiana will of
course control the title ; it will decide whether the title has failed: but as the
contract for payment was made here and was to be performed here, the law of
this State must decide on the effect of a failure of consideration." If the lex
celebrationis and the lex solutionis had not been identical in this case, the
question would have been squarely presented. As it was, the court did not
distinguish between them.
« See Glenn v. Thistle, 23 Miss. 42, 49, quoted supra, note 5.
' If the contract is made in a State other than that wherein the act is done
(locus considerationis), one of two effects must follow. Either the act consti-
tutes a past consideration for the contract, or the immediate consideration for
the contract is not the act itself, but some liability incurred by the promisor
because of the performance of the act. In the latter case the act still indi-
rectly constitutes the considei-ation for the contract, whose validity in this
respect must ultimately depend upon the law of the place where the act is
performed. Ante, § 162.
» 106 U. S. 124.
§ 178 CONTEACTS VOID IN THE CONSIDERATION. 427
promise being made at the time to save him harmless. Later,
Norton and another signed a bond of indemnity in New York,
payable to Pritchard, no place of payment being designated.
By the law of New York a past consideration was not sufficient
to support a contract, and a seal only prima facie imported a
valuable consideration. By the law of Louisiana the rule wag
otherwise. Suit was instituted by Pritchard in the federal
court in Louisiana upon the New York bond of indemnity, the
defense being that there was no sufficient consideration (under
the law of New York) to support the contract. The Supreme
Court held that the law of Louisiana (lex loci considerationis)
should prevail.'
§ 178. Same — Legality of Consideration. — With respect to
the legality of the consideration as affecting the validity of the
contract, it is quite certain that this is to be determined by
the lex loci considerationis. No court, having a just sense of
the comity due to a sister State or country, can lend its aid in
enforcing a contract, the consideration for which is a violation
of the law of such sister State. It will no more encourage the
violation of her laws than of its own. On the other hand, if the
act or liability which is the consideration for the contract is
done or incurred in another State, and is valid there, it is mani-
festly immaterial whether or not such act or liability, if done or
incurred in the State of the contract or of the forum, would con-
travene its laws. As a matter of fact it has not been done or in-
curred there, and the laws of the latter cannot be supposed to
have been intended to extend beyond its own territory and con-
demn acts done in another State, unless indeed they are mala in
se or contra bonos mores. This reasoning inexorably leads to
the conclusion that the lex loci considerationis determines the
validity of the contract, so far as the legality of the considera-
' It is true the court decided in favor of the law of Louisiana upon the
ground that it was the lex solutionis of the New York bond (though it was
made in New York and specified no place of payment). The reasoning of the
court in establishing Louisiana to have been the place of performance of the
bond is not altogether satisfactory ; and even supposing that to be so, it is
difficult to see why the law of the place of performance should govern a ques-
tion which relates to the validity of the contract in its very incipiency.
428 CONTRACTS VOID IN THE CONSIDERATION. § 178
tion is concerned, and this conclusion is abundantly sustained
by the authorities.^
Hence the validity of a note made in one State, though pay-
able there also, given in consideration of liquor sold and de-
livered to the maker of the note in another State, will be
determined by the law of the latter State, not of the former, so
far as the sale of the liquor affects it. The lex celebrationis and
the lex solutionis have nothing to do with the matter. The law
of the place where the liquor is sold will govern the validity of
the sale, and the consequent validity of the contract for the price.
If by the lex loci considerationis the sale of the liquor is pro-
hibited, the note is invalid.^ If by that law the sale is valid,
so will the note be, though the sale would have been invalid if
made in the locus celebrationis or locus solutionis of the note."
Thus also the validity of a contract, the consideration for
which is a gaming debt or the sale of lottery tickets, or the
prosecution of a lottery, etc., will depend not upon the lex cele-
brationis or lex solutionis of the contract, but upon the lex loci
considerationis.*
1 "Webber v. Howe, 36 Mich. 150, 24 Am, Rep. 590 ; Boothby v. Plaisted,
51 N. H. 436, 12 Am. Rep. 140 ; Fessenden v. Taft, 65 N. H. 39, 17 Atl.
713 ; Keiwert v. Meyer, 62 Ind. 587, 30 Am. Rep. 206 ; Pratt v. Adams,
7 Pai. Ch. (N. Y.) 615, 632 ; Commonwealth of Kentucky w. Bassford, 6 Hill
(N. Y.), 526 ; Mclntyre v. Parks, 3 Met. (Mass.) 207]; Akers v. Demond, 103
Mass. 318, 323-324; Suit v. Woodhall, 113 Mass. 391 ; Touro v. Cassin,
I Nott & McC. (S. C.) 173, 9 Am. Dec. 680 ; Roundtree v. Baker, 52 III. 241,
4 Am. Rep. 597 ; Bowles v. Field, 78 Fed. 742 ; The Brantford City, 29 Fed.
373, 395.
2 Keiwert v. Meyer, 62 Ind. 587, 30 Am. Rep. 206 ; Dolan v. Green, 110
Mass. 322 ; Suit v. Woodhall, 113 Mass. 391 ; Weil v. Golden, 141 Mass. 364 ;
Webber v. Howe, 36 Mich. 150, 24 Am. Rep. 590.
» Webber v. Howe, 36 Mich. 150, 24 Am. Rep. 590 ; Hill v. Spear, 50
N. H. 253, 9 Am. Rep. 205 ; Boothby v. Plaisted, 51 N. H. 436, 12 Am.
Rep. 140 ; Abberger v. Marrin, 102 Mass. 70 ; Tegler v. Shipman, 33 la. 194,
II Am. Rep. 118 ; Fred Miller Brewing Co. v. De France, 90 la. 395, 57 N. W.
959.
* Thatcher v. Norris, 11 N. Y. 437 ; Commonwealth of Kentucky v. Bass-
ford, 6 Hill (N. Y.), 526 ; Mclntyre v. Parks, 3 Met. (Mass.) 207 ; Sondheira
V. Gilbert, 117 Ind. 71, 18 N. E. 687. But see Robinson t;. Bland, 2 Burr,
1077 ; Flagg v. Baldwin, 38 N. J. Eq. 219, 48 Am. Rep. 308 ; Gist v. Tel. Co,
45 S. C. 344, 23 S. E. 143.
§ 179 USURIOUS CONSIDERATIONS. 429
So the validity of a bond or other contract, the consideration
of which is the sale or hire of slaves or a policy of insurance
upon a slave ship, will depend upon the law of the place where
the sale or hire takes place or the contract of insurance is made.*
In Atlantic Phosphate Co. u. Ely,' fertilizers were ordered
from South Carolina by a farmer living in Georgia, under such
circumstances that the sale was held to take place in South
Carolina, the purchaser executing a note in Georgia for the
price. The law of Georgia avoided sales of fertilizers which
had not been inspected before being offered for sale or dis-
tribution. The sale was valid in South Carolina. In a suit
in Georgia upon the note it was urged that the fertilizers had
not been inspected, but the Georgia court held that the validity
of the note depended upon the law of South Carolina, not upon
the law of Georgia.
§ 179. Usurious Considerations. — There is probably no point
within the whole range of the law upon which there exist greater
conflicts of views, more irreconcilable opinions, or greater con-
fusion of statement, than upon the proper law to govern the
effect of alleged usury in a contract. The natural difficulties
which beset the subject have been immeasurably increased by
the looseness of phraseology indulged by the courts.
Let us suppose for example a case like the following : A citi-
zen of Texas comes to New York and there borrows money, it
being understood that he is to pay eight per cent interest. He
returns to Texas, and there j executes a note payable in New
York for the principal sum with eight per cent interest. We
will suppose further that the law of New York avoids all con-
tracts carrying more than six per cent, while the law of Texas
permits eight per cent.
As has been already shown, the validity of a particular act
does not in general depend upon whether or not the parties
intend to do a valid act. The intent is of importance iu ascer-
taining what act the parties propose to perform, but that once
* Roundtree v. Baker, 52 111. 241, 4 Am. Rep, 597 ; Greenwood v. Curtis,
6 Mass. 358, 4 Am. Dec. 145 ; Touro v. Cassin, 1 Nott & McC. (S. C.) 17%
d Am. Dec. 680.
« 82 Ga. 438, 9 S. E. 170.
430 USURIOUS CONSIDERATIONS. § 179
ietermined definitely, the validity of the act depends entirely
apon the law governing the territory wherein the act is done.
But to this general principle there may be exceptions in cases
where the gist of the illegality of the particular act lies in the
intention with which it is done. Such to a certain extent is
lihe case with usurious contracts. The intention to exact usu-
rious interest, contrary to law, is an essential ingredient of
usury. ^ Nor must it be forgotten that, unless there is real
oppression of the debtor and advantage taken of him, usury is a
more or less odious defense, which the courts will not go out of
their way to enforce. Another point to be noticed in this con-
nection is the fact that the rate of interest prescribed by the
laws of a particular State is fixed arbitrarily by the legislature,
as being on the whole best suited to its own people. Save for
the arbitrary decree of the legislature, there would be nothing
illegal or immoral in charging a somewhat higher rate of in-
terest. It is a matter with regard to which the policies of
different States vary infinitely.
Considerations like those above mentioned have led many of
the courts to lean towards sustaining such contracts, if possible,
and to hold that it is sufficient if the contract is valid either by
the law of the place where it is entered into or where it is to be
performed.''
1 Balfour v. Davis, 14 Or. 47, 12 Pac. 89. Hence if a contract reserves
excessive interest merely because of a mistaken calculation, it is not for that
reason usurious. There must be an intention to charge the illegal rate. See
Lloyd V. Scott, 4 Pet. 205 ; Bevier v. Covell, 87 N. Y. 50 ; Smythe v. Allen,
67 Miss. 146, 6 So. 627 ; Bearce v. Barstow, 9 Mass. 45 ; Price v. Cam})bell,
2 Call (Va.), 110 ; McElfatrick v. Hicks, 21 Penn. St. 402 ; Brown v. Bank,
86 la. 527, 53 N. W. 410 ; Henry v. Sansora, 2 Tex. Civ. App. 150, 21
S. W. 69.
^ The leading case taking this view is Miller v. TiflFany, 1 Wall. 298, 310.
In that case the court said : " ' 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 performance, and if the interest allowed by the law of
the place of performance is higher than that permitted at the place of contract,
the parties may stipulate for the higher interest without incurring the penalties
for usury.' The converse of this proposition is also well settled. If the rate
of interest be higher at the place of contract than at the place of performance,
the parties may lawfully contract in that case also for the higher rate." See
§ 179 USURIOUS CONSIDERATIONS. 431
Some of the cases even go further, laying hold of the slightest
Circumstances in connection with the transaction to show that
the parties intended to enter into a contract free from the taint
of usury, though the rate of interest charged be usurious both
by the lex celebrationis and the lex solutionis of the contract.
Thus, the fact that the note is secured by a mortgage on land
in a State where the rate of interest charged is legal,* or that the
borrowed money is to be used in a State whose law permits the
rate charged,* has sometimes been held sufficient to uphold
the contract.
But, notwithstanding much confusion in the terms used and
in the statement of the controlling principles, the current ot
decision seems to look rather to the actual situs of the acts in
question to furnish the "proper law" than to the intention oi
the parties.
Passing by the intent then, in order to ascertain the situs
that shall furnish the proper law we must first determine to
what element in the validity of a contract the matter of usury
pertains. Does it relate to the making of the contract itself,
to its performance, or to the consideration f
Although there are a few cases holding that the validity of
a contract alleged to be usurious is to be governed by the lex
Cromwell v. County of Sac, 96 U. S. 51, 62 ; Cockle v. Flack, 93 U. S, 344.
This may probably be said to be the view of the United States Supreme Court.
See also Kilgore v. Dempsey, 25 Ohio St. 413, 18 Am. Rep. 306 ; American
Mortg. Co. V. Sewell, 92 Ala. 163, 9 So. 143, 145-146 ; Dugan v. Lewis, 79 Tex.
246, 14 S. W. 1024, 1026 ; Nickels v. Association, 93 Va. 380, 387, 25 S. E. 8 ;
Scott V. Perlee, 39 Ohio St. 63, 48 Am. Rep. 421, 422 ; Morris v. Hockaday,
94 N. C. 286, 55 Am. Rep. 607, 608 ; Mott v. Rowland, 85 Mich. 561, 48 N. W.
638 ; Smith v. Parsons, 55 Minn, 520, 57 N. W, 311, 312 ; Hunt v. Jones, 12
R. I. 265, 34 Am. Rep. 635, 637 ; B. & L. Association v. Logan, 14 C. C. A.
133, 66 Fed. 827, 829 ; New England Mortg. Co. v. Vaden, 28 Fed. 265.
8 Chapman v. Robertson, 6 Pai. Ch. (N. Y.) 627, 31 Am. Dec. 264 ; Dugan
V. Lewis, 79 Tex. 246, 14 S. AV. 1024 ; Jackson v. Mortg. Co., 88 Ga. 756, 15
S. E. 812 ; Arnold v. Potter, 22 la. 195 ; Kellogg r. Miller, 13 Fed. 198. But
see Mortg. Co. v. Jefferson, 69 Miss. 770, 12 So. 464; Odom v. Mortg. Co.,
91 Ga. 505, 18 S. E. 131 ; De Wolf v. Johnson, 10 Wheat. 367, 383.
* Scott V. Perlee, 39 Ohio St. 63, 48 Am. Rep. 421 ; Kellogg v. Miller, 13
Fed. 198, 200. But s^e Central Trust Co. v. Burton, 74 Wis. 329, 43 N. W.
Ul.
432 USURIOUS CONSIDERATIONS. § 179
celebrationis of the contract, regardless of the lex solutionis or
lex considerationis,^ reason, as well as the great mass of author-
ity, indicates that the effect of the exaction of usurious interest
upon the contract to repay does not depend upon the law of the
place where such contract is made (apart from the locus solu-
tionis or locus considerationis).®
We are brought then to the consideration of the question
whether the matter of usury affects the performance of the con-
tract to pay, or whether it affects the consideration. In other
words, why is a contract to pay excessive interest invalid ?
Does the usury consist in the borrower's promise to repay the
principal with excessive interest ? Or does it consist in the
loan or forbearance of money upon condition that the borrower
will repay the principal with excessive interest ? The dis-
tinction here is close but important, if we regard the situs of
the transaction, not the intent of the parties, as furnishing the
proper law.
If the first view is correct, the alleged usuriousness and in-
validity of the contract to pay relates to its performance, the
payment of the excessive interest, and the validity of the pay-
ment of the interest agreed upon should be determined by the
law of the place where the act of payment is to be performed,
that is, by the lex solutionis of the contract to pay.'
If the second view is correct, the usury relates to the con'
' New England Mortg. Co. v. McLaughlin, 87 Ga. 1, 13 S. E. 81 ; Thorn-
ton V. Dean, 19 S. C. 583, 45 Am. Rep. 796 ; Kellogg v. Miller, 13 Fed. 198.
Even these cases are based upon the intention of the parties or upon some other
ground than merely that the lex celebrationis of the contract governs.
* The authorities cited below amply sustain this proposition.
^ A number of courts take this view and hold that the lex solutionis of the
contract, of itself, without regard to the lex celebrationis or the lex considera-
tionis, will govern the matter of usury. See Hosford v. Nichols, 1 Pai. Ch
(N. Y.) 220 ; Chapman v. Robertson, 6 Pai. Ch. (N. Y.) 627, 630, 31 Am.
Dec. 264 ; Odom v. Mortg. Co., 91 Ga. 505, 18 S. E. 131 ; Connor v. Donnell,
55 Tex. 174; Dickinson v. Edwards, 77 N. Y. 573, 578, 582, 33 Am. Rep,
671 ; Nickels r. Association. 93 Va, 380, 25 S. E. 8 ; National, etc. Associa-
tion V. Ashworth, 91 Va. 706, 22 S. E. 521 ; Freese v. Brownell, 35 N. J. L.
285, 10 Am. Rep. 239, 241 ; Pioneer Sav. & L. Co. v. Cannon, 96 Tenn. 599,
36 S. W. 386 ; Kellogg ». Miller, 13 Fed. 198, 199. See Bigelow r. Burnham.
83 la. 120, 49 N. W 104.
§ 179 USURIOUS CONSIDERATIONS. 433
sideration (the loan of the money), and the law of the place
where the money is delivered to the borrower governs the valid-
ity of the contract to pay. Just as the validity of a note made
and payable in one State, given in payment for liquor sold, de-
pends not upon the lex celebrationis or lex solutionis of the
note, but upon the lex loci considerationis (the law of the situs
of the sale) ; * so, in this case, the validity of the note or prom-
ise to repay the money borrowed, wiU depend not upon the lex
celebrationis or lex solutionis of the note or other promise, but
upon the lex loci considerationis (the law of the situs of the
loan). This is believed to be the better view. The policy of
the usury laws is aimed against the exaction of usurious inter-
est by the lender, not against the promise by the debtor to pay
usurious interest. The great majority of the decided cases have
held that the law of the place where the money is lent governs
the question of usury, though comparatively few have rested
their decision expressly upon this ground.'
8 See ante, §178.
9 In some of the cases emphasis is laid upon the lex considerationis as gov-
erning the question, though the lex celehrationis and the lex solutionis of the
note, or one of them, were the other way. See Alters v. Demond, 103 Mass.
318, 323-324 ; Bowman v. Miller, 25 Gratt, (Va.) 331, 18 Am. Rep. 686 ;
Sheldon v. Haxtun, 91 N. Y. 124, 128-129, 131 ; Pratt v. Adams, 7 Pai. Ch.
(N. Y.) 615, 632 ; Kilcrease v. Johnson, 85 Ga. 600, 11 S. E. 870 ; Martin v.
Johnson, 84 Ga. 481, 10 S. E. 1092, 8 L. R. A. 170 ; Matthews v. Paine, 47
Ark. 54, 14 S. W. 463 ; Hiatt v. Griswold, 5 Fed. 573, 575 ; DeWolf v. John-
son, 10 Wheat. 367, 383. In some, the loan was made in the State where the
contract was payable, though the contract itself was made elsewhere. The law
of the situs of the loan prevailed. See Bennett v. B. & L. Association, 177
Penn. St. 233, 34 L. R. A. 595, 35 Atl. 684, 685 ; Sands v. Smith, 1 Neb. 108,
93 Am. Dec. 331 ; Roberts v. McNeely, 7 Jones L. (N. C.) 506, 78 Am. Dec.
261 ; Pugh V. Cameron, 11 W. Va. 523. In most of the cases that have arisen,
the locus celebrationis of the contract and the locus considerationis (the place
where the money was advanced) have been identical, and have been different
from the locus sohUionis of the promise to repay. The lex loci coTisiderationis
has again prevailed, though the decision is often, indeed generally, rested upon
other grounds. See Andrews v. Pond, 13 Pet. 65, 78 ; Tilden v. Blair, 21
Wall. 241 ; Sturdivant v. Bank, 9 C. C. A. 256, 60 Fed. 730 ; Buchanan v.
Bank, 5 C. C. A. 83, 55 Fed, 223, 227 ; Kuhn v. Morrison, 75 Fed. 81 ; Van
Vleet V. Sledge, 45 Fed. 743 ; Brown v. Finance Co., 31 Fed. 516, 519 ; Hiatt
V. iJriswold, 5 Fod. 573, 575 ; Watson v. Lane, 52 N, J. L. 550, 20 Atl. 894 ;
28
434 USURIOUS CONSroERATIONS. § 17b
In no case has this view been brought out more plainly than
in Akers v. Demond.^" In that case, bills of exchange, drawn
in New York, and payable in Massachusetts, were accepted in
Massachusetts for the accommodation of the drawer, and re-
turned to New York, where they were discounted at a rate of
interest usurious in New York. Suit was brought against the
acceptor in Massachusetts by the holder (the lender). Here it
will be seen that while Massachusetts was the lex solutionis of
the acceptor's contract. New York was the place where the
money was advanced (locus considerationis) and the locus cele-
brationis of the acceptor's contract. The court, holding that
Lane v. Watson, 51 N. J. L. 186, 17 Atl. 117 ; Depau v. Humphreys, 20 Mart.
(La.) 1; Holmes v. Manning (Mass.), 19 N. E. 25; Akers u. Demond, 103
Mass. 318, 323 ; Staples v. Nott, 128 N. Y. 403, 28 N. E. 515; Sheldon v.
Haxtun, 91 N. Y. 124, 128 ; Wayne County Bank v. Low, 81 N. Y. 566, 37
Am. Rep. 533 ; Merchants' Bank v. Griswold, 72 N. Y. 472, 480, 28 Am. Rep.
159 ; Curtis v. Leavitt, 15 N. Y. 9, 86 ; Pratt v. Adams, 7 Pai. Ch. (N. Y.)
615, 632 ; Balme v. Wombough, 38 Barb. 352 ; Kilgore v. Dempsey, 25 Ohio
St. 413, 18 Am. Rep. 306 ; Findley v. Hall, 12 Ohio, 610 ; Bascom v. Zediker,
48 Neb. 380, 67 N. W. 148 ; Joslin v. Miller, 14 Neb. 91, 15 N. W. 214 ;
Olmstead v. Mortg. Co., 11 Neb. 493, 9 N. W. 650, 652; Overton v. Bolton,
9 Heisk. (Tenn.) 762, 24 Am. Rep. 367, 374-375 ; Klinck v. Price, 4 W. Va.
4, 6 Am. Rep. 268 ; U. S. Sav. & L. Association v. Scott, 98 Ky. 695, 34 S. W.
235 ; Southern B. & L. Association v. Harris, 98 Ky. 41, 32 S. W. 261 ; Pryse
r. Association (Ky.), 41 S. W. 574 ; Underwood v. Mortg. Co., 97 Ga. 238,
24 S. E. 847 ; New England Mortg. Co. v. McLaughlin, 87 Ga. 1, 13 S. E. 81;
Kilcrease v. Johnson, 85 Ga. 600, 11 S. E. 870 ; Martin v. Johnson, 84 Ga.
481, 10 S. E. 1092, 8 L. R. A. 170 ; Meroney v. B. & L. Association (N. C),
17 S. E. 637 ; Falls v. Sav. & L. Co., 97 Ala. 417, 13 So. 25, 27 ; American
Mortg. Co. V. Sewell, 92 Ala. 163, 9 So. 143. A fortiori, in the cases where
the locus celebrationis, the locus solutionis, and the locus considerationis all
coincide, the law of that State, not the lex fori, will govern the question of
usury. See Glidden v. Chamberlin, 167 Mass. 486, 46 N. E. 103 ; Bowman v.
Miller, 25 Gratt. (Va.) 331, 18 Am. Rep. 686 ; Backhouse v. Selden, 29 Gratt.
(Va.) 581 ; Fant v. Miller, 17 Gratt. (Va.) 47 ; Berrien v. Wright, 26 Barb.
(N. Y.) 208 ; Pomeroy v. Ainsworth, 22 Barb. 118 ; Maynardw. Hall, 92 Wis.
565, 66 N. W. 715 ; Central Trust Co. v. Burton, 74 Wis. 329, 43 N. W. 141,
142 ; Kennedy v. Knight, 21 Wis. 340, 94 Am. Dec. 543 ; Armistead v. Blythe
(Miss.), 20 So. 298 ; Hubbell v. Morristown Land & Imp. Co., 95 Tenn. 585,
32 S. W. 965 ; Hart v. Wills, 52 la. 56, 35 Am. Rep. 265 ; Lockwood v.
Mitchell, 7 Ohio St. 387, 70 Am. Dec. 78.
w 103 Mass. 318.
3Ji ~ /I.
r IT
§ 179 USURIOUS CONSIDERATIONS. 435
the New York law governed, said: " When a usurious or other
illegal consideration is declared by the law of any State to be
incapable of sustaining any valid contract, and all contracts
arising therefrom are declared void, such contracts are not only
void there, but void everywhere. They never acquire a legal ex-
istence. Contracts founded on a usurious consideration in New
York are of this nature. The fact that the bills were accepted
in Boston and were payable there does not exempt them from this
operation of the New York law. 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 alleged contracts. By the New York
law that transaction was incapable of furnishing a legal con-
sideration; and so far as the bills depend upon that, they are
absolutely void. The original validity of sugh g. contract miigt^
be determined by the law of the State in which it is first negoti-
ated or delivered as a contract.
The fact that usury is a matter oi the consideration, not of
the performance, of the contract, becomes more evident, if we
suppose the excessive interest to be reserved out of the principal
sum at the time of the loan, or upon discounting paper. It is
manifest in such a case that the subsequent execution of a note
as security, whether made in the same State or elsewhere, can-
not affect the legality or illegality of the original act. That is
over and done with, and its effect must be determined by the
law of the State where the reservation is made, that is, where
" Even in this case, it will be observed, while the court gives full efifect to
the lex considerationis as determining the matter of usury, the last sentence
of the extract above quoted reverts to the fallacy that the law of New York
should govern, not because it is the lex considerationis, but because it is the
lex celebrationis, of the contract. It is true that the locus celebrationis of the
contract will usually be identical with the locus considerationis (as it was in
Akers r. Demond), and in such case, save for the sake of clearness, it is im-
material whether the proper law is called the lex celebrationis or the lex con-
siderationis. But these two loci are not necessarily identical, as shown by the
cases cited in note 9, supra. Confusion must inevitably arise if these van*
DOS loci are not kept clear and distinct.
/^
436 USUBIOUS CONSIDEBATIONS. § 179
the money is advanced." Yet the consideration for the contract
may be exactly the same without reserving the interest in ad-
vance. In either case the consideration for the promise to pay
is the loan or forbearance of money at an excessive rate of
interest.
The same principles govern a note given in renewal of a pre-
vious note or obligation to pay. The validity of the first note
is determined by the lex considerationis, the law of the place
where the money is advanced; and the validity of the renewal
note is governed also by its own lex considerationis. But the
consideration for the renewal note is the previous note, and if
that is usurious and invalid by its proper law, so should the re-
newal note be, and vice versa}^
Sometimes the parties conduct the negotiations for the loan
in one State, while the money is actually advanced in another.
In such cases a question arises whether the law of the former
or latter State is to govern the rate of interest. The considera-
tion here supposed is not an executed loan, but an executory
contract to loan the money at a certain rate of interest. If
the loan is to be actually made in the State where the agree-
ment to lend is entered into, there can be no question but that
the law of that State should control."
w TUden v. Blair, 21 WaU. 241 ; Akers v. Demond, 103 Mass. 318, 323 ;
Kilcrease v. Johnson, 85 Ga. 600, 11 S. E. 870 ; Martin v. Johnson, 84 Ga.
481, 10 S. E. 1092, 8 L. R. A. 170 ; Buchanan v. Bank, 5 C. C. A. 83, 55
Fed. 223, 227 ; Sheldon v. Haxtun, 91 N. Y. 124. But see Dickinson v.
Edwards, 77 N. Y. 573, 33 Am, Rep. 671 ; "Wayne County Bank v. Low, 81
N. Y. 566, 37 Am. Rep. 533.
18 Wayne County Bank v. Low, 81 N. Y. 566, 37 Am. Rep. 533 ; Bowman
V. Miller, 25 Gratt. (Va.) 331, 18 Am. Rep. 686. But some courts, relying on
the principle that a renewal note given in exchange for a usurious note, after
purging the latter of the excessive interest, is good, hold that the giving of a
renewal note in a State by whose law the interest carried by the first usurious
note is not excessive, operates in the same way to purge the usury and to make
the renewal note good. See Jacks v. Nichols, 5 Barb. (N. Y.) 38 ; Sheldon v.
Haxtun, 91 N. Y. 124, 131 ; De Wolf v. Johnson, 10 Wheat. 367. In the
last case however there was an actual reduction of interest upon the renewal.
" Martin v. Johnson, 84 Ga. 481, 10 S. E. 1092, 1093, 8 L. R. A. 170 ;
Staples V. Nott, 128 N. Y. 403, 405-406, 28 N. E. 515 ; Wayne County Bank
V. Low, 81 N. Y. 566, .571, 37 Am. Rep. 538 ; Berrien r. Wright, 26 Barb.
(N. Y.) 208.
§ 179 USURIOUS CONSIDERATIONS. 437
But if it is expressly or impliedly agreed that the money is to
be actually advanced in another State, that is to say, if the ex-
ecutory consideration is to be performed in another State, the
validity of its performance there must be determined by the lex
solutionis of the consideration (the law of the place where the
loan is to be made).^^
The case of Hubbell v. Morristown Land & Imp. Co." pre-
sents a good illustration of this principle. In that case the
loan was originally agreed upon between Mrs. Hubbell and the
borrower, in Connecticut, where Mrs. Hubbell was ** summer-
ing." The borrower was a Tennessee corporation, and it was
agreed that the loan to be thereafter made should bear seven
per cent interest and should be secured on the corporation's
land in Tennessee. The note evidencing the loan was drawn in
^orth Carolina and was made payable in New Jersey, where
Mrs. Hubbell lived. This note was delivered and the money
actually advanced in New Jersey, in pursuance of the contract
to lend. By the law of Tennessee and of New Jersey the con-
tract was usurious; by the law of Connecticut and of North
Carolina it was valid. The trial court decided that the law of
New Jersey should govern. The Tennessee Court of Chancery
Appeals reversed this decision, and held in favor of the Con-
necticut law. This in turn was reversed by the Supreme Court
of the State, which returned to the law of New Jersey as the
place where the loan was finally consummated.
1* Hubbell V. Morristown Land & Imp. Co., 95 Tenn. 585, 32 S. W. 965 ;
Sheldon v. Haxtun, 91 N. Y. 124, 128-129 ; Bascom v. Zediker, 48 Neb. 380,
67 N. W. 148 ; Coad v. Home Cattle Co., 32 Neb. 761, 49 N. W. 757. But
see Mott v. Rowland, 85 Mich. 561, 48 N. W. 638 ; Scott v. Perlee, 39 Ohio
St. 63, 48 Am. Rep. 421. Both of the last two cases go upon the theory that
the law which the parties "had in mind" as goveming the contract should
control.
16 95 Tenn. 585, 32 S. W. 9«5.
438 OBLIGATION OF CONTRACTS — ClilTBRION. § 180^
CHAPTER XVIII.
OBLIGATION AND INTERPRETATION OP CONTRACTS.
§ 180. Obligation of a Contract. — We have in the preced-
ing chapter considered the "proper law " governing the validity
of a contract. We will now suppose it to be established that
the contract is valid in every particular, and will proceed to-
examine the law controlling the rights, duties, and liabilities of
the parties under it.
The " obligation " of a contract is defined by Judge Story as
•' the duty to perform it." ^ In reality, however, the term has a
somewhat broader meaning than that ascribed to it by Story.
It implies a duty on the part of the promisor to perform the
contract in manner and form according to its terms or the true
intent of the parties, and a corresponding right on the part of
the promisee to expect such a performance.
The "obligation of the contract," as here used (excluding
matters of validity, already discussed), has the same meaning
as is attached to the same phrase found in that clause of the
federal constitution which provides that no State shall pass any
law impairing the obligation of contracts.*
1 Story, Confl. L. § 266. He proceeds to describe it further as follows :
" It may be a moral obligation, or a legal obligation, or both. But when we
speak of obligation generally we mean legal obligation, that is, the right of per-
formance which the law confers on one party and the corresponding duty of
performance to which it binds the other. ... A contract may in its nature
be purely voluntary and possess no legal obligation. It may be a mere naked
pact (nudum pactum). It may possess a legal obligation ; but the laws
may limit the extent and force of that obligation in personam or in rem. It
may bind the party personally, but not bind his estate ; or it may bind his es-
tate and not bind his person. This obligation may be limited in its operation
or duration ; or it may be revocable or dissoluble in certain future events or
under peculiar circumstances."
' Hence, if the question in a particular case is whether the point before the
§ 180 OBLIGATION OF CONTRACTS — CRITERION. 439
A practical test therefore by which to determine whether a
particular matter relating to a contract constitutes a part of its
^* obligation" or a part of the remedy merely, is to examine
whether the legislature of the State whose law governs the obli-
gation of the contract could, by enactment subsequent to the
execution of the contract, make applicable to it a law similar to
that sought to be enforced in the forum. If such a retrospec-
tive law passed in the proper situs of the contract would not im-
pair its obligation nor violate the provision of the constitution,
the matter must be held to relate not to the obligation but to
the remedy, and the lex fori will prevail. But if such a retro-
active law as the lex fori, passed in the situs of the contract,
would be unconstitutional as impairing its obligation, the same
law in the forum cannot be held to apply, the question being
one of obligation, not of remedy.
This may be illustrated by the case of Ruhe v. Buck,* in
which the court was divided on the question whether a par-
ticular law of Missouri (the forum) related to the remedy or to
the obligation of the contract in controversy. In that case, a
contract to pay money was made in Dakota, to be performed
there, by a married woman who was allowed by the law of
Dakota to contract as a feme sole and to sue and be sued as
such. She owned land in Missouri which the Dakota creditor
sought to attach. By the law of Missouri, a married woman
was competent to contract and be sued, but her property could
not be attached. The question therefore arose whether the
right to use the particular remedy of attachment related to
the obligation of the contract or to the remedy. If to the
former, the law of Dakota must govern ; if to the latter, the law
of Missouri. The majority of the court decided in favor of the
law of Missouri (lex fori), holding the question to be one of the
court relates to the obligation of the contract or to the remedy, such as ques-
tions relating to exemptions, etc., cases of like sort involving this constitutional
provision will be authority on the same point as it arises in private interna-
tional law. See Edwards v. Kearzey, 96 U. S. 595 ; Coffman v. Bank, 40 Miss.
29, 90 Am. Dec. 311.
3 124 Mo. 178, 25 L. R. A. 178, note. See also §§ 183, note 3, 209,
810.
440 OBLIGATION DEPENDENT ON INTENTION. § 181
remedy; but there was strong dissent. Applying the criterion
above mentioned, it would seem quite clear that the opinion of
the majority was correct. If, after the execution of the Dakota
contract, the legislature of Dakota had passed a retroactive law,
providing that no attachment should thereafter issue against a
married woman's property, but leaving untouched other reme-
dies against her, it could scarcely be held that this would have
impaired the obligation of the contract.
§ 181. Obligation of Contract dependent upon Intention of
Parties. — It is a point to be specially noted that the obligation
of a contract depends primarily upon the understanding and in-
tention of the parties. In this respect it differs materially from
the element of validity.
In many instances we need look no further than to the terms
of the contract itself to ascertain exactly what the promisor
has obligated himself to do. But questions often arise which
were not foreseen by the parties and for which no provision
has been made in the contract ; as where a bond or note is given
which makes no provision for the payment of interest after ma-
turity. Or the contract itself may be one wholly or in part
implied by law, as in case of the implied contract to pay for
services rendered, or the contract of an indorser of negotiable
paper.
In all such cases the parties having failed for one reason or
another to express their meaning fully, the law may presume
from the circumstances that they intend to bind themselves to
certain duties, and undertakes to fix the scope and extent of
those duties accordingly, as to it may seem just, wise, and poli-
tic. In such cases the law does not seek to override the inten-
tion of the parties, but merely to supply what the parties have
left unsaid. On the contrary, the parties may override the
law in respect to such matters at any time, and regulate their
own duties under the contract by an express agreement to that
effect. In other words, the "obligation " of a contract (as here
used) is a question of the intention of the parties. If that be
expressed, it will prevail over any rule of law ; if not expressed,
an appeal must be made to the law to ascertain what the pre-
sumed intention is. In determining the obligation of a con
§ 181 OBLIGATION DEPENDENT ON INTENTION. 441
tract, the maxim " modus etconventio legem vincunt" emphati-
cally applies.^
It follows therefore that it is only necessary to ascertain the
law governing the obligation of a contract in those cases where
its terms are not sufiBciently explicit in themselves to furnish a
guide to the intention of the parties. If the parties to a con-
tract desire their obligations to be such as the law of a particu-
lar State would prescribe (whether their own or a foreign State),
they may effect this result in several ways. They may express
in their contract all the stipulations which would be implied by
the law to which they have reference, and such express stipula-
tions would prevail over the mere implications of any system
of law. Modus et conventio legem, vincunt.
Or they may accomplish the same result merely by declaring
their intention to obligate themselves in accordance with some
particular law. The provisions of that law then become as much
the express stipulations of the contract as in the former case.
If we go a step further and suppose that the parties have
made no express stipulation at all in their contract as to what
law shall control the obligations incurred by them in respect to
* To this general principle there may be a few exceptions, based on reasons
of public policy, or for the protection of third persons ; or where the question
is one of form rather than obligation ; or where the question is one of fact
rather than of intention. Thus, it might be well doubted whether a party
may make a contract, answering in every respect to the definition of a nego-
tiable note, yet with the understanding that it should not be so regarded, that is,
if third parties become interested. Or whether a party may make a contract
under seal, and yet agree that it should be deemed an unsealed instrument. See
"Warren v. Lynch, 5 Johns. (N. Y.) 239, 244. Or whether one may draw a
bill in one State, and yet by agreement or intention make it an inland bill of
another State. In Strawbridge v. Robinson, 5 Gilm. (111.) 470, 50 Am. Dec.
420, it was decided that this could be done, but the question there was not
whether the bill was an inland bill, but whether it should be followed by
the same consequences as if it were an inland bill, which is a matter relating
to its obligation, and dependent upon the agreement or intent of the parties.
The general rule is certainly that stated in the text.
No reference is here made to provisions in a contract which affect the obli-
gation but which are declared void. Matters of validity have been fully treated
in the preceding chapter, and we are now confining our attention to contracts
whose validity is unquestioned.
442 OBLIGATION DEPENDENT ON INTENTION. § 181
matters about which the contract itself is silent, but that their
contemporaneous declarations and all the surrounding circum-
stances show that they actually had the law of a particular
State in mind when they entered into the contract, it is equally
clear that here also the intention of the parties must fix the
law which is to determine the obligations incurred by them.^
But, as a matter of fact, it rarely happens that the parties
have any specific law in view when they enter into a contract.
That their contract is ambiguous or has left anything unsaid
does not usually occur to them. If it did, they would gener-
ally correct it at once, and make explicit provision for the point.
In such cases it is the part of private international law by its
own implications to fill the gap in the expressed intention of
the parties touching the governing law, just as a kindred duty
devolves upon the municipal law of a State in case of a domestic
contract whose terms are not sufiiciently explicit.
Let us suppose then a contract made in one State, to be per-
formed in another, and sought to be enforced in a third. A
question arises touching some obligation or liability of the prom-
isor under the contract, which is not covered by its express
terms. The lex celebrationis supplies one measure of this im-
plied obligation; the lex solutionis another; and the lex fori a
third. Which is to control? To answer merely "the law in the
minds of the parties at the time of the contract," as has been
said by some of the courts,' does not advance the inquiry ma-
terially, since we have supposed the parties to have no law actu-
ally in contemplation. We must therefore resort to implications
and presumptions founded upon the situs of this element (the
obligation).
Turning to the definition of "obligation,"* it will be noted
that it involves in the main the duty to perform the contract. It
is obvious therefore that, in the absence of evidence as to the in-
tent of the parties, any doubt as to the duty of the promisor in
respect to performance^ so far as it depends upon the law, should
2 See Jacobs v. Credit Lyonnais, 12 Q. B. Div. 589.
8 See Jacobs v. Credit Lyonnais, 12 Q. B. Div. 589, 596 ; Briggs v. Lathano,
36 Kan. 255, 59 Am. Rep. 546, 13 Pac. 393.
« Ante, § 180.
§ 181 OBLIGATION DEPENDENT ON INTENTION. 443
be governed by the law of the situs of that performance (lex sol.
utionis). The almost unanimous current of authority is to thi8
efiEect.* If the contract is executed, not executory, or names no
6 Robinson v. Queen, 87 Tenn. 445, 3 L. R. A. 214, 11 S. W. 38 ; Baum
V. Birchall, 150 Penn. St. 164, 24 Atl. 620 ; Stevens v. Gregg, 89 Ky. 461, 12
S. W. 775 ; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79 ; Rose v. Park
Bank, 20 Ind. 94, 83 Am. Dec. 306 ; City of Aurora v. West, 22 Ind. 88, 85
Am. Dec. 413 ; Odell v. Gray, 15 Mo. 337, 55 Am. Dec. 147; Peck v. Mayo,
14 Vt. 33, 39 Am. Dec. 205 ; Mason v. Dousay, 35 111. 424, 85 Am. Dec. 368 ;
Abt V. American Bank, 159 111. 467, 42 N. E. 856 ; Shoe & Leather Bank v.
Wood, 142 Mass. 563, 8 N". E. 753 ; Emanuel v. White, 34 Miss. 56, 69 Am.
Dec. 385 ; HiberniaNat. Bank v. Lacombe, 84 N. Y. 367; Green wald v. Freese
(Cal.), 34 Pac. 73 ; Pierce v. Indseth, 106 U. S. 546 ; Supervisors v. Galbraith,
99 U. S. 214 ; Cox v. United States, 6 Pet. 172, 203; Brabston v. Gibson,
9 How. 263 ; Sturdivant v. Bank, 9 C. C. A. 256, 60 Fed. 730. In only a few
instances have the courts adopted the lex celebrationis as against the lex solu-
tionis in determining the obligation of a contract admittedly valid. These
have been cases where the intent of the parties has been supposed to point to
the former law. One of the most prominent examples is the English case of
Jacobs V. Credit Lyonnais, 12 Q. B. Div. 589. In that case a contract was
made in England between two English firms, by which one agreed to sell to the
other twenty thousand tons of " Algerian esparto," to be shipped by a French
company at an Algerian port on board vessels furnished by the purchasers at
London, and to be paid for by them in London upon arrival. It was also agreed
that the purchasers should accept and approve the esparto as put on board in
Algiers. The outbreak of an insurrection in Algiers prevented the delivery of
the entire amount of esparto contracted for. By the French law (prevailing
in Algiers) the prevention of the performance of a contract by vis major dis-
charged the promisor. It was otherwise by English law. The English court,
assuming Algiers to be the locus solutionis of the contract (which is very doubt-
ful), nevertheless held that the English law (lex celebrationis) should control,
on the ground that that was the law intended by the parties to govern the con-
tract. See also Gibson v. Ins. Co., 77 Fed. 561; Knights Templar Association
V. Greene, 79 Fed. 461; Penn Mut. Ins. Co. v. Trust Co., 19 C. C. A. 286, 72
Fed. 413. Perhaps, however, the lex celebrationis, not the lex solutionis, will
be the "proper law " in those cases where the obligation of the coiiirad depends
upon some matter of form, (not amounting to a question of validity), as in case
of an oral contract enforceable where made, but upon which, under the statute
of Frauds of the/oT-um, " no action may be brought," because the contract ia
not in writing ; or the case of contracts, enforceable where made, upon mto-
stj,mped paper, to which the lex fori on that account refuses a remedy, or which
that law refuses to receive in evidence in a auit thereon. Ante, §§ 172, 178?
post, § 210.
444 OBLIGATION DEPENDENT ON INTENTION. § 181
place of performance if executory, the locus solutionis and locus
celebrationis are identical. In such cases the law of the place
where the executory contract is made will govern, not because it
is the lex celebrationis, but because it is also the lex solutionis.
If the contract is executed, it is performed when and where
made,®
Thus, the question whether a sale of a machine implies a
warranty of fitness for the purpose for which it was sold is a
matter relating to the obligation of the contract of sale and
is to be determined by the law of the place of sale (lex loci
contractus).'
In Tenant v. Tenant,^ the question was whether a surety
might discharge himself by notice to the creditor to sue. A
note, upon which the defendants were sureties, was delivered to
the payee in West Virginia, no place of payment being men-
tioned. Notice had been orally given the payee by the sureties
to proceed at once to sue the maker or they would no longer be
responsible. By the law of Pennsylvania, where this suit was
brought, and where one of the sureties resided, this notice served
to discharge the sureties. By the law of West Virginia, such
notice was required to be in writing. It was held that the law
of West Virginia should prevail.
In Cox V. United States," a bond was given by a navy agent
at New Orleans and his sureties to the United States, condi-
tioned for the faithful performance of his duties and a true
accounting of all moneys, etc. After the agent's insolvency
« See Meyer v. Richards, 163 IT. S. 385 ; Kennebrew v. Machine Co., 106
Ala. 377, 17 So. 545; Gross v. Jordan, 83 Me. 380, 22 Atl. 250 ; "Wilson v.
Lazier, 11 Gratt. (Va.) 477; Nichols v. Porter, 2 W. Va. 13, 94 Am. Dec. 501;
Barrett ». Dodge, 16 R. I. 740, 19 Atl. 530; Griswold v. Golding (Ky.),
3 S. W. 535; Heebner ». lus. Co., 10 Gray (Mass.), 131; Tenant v. Tea-
ant, 110 Penn. St. 478, 1 Atl. 532; Lewis v. Headley, 36 111. 433, 87 Am. Dec.
227; Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 27 Am. Dec. 137.
' Kennebrew i'. Machine Co., 106 Ala. 377, 17 So. 545. See Meyer v,
Richards, 163 U. S. 385 ; Story, Confl. L. § 264.
8 110 Penn. St. 478, 1 Atl. 532. This is in reality an instance of the dis-
charge of a contract by operation of law, which is a part of the obligation ol
the contract. See post, § 190.
• 6 Pet. 172.
§ 181 OBLIGATION DEPENDENT ON INTENTION. 445
aud decease, the sureties were sued by the government. The^
claimed that the government was bound (in accordance with the
law of Louisiana) to divide its action and to take judgment
against each surety for his share of the sum due, since the con-
tract was made in Louisiana. But the court held that the seat
of government, Washington, was the true place of performance
of the contract, and that the liability of the sureties must be
governed by the rules of the common law prevailing in the Dis-
trict of Columbia, and that each was bouud to the United States
for the whole.
In Abt V, American Bank," a draft was drawn in Illinois on
a New York bank and was payable in New York. The question
was whether the drafb should operate as an assignment pro tanto
of the drawer's funds in the bank as against assignees of the
drawer under a subsequent deed of assignment. By the law of
Illinois a draft or check did not operate as an assignment. By
the law of New York it did. It was held that the law of New
York (lex solutionis) should control.
In First Nat. Bank v. Hall,^^ the defendants, Hall and others,
agreed in Pennsylvania to furnish C with certain money as he
should need it in his business. They were to receive a share of
the profits during the time C retained the money, but he was
to be allowed to repay it at the end of five years and relieve his
business. The control was left with C, and it was expressly
stipulated that the contract should not be construed to create a
partnership except as to the profits. The business was conducted
in New York, and the contract was to be performed there. It
was held that the New York law should determine whether this
constituted the defendants partners, so far as creditors were
concerned."
w 159 111. 467, 42 N. E. 856. See also National Bank of America v. Indiana
Banking Co., 114 111. 483, 2 N. E. 401.
" 150 Penn. St. 466, 24 Atl. 665.
12 It may be well doubted whether this case in reality presents a matter
relating to the "obligation" of the contract ; but rather a question of the
validity of the provision that the parties should not be construed to be part-
ners. The result however would be the same in either case ; the law of New
York, where the contract was to be performed, would control. If a matter of
446 OBLIGATION OF MAKER OR ACCEPTOR. § 182
In Baldwin v. Gray," the defendant, Gray, and others owned
a boat as partners, the partnership having been entered into in
Pennsylvania. Suit was brought in Louisiana to recover for the
expenses of the boat while it was in Louisiana. In this suit, it
was sought to hold Gray, one of the partners, responsible in
solido for the whole indebtedness of the firm on this account.
This was the measure of his liability in Pennsylvania, where
the contract of partnership was made ; but by the law of Loui-
siana, where the indebtedness occurred, each partner was liable
only for his share. It was held that the law of Louisiana (the
lex celebrationis et solutionis of the indebtedness) should con-
trol. Speaking of the effect of the Pennsylvania, law, the court
said : " This law governs the obligations of the partners with
each other, but not with third persons. It can no more affect
the rights of those who contract with them in a different country
than particular stipulations between the partners could. The
contract entered into in the case before us was made in this State
and must be regulated by the lex loci contractus."
These illustrations will suffice to show the application of the
general principles by which is determined the ''proper law"
governing the obligation of a contract. In the succeeding sec-
tions we will examine more particularly some of the more im-
portant classes of contracts. Though the same general principle
runs through them all, namely, that in the absence of evidence
of a different intent the lex solutionis of the contract determines
its obligation and the auties and liabilities of the promisor, it
is not always easy to apply the principle to particular cases.
The various contracts to be discussed are (1) Negotiable instru-
ments ; (2) Contracts calling for interest ; (3) Covenants con-
tained in conveyances of land.
§ 182. Negotiable Instruments — Maker's or Acceptor's
Contract. — The questions that arise touching the obligations
of the maker of a note or the acceptor of a bill are generally of
a different order from those presented with respect to the obli-
validity, it is a validity afiPecting the performance of the contract, namely, the
establishment of a partnership in New York,
" 4 Mart N. s. (La.) 192, 16 Am. Dec. 169. But see King v. Sarria, 69 N. Y.
24, 25 Am. Rep. 12L ; ante, § 158.
§ 182 OBLIGATION OF MAKER OR ACCEPTOR. 447
gations of the indorser or drawer, and they will be treated sep-
arately for this reason, not because there is any great difference
in the general principles applicable. In either case the leading
rule for the determination of the proper law still holds good.
The lex solutionis of the particular contract in general con-
trols its obligation. We have already considered at some length
the rules by which the locus solutionis of the maker's or in-
dorser's contract is fixed, and the reader is here advised to turn
back to that discussion.^
The question whether, as to the maker, a note is negotiable,
and hence whether or not the maker may plead against a bona
fide holder equities existing between himself and the payee
arising before notice of the transfer, is to be decided in accord-
ance with the law of the place where the note is payable, though
it is indorsed or the suit is brought iu another State.'
And if the maker or acceptor of a note or bill should urge
bis right to plead defenses against the holder on the ground
that the holder is not a purchaser for value, the lex solutionis
of the note or bill, not the law of the place where the holder
acquired his title, will govern the question.' Thus, in Wood-
ruff V. Hill,* a negotiable note was made and payable in Mas-
sachusetts, but was indorsed in another State, the indorsee
receiving the note from the payee in satisfaction of a pre-exist-
ing debt. By the law of the State where the indorsement was
made a note indorsed for a pre-existing debt did not constitute
the holder a purchaser for value. By the law of Massachusetts
(lex solutionis) it did. In a suit by the indorsee against the
maker, it was held that the Massachusetts law must determine
1 Ante, §§ 164, 165.
2 Wilson V. Lazier, 11 Gratt. (Va.) 477; Hull v. Blake, 13 Mass. 153;
Stevens v. Gregg, 89 Ky. 461, 12 S. W. 775 ; Barrett v. Dodge, 16 R. 1. 740,
19 Atl. 530; Harrison v. Edwards, 12 Vt. 648, 36 Am. Dec. 364; City ol
Aurora v. West, 22 Ind. 88, 85 Am. Dec. 413 ; Rose v. Park Bank, 20 Ind.
94, 83 Am. Dec. 306; Odell v. Gray, 15 Mo. 337, 55 Am. Dec. 147; Emanuel
V. White, 34 Miss. 56, 69 Am. Dec. 385 ; Brabston v. Gibson, 9 How. 263 ;
Supervisors v. Galbraith, 99 U. S. 214.
8 Woodruff V. Hill, 116 Mass. 310 : Woodsen v. Owens (Miss.), 12 So. 207;
Webster v. Howe Machine Co., 54 Conn. 394, 8 Atl. 482.
< 116 Mass. 310.
448 OBLIGATION OF MAKER OR ACCEPTOR. § 182
whether the holder was a holder for value ; that is, whether the
maker was bound under his contract to pay him the money at
all events.
In Phipps V. Harding,^ the plaintiffs in error indorsed a note
in Wisconsin for the accommodation of the maker, the note
being delivered and payable in Massachusetts. By the general
commercial law, as laid down by the United States Supreme
Court (and binding upon the federal courts), accommodation
indorsers were to be regarded, not as indorsers, but as joint
makers of the note, and as such not in general entitled to notice
of dishonor. But the law of Massachusetts (lex solutionis) pro-
vided that **ali persons becoming parties to notes payable on
time, by signature on the oack thereof, shall be entitled to
notice of non-payment thereof the same as indorsers." Upon
suit brought in tne federal court of Wisconsin against the ac-
commodation indorsers, it was held that the Massachusetts law
should control, and, though joint makers of the note, they were
entitled to notice of dishonor.
The maker's rignt to days of grace, and the nature and ex-
tent of that right, will also be governed by the lex solutionis of
the mater's contract.'
If a note or bill, drawn and payable in one State, is indorsed
in another to an indorsee, the indorsement not operating to
transfer the title to the indorsee by the law of the place of
transfer, but transferring it fully under the lex solutionis of the
contract of the defendant (the maker, acceptor, drawer, or prior
indorser), it is a mooted question whether the right of the in-
dorsee to sue the defendant is a part of the obligation of the
defendant's contract, or is to be governed by the proper law of
the indorsement under which the holder claims title, that is, by
the law of the place where that indorsement is made. On the
6 17 C. C. A. 203, 70 Fed. 468. See Lawrence v. Bassett, 5 Allen (Mass. ),
HO.
« Pierce v. Indseth, 106 U. S. 546, 550 ; Scudder v. Bank, 91 U. S. 406,
412 ; Brown v. Jones, 125 Ind. 375, 25 N. E. 452 ; Stebbins v. Leowolf,
3 Cosh. (Mass.) 137; Bryant v. Edson, 8 Vt. 325, 30 Am. Dec. 472; Aymar
V. Sheldon, 12 Wend. (N. Y.) 439, 444, 27 Am. Dec. 137 ; Bowen ». Newell,
13 N. y. 290, 64 Am. DiXJ. 550.
§ 182 OBLIGATION OF MAKER OR ACCEPTOR. 449
one hand, it is urged that the general rule is that the validity
and effect of an executed contract of transfer or indorsement is
governed by the law of the place where such transfer is made.
On the other hand, it is argued that the maker, acceptor, drawer,
or prior indorser (the defendant) has undertaken to pay to the
payee, or such persons as he may name in accordance with the
law with reference to which he, the defendant, contracts (the
lex solutionis of the defendant's contract), and that the mere
accident that the indorsement to the holder is made abroad under
a different law should not affect the defendant's obligation to
pay according to his agreement.
In Bradlaugh v. De E.in,'' a bill was drawn in Brussels on the
defendant in London, and there accepted by him. It was after-
wards indorsed by A in Brussels to C, and by C in Paris to D,
and by D to E, who in Paris indorsed it in blank to the plain-
tiff, a resident of London. The law of France, where the bill
was indorsed to the plaintiff, required that the indorsement of a
bill or note should be dated and should express the value re-
ceived and the name of the indorsee ; and that if the indorse-
ment failed to comply with these requirements, it should not
operate as a transfer of the bill, but only as an authority to col-
lect. By the law of England (the lex solutionis of the acceptor's
contract) a blank indorsement operated to transfer title to the
bill. The court held that the law of France should govern.'
On the other hand, in Lebel v. Tucker,^ a bill of exchange,
7 L. R. 5 C. P. 473 (Exchequer Chamber).
* The same result was reached in Trimbey v. Vignier, 1 Bing. N. c. 151,
27 E. C. L. 336, the circumstances of which were Identical, except that the
instrument sued on was a note, the maker of which was the defendant. See
also Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367, 376.
9 L. R. 3 Q. B. 77. See also Everett v. Vendryes, 19 N. Y. 436, where it
was the drawee of the bill who was sued. There the bill was drawn in
New Granada and there indorsed in blank, but was payable in New York,
where the drawee resided. The drawee refused to accept, and the indorsee
sued the drawer in New York. The law of New Granada touchiug indorse-
ments was similar to the French law mentioned in Bradlaugh v. De Rin, supra.
It was held that New York was the locus solutionis of the drawee's contract,
and that the law of New York should govern the right of the holder to sue the
drawee.
29
450 OBLIGATION OF INDORSEE OB DRAWER. § 183
drawn, accepted, and payable in England, was indorsed in France.
The circumstances were practically the same as in Bradlaugh
V. De Rin, supra. But the court, taking the view that it was
a matter relating to the obligation of the acceptor's contract,
held that it was governed by the English, not the French, law.
Much may be said in favor of either view. It is believed,
however, that the sounder doctrine is that enunciated in Brad-
laugh V. De Rin, supra.'^^
§ 183. Same — Obligation of Drawer's or Indorser's Con-
tract. — We have seen in a preceding section, ^ that much
doubt has been expressed whether the locus solutionis of the
executory contract of the drawer of a bill or the indorser of a bill
or note is the place where the bill or note is payable, or whether
it is identical with the locus celebrationis of the drawer's or in-
dorser's contract. It was there stated that the better view was that
the locus solutionis of the drawer's or indorser's contract is the
place where the bill or note is payable. The important fact to be
here noted is that the difference of opinion exists. Hence it is
no rebuttal of the general rule that the lex solutionis governs the
obligation of his contract to find some of the courts holding
that the obligations of the drawer or indorser are governed by
the law of the place where the instrument is drawn or indorsed,
while others hold them to be governed by the law of the place
where the instrument is payable. The principle of both lines
of decision is the same: the lex solutionis of the drawer's or ac-
ceptor's contract is to govern. The conflict arises in respect to
what is the locus solutionis. This question has been already
discussed in the section above alluded to. We shall here there-
fore, for the most part, treat the locus solutionis of the drawer's
or indorser's contract indifferently as either identical with the
locus celebrationis of that contract or identical with the locus
10 For example, if the facts of Lebel v. Tucker had been reversed, and the
bill had been accepted in France and payable there, the indorsee claiming
under an indorsement made in England, the doctrine of Lebel v. Tucker would
have necessitated the indorsee's ascertaining the law of France before he took
the bUl. This would seriously interfere with the negotiability of foreign bille
and notes.
1 Ante, § 16S.
§ 183 OBLIGATION OP INDORSEE OB DRAWER. 451
solutionis of the bill or note, according as the particular de-
cisions mentioned take one or the other view. The purpose
here is merely to show that the lex solutionis governs.
In Baxter Nat. Bank v. Talbot,* suit was brought in Massa-
chusetts against the indorser of a note indorsed in blank in
Vermont to the plaintiff. At the time of the indorsement, there
had been an oral agreement between the indorser and indorsee
(the plaintiff) that the former should not be liable, save to the
extent of a certain fund under his control. By the law of Massa-
chusetts (lex fori), evidence could not be introduced of this oral
agreement to vary the liability imposed by the indorsement.
By the law of Vermont, a contract of indorsement was not an
absolute one, but was dependent upon the understanding of the
parties, which might be proved. It was urged that the question
was one of evidence to be controlled by the lex fori, but the court
held it to be part of the obligation of the indorser's contract, to
be controlled by the law of Vermont.'
With respect to the "proper law" governing presentment,
notice of dishonor, protest, and other acts of like kind, ordi-
2 154 Mass. 213, 28 N. E. 163.
' In Downer v. Chesebrough, 36 Conn. 39, 4 Am. Rep. 29, a very similar
case, the court decided in favor of the lex fori, and yet it is believed both
decisions are correct. In Downer v. Chesebrough, supra, an action was
brought in Connecticut against the indorser of a note, made and indorsed in
New York and payable there, it having been orally agreed between the in-
dorser and indorsee that the indorsement was only for collection. By the
New York law parol evidence of this agreement was not admissible ; by the
law of Connecticut, it was. The court held that the Connecticut law (lex
fori) should control, on the ground that it was a matter of evidence pertaining
to the remedy.
If we apply to these two cases the criterion mentioned ante, § 180, as the
test by which to ascertain whether a particular matter relates to the obliga-
tion of the contract or to the remedy, it will be found that these cases, con-
flicting as they appear, are both correctly decided. This test is the inquiry
whether the lex solutionis might retroactively be altered to the form of the
lex fori without impairing the obligation of the contract under the federal
constitution. If it could not be so altered constitutionally, the matter relates
to the obligation of the contract. Such would seem clearly to be the case,
under the circumstances supposed, in Bank v. Talbot, supra. If the lex solu-
tionis could constitutionally be so altered, the matter relates to the remedy
Such would seem to be equally clearly the case in Downer v. Chesebrough.
452 OBLIGATION OF INDORSEE OR DRAWEE. § 183
narily done at the time and place when and where payment is
expected to be made, the courts for the most part agree that the
law of the place where the bill or note is payable shall govern.
In Rothschild v. Currie,* a bill was drawn in England on a
French house, and was accepted and made payable there. The
payee (the defendant) indorsed the bill in England to the plain-
tiff. The bill was dishonored at maturity, of which the defend-
ant was notified according to the law of France, but not in
accordance with the law of England. The court held the notice
sufficient to charge the indorser.®
So, in Hirschfield v. Smith,' a bill was drawn in England
payable to the drawer's order, directed to and accepted by the
drawee in France, payable in France and indorsed by the drawer
to the defendant in England, who indorsed it to the plaintiff in
England. The bill was presented and dishonored, notice of
which was given the defendant in accordance with the laws of
France, though not within the time required by English law.
It was held that the French rule should govern.
In Brown v. Jones,'' a bill was drawn in Indiana upon a party
in Illinois and made payable there. The drawer indorsed the
bill to the plaintiff. It was dishonored, and notice thereof was
sent to the drawer and indorser within the time permitted by
Illinois law, but not by the law of Indiana. It was held that
the law of Illinois should control.
In all of these cases a liability was sought to be enforced by
the ultimate holder of the bill or note against the drawer or in-
dorser, not by an intermediate indorser against a prior indorser.
The same principle, however, should control in the latter case,
and the lex solutionis of the bill or note (not of the prior in-
dorser's contract) should govern.
Thus, in Home v. Rouquette,' a bill of exchange was drawn
* 1 Q. B. 43, 1 Ad. & El. n. s. 43.
6 See also Rouquette v. Overmann, L. R. 10 Q. B. 525 ; Wooley v. Lyon,
117 111. 244, 57 Am. Rep. 867 ; Gay v. Rainey, 89 111. 221, 31 Am. Rep. 76 ;
Briggs V. Latham, 36 Kan. 255, 59 Am. Rep. 546, 13 Pac. 393 ; Carnegie Steel
Co. V. Construction Co. (Tenn.), 38 S. W. 102 ; Stubbs v. Colt, 30 Fed. 417.
« L. R. 1 C. P. 340.
» 125 Ind. 375, 25 N. E. 452. See also Pierce i;. Indseth, 106 U. S. 546.
» 8 Q. B. Div. 514, 28 Eng. Rep. 424.
§ 183 OBLIGATION OF INDORSBR OR DRAWER. 463
in England upon a Spanish house, payable in Spain. It was
indorsed in England by the defendant to the plaintiff, who
indorsed it in Spain to M, a resident of Spain. Acceptance
having been refused in Spain, a delay of twelve days occurred
before M wrote to notify the plaintiff of the dishonor. On the
receipt of this notice the plaintiff at once notified the defendant.
By the law of Spain, no notice of dishonor by non-acceptance
was required. Immediate notice was demanded by the law of
England. The defendant pleaded want of due notice, but the
court held the plaintiff entitled to recover."
In Musson v. Lake,^** a bill was drawn in Mississippi upon a
firm in Louisiana. It was indorsed by Lake in Mississippi,
and was protested by a notary in Louisiana for non-payment.
The protest did not show that the bill itself had been exhibited
when the demand was made upon the drawee, as the law of
Mississippi (but not that of Louisiana) required. The court
took the view that Mississippi was the locus solutionis of the
indorser's contract, and held that that law should govern the
effect of the presentment. It is believed that the better view
would be that the law of Louisiana, as the lex solutionis of the
bill, should control such questions as this; for with reference
to matters connected with the payment of the bill or note at
* In this case, however, the court did not rest its decision clearly upon the
ground that the lex solutionis of the bill should govern the obligation of the
defendant indorser's contract, though it is believed the ruling amounts to
this. It was placed upon the ground that the liability of the plaintiff upon
his Spanish indorsement to M, was to be measured by the law of Spain ; that
he was responsible to M notwithstanding the delay in the notice of non-accept-
ance ; and that since the plaintifiF had paid value to the defendant for the
bill, and had himself been legally made liable upon it, he was entitled to look
to the defendant for indemnity. If M, instead of looking to the plaintiff, had
proceeded at once against the defendant in this case, the decision leaves it
entirely unsettled what law would have been applicable. It would seem the
better and safer rule that the lex solutionis of the bill or note should control
in all such cases, thus making the same law the measure of the liability of all
the indorsers, no matter where they indorsed.
10 4 How. 262. See also Slocum v. Pomery, 6 Cr. 221 ; Powers v. Lynch,
3 Mass. 77; Aymar v. Sheldon, 12 Wend. (N.Y.) 439, 27 Am. Dec. 137;
Hunt V. Standart, 15 Ind. 33, 77 Am. Dec. 79; Douglas v. Bank, 97 Tenn
13.% 36 S. W. 874.
464 OBLIGATION TO PAY INTEREST. § 184
maturity, protest, dishonor, etc., all the parties should be pre-
sumed to have in mind the law of the place of payment, regard-
less of the situs of their individual collateral contracts. ^^
Nor is there any reason to presume that the parties have in
mind any other law as determining questions of their general
liability, at least if we suppose that the place of performance of
the indorser's contract is the place where the bill or note is
payable. In inquiries relating to such questions, as whether
or not the indorser is liable primarily and immediately, or only
after due diligence has been used to induce the maker or
acceptor to pay, the subject of the inquiry is the obligation of
the indorser's contract, which is to be controlled by the lex
solutionis thereof. ^'^
§ 184. Obligation to Pay Interest. — If a contract to pay
money makes no mention of interest, or though calling for
"interest" names no rate at which it shall be paid, it is well
settled that the obligation to pay interest on the amount
is governed by the lex solutionis of the contract, unless the
" Scudder v. Bank, 91 U. S. 406, 412.
** Whether the locus solutionis of the indorser's contract is the place where
the bill or note is payable, or the place where the indorsement is made, is a
mooted question, though the former view is preferable. See ante, § 165. It
so happens that the cases which have so far dealt with the particular inquiry
mentioned in the text have taken the latter view, and have therefore held
that the law of the place of indorsement controls the steps to be taken against
the maker or acceptor before forcing the indorser to pay. Hunt v. Standart,
15 Ind. 33, 77 Am. Dec. 79; Rose v. Park Bank, 20 Ind. 94, 83 Am. Dec.
306 ; Nichols v. Porter, 2 W. Va. 13, 94 Am. Dec. 501 ; Williams v. Wade,
1 Met. (Mass.) 82. See Young v. Harris, 14 B. Mon. (Ky.) 556, 61 Am.
Dec. 170; Carlisle v. Chambers, 4 Bush (Ky,), 272, 96 Am. Dec. 304. In
Rose V. Park Bank, supra, a note made in Indiana was payable in New
York, and was indorsed in both States. By the law of Indiana, an indorser
could not be sued until after suit was brought against the maker. The
Indiana court, adopting the theory that the loci solutionis of the indorsers'
contracts were the places where they were made, held that as to the New York
indorsers the law of New York should govern, while as to the Indiana in-
dorsers the law of that State should prevail. This view, it will be observed,
throws upon the holder the burden not only of ascertaining the law of each
particular place of indorsement, but of ascertaining also the place of such in-
dorsement at his peril. This doctrine certainly tends to hamper the negoti*-
bility of paper.
§ 184 OBLIGATION TO PAY INTEREST, 455
parties clearly contracted with reference to the law of another
State. ^
The same principle applies whether the claim of interest is
made against the maker of a note or acceptor of a hill, or
whether it be made against the indorser or drawer. But here
again must be noted the line of cleavage amongst the au-
thorities as to what is the locus solutionis of the indorser's or
drawer's contract. Some of the cases hold that interest is to be
computed against the drawer or indorser according to the law
of the place where the bill is drawn or the indorsement is
made ; ' while others have held that the interest in such cases
is to be computed according to the law of the place where the
bill or note is payable. The latter is believed to be the better
view.*
A somewhat different question arises in cases where a certain
rate of interest is lawfully reserved in the contract in accordance
with its lex celebrationis, payable until maturity, no provision
being made for interest after maturity. If in such case we
suppose the lex solutionis of the contract to authorize a differ-
ent rate of interest from that expressly reserved in the contract,
it becomes important to ascertain which law shall govern the
interest after maturity. The parties having shown their in-
tention to contract for interest under the law of the place where
the contract is made, that law should govern also as to the
1 CogWan V. R. R. Co., 142 U. S. 101; Scotland County v. Hill, 132 U. S.
107, 117; Lanusse v. Barker, 3 Wheat. 101 ; Kavanaugh v. Day, 10 R. I. 393,
14 Am. Rep. 691 ; Peck v. Mayo, 14 Vt. 33, 39 Am. Dec. 205 ; Crawford v.
Bank, 6 Ala. 12, 41 Am. Dec. 33 ; Morris v. Wibaux, 159 111. 627, 43 N. E.
837; Stickney v. Jordan, 58 Me. 106, 4 Am. Rep. 251; Sutro Tunnel Co. v.
Mining Co., 19 Nev. 121, 7 Pac. 271, 278 ; Stepp v. Association, 37 S. C.
417, 16 S. E. 134 ; Cooper v. Sandford, 4 Yerg. (Tenn.) 452, 26 Am. Dec.
239 ; Ayer v. Tilden, 15 Gray (Mass.), 178, 77 Am. Dec. 355 ; Consequa v.
Fanning, 3 Johns. Ch. (N. Y.) 587, 610 ; Fanning v. Consequa, 17 Johns.
(N. Y.) 511, 8 Am. Dec. 442 ; Scofield v. Day, 20 Johns. 102 ; Gibbs v. Fre-
mont, 9 Exch. 24 ; Cooper v. Earl of Waldegrave, 2 Beav. 282, 284.
'^ Gibbs V. Fremont, 9 Exch. 24 ; Crawford v. Bank, 6 Ala. 12, 41 Am.
Dec. 33.
' Peck V. Mayo, 14 Vt. 33, 39 Am. Dec. 205 ; Mullen v. Morris, 2 Ban
iPenn.), 35. See ante, § 165.
456 OBLIGATION TO PAY INTEREST. § 184
anmentioned interest after maturity.* But if the rate of in-
terest legally agreed upon before maturity is that of the place
of performance, the latter law will govern interest falling due
after maturity.®
In Scotland County v. Hill,* a Missouri county issued bonds
payable in New York, with coupon notes attached representing
interest, also payable in New York. The contract was silent
upon the point whether or not the coupon notes should them-
selves bear interest. It was held that the New York law (lex
solutionis), not that of Missouri, should govern as to the charg-
ing of interest upon the coupons after maturity.
If a judgment be obtained in one State upon a contract to pay
money in another, it should be observed that while judgment
will be given for the principal sum due, with interest computed
according to the law of the place where the contract is payable,
yet interest upon thdiA, judgment, if unpaid, will be computed in
accordance with the law of the place where the judgment is
rendered, so far as the courts of that State are concerned.'' But
if an action is brought in another State upon such judgment, it
has been held that interest wiU be allowed thereon according to
the law of the latter State (lex fori), whether or not the judg-
ment sued on specifies the rate of interest it is to bear.^
In conclusion, it must be noticed that no question of usury
or of invalidity can ever arise upon a contract where no specific
rate of interest is agreed upon. In such cases interest is
allowed according to the lex solutionis, even though the con-
tract might have been declared usurious and void if the same
* Cromwell v. County of Sac, 96 U. S. 51.
» Coghlan v. R. R. Co., 142 U. S. 101.
« 132 U. S. 107.
' Scotland County v. Hill, 132 U. S. 107.
8 Clark V. Child, 136 Mass. 344 ; Wells, Fargo, & Co. v. Davis, 105 N. Y.
670 ; Neil v. Bank, 50 Ohio St. 193, 33 N. E. 720. And this would seem to
be correct upon principle, at least in those cases where the interest upon the
first judgment by the law of its situs is greater than that authorized by the
lex fori ; because the charge thus created is imposed upon the defendant in
invitum, and hence the foreign law under which it is claimed should not be
given exterritorial force. This is not to deny "full faith and credit" to the
foreign judgment.
§ 185 COVENANTS AND CONTBACTS TOUCHING LAND. 457
rate of interest had been expressly agreed upon, provided th«
arrangement is not merely a cloak for usury.'
§ 185. Covenants and Contracts touching Land. — With
respect to the proper law governing the obligations incurred
upon covenants of title and the like, contained in deeds of con-
veyance of land and upon contracts relating to or affecting real
estate, much diversity of opinion exists. The disturbing ele
ment is found in the influence to be given in such cases to the
lex situs of the land.
Here also the chief diflBculty lies in ascertaining the locus
solutionis of the covenant or contract. Thus, a deed containing
covenants is made in one State, conveying land situated in
another. It does not necessarily follow that the covenant is to
be performed where the land lies, even though it affects the
title to the land. If such a deed contains a covenant to repair
or to pay taxes, or to do any other act which must be done where
the land lies, its locus solutionis is clearly the situs of the land.
But if we suppose a covenant of title, as that the grantor is
seised in fee, or that he has full power to convey the land in
fee, it is not easy to say whether such a covenant is to be per-
formed where the land lies or is to be performed generally, that
is, where the covenant is made. The question is of importance,
since the obligations incurred by the covenantor will depend
upon the lex solutionis. The better opinion seems to be that
the lex situs of the land should govern, so far as covenants of
title running with the land are concerned, since the grantor
must be presumed to be acquainted with that law as well as his
own, and to hold otherwise would tend to make the title to the
land uncertain.^
9 Peck V. Mayo, 14 Vt. 33, 39 Am. Dec. 205. For the "proper law"
governing the rate of exchange in respect to foreign contracts, the reader ia
referred to the lucid discussion in Mr. Justice Story's great work. See Story,
Confl. L. §§ 308 et seq. ; Greenwald r. Freese (Cal.), 34 Pac. 73.
1 Succession of Caasidy, 40 La. Ann. 827, 5 So. 292 ; Kling v. Sejour,
4 La. Ann. 128 ; Riley v. Burroughs, 41 Neb. 296, 59 N. W. 929 ; Fisher v.
Parry, 68 Ind. 465 ; Tillotson v. Prichard, 60 Vt. 94, 14 Atl. 302, 308. In
Indiana, the doctrine is that the lex celebrationis of the covenant is also th«
lex solutionis, and must control. See Worley v. Hineman, 6 Ind. App. 240,
33 N. E. 260; Cochran ». Ward, 5 Ind. App. 89, 29 N. E. 795, 796; Jackson
458 COVENANTS AND CONTRACTS TOUCHING LAND. § 185
In Riley v. Burroughs,' a deed was made in Nebraska to a
tract of land in Iowa, containing a covenant against incum-
brances. There had been several prior conveyances of the land,
each containing the same covenant, and all the time there had
been some unpaid taxes outstanding which constituted a lien on
the land. The owner of the land sued a remote grantor for the
breach of the covenant. By the law of Nebraska such a cove-
nant was personal only, and none but the immediate grantor
could be sued for its breach. By the law of Iowa it ran with the
land, and a remote grantor might be sued as well as the imme-
diate grantor. It was held that the law of Iowa should prevail.
In Succession of Cassidy,* Henry Cassidy sold in Louisiana
certain lands situated in Texas, with covenants of general war-
ranty, to Horace Cassidy, who sold them in Texas with like
covenants to the plaintiffs. By the law of Louisiana suit could
be brought upon such covenants only against the immediate
grantor, bringing in remote vendors as parties. In Texas, the
common law prevailed, by which a suit might be brought upon
a breach of covenant of title against any grantor in the chain of
title. Suit was brought in Louisiana by the plaintiffs against
the estate of Henry Cassidy, they having been evicted by title
paramount. Upon the first hearing, the court decided that the
Louisiana law should govern, since the matter related to the
remedy. But upon a rehearing, it was held that the Texas law
should prevail, as it was a matter relating to the obligation of
the contract.
That the lex situs of the land will also govern the obligation
of a contract to convey the same, the contract being made in
another State, can hardly admit of doubt, for the situs of the
land is necessarily the ultimate locus solutionis of the contract
to convey it; and by that law the measure of performance must
be regulated.*
The right of one who contracts with another to build or fur-
V. Green, 112 Ind. 341, 14 N. E. 89 ; Bethell v. Bethell, 54 Ind. 428, 23 Am.
Rep. 650.
* 41 Neb. 296, 59 N. W. 929. » 40 La. Ann. 827, 5 So. 292.
« See Garden City Sand Co. v. Miller, 157 111. 225, 41 N. E. 753 ; Car-
negie v. Morrison, 2 Met. (Mass.) 381, 398. This inquiry must not be c<m«
§ 186 INTERPRETATION OP CONTRACTS. 459
nish materials for the latter, to take out a mechanic's lien upon
the latter's houses or lands, is not a part of the obligation of
the contract, but is an incident annexed by law to the act
of building or furnishing materials for another. Hence, if a
mechanic's lien is validly created according to the lex situs of
the land, it is immaterial that the contract of which it is the
outcome is subject to a different law.'
§ 186. Interpretation of Contracts. — In ascertaining the
obligation of a contract (excluding matters of validity), the
important point, as we have seen, is to ascertain the intention
of the parties. If the contract is silent with respect to certain
obligations of the parties, and they have neither expressly nor
impliedly indicated any law by which they intend those matters
to be regulated, the general rule is that the law of the place where
they propose to act under the contract shall determine what
they must do in performance thereof.
We now come to an examination of the law that should con-
trol in those cases where the parties have foreseen a certain con-
tingency, and have attempted in their contract to provide for it,
but in doing so have used language susceptible of different
interpretations in different States or countries. It is immaterial
whether the ambiguous terms are technical legal phrases or
belong to the ordinary language of the people, or whether the
differences of meaning are due to the laws or to the ctistoms of
the several States. The result is the same ; the parties have
used terms which have one meaning in one State and a differ-
ent meaning in another. The question is which meaning
shall be attached to the words used.
fused with that touching the proper law regulating th& formal validity of such
contract or the capacity of the vendor to enter into it. With respect to these
matters, it is believed that the proper law will depend upon whether the con-
tract is treated as an equitable conveyance of the land, or merely as an ordi-
nary personal contract, a breach of which is to be compensated in damages.
If the former, the lex situs of the land should govern ; if the latter, the lex
celebrationis of the contract. Ante, §§ 12, 174. See Poison r. Stewart, 167
Mass. 211, 45 N. E. 737.
» U. S. Investment Co. v. Windmill Co., 54 Kan. 144, 37 Pac. 982 ; Camp-
bell V. Coon, 149 N. Y. 556, 44 N. E. 300. The lex situs will regulate »I1
charges and liens upon real estate. Ante, § 12.
460 INTERPRETATION OP CONTRACTS. § 186
The same principles control in this case as are applied in
ascertaining the implied obligations of the contract, for tho
design of the inquiry is the same in both cases, namely, to dis-
cover what the promisor has contracted to do.
If the parties expressly refer to the law or usage of a particular
State as a guide to ascertain the meaning of the terms they
have used, whether that State be the locus celebrationis or the
locus solutionis of the contract or a third State, such law or
usage becomes part of their contract. So it is also if the sur-
rounding circumstances clearly point to the law or usage of
some particular State as in the minds of the parties, though
they are silent on the subject themselves.^
But if the parties have not thus expressly or by implica-
tion indicated the law or usage of any other State as the
guide to their meaning, the locus solutionis of the contract will
be looked to, just as it would be if the implied obligations of
the parties were in question, and for the same reason ; because,
in the absence of evidence of other intent, the parties must be
presumed to have in mind for the purpose of performance the
law and usage of the place of performance. Slight evidence of
a different intent may suffice however to alter this rule, and to
cause the lex solutionis to yield to some other law as the guide
to the parties' intention; and the evidence may be circumstan-
tial as well as direct.
Thus, it is a general rule that the language used in a life
insurance policy, designating the beneficiary (subject to statu-
tory or charter restrictions as to who may be designated), is to
be regarded as the language of the assured alone and is to be
treated as of a testamentary character, receiving as nearly as
possible the same construction as if used in a will under the
same circumstances. Hence the phrase " heirs " or ''heirs at
law," etc., in a policy of life insurance is to be construed, in
the absence of evidence of a contrary intent, in accordance with
the lex domicilii of ,the assured, though the insurance contract
is entered into or payable in another State, by whose law such
terms would be given a different meaning.*
1 Dicey, Confl. L. 57-59.
2 Knights Templar Association i;. Greene, 79 Fed. 461; Northwestern
§ 136 INTEKPIIETATION OP CONTRACTS. 461
In Heebner v. Ins. Co.,' a policy of insurance upon a ship
was written in one State and signed there by the president and
secretary of the company, which was established there. It was
however stipulated that it was not to be binding until counter-
signed by the agent in Massachusetts. The insurance was
against ** total loss only." The ship was captured and con-
demned as prize, whereupon the owner notified the underwriters
that he abandoned the ship and claimed as for a total loss. The
court held that the Massachusetts law should determine not
only whether a total loss had occurred, but what was the effect
thereof; and accordingly decided that the phrase ''total loss"
covered a constructive loss, that the notice given the under-
writers was a sufficient abandonment, and that, according to the
Massachusetts rule, one third new for old was to be deducted in
estimating the constructive total loss.
In London Assurance v. Companhia de Moagens,* a cargo of
wheat was shipped on a British steamer at New York for Lis-
bon, and was insured by an English company, through its
agents in Philadelphia, "free of particular average unless the
vessel be sunk, burned, stranded, or in collision" all losses to
be paid in sterling at the company's offices in London, and
" claims to be adjusted according to the usages of Lloyds."
The ship was in collision before it left port, and the consequent
injury to the vessel and bad weather causing some leakage, the
salt water entered and injured a cargo of wheat. The captain
Association v. Jones, 154 Penn. St. 99, 26 Atl. 253 ; Masonic Association i;.
Jones, 164 Penn. St. 107, 26 Atl. 255. In Mullen v. Reed, 64 Conn. 240, 29
Atl. 478, a life insurance policy was issued in Massachusetts to a resident
of that State, being written in favor of the assured's "heirs at law." The
assured afterwards changed his domicil to Connecticut and died there. The
court held that the law of Massachusetts, not that of Connecticut, should
control the meaning to be attached to the phrase. This decision was clearly
correct ; for whatever the rule may be touching the law that should govern
the interpretation of a revocable vnll, upon a change of the testator's domicil
(ante, § 148), the above rule must be applied to a contract, whose obligation
attaches at the time it is made, and cannot afterwards be altered save by the
mutual consent of the parties.
» 10 Gray (Mass.), 131.
* 167 U. S. 149, 160, 167.
462 INTERPRETATION OF CONTRACTS. § 18d*
of the ship found it necessary to put in at Boston, and after a
survey decided to sell the whole cargo for the benefit of all con-
cerned. The question was made whether the insurance contract
covered this loss, and it was held that the law of England (lex
solutionis), being the law with reference to which the parties
contracted, must govern the interpretation of the terms used in
the contract. The insurance company was held to be respon-
sible for the loss, because according to the English doctrine
"if a ship be once in collision during the adventure, after the
goods are on board, the insurers are by the law of England
liable for a loss covered by the general words in the policy,
though such loss is not the result of the original collision, and
but for the collision would have been within the exception con-
tained in the memorandum, and free from particular average aa
therein provided."
In First Nat. Bank v. Shaw,* the question was as to the mean-
ing of the phrase "B'k % to T. W. Griffin & Co.," occurring in
a bill of lading, executed in Toledo, Ohio, of merchandise there
shipped to New York and delivered in Ohio to secure advances
made to the consignee in New York. The court, holding that
the phrase was to be interpreted according to the business usage
in Toledo, said in the course of its opinion : ' ' The true inquiry
is, what was the intent of the parties. It would seem in a case
like the present, when the contract was made in Ohio by Toledo
parties, the money being advanced there and the security taken
there, that they had in view in employing words their own
usages, even though the goods were to be sent to another State
and ultimately sold there if the advances were not repaid." '
Other examples might be given. The terms, ''dollars,"'
^'pounds,"* "usance,"' "month," ^** etc., are instances of
words possessing different meanings in different countries, with
regard to which questions of this sort may arise.
* 61 N. Y. 283, 293-294.
• See Huse v. Hamblin, 29 la. 501, 4 Am. Rep. 244.
T Greenwald v. Freese (Cal.), 34 Pac. 73.
8 Story, Confl. L. § 271.
9 Story, Confl. L. § 271.
M Story, Confl. L. § 270.
§ 186 INTERPRETATION OF CONTRACTS. 463
A fuller examination of the authorities would be of little ser-
vice, since the circumstances of each case must be looked to in
order to ascertain the intention of the parties.^^
11 The reader is referred to Whart. Confl. L. §§ 433-439, where an attempt
has been made to deduce some general principles from the decided cases.
464 ACTUAL PEBFOBMANCE OB. TE^^DEB. § 188
CHAPTER XIX.
DISCHARGE OF CONTRACTS.
§ 187. Various Sorts of Discharge. — Under the term dis'
charge of a contract are comprised all matters which, arising
superveniently to the execution of the contract, may he urged
as a total or partial defense to an action brought to enforce it.
They may consist in the actual performance of the contract, or
tender of performance, in exact accord with its terms; of the
substitution of a new agreement therefor, a release, or a mutual
rescission of the contract ; of the discharge of a surety by the
discharge of the principal or the extension of time, or a dis-
charge in bankruptcy, etc.
These various]^matters of discharge may be classified into three
main groups, as follows : (1) Those which result from the per-
formance, or tender of the performance, of the contract accord-
ing to its exact terms; (2) Those resulting from a supervenient
agreement or understanding of the parties ; and (3) Those re-
sulting from the mere operation of the law itself, without any
express agreement of the parties to that effect, and without per-
formance, or offer of performance, by the promisor.
These several sorts of discharge, being entirely distinct in
character, are regulated by different principles. It cannot be
expected, nor is it true, that the same law will govern them
all. The nature of the particular matter of discharge pleaded
must first be ascertained before the proper law controlling its
effect can be determined.
§ 188. Discharge by Actual Performance or Tender. — If it
be alleged that the contract has been discharged in whole or in
part by the actual performance thereof according to its terms, the
truth of the allegation becomes a mere question of fact after it
has been once ascertained what duties the contract imposes on
§ 188 ACTUAL PERFOBMANCE OB TENDEB. 465
the promisor. All that is necessary is to apply the principles
already considered, by which to determine the proper law
governing the obligation and interpretation of the contract,
that is to say, the lex solutionis of the contract (in the absence
of evidence that the parties had in view a different law).^ As
has been said by the Supreme Court of the United States in
a leading case,* speaking of the proper law governing a con-
tract : * ' Matters connected with its performance are regulated
by the law prevailing at the place of performance."
Thus in an English case ' it was held that a contract payable
in South Carolina was validly discharged by its payment in
South Carolina in depreciated paper money, which was there
legal tender.
In Graham v. Bank,* Graham and his wife resided in Mary-
land. The wife being the owner of certain shares of stock in a
bank in Norfolk, Virginia, dividends accrued upon the shares,
and were paid by the bank officers to her husband. By the law
of Maryland the wife was entitled to the sole and separate use
and control of her property. In Virginia the common law pre-
vailed, and the husband could give a valid acquittance of the
wife's debts. The question was whether the bank's payment of
the dividends to the husband constituted a valid discharge of
its obligation to pay dividends on the wife's stock. The New
York court held that since the dividends were payable in Vir-
ginia, a payment according to Virginia law was sufficient,
though by the lex domicilii the husband was not entitled to
the wife's personalty. Though the husband was bound to
account to the wife for the dividends under the law of Mary-
land, the payment to the husband discharged the bank under
the law of Virginia.*
1 See Denny v. Williams, 5 Allen (Mass.), 1 ; May v. 'Breed, 7 Cush.
(Mass.) 15, 54 Am. Dec. 700.
2 Scudder v. Bank, 91 U. S. 406, 413.
» Anon., 1 Bro. Ch, Cas. 376.
* 84 N. Y. 393, 38 Am. Rep. 528.
' If the bank had pleaded a release by the husband, instead of payment to
him, the husband's title would have depended upon the Maryland law (lex
domicilii), and so would the validity of the releasft
30
466 ACTUAL PERFORMANCE OR TENDER. § 18^1
But a performance " in accordance with the terms of the con-
tract " supposes a complete compliance with its terms in respect
to the time and place of performance, as well as other matters.
Hence a performance, though otherwise strictly in accordance
with the terms of the contract, if occurring at another time or
place than that named, will not operate to discharge the con-
tract, unless accepted by the promisee. In such case, the dis-
charge ceases to belong to the first class and becomes a discharge
by suhstitvied agreement, which is or may be governed by
altogether different rules, to be discussed in the following
section.*
The same principles govern the tender of performance of the
contract according to its terms. If the tender is made at the
time and place agreed upon for performance, the sufficiency of
the tender, and its effect as a total discharge of the contract or
as to sithsequently accruing interest only, is to be determined
by the lex solutionis of the contract, unless the parties had in
mind a different law when they entered into the contract.'
Thus, in Searight v. Calbraith,' a bill of exchange was drawn
in Pennsylvania, payable in Paris, and accepted there. Upon
presentation for payment, the acceptors offered to pay in French
assignats (paper money), which was in France a legal tender for
debts. The holder insisted on payment in gold or silver. It
was held that the question whether this was a proper tender
depended upon the law with reference to which the parties con-
tracted. The court further held that it was for the jury to de-
termine what law the parties had in mind, as regulating the
mode of payment.
In Warder v. Arell,» a bond was made in Pennsylvania, des-
ignating no place of payment. On the day appointed for pay-
ment, the obligor tendered the money in bills of credit issued
by the Congress of the United States, which were refused. A
Pennsylvania statute, in order to sustain the value of these
« See Vermont Bank v. Porter, 5 Day (Conn.), 316, 5 Am. Dec. 157.
7 Searight v. Calbraith, 4 Dall. 325, 327 ; Warden;. Arell, 2 Wash. (Va.)
882, 295, 1 Am. Dec. 488. See Pritchard v. Norton, 106 U. S. 124, 132.
« 4 Dall. 325.
• 2 Wash. (Va.) 282, 1 Am. Dec. 488.
§ 189 DISCHARGE BY SUBSTITUTED AGREEMENT, 467
bills, had enacted that one refusing to accept them in payment
of debts should forfeit the debt. The Virginia court held that
the Pennsylvania law should govern, and that since the effect
of the tender and refusal there was to discharge the contract
totally, the same effect must be given to it in Virginia.
On the other hand, a tender made at a place other than that
agreed upon as the place of performance of the contract, though
in all other respects conforming to its terms, may be rejected
by the promisee. Unless accepted by him, it is of no effect."
§ 189. Discharge by Substituted Agreement. — Under this
head are to be included all those acts which, while not constitut-
ing an exact performance of the contract according to its terms,
yet operate as a discharge because intended and accepted as such
by the parties.
Thus the payment of a bond or note, made at a time or place
other than that expressly agreed upon, a release, a mutual
rescission of the contract, the substitution of a new agreement,
etc., are instances of this sort of discharge. In all these cases
the effect of the discharge is due to the subsequent agreement
of the parties.
If the intention of the parties is clear, and that intention is
validly executed, the effect is to discharge the old contract and
to destroy its obligation absolutely. The effect of such subse-
quent agreement therefore cannot be regarded as a part of the
obligation of the original contract. Effect i* given to it, if at
all, not because of any intention of the parties, express or im-
plied, contained in the original contract, but by virtue of their
subsequent intention as displayed actually or presumably in
their new agreement. Hence the law governing the obligation
of the original contract has no necessary connection with the
effect to be given the new agreement, which, as to its validity,
w Noyes v. Wyckoff, 114 N. Y. 204, 21 N. E. 158 ; Abshire v. Corey, 113
Ind. 484, 15 N. E. 685 ; People's Bauk v. Norwalk, 56 Conn. 547, 16 Atl.
257; AUshouse v. Ramsay, 6 Whart. (Penn.) 331, 37 Am. Dec. 417. If no
special place of performance is agreed upon, the suflBciency and effect of tin
tender will be governed by the law of the place where the contract is made.
See Warder v. Arell, 2 Wash. (Va.) 282, 1 Am. Dec. 488 ; Vermont Banku
Porter, 5 Day (Conn.), 316, 5 Am. Dec. 157.
468 DISCHARGE BY SUBSTITUTED AGREEMENT. § 189
its obligation and effect, and its interpretation, must be con-
trolled by its own law.
If the new agreement is executed, as in the case of actual per-
formance at a time or place other than that agreed upon in the
original contract, or in case of a release, the lex loci contractus
will control its validity, obligation, and interpretation.
Thus, the obligation of a bond or other sealed contract cannot
by the common law be released except by an instrument of
equal dignity, under seal. But by the civil law it is otherwise.
Hence if a bond made and payable in England should be dis-
charged in France (where the civil law prevails) by a release
not under seal, it should be considered a valid discharge every-
where, including England.^
But if the substituted agreement is executory, to be performed
in some State other than that wherein it is made, it may be a
more difficult matter to ascertain the law which should deter-
mine its effect. The reasoning above given would seem to es-
tablish definitely that the law governing the obligation of the
original contract plays no part in the solution of this question.
It is the proper law governing the substituted executory contract
■which must determine its effect.
Its validity must be determined by the same law that governs
the validity of other contracts, that is to say, by the lex celebra-
tionis if the invalidity relates to the making of the contract; by
the lex solutionis, if it relates to the performance ; and by the
lex loci considerationis, if it relates to the consideration.
But if there is no question of the validity of the substituted
promise, but only of its effect as a discharge or merger of the
original contract, this is a matter pertaining to the obligation
of the new agreement, and primarily depends upon the parties'
intention. If the agreement is silent upon that point, its
effect must be determined by the law with reference to which
they actually or presumably contracted. In the absence of evi-
dence of a different intent, since the new contract, if it operates
as a discharge at all, takes effect as soon as it is entered into,
not when it is performed, the parties should generally be pre^
1 Story, Confl. L. §§ 351 a, 351 b.
§ 190 DISCHARGE BY OPERATION OP LAW. 469
sumed to have in view the law of the place where it is entered
into (lex celebrationis), though it is to be performed elsewhere.
Thus, by the law of some States, in the absence of evidence of
a different intention, a note given for an antecedent indebted-
ness discharges or merges the original indebtedness, so that
thenceforth action can be brought only upon the note. In other
States this is not the case. Some of the decisions seem to take
the view that the effect of thus taking a note for an antecedent
indebtedness is a part of the obligation of the original contract,
to be determined by the law governing its obligation (lex solu-
tionis).' But the better opinion is that the effect of the note,
as constituting a discharge or merger of the original indebted-
ness, is to be governed by the lex celebrationis (not the lex
solutionis) of the note,* unless the note be given in pursuance
of a previous agreement of the parties made in another State,
under a different law.
§ 190. Discharge by Operation of Law — In Genered. — This
sort of discharge comprehends all those supervenient matters
whicli, though not supposing a performance of the contract nor
a substituted agreement of the parties, yet operate by mere act
of the law in discharge of the contract. The alteration or inter-
lineation of written contracts in material points ; the discharge
of a surety by reason of a subsequent change in the terms of the
principal contract, or his discharge by giving notice to the cred-
itor to sue ; or the discharge of an indorser by reason of failure
to give him due notice of dishonor, etc., are instances of dis-
charges resulting purely by operation of law.
It is well settled that the effect of acts of this character,
alleged to constitute a discharge of the contract, is a part of
its obligation, and therefore in the absence of evidence of other
intent it is to be regulated by the lex solutionis of the contract,
as being the law presumably in the minds of the parties at the
time the promise is made. Such matters constitute, so to
2 Tarbox v. Childs, 165 Mass. 408, 43 N. E. 124 ; Vancleef v. Therasson,
3 Pick. (Mass.) 12; Bartsch v. Atwater, 1 Conn. 409. The objections to this
view have just beeu mentioned.
» Thomson-Houston Electric Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137j
Oilman v. Stevens, 63 N. H. 342, 1 Atl. 202.
470 DISCHARGE IN BANKRUPTCY. § 191
speak, implied conditions upon which the contract is entered
into, a breach of which will discharge the promisor from his
obligation to perform his agreement.
Many illustrations of the application of these principles have
already been given in the previous chapter, where the law
governing the obligations of contracts has been discussed, and
there is no occasion here to do more than merely refer to that
discussion.
§ 191. Same — Discharge in Bankruptcy. — The discharge
of a debtor in bankruptcy belongs in the main to that class of
discharges known as discharges by operation of law, in that it
neither supposes a performance nor a substituted agreement.
But there are peculiar features pertaining to it which do not
permit it to be governed altogether by the same principles that
control other discharges by operation of law.
There has been in the past much conflict of opinion touching
the law controlling the effect upon a contract of a discharge in
bankruptcy or insolvency. This conflict seems now in the main
to be happily settled in this country, at least as between the
States of this Union, by the decisions of the United States Su-
preme Court and the later decisions of the State courts.^
A discharge in bankruptcy, releasing the debtor from further
liability upon a judicial ascertainment of the fact that he has
surrendered his property to his creditors, differs from other mat-
ters of discharge by operation of law, in that its effect depends
in part upon a judicial proceeding somewhat in the nature of a
forfeiture of the rights of creditors. In order that a tribunal
may decree such a discharge, or at least in order that its decree
should have any exterritorial effect, justice demands that the
bankrupt's creditors should be given an opportunity to protect
their rights, or at least should be themselves subject to the law
under which the court acts.
* These earlier views are discussed and commented upon in Story, Confl.
L. §§ 335-351 d, and will not be here considered. The fallacy of these cases
lay in not observing the dual nature of the discharge in bankruptcy which,
while in some measure dependent for its eflFect upon the obligation of the con-
tract, is also dependent upon the jurisdiction of the insolvency court. The
latter element was disregarded in the earlier cases.
§ 191 DISCHARGE IN BANKRDPTCl. 471
But a discharge in bankruptcy resembles other discharges by
operation of law in that its effect is a part of the obligation of
the contract alleged to be thereby discharged, and therefore (sub-
ject to the qualification above mentioned) its effect must depend
upon the intention or understanding of the parties in entering
into the contract, or, in the absence of any expression by them,
upon the law with reference to which they must be presumed to
have contracted (lex solutionis).
Two conditions then must concur in order to give such a dis-
charge any exterritorial effect. The first is that the tribunal
whose duty it is to grant the certificate of discharge should have
control and jurisdiction over the creditor. The second is that
the "proper law" governing the obligation of the contract
should recognize such a discharge as a valid release of the
debtor from further obligation to perform it.
In regard to the first of these conditions (supposing the sec-
ond complied with) , it has been held repeatedly by the Supreme
Court of the United States that a discharge in bankruptcy or
insolvency granted in one State will be of no effect in another
State of the Union, if the creditor is a citizen of another State
than that of the discharge, unless by voluntarily taking part in
the insolvency proceedings, or otherwise, he has come personally
under the control and jurisdiction of the court.** For ''when in
the exercise of that power [to discharge a debtor] the States pass
beyond their own limits and the rights of their own citizens,
and act upon the rights of citizens of other States, there arises
a conflict of sovereign power and a collision with the judicial
powers granted to the United States, which renders the exercise
of such a power incompatible with the rights of other States and
with the constitution of the United States." '
It will be observed that this doctrine rests upon the theory
that the federal constitution forbids an interference by one
2 Sturges V. Crowninshield, 4 Wheat. 122 ; Ogden v. Saunders, 12 "Wheat
213 ; Cook v. Moffat, 5 How. 295 ; Baldwin v. Hale, 1 Wall. 223 ; Oilman
V. Lockwood, 4 Wall. 409 ; Denny r. Bennett, 128 U. S. 489, 497. See Pul.
len V. Hillman, 84 Me. 129, 24 Atl. 795; Rosenheim v. Morrow, 37 Fla 183,
20 So. 243.
» Baldwin v. Hale, 1 Wall. 223, 231.
472 DISCHAEGE IN BANKBUPTCY. § l&I
State, having no jurisdiction, with the rights of citizens of
another State. Under this theory, not only has the insolvency
court of the first State no jurisdiction to grant the debtor a
discharge which will be effective in other States as against a
non-resident creditor not within its control, but it is without
jurisdiction for any purpose in such case. The discharge will
be as ineffectual in the State of the discharge as in other
States.*
A question has been made whether the principles thus laid
down by the Supreme Court are applicable to the case of a cred-
itor who was a citizen of the State of discharge when the
contract was made, but who has subsequently and before the in-
solvency proceedings commenced removed out of the jurisdiction
into another State, and has never returned thither, nor taken
part in the insolvency proceedings. But it now seems to
be settled that such a creditor is not ipso facto subject to the
insolvent laws of his former domicil. The discharge is of no
effect against him, unless he in some way comes personally
within the jurisdiction of the insolvency court. ^
In Chase v. Henry,' an action was brought in Massachusetts
by a firm consisting of three partners, two of whom were resi-
dents of Massachusetts and one of New Hampshire, The
defendant pleaded a discharge in insolvency under the Massa-
chusetts law, which the plaintiffs contended was of no effect
as to any of them because it was a debt due to them jointly,
and one of them being a non-resident of Massachusetts the dis-
charge could not be pleaded as against him. And the court
(divided four to three) so held.
Although under the decisions of the Supreme Court this
result is attributed to the operation of the federal constitution,
and hence those decisions cannot, in strictness, be said neces-
* Denny v. Bennett, 128 U. S. 489 ; Pulleu v. Hillmau, 84 Me. 129, 24
Atl. 795 ; Silverman v. Lessor, 88 Me. 599, 34 Atl. 526 ; Stoddard v. Har-
rington, 100 Mass. 87, 88.
6 Pullen V. Hillman, 84 Me. 129, 24 Atl. 795 ; Roberts w. Atherton, 60
Vt. 563, 15 Atl. 159, 160 ; Norris v. Atkinson, 64 N. H. 87, 5 Atl. 710. Bat
see Stoddard v. Harrington, 100 Mass. 87, 88.
« 166 Mass. 577.
§ 191 DISCHARGE IN BANKRUPTCY. 473
sarily to apply to cases where the creditors affected are citizens
of foreign countries,' yet when it is remembered that one great
purpose of the constitution was to recognize, as between the
States, an even more enlightened comity than that prevailing
between States wholly foreign to one another, and to enforce in
each a more than ordinary respect for the laws and judicial pro-
ceedings of the others, it will be seen that, when the Supreme
Court holds that a discharge in insolvency granted in one State
shall have no effect in another as against residents of other
States, a fortiori should the same reasoning prevent foreign
States from recognizing such a discharge, or a State of this
Union from recognizing such a discharge in a foreign country,
as against creditors not resident in the State of discharge and
taking no part in the insolvency proceedings.
But so far as concerns the intra-territorial effect of the dis-
aharge in the State where it is granted, there may be a decided
difference between cases, all the elements of which have their
situs within the United States, and those in which some of the
elements are foreign, for example, in case of an English contract
or an English creditor. It is believed that it is impossible for
any court in this Union constitutionally to grant a discharge in
bankruptcy, if either the situs of the contract discharged thereby
or the situs of the creditor is in another State of the Union, the
creditor taking no part in the proceeding.^ But the federal
constitution does not extend in like manner to protect foreign
contracts and foreign creditors. Their rights are to be regu-
lated in each State by its own law.
We have heretofore presumed that the contract alleged to
have been discharged is to be performed in the State of the dis-
charge, so that the parties must be held to have contemplated
the contingency of such a discharge as a part of the obligation
of the contract ; and we have seen that, regardless of the " proper
law," at least as between these States, unless the creditor is
subject by residence or otherwise to the jurisdiction of the in-
'' Judge Story seems to take this view. See Story, Confl. L. § 341. But
see Story, Confl. L. §§ 349 et seq.
8 Cook V. Mofi"at, 5 How. 295, 308, 312; Baldwin v. Hale, 1 Wall 223,
232.
474 DISCHARGE IN BANKRUPTCY. § 191
solvency court, it has no power to grant the discharge. The
fact that the situs of the contract is elsewhere than in the State
of discharge, and that the law of that situs does not recognize
such discharges, but serves to emphasize its invalidity. In such
case the situs of the contract is immaterial.
But if we suppose the insolvency court to have jurisdiction
of the creditor, while the contract itself is to be performed in
another State whose law does not recognize a discharge in bank-
ruptcy or insolvency, the question is squarely presented whether
the effect of the discharge shall be held to depend wholly upon
the jurisdiction of the insolvency court, or in part also upon the
law governing the obligation of the contract (lex solutionis).
It is believed that both must concur.'^
» See Baldwin t- . Hale, 1 WalL 223, 232 ; Cook v. MoflFat, 5 How. 295,
308, 312.
I \9St TORTS, LOCAL AND TRANSITORY. 475
PART VI.
SITUS OF TORTS AND CRIMES.
CHAPTER XX.
SITUS OF TORTS.
§ 192. Locsd and Transitory Actions. — A tortious liability
may be briefly described as any private liability that is not con-
tractual.^ It may consist of an injury done to the person or to
property, either real or personal.
If an injury be done to the person or to the personalty of an-
other, it is at common law said to be "transitory;" that is,
the liability therefor is deemed to be personal to the perpetrator
of the wrong, following him whithersoever he may go, so that
compensation may be exacted from him in any proper tribunal
which may obtain jurisdiction of the defendant's person, the
right to sue not being confined to the place where the cause of
action arises.^
1 Special statutory liabilities, such as those sometimes imposed by law
upon the stockholders of a corporation for its debts, are remedial and con-
tractual in their nature, not tortious. They have been discussed elsewhere.
See ante, § 10.
* See Dennick v. R. R. Co., 103 U. S. 11 ; Stewart v. R. R. Co., 168 U. 8.
445, 448 ; Evey v. R. R. Co., 52 U. S. App. 118, 81 Fed. 294 ; Helton v. R. R.
Co., 97 Ala. 275, 12 So. 276, 282; Herrick v. R. R. Co., 31 Minn. 11, 47 Am.
Rep. 771 ; Nelson v. R. R. Co., 88 Va. 971, 14 S. E. 839 ; De Witt v. Buchanan,
54 Barb. (N. Y.) 31; Machado v. Fontes, 2 L. R. Q. B. D. 231. With re-
spect to torts to personal property, see Southern Pac. Co, v. Graham, 12 Tex.
Civ. App. 565, 34 S. W. 135 ; Belknap Sav. Bank v. Robinson, 66 Conn. 542,
34 Atl. 495. It is to be observed however that when the purpose of the suit
is not to recover damages, but a specific chattel tortiously taken or detained,
and that alone (not the alternative value), the action is in rem, and like all
such proceedings is strictly local, since in a proceeding of that character th«
476 TOBTS, LOCAL AND TRANSITORY. § 192
On the other hand, with regard to real property, the common
law held not only that actions to try the title to land were local
(as is necessarily the case, they being proceedings in rem), but
that all actions for trespasses thereon or torts thereto, though
in personam, were local also, and even actions ex contractu if
the defendant's liability depended upon ownership of the land
and privity of estate, as where the defendant, being an assignee
of the land, is sued for a breach of a covenant running with the
land.'
But in most States at present the distinctions of the common
law have either been totally abrogated (save where the suit is
upon the title) or have been regulated by statute. Whether a
particular action is to be regarded as local or transitory, and
hence whether a remedy shall be given for a foreign tort, de-
pends upon the lex fori, not upon the law of the place where
the cause of action arises. The question relates to the remedy,
not to the substantive liability.* But the modern tendency is
to throw the doors of the courts wide open to the complaints of
suitors with respect to injuries perpetrated in other States
against their persons or property, provided proper jurisdiction
of the defendant can be obtained, the citizenship or domicil of
either party being generally immaterial. ^ So marked indeed
is this tendency towards liberality in these cases, that it has
been held in Minnesota, where a tort was committed upon real
property in another State, that an action therefor might be
brought in any Minnesota court clothed with jurisdiction of the
cause and of the parties, though the Minnesota statutes provided
court must have jurisdiction of the res. Belknap Sav. Bank v. Robinson,
supra.
8 Huntington v. Attrill, 146 U. S. 657, 669, 670 ; Tillotson v. Prichard,
60 Vt. 94, 14 Atl. 302, 307 ; Worley v. Hineman, 6 Ind. App. 240, 33 N. E.
260, 262.
* See Huntington v. Attrill, 146 U. S. 657, 669, 670 ; "Worley r. Hineman,
6 Ind. App. 240, 33 N. K 260, 262 ; Pullman Palace Car Co. v. Lawrence
(Miss.), 22 So. 53, 55.
6 Pullman Palace Car Co. v. Lawrence (Miss.), 22 So. 53, 55, 56; St.
Louis, etc. R. R. Co. r. Brown, 62 Ark. 254, 35 S. W. 225, 226 ; Mitchell v.
Harmony, 13 How. 115. See De Witt v. Buchanan, 54 Barb. (N. Y.) 31?
Whart. Confl. L. § 478.
§ 193 TORTS, COMMON LAW AND STATUTORY. 477
that actions for torts to land (in Minnesota) should be brought
only in the courts of the county where the land lay. Thus,
although torts to land situated in Minnesota remained local
under the laws of that State, torts to land outside the State
were held to be transitory.
§ 193. Torts, Common La^v and Statutory. — In countries
whose jurisprudence is founded upon the common law of Eng-
land, a primary and important division of torts, which should
be noted at the very outset of this discussion, is that subsisting
between common law and statutory torts.
Common law torts are such as are actionable, or at least con-
demned, by the common law without the aid of any statute, the
demand for compensation being justified both upon principles of
inherent justice and of expediency; while statutory torts com-
prise those acts for which redress is given by statute, but which
were not actionable at common law, either because no essential
principle of right and justice demanded it or because redress
could not be afforded without violating some technical rule of
the common law.^
1 Most of the cases hereafter cited sustain this division of torts. But In
Stewart v. R. R. Co., 168 U. S. 445, 448, this classification seems to be dis-
approved and substituted by another, referring to the head of " common law
torts," all those wrongs, whether actionable at common law or not, which an
inherent sense of justice demands should be compensated by damages. Hence,
in that case, notwithstanding the common law maxim that " personal actions
die with the person," and the rule deduced therefrom that a death by wrong-
ful or negligent act was not actionable at common law, the court held that a
tort resulting in death was a " common law tort." The division of torts thus
adopted by the Supreme Court in Stewart v. R. R. Co., if recognized gener-
ally, would probably revolutionize the whole basis upon which the principles
of private international law touching torts now rest.
Torts committed in States which are not governed by the common law at
all, as those States whose laws are based upon the Roman law, would seem
naturally to fall under the head of statutory torts. But if the wrong is one
which an inherent sense of justice demands should be compensated in dam-
ages, it would seem that the distinction taken in Stewart v. R. R. Co., supra,
would be applied to it. It would then be regarded as a common law tort,
and strict compliance with the letter of the lex loci delicti (generally required
in actions upon foreign statutory torts) would not be rigorously demanded.
See Evey v. R. R. Co., 52 U. S. App. 118, 81 Fed. 294, 38 L. R. A. 387. Se«
Ijost, § 214, note 4.
478 TORTS, COMMON LAW AND STATUTOET. § 193
As will be seen hereafter,' in case of a State whose jurispru-
dence is based upon the common law and whose law is brought
into question in another State, the presumption, in the absence
of evidence to the contrary, is that the common law remains in
force unchanged by statute. Hence, a tort committed in one
such State, which is actionable at common law, will be presumed
in the courts of another State to be actionable in the former; * and
e converso, if such tort is not actionable at common law, it will
not be presumed by the courts of the forum to be actionable in
the common law State where committed.* In the latter case it
must be shown affirmatively that the statutes of the locus delicti
have made the tort actionable, before the courts of the forum
will entertain the action.^
If the lex loci delicti is not based upon the common law, but
upon the Roman law or some other system, and is under investi-
gation in a State based upon the common law system, no pre-
sumption will ordinarily arise as to the provisions of the former
law; they must be proved as facts. Sometimes however the
courts of the forum will presume a foreign law to be the same as
the lex fori.'
From what has already been said it will be seen that the ex-
istence or recognition of a statutory tort in the State where it is
committed is not to be presumed by the courts of other States.
The statute upon which it rests must be proved as a fact. That
the tort complained of has been rendered actionable by the stat-
utes of the forum will not usually furnish any ground for a pre-
sumption that a like statute exists in the State where the tort
was committed.'
a Post, § 214.
» Whitford v. Panama R. R. Co., 23 N. Y. 468 ; Thurston v. Percival,
1 Pick. (Mass.) 415.
« Louisville & N. R. R. Co. v. Williams, 113 Ala. 402, 21 So. 938 ; Kahl
V. R. R. Co., 95 Ala. 337, 10 So. 661, 662.
6 Whitford v. Panama R. R. Co., 23 N. Y. 468 ; Kahl ». R. R. Co., 95
Ala. 337, 10 So. 661, 662. But see post, § 214, as to presumption that the
foreign law is identical with lex fori.
® This whole question of presumptions touching foreign laws is discussed
folly hereafter. See post, § 214.
' Huntington v. Attrill, 146 U. S. 657 ; Stewart ». R. R. Co., 168 U. S.
§ 194 EXCEPTIONS TO LEX DELICTI. 479
A principal distinction between common law and statutory
torts committed abroad lies in tbe fact that, if the tort is statu-
tory, all the material provisions of the foreign statute must be
carried out, if it is enforced at all, whether they relate to the
liability of the defendant, the person who is to sue, the time
within which the suit is to be brought, or any other conditions
imposed by the statute.^ But if the wrong is a common law
tort, the lex loci delicti is looked to only in order to ascertain
the substantial rights of the parties. The mode of procedure,
the time within which the suit is to be brought, etc, are re-
garded as relating to the remedy and are controlled by the lex
fori, not by the lex loci delicti.
§ 194. Exceptions to Operation of Lez Loci Delicti. — The
law of the situs of a tort is of course the "proper law" to
govern the liabilities and rights arising therefrom. If not
liable by the lex loci delicti, the general rule is that the defend-
ant will not be liable elsewhere.^ If liable by that law, he will
usually be held liable wherever the question arises to the same
extent as if he were sued in the locus delicti itself.
But, as in other cases, there are occasions upon which the
foreign lex loci delicti will not be enforced in the courts of the
forum. These are in the main the same exceptional cases which
apply to the operation of any proper foreign law.'
As applied to torts, they may be said to consist of (1) Those
445, 448 ; Railroad Co. r. Betta, 10 Colo. 431, 15 Pac. 821. In such cases,
however, the courts sometimes presume the foreign law to be identical with
the lex fori. See post, § 214.
8 Post, §§ 200-202.
1 Carter v. Goode, 50 Ark. 155, 6 S. "W. 719 ; Le Forest v. Tolman, 117
Mass. 109. But see Machado v. Fontes, 2 L. R. Q. B. D. 231, in which it is
held that if the tort is not justifiable or excusable under the lex loci delicti,
but is only not actionable there, an action may be brought thereon in another
State. This would seem to be an instance in which a hard case made bad law.
The decision is in direct contradiction of all the principles of private inter-
national law relating to torts, and if followed to its logical conclusions would
overturn all the rules established for the governance of such cases. The same
question may arise in actions brought in one State for death resulting from a
wrongful act in another State. No such principle has been lield applicable to
them. See post, § 200. But see Stewart v. R. R. Co., 168 U. S. 445, 448.
2 See ante. Chapter IL
480 EXCEPTIONS TO LEX DELICTI. § 194
cases where the ''proper law" is in direct contravention of the
law or policy of the forum ; * (2) Where the remedy prescribed
for the tort by the lex loci delicti is penal in character; * and
(3) Statutory torts, where the statute, in creating the liability,
at the same time creates a mode of redress peculiar to that
State, by which alone the wrong is to be remedied.^
It should be especially observed, however, that these excep-
tional cases differ for the most part in their application from
those heretofore dealt with in one important respect. In case
of exceptions to the ''proper law" governing other matters,
such as transfers of property or executory contracts, if the
"proper law" is not applied the lex fori is substituted there-
for; some law is applied to the case. In the case of torts, if
the "proper law" is not applied, the case usually falls to
the ground; no law is substituted therefor.®
8 Eemck v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771, 774 ; St. Louis,
etc. R. R. Co. V. McCormick, 71 Tex. 660, 9 S. W. 540 ; Taylor v. Pennsyl.
vania Co., 78 Ky. 348, 39 Am. Rep. 244 ; Vawter v. R. B. Co., 84 Mo. 679,
54 Am. Rep. 105; North Pacific Lumber Co. v. Lang, 28 Or. 246, 42 Pac. 799 ;
Knight V. R. R. Co., 108 Penn. St. 250, 56 Am. Rep. 200, 201 ; Higgins v.
R. R. Co., 155 Mass. 176, 29 N. E. 534, 536 ; Dennick v. R. R. Co., 103 U. S.
11; Evey v. R. R. Co., 52 U. S. App. 118, 81 Fed. 294 ; Law v. R. R. Co.,
91 Fed. 817 ; Illinois, etc. R. R. Co. v. Ihlenberg, 21 C. C. A. 546, 75 Fed.
873, 879-880.
* Dale V. R. R. Co., 57 Kan. 601, 47 Pac. 521 ; Adams v. R. R. Co., 67
Vt. 76, 30 Atl. 687 ; Higgins v. R. R. Co., 155 Mass. 176, 29 N. E. 536 ;
Hamilton v. R. R. Co., 39 Kan. 56, 18 Pac. 57 ; Herrick v. R. R. Co., 31
Minn. 11, 47 Am. Rep. 771. 772 ; O'Reilly v. R. R. Co., 16 R. I. 388, 19 Atl.
245 ; Lyman v. R. R. Co., 70 Fed. 409 : Evev v. R. R. Co., 52 U. S. App. 118,
81 Fed. 294. See Huntington v. Attrill, 146 U. S. 657 ; ante, § lo.
•5 See Stewart v. R. R. Co., 168 U. S. 447, 448 ; North Pacific Lumber
Co. V. Lang, 28 Or. 246, 42 Pac. 799 ; Mex. Nat. R. R. Co. v. Jackson, 89
Tex. 107, 33 S. W. 857, 860. This is in reality an enforcement of the lex loci
delicti rather than an exception to its operation. The design of such statutes
is to give a remedy only in the locus delicti. For instances of such special
vemedies applied to contradtial liabilities, see ante, § 10.
^ This is certainly true as a general proposition. Cases may be conceived
where the lex delicti is so imperfect as to afford no remedy for even a most
flagrant wrong, in which perhaps the courts of another State might give re-
dress, especially if it is their own citizen who is thus injured. But even this
may weU be doubted. Carter v. Goode, 50 Ark. 155, 6 S. W. 719 ; W. U,
§ 195 SITUS OF TORTS. 481
§ 195. situs of Tort or Locus Delicti. — It is not always
easy to ascertain the situs of a tort, the locus delicti, which is to
furnish ''the proper law" of the case. If the whole injury is
caused by one single act, or by several acts, all of which occur
in the same jurisdiction, there is no trouble usually in locating
the tort, as having its situs at the place where the injury occurs.
But if the tort is committed upon the high seas, or if the
cause of the injury arises partly in one State and partly in an-
other, there is more difficulty.
In case of torts committed on board of merchant vessels on the
high seas, the tort must be regarded as committed in the terri-
tory of the State or country to which the vessel belongs. The
"law of the flag" is the lex loci delicti.* But if, when the
tort is perpetrated, the vessel is in a foreign port or in the ter-
ritorial waters of a foreign State, it is generally regarded as be-
coming subject to the foreign law, and no longer as itself a part
of the territory of the State whose flag it flies. The law of the
foreign port would in such cases be the lex loci delicti.''
If the injury complained of, though committed on the high
seas, does not occur aboard a vessel (to which the principle of
exterritoriality may apply), as where it results from a collision,
between two ships belonging to different countries, the tort not
occurring wholly on either ship, the general maritime law, as
administered in the forum, must govern.'
Another case in which there may be doubt as to the situs of
a tort arises where the injury is the result of a series of acts,
some of which occur in one State, while the culmination takes
place in another.
Tel. Co. V. Phillips, 2 Tex. Civ. App, 608, 21 S. W. 638. See Machado v.
Fontes, 2 L. R. Q. B. D. 231.
1 Dicey, Confl. L. 663 ; Whart. Confl. L. § 473 ; McDonald v. Mallory, 77
N. Y. 546, 33 Am. Rep. 664; Cavanagh v. Nav. Co., 13 N. Y. Supp. 540;
Dupont V. Quebec S. S. Co. (Canada), 11 S. C. 188. A fortiori would this be
true, under the rules of public international law, of torts committed aboard
public vessels.
2 Geoghegan v. Atlas S. S. Co., 22 N. Y. Supp. 749 ; Robinson v. Nav. Co,
43 U. S. App. 191, 73 Fed. 883. But see Dupont v. Quebec S. S. Co. (Canada),
11 S. C. 188.
8 The Brantford City, 29 Fed. 373, 383; The Scotland, 105 U. S. 24.
31
482 SITUS OF TORTS. § 19S
The rule in such cases is that the place where the liability of
the perpetrator first becomes fixed is the locus delicti, or situs
of the tort.*
Thus, if the cause of a railway accident is an omission or
neglect transpiring in one State, as the result of which the
accident and consequent injury occur in another, the seat of the
tort is the place where the accident and injury occur which
fasten the liability (if any there be) upon the defendant, not the
place where the negligence or omission transpired, which of
itself would fix no liability upon the defendant, save for the
subsequent injury resulting therefrom. The negligence or
omission is not in itself actionable, unless and until it is fol-
lowed by resulting injury.^
If the accident and accompanying injury take place in one
State, while death results from the injury in another, and suit
is instituted to recover damages for the death, the situs of the
tort will depend upon the question whether the tort complained
of is the injury or the resulting death. Where the laws of the
two States differ, this may become of importance. Following
the general rule already laid down, since an independent lia-
bility is fastened upon the defendant by reason of the injury,
such guilt as there is attaching to him at that time, the place
* Alabama, etc. R. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 806 ; Rail-
road Co. v. Doyle, 60 Miss. 977; Louisville & N. R. R. Co. v. Williams, 113
Ala. 402, 21 So. 938, 939 ; Rudiger v. R. R. Co., 94 Wis. 191, 68 N. W. 661 ;
McCarthy v. R. R. Co., 18 Kan. 46, 26 Am. Rep. 742 ; De Ham v. R. R. Co.,
86 Tex. 68, 23 S. W. 381 ; Needham v. R. R. Co., 38 Vt. 294.
5 Alabama, etc. R. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 806 ; Rail-
road Co. V. Doyle, 60 Miss. 977. But see Cin., H. & D. R. R. Co. v. McMul-
len, 117 Ind. 439, 20 N. E. 287 ; Louisville & N. R. R. Co. v. Williams, 113
Ala. 402, 21 So. 938. In the last case, the negligence occurred in Tennessee,
and death resulted therefrom in Alabama. It was held that the law of Ten-
nessee should determine the defendant's responsibility. But it does not clearly
appear from the opinion whether the accident and injury occurred in Ten-
nessee or in Alabama. Upon this point the correctness of the decision de-
pends.
For analogous principles with respect to crimes, see post, § 204 ; Alabanaa,
etc. R. R. Co. V. Carroll, supra; Simpson ». State, 92 Ga. 41, 44 Am. St. Rep.
V5, and note.
§ 195 SITUS OF TORTS. 488
of the injury is the true locus delicti. The death may increase
the liability, but it does not create it.'
An injury resulting from the act of a living agency will be
referred to the place where the act is done. This principle
applies not only to the tortious acts of an agent, for which it
is sought to hold the principal responsible in another State,'
but to cases where the defendant is the owner of an animal
which strays into another State and there does an injury for
which the owner is held responsible. The place of the injury is
the locus delicti.
Thus, in Le Forest v. Tolman,' a Massachusetts statute pro-
vided that ''every owner or keeper of a dog shall forfeit to any
person injured by it double the amount of the damage sustained
by him, to be recovered in an action of tort " (without regard
to the scienter) . The defendant lived in Massachusetts and the
plaintiff in New Hampshire. The defendant's dog strayed over
into New Hampshire and bit the plaintiff, who thereupon sued
the defendant in Massachusetts. There was no evidence of any
New Hampshire statute on the subject, and by the common law
presumed to be in force in New Hampshire the scienter was an
essential element of the cause of action. No scienter was shown.
The court held that the action could not be maintained in Mas-
sachusetts, since the New Hampshire law must control.
It is to be observed furthermore with respect to the situs of
torts, that every crime against an individual is also a tort. In
such cases, if a private action is brought upon the tort, its situs
is the situs of the crime, which will be discussed in a subsequent
section.'
The situs of torts to real property will of course be the situs
of the land against which the tort is committed. Nor can any
9 Rudiger v. R. R. Co., 94 Wis. 191, 68 N. W. 661 ; Needham v. R. R.
Co., 38 Vt. 294; McCarthy v. B, R. Co., 18 Kan. 46, 26 Am. Rep. 742;
De Ham v. R. R. Co., 86 Tex. 68, 23 S. W. 381. Perhaps also Louisville
& N. R. R. Co. V. Williams, 113 Ala. 402, 21 So. 938, may be referred to thif
principle. The facts of that case are not clearly stated.
' As in case of railway accidents like those above mentioned.
8 117 Mass. 109.
» Post, S 204.
484 LEX DELiOTI GOVERNS TORTS. § 190
serious doubt arise that the situs of torts to personal property la
the actual situs of the property, not its legal situs at the domicil
of the owner, unless that is also its actual situs.^" But so far
as the liability of the defendant for the conversion of goods de-
pends upon matter of title, etc., the "proper law" regulating
the title or other ground of defense is to be looked to, which
may or may not be the lex loci delicti. ^^
§ 196. Law governing Torts in General. — It is a general
rule subject to but few exceptions that the lex loci delicti gov-
erns the right of an injured party to sue for a tort, the liability
of the perpetrator, and the defenses he may plead. The modern
tendency, as we have seen, is in favor of regarding actions for
torts as of a transitory nature, not confined to the place where
the tort occurs. These principles give birth to another well
worthy of notice ; namely, a tendency to support an action for a
foreign tort, if actionable by the law of the State where it is
committed, and subject to that law, regardless of the law of the
forum; the only proviso being that it is not expressly contrary
to the law or to some very pronounced policy of the forum. The
courts are inclined to be very liberal in sustaining such actions.
The tendency of the recent decisions is especially observable
in respect to the liberality shown in refusing to set aside the
operation of a proper foreign law because of mere dissimilarities
10 Carson v. Smith, 133 Mo. 606, 34 S. W. 855 ; Southern Pac. Co. v.
Graham, 12 Tex. Civ. App. 565, 34 S. W. 135. In Hoffman v. Carow, 22
Wend. (N. Y.) 285, an action was brought in New York by a plaintiff resident
there against certain auctioneers, citizens of Maryland. The action was trover
for certain goods stolen from the plaintiff, and put in the defendants' hands
by the thief for sale, they being ignorant of the felony. It was held that the
law of the legal situs of the goods (the owner's domicil) should determine the
liability of the defendants for the conversion of the goods, not the law of
Maryland, where the conversion occurred. It is submitted that the court here
confused two distinct principles. It is generally true that the situs of chattels,
for the purpose of transfers or dealings with them by the owner, is the situs of
the owner. But so far as the dealings of third persons therewith are con-
cerned, as where they steal the chattels situated abroad or convert them to
their own use, the actual situs of the chattels is the locus delicti, and fur-
nishes the " proper law '' to govern both the crime and the tort.
u See Martin v. HiU, 12 Barb. (N. Y.) 631 ; Edgerly o. Bush- 81 N. V.
199.
§ 197 DEFENSES TO ACTIONS FOB TORT. 486
to the law of the forum. Thus, it was formerly laid down as a
rule in these cases that, in order for the courts to enforce a for-
eign lex delicti, the tort must not only be actionable in both
States, but the laws of both States must be substantially similar^
if not identical.^ The presumption was rather against the right
to recover for a foreign tort than in favor of it. At present,
however, the reverse of this is true, the courts favoring the right
to recover in such cases, unless the right is vetoed by the lex
fori. It may even be doubted whether it is necessary that the
lex fori should make the tort actionable at all, provided its
policy does not emphatically prohibit a recovery.* However
this may be, it is quite certain that it is no longer requisite
that the laws of the two States should be substantially similar.
If the lex delicti is not opposed to the settled policy of the
forum, it will be enforced there, provided the court has juris-
diction of the defendant.'
Thus in a recent Canadian case,* the action was for false im-
prisonment against a foreign customs officer. He had arrested
the plaintiff without a warrant, under a law of his own country
authorizing such arrests in case of persons suspected of violating
its customs laws. The point was made that this foreign law
(lex loci delicti) was contrary to Canadian notions of justice and
propriety and contrary to its policy, but the court ruled that it
was not so manifestly unjust as to be rejected as a defense to the
action.
§ 197. Defenses to Actions for Tort. — Not only does the
lex loci delicti control the plaintiff's right to sue and the grounds
1 See Herrick v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771 ; Leonard ».
Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491 ; St. Louis, etc. R. R. Co. v. McCor-
mick, 71 Tex. 660, 9 S. W. 540 ; Hamilton v. R. R. Co., 39 Kan. 687, 18 Pac.
57, 60 ; Cin., H. & D. R. R. Co. v. McMuUen, 117 Ind. 439, 20 N. E. 287;
O'Reilly v. R. R. Co., 16 R. L 388, 19 Atl. 245 ; Mon-is v. R. R. Co., 65 la.
727, 23 N. W. 143.
2 See Herrick v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771 ; Nelson v.
R. R. Co., 88 Va. 971, 14 S. E. 839.
8 Herrick v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771 ; Evey t. R. R. Co.,
62 U. S. App. 118, 81 Fed. 294, 38 L. R. A. 387; Huntington v. Attrill, 14<
U. S, 670; Law v. R. R. Co., 91 Fed. 817.
« May V. Smith, 32 N. B. 474.
486 DEFENSES TO ACTIONS FOR TORT. § 19T
of his complaint, but the same law usually governs the defenses
which may be made by the defendant. It should be noticed that
the courts are more chary of applying exceptions to the complete
operation of a foreign lex delicti when it is the ground of the
defendant's defense than when it is the ground of the plaintiff's
complaint. Few cases are found in which the defense of the
alleged wrongdoer, based on the lex delicti, has been swept
away by the courts in the maintenance of the supposed policy of
the forum, though perhaps in extreme cases such a step might
be justifiable.^
Thus, the effect of the absence of proof of the scienter, as a
defense to an action against the owner of a dog, which has strayed
into another State and there bitten the plaintiff, is to be deter-
mined by the lex delicti.^ And so is the effect of an act of am-
nesty or oblivion upon acts done in time of rebellion.'
So also the effect of contributory negligence as a defense to
an action ex delicto will be controlled by the same law. Thus,
whether the doctrine of "comparative negligence" applies to
the case depends upon the lex delicti.* So, if the lex delicti
provides that contributory negligence shall go merely in mitiga-
tion of damages, that law will govern, though by the lex fori
contributory negligence defeats the action altogether.* And if
the lex delicti fixes an age or conclusively presumes an age at
which an infant's contributory negligence will excuse a wrong-
doer, that law gives the rule for decision.'
But if the rule prescribed by the lex delicti with respect to
the defendant's negligence is a mere rule of evidence, such as
rules respecting the burden of proof touching negligence, the
lex fori will govern, not the lex delicti, in accordance with the
general principle that rules of evidence relate to the remedy, and
1 See May v. Smith, 32 N. B. 474 ; Machado r. Pontes, 2 L. R. Q. B. D.
231.
* Le Forest v. Tolman, 117 Mass. 109.
• Phillips V. Eyre, L. R. 6 Q. B. 29.
* See Helton v. R. R. Co., 97 Ala. 275, 12 So. 27«, 285 ; East Tenn., eto
B. R. Co. V. Lewis, 89 Tenn. 235, 14 S. W. 603.
» Louisville & N. R. R. Co. v. Whitlow (Ky.), 43 S. W. 711. '
• Bridger v. R. R. Co., 27 S. C. 462, 3 S. E. 860.
§ 197 DEFENSES TO ACTIONS FOR TORT. 487
like all matters of that character are regulated by the law of the
situs of the remedy (lex fori).''
In like manner, the scope and effect of the doctrine of ''as-
sumption of risk," upon entering into a dangerous employ-
ment are to be determined in accordance with the lex loci
delicti.®
The same law governs in ascertaining the liability of an em-
ployer to a servant injured by the negligence of a fellow-servant.'
The question has been made in these latter cases, whether the
liability or non-liability is not rather contractual than tortious.
This is of importance in those cases where the contract of em-
ployment is made in one State, while the injury occurs in an-
other subject to a different rule touching the employer's liability
for such injuries. It is believed however that the liability in
such cases is tortious, not contractual, and is therefore controlled
by the lex delicti. ^'^
So also where the nature and extent of the liability for a
tort depends upon the nature of the perpetrator's occupation, as
whether he is to be subjected to the liabilities of a common
carrier, this question will depend upon the lex delicti. Hence
in an action brought in Mississippi against the Pullman Car
Company of Illinois for an outrageous assault perpetrated in
Illinois upon a passenger by a porter in the employ of the com-
pany, the question whether the company was a common carrier
(and as such bound to protect its passengers against the acts of
its servants even when beyond the scope of their employment)
7 Helton V. R. R. Co., 97 Ala. 275, 12 So. 276, 285. See Van Raden w.
R. R. Co., 56 Hun (N. Y.), 96, 8 N. Y. Supp. 914.
8 Railroad Co. v. Ihlenberg, 75 Fed. 879-880 ; Northern Pac. R. R. Co.
V. Babcock, 154 U. S. 190.
9 Alabama, etc. R. E. Co. v. CarroU, 97 Ala. 126, 11 So. 803, 807 ; Kahl
V. R. R. Co., 95 Ala. 337, 10 So. 661, 662 ; Alexander v. Pennsylvania Co.,
48 Ohio St. 623, 30 N. E. 69, 70, 71 ; Belt v. R. R. Co., 4 Tex. Civ. App. 231,
22 So. 1062, 1064 ; Njus v. R. R. Co., 47 Minn. 92, 49 N. W. 527 ; Herrick
V. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771.
10 Alabama, etc. R. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 807 ; Belt v.
R. R. Co., 4 Tex. Civ. App. 231, 22 S. W. 1062, 1064 ; Herrick v. R. R. Co.,
31 Minn. 11, 47 Am. Rep. 771. But see Alexander v. Pennsylvania Co, iS
Ohio St. 623, 30 N. E. 69, 70.
488 DAMAGES FOR TORT. § 198
was determined in the affirmative, in accordance with the law
of Illinois (lex delicti).^^
§ 198. Damages — Compensatory, Punitive, and Penal. — >
With regard to the law governing damages to be given in
an action ex delicto, the distinction between common law and
statutory torts becomes of importance. The measure of dam-
ages in the case of statutory torts, as will presently appear,*
will be governed in general by the lex delicti, at least in those
cases where the measure of damages is fixed by the very statute
which creates the tortious liability.
The law controlling the measure of damages in actions ex
delicto may depend in some degree upon whether the damages
demanded are merely compensatory, or are punitive or vindic-
tive, or are by way of statutory penalty.
If the damages demanded are compensatory merely, and the
laws of both States authorize compensation (and no more), little
question will generally arise as to the " proper law " governing
the measure of damages. But occasionally some point may arise
upon differences between the lex delicti and the lex fori as to
the elements to be taken into consideration in estimating the
amount of damage. Such matters pertain to the remedy, and
are to be controlled by the lex fori, since they do not involve
any substantive right. Thus, if the lex loci delicti allows the
social position of the plaintiff to be considered in assessing
the damage resulting from a tort, while the lex fori does not,
the latter law will control.'
So, the question whether, in trover for the value of goods, in-
terest on the value thereof from the time of the conversion shall
be included in the damages is to be determined by the lex fori.'
But if damages are given by the law of either State, which
" Pullman Car Co. v, Lawrence (Miss.), 22 So. 53, 57.
* See cases cited infra^ note 4 ; post, §§ 200, 202.
2 Evey V. Mex. Nat. H. R. Co., 56 IT. S. App. 118, 81 Fed. 294, 38 L. R.
A. 387; Mex. Nat. R. R. Co. v. Jackson, 89 Tex. 107, 33 S. W. 861, 31
L. R. A. 276.
8 Carson v. Smith, 133 Mo. 606, 34 S. "W. 855, 858. But in case of statu-
tory torts, if interest is included in the damages under the statute of the locua
delicti, the lex delicti will prevail. Kiefer ». R. R. Co., 42 N. Y. Supp. 171.
§ 198 DAMAGES FOB TOBT. 489
are not merely, or not fully, compensatory for the tort complained
of, the general rule is that the measure of damages becomes a
matter of substantive right, to be controlled by the lex delicti
unless the damages are penal. The plaintiff should have the
same substantial relief in the forum that he would be entitled
to if he had sued in the locus delicti, provided the enforce-
ment of the lex delicti would not contravene the policy of the
forum.*
With respect to punitive damages also, if the case is one for
which such damages may be given in the discretion of the jury
under the lex delicti, that law will govern the legal right to
demand such damages in another State, unless the lex fori
should expressly prohibit punitive damages, or the enforcement
of the lex delicti in this respect would contravene an established
policy of the forum. This is a substantive right, not a mere
matter of remedy.*
In some cases the statutes of the locus delicti provide for a
named sum to be given by way of damages, regardless of exten-
uating circumstances in case the cause of action described in
the statute arises, and sometimes regardless of the actual dam-
age done. Such statutes are to be distinguished from those
which merely impose an outside limit upon the amount of dam-
ages recoverable. The latter are remedial statutes, the former
more or less penal, since they are to operate without regard to
circumstances of extenuation and do not give merely the actual
damages sustained. Such statutes have generally been refused
enforcement in other States, upon the ground that they are
penal.' And so it is, also, where the statutes of the locus
* Mex. Nat. R. R. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A.
276 ; Pullman Palace Car Co. v. Lawrence (Miss.), 22 So. 53, 57; Hanna v.
R. R. Co., 41 111. App. 116 ; Kiefer v. R. R. Co., 42 N. Y. Supp.. 171. See
Dyke v. R. R. Co., 45 N. Y. 113, 6 Am. Rep. 43 ; Wooden v. R. R. Co., 126
N. Y. 10, 26 Atl. 1050.
6 See Pullman Palace Car Co. v. Lawrence (Miss.), 22 So. 53, 67. But
Bee Carson v. Smith, 133 Mo. 606, 34 S. W. 855, 858, where the plaintiflfs
right to punitive damages is discussed without reference to the lex delicti.
« O'Reilly v. R. R. Co., 16 R. I. 388, 17 Atl. 906; Dale v. R. R. Co., 57
Kan, 601, 47 Pac. 521 ; Adams v. R. R. Co., 67 Vt. 76, 30 Atl. 687; Lyman
». R. R. Co., 70 Fed. 40».
490 V STATUTORY TORTS. § lyjj
delicti provide that, under particular circumstances of tort,
double or treble damages shall be awarded.''
§ 199. Statutory Torts — Death by Wrongfiil Act — Statu-
tory torts are either acts of an injurious tendency, which (al-
though compensation may not be demandable therefor upon the
universal principles that inhere in the common law) are made
tortious by statute ; or are torts which, not being actionable at
common law for some technical reason, are made so by statute.^
In cases of statutory torts there should be no presumption
that the laws of two States are similar. One may have re-
tained the common law, while the other has altered the com-
mon law rule within its limits by statute. Hence the fact that
acts of this character are made actionable by statute in the
State where the action is brought affords no ground to presume
that the same act is also actionable in the locus delicti.* In-
deed, if the lex delicti is founded upon the common law system
of jurisprudence, the very opposite presumption is indulged,
in the absence of proof to the contrary, namely, that the com-
mon law remains in force in the locus delicti, unchanged by
statute.'
The principal instance of a statutory tort is that afforded by
the enactment in most of the States of acts based upon the Eng-
» Bettys V. R. R. Co., 37 Wis. 323 ; Herrick v. R. R. Co., 31 Minn. 11, 47
Am. Rep. 774-775 ; Langdon v. R. R. Co., 58 Hun (N. Y), 122, 11 N. Y.
Supp. 514. It is possible however that such statutes, instead of being regarded
as penal and unenforceable exterritorially, should be looked upon as merely
creating a statutory case for punitive damages, and should therefore be re-
ferred to the preceding paragraph. See Huntington v. Attrill, 146 U. S. 657 ;
Evey V. R. R. Co., 52 U. S. App. 118, 81 Fed. 294, 302; Hamilton v. R. R.
Co., 39 Kan. 687, 18 Pac. 57. See ante, § 10. But this construction is
hardly probable, since in ordinary cases of punitive damages all the law does
is to permit the jury to consider whether upon the evidence additional dam-
ages should be awarded in the particular case, whereas under statutes of this
character no discretion whatever is left in the jury. Confiscations of this sort
are contrary to the policy of most States, and would hardly be enforced else-
where than in the State which enacts the law. But see Huntington v. Attrill,
supra.
1 Ante, § 193.
2 Leonard v. Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491.
« Debevoise v. R. R. Co., 98 N. Y. 377. See post, § 214.
§ 200 TORTIOUS DEATH — MODERN TENDENCY. 491
lish statute, known as ''Lord Campbell's Act," whereby in-
juries resulting in death are made actionable. At common law
the maxim, ** personal actions die with the person," applied
to such cases. These statutes vary greatly in detail, but the
general policy of most of them is the same. That policy is not
simply to permit the right of action to survive for the benefit
of the dead man's estate, but to give the benefit of the dam-
ages obtained to his family, free from the claims of creditors ;
or in other words, to create a new cause of action, rather than
merely to allow the old one to survive. Some of these acts
name the personal representative of the deceased as the proper
party to sue in this behalf, but the proceeds to go to his family
or those named by the statute ; others provide that the suit shall
be brought directly by the beneficiaries named in the statute ;
others, that the suit shall be in the name of the State. Some
of the statutes specify that only a limited amount may be re-
covered by way of damages ; others designate no limit. Some
provide that the suit shall be brought within one year, others
within two or more years, from the time of death. Some limit
the damages to a certain amount, others to another, others not
at all. Many of these acts prescribe other conditions and regu-
lations also, but those mentioned suffice to illustrate the vari-
ances and discrepancies existing between them, and which have
proved a fruitful source of conflicts of laws.
§ 200. Death by Wrongful Act — Increasing Liberality of
the Courts. — In the cases on this subject two main questions
were first presented. If a tortious death is actionable by the
lex fori only, will that statute govern ? If actionable by the
lex delicti, will that statute control ?
The first question was at once decided in the negative, and
the correctness of the ruling cannot be questioned.^
It is with regard to the second question that the greatest con-
flict of opinion has occurred. The view first advanced was that
although the lex delicti made the tortious death actionable, it
would be of no avail upon an action brought in another State,
1 Crowley r. R. R. Co., 30 Barb. (N. Y.) 99 ; Beach v. R. R. Co., 30 Barb.
433 ; Whitford v. Panama R. R. Co., 23 N. Y. 468 ; O'Reilly v. R. R. Co.. 1«
R. I. 388, 17 Atl. 906. See Debevoise t>. R. R. Co.. 98 N. Y. 377.
492 TORTIOUS DEATH — MODERN TENDENCY. § 200
even though the death was made actionable by the lex fori also,
because such statutes were to be regarded a& penal, or at least as
having no exterritorial force.*
As more liberal ideas advanced, the next step taken by the
courts was to recognize these statutes as remedial, not penal,
and to permit actions to be brought in one State for a tortious
death resulting in another State and actionable there, provided
there was a statute substantially similar in the State of the
forum.' But if there were any very marked dissimilarities be-
tween the statutes of the two States, this was still taken to in-
dicate that the enforcement of the lex delicti was contrary to
the policy of the forum, and the right to sue there would be
denied.*
The present tendency of the more recent decisions is to ad-
vance still further towards liberality and to throw open the
courts to litigants whose cause of action has arisen in other
States and under the laws thereof, even though not actionable
at common law or not actionable if it had arisen in the forum,
provided the enforcement of the lex delicti would not seriously
contravene the established policy of the forum. The presump-
tion is in favor of the right to sue, and the burden rests upon
the party objecting to show that the enforcement of the " proper
law " would be inconsistent with the domestic policy.^
2 Richardson v. R. R. Co., 98 Mass. 85 ; McCarthy v. R. R. Co., 18 Kan. 46 ;
Woodard v. R. R. Co., 10 Ohio St. 121 ; Anderson v. R. R. Co., 37 Wis. 321 ;
Hamilton v. R. R. Co., 39 Kan. 687, 18 Pac. 57. This doctrine is indefensible,
and has long since been discarded.
8 Leonard v. Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491 ; Wooden v. R. R.
Co., 126 N. Y. 10, 15 ; St. Louis, etc. R. R. Co. v. McCormick, 71 Tex. 660,
9 S. W. 540 ; Hamilton v. R. R. Co., 39 Kan. 687, 18 Pac. 57, 60 ; Cin. H. & D.
R. R. Co.r McMullen, 117 Ind. 439, 20 N. E. 287; Burns v. R. R. Co., 113
Ind. 169, 15 N. E. 230 ; O'Reilly v. R. R. Co., 16 R. I. 388, 19 Atl. 245 ;
Morris v. R. R. Co., 65 la. 727, 23 N. W. 143.
* St. Louis, etc. R. R. Co. v. McCormick, 71 Tex. 660, 9 S. W. 540 ; Belt
V. R. R. Co , 4 Tex. Civ. App. 231, 22 S. W. 1062, 1063 ; Ash v. R. R. Co., 72
Md. 144, 19 Atl. 643 ; Hamilton v. R. R. Co., 39 Kan. 687, 18 Pac. 57, 60 ;
Vawter v. R. R. Co., 84 Mo. 679, 54 Am. Rep. 105 ; Taylor v. Pennsylvania
Co., 78 Ky. 348, 39 Am. Rep. 244.
6 Stewart v. R. R. Co., 168 U. S. 445; Texas, etc. R. R. Co. v. Cox, 145
n. S. 593; Huntington v. Attrill, 146 U. S. 657, 670 ; Dennick v. R. R- Co,
§ 201 SUITS FOR DEATH — PBOPEB PLAINTIFF. 498
But even under this modern doctrine the right of the plain-
tiff to sue and the liability of the defendant depend in all 8ub«
stantial matters upon the lex loci delicti, not upon general
principles of law and justice as administered in the forum.'
Hence, both with respect to the party who is to sue for the
tort, the time within which suit is to be brought, the measure
of damages, and all other conditions named in the statute,
affecting the substantive rights of the parties, the lex loci
delicti is strictly followed, after it is once determined that
its enforcement will not contravene the policy of the forum.
§ 201. Same — Proper Plaintiff. — The lex loci delicti is the
proper law by which to ascertain the person who is to sue for a
death caused by wrongful act. The right to sue accrues, if at
all, by reason of the statute of the locus delicti, and in general
no one can take advantage of the right conferred by that law
save the person to whom that law gives it.
Thus where the lex delicti designates the personal represent-
ative as the proper complainant, while the lex fori names the
widow, the latter, in her individual capacity at least, will not
be permitted to sue in the forum, even though by the lex delicti
the representative is to sue for her benefit.^ On the other hand,
if the lex delicti prescribes that the representative is to sue
for the benefit of others than the party designated by the lex
fori as the complainant, this does not, under the modern view,
prevent the suit from being brought as directed by the lex
delicti."
If the lex delicti prescribes the widow, heirs, etc., as the
proper parties to sue, while the lex fori prescribes the personal
representative of the deceased, the same principle controls, and
103 U. S. 11 ; Law ». R. R. Co., 91 Fed. 817, 819 ; Higgins v. E. R. Co., 156
Mass. 176, 29 N. E. 535, 536 ; Nelson ». R. R. Co., 88 Va. 971, 14 S. E. 839 ;
Herrick v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771, 773.
• In Stewart v. R. R. Co., 168 U. S. 445, there seems to be the hint of a
tendency to rely upon general principles, rather than upon the strict lex loci
delicti. See also Machado ». Fontes, 2 L. R. Q. B. D. 231, where a similai
tendency is exhibited.
1 Usher v. R. R. Co., 126 Penn. St. 206, 17 AtL 598 ; St. Louis, etc. B. B.
Co. V. McCormick, 71 Tex. 660, 9 S. W. 540.
2 See Stewart r. R. R. Co., 168 U. S. 445.
494 SUITS FOR DEATH PROPER PLAINTIFF. § 201
the party designated by the lex delicti is the proper plaintiff,
without regard to the provisions of the lex fori.'
In cases where the "proper law" names the personal repre-
sentative as the plaintiff, a question arises as to whether this
requires the representative to be appointed in the locus delicti,
or whether his appointment in the forum will suffice. This
question has once before been discussed, and it was shown that
the weight of authority favors the doctrine that the latter is
sufficient.*
But to the general principle that only the party designated
by the lex loci delicti may sue, one exception has been made by
the Supreme Court of the United States in Stewart v. R. R.
Co.* In that case the death took place in Maryland, and suit
was brought in the District of Columbia by the administrator
of the deceased. By the law of Maryland, suit was to be brought
in such cases in the name of the State of Maryland, for the
benefit of the wife, husband, parent, or child of the deceased.
By the law of the District of Columbia, suit was to be insti-
tuted by the representative of the deceased for the benefit of the
general distributees. The court upheld the action by the ad-
ministrator on the ground that the plaintiff designated in the
Maryland statute (that is, the State of Maryland) was merely a
nominal plaintiff. So was the plaintiff named by the law of
the District (the personal representative). The result would
hardly have been the same if the party named as plaintiff by
the law of the District had been himself the recipient of the
damages. The beneficiaries, though not exactly the same under
both statutes, seem to have been regarded by the court as prac-
tically so.*
8 Wooden w. R. E. Co., 126 N. Y. 10 ; Limekiller v. R. R. Co., 33 Kan. 83,
52 Am. Rep. 523 ; Lower v. Segal, 59 N. J. L. 66, 34 Atl. 945 ; Davidow v.
R. R. Co., 85 Fed. 943, 944.
4 Ante, § 108. See Dennick v. R. R. Co., 103 U. S. 11.
6 168 U. S. 445. But see Wilson v. Tootle, 55 Fed. 211.
8 But for this decision of a most eminent tribunal construing the Mary-
land statute, it might have been thought that that act was intended to hare
no exterritorial force, since it prescribed that the action should be brought in
the name of the State of Maryland, which could not well be applicable to ac-
tions brought in any other than a Maryland court.
§ 202 SUITS FOR DEATH — OTHER CONDITIONS. 495
§ 202. Same — Other Conditiona of Suit. — Not only does
the lex delicti determine who is the proper plaintiff in actions
for death by wrongful act, but the same law controls also all the
other substantive conditions attached to the right to sue.
Thus, in Hamilton v. R. R. Co.,^ the death was caused in
Missouri, and action therefor was brought by the widow in
Kansas. By the law of Missouri, the widow was authorized to
sue in such cases ; but should she omit to sue for six months,
the minor children of the decedent were to sue. The plaintiff's
petition alleged that the deceased left minor children surviving
him, but did not show that the action was instituted within six
months after the decedent's death. Upon demurrer, the peti-
tion was adjudged insufficient, in that it did not state all the
requirements essential to make a cause of action under the law
of Missouri (lex loci delicti). The court said: *'The provision
designating where and by whom the suit may be brought is
more than a mere limitation: it is a condition imposed by the
legislature, which qualifies the right of recovery, and upon
which its exercise depends."
So also, if the statute of the locus delicti which creates the
liability prescribes a period within which the action must be
brought, this is not a mere statute of limitation (and as such to
be controlled by the lex fori''), but it is *'a condition imposed
by the legislature, which qualifies the right of recovery, and
upon which its exercise depends." ' But if the statute of the
locus delicti designates no special period within which the
action shall be brought, leaving the matter to be controlled
by the general statutes of limitation, the question is to be de-
cided in accordance with the lex fori.*
So also, it is believed, the lex loci delicti should regulate the
1 39 Kan. 687, 18 Pac. 57, 61.
2 Post, § 210.
' Hamilton w. E. R. Co., 39 Kan. 687, 18 Pac. 57, 61 ; The Harrisburg,
119 U. S. 199, 214; Cavanagh v. Nav. Co., 13 N. Y. Supp. 540. But in
actions for common law torts, the lex fori in general controls in respect to th«
period within which the suit may be brought. See Nonce v. R. R. Co., 33 B'ed.
429, 436 ; Johnston v. R. R. Co., 50 Fed. 886.
♦ Munos V. R. R. Co., 2 C. C. A. 163, 51 Fed. 188.
496 SUITS FOR DEATH — OTHER CONDITIONS. § 202
amount of damages recoverable, if limited in the statute creating
the right to sue, and the persons who are to enjoy the benefit
of the damages recovered. Thus the creditors of the decedent
(unless perhaps they are citizens of the forum) should not be
permitted to seize such damages, even though that course be
allowed under the lex fori, if the lex delicti confers them upon
pertain members of his family free from his debts.
§ 308 CBIMBS LOCAL. 497
CHAPTER XXI.
SITUS OF CRIMES.
§ 203. Crimes generally Local, not Transitory. — Although
it is true that in some countries, whose laws are based upon the
Eoman law, the principle has been established that the criminal
laws of the State follow its citizens abroad, and that upon
their return they are to be punished for their violations of the
domiciliary law while abroad, the reverse is the general rule in
those States whose laws are founded upon the common law
system.^
It is admitted that the State has the power to enact criminal
laws which may even follow its citizens abroad, and that, upon
their return to its jurisdiction, it may punish them for their
violations of such laws, even when those violations occur in
other States ; and in some instances, even in common law States,
such laws have been enacted.' But in the United States there is
one limitation imposed upon the power of a State to punish ex-
territorial offenses against its laws. This limitation is that the
accused should be a citizen of the State whose law he has vio-
lated at the time when the alleged foreign violation occurs. K
he resides in another State at the time of the act, though he was
previously a resident of the State whose law he is accused of
violating, or subsequently becomes such, he is not liable to pun-
ishment there. In this country, the criminal laws of a State
can only operate upon citizens and persons actually or construc-
tively perpetrating crimes within its jurisdiction.'
1 Manley v. People, 7 N. Y. 295 ; State v. Mitchell, 83 N. C. 674 ; State
V. Hall, 114 N. C. 909, 41 Am. St. Rep. 822 ; Com. v. Ktrnzmann, 41 Penn.
St. 429.
2 Ex parte Kinney, 3 Hughes (U. S.), 9.
» See Ex parte Kinney, 3 Hughes (U. S.) 9, 19, 20; Hanks v. State, 13
Tex. App. 289.
82
498 SITUS OF CRIMES. § 204
If the State has the power to enact laws which by their ex-
press terms punish acts of its citizens when committed abroad,
it would seem to follow that the same effect must be given to
necessary implication arising from the terms and circumstances
of the law. In other words, should the policy of the law neces-
sarily point to its exterritorial operation, it must be given effect
as against the citizens of the State upon their return thither, if
they have violated the law abroad. But the implication should
be a necessary one.*
In ordinary cases certainly, the general principle of the com-
mon law is to be followed, that crimes are strictly local in char-
acter, and are to be punished only by the State in whose territory
they are committed and in accordance with its laws. The lex
loci delicti is the ''proper law" here, as in the case of torts;
but there is an essential difference between the two kinds of
wrong, arising from the fact that, while a tort is an injury to
an individual who may have his situs anywhere, a crime is an
injury to the State where it is committed. This difference is
that the responsibility for torts is in general transitory, and an
action may be brought therefor in any State where jurisdiction
of the defendant's person may be obtained, while the responsi-
bility for crimes is usually local, no courts in general having
jurisdiction thereof save the courts of the State where the crime
is committed.^ This is based upon the idea that the crime is an
offense against the sovereignty and good order of the State
within whose jurisdiction it occurs, and that each State must
attend to the vindication of its own sovereignty.*
§ 204. Situs of Crimes. — Although, as already mentioned,
the general rule is that the locus delicti furnishes not only the
* Ex parte Kinney, 3 Hughes, 9.
5 Manley v. People, 7 N. Y. 295 ; Com. v. Kunzmann, 41 Penn. St. 429 ;
State V. Mitchell, 83 N. C. 674 ; State v. Hall, 114 N. C. 909, 41 Am. St. Rep.
822. See Johns v. State, 19 Ind. 421, 81 Am. Dec. 408.
6 Upon a somewhat similar principle it has been held, though often re-
gretted, that the courts of one State will not attempt to enforce the revenue
laws of another State (even though not criminal in character), — a remarkable
departure, it would seem, from the spirit of friendly comity which usually
animates the intercourse of States with each other. See Story, Confl. L. §§ 246,
246 ; Henry v. Sargeant, 13 N. H. 321 ; a»te, § 9.
\204 SITUS OP CEiMES. 499
law by which a crime is to be punished, but also the jurisdiction
to punish it, it is not always easy to ascertain what is the situs
of the crime in a particular case.
If a principal in the first degree in one State employs an in-
nocent or irresponsible agent, sentient or inanimate, through
whose aid he commits a crime in another State, the law regards
the principal as himself present and acting through the agent
or instrumentality at the point where the act is done, just as if
he were actually and personally there. He may be in fact the
citizen of another State, outside of whose limits he may never
have set his foot, but he is nevertheless constructively present
at the place where the crime takes effect, through the irrespon-
sible agent set in motion by him.*
Thus, in Adams v. People, ^ Adams was a citizen of Ohio who
forged a paper and sent it to an agent in New York who knew
not that it was forged. The agent there uttered the forged in-
strument. Afterwards A was apprehended in New York, charged
with obtaining money there under false pretenses. It was held
that the act of the innocent agent in New York was his act,
and therefore that the situs of the crime was New York, The
accused pleaded his Ohio citizenship, and that he was not at the
time of the offense subject to New York law, but without avail.
The same principle is applied in cases where one, being in
one State, discharges a gun or otherwise puts in motion an in-
strumentality, by which the death of a person results in another
State, He is guilty of homicide in the State where the fatal
blow takes effect, and is deemed to accompany his bullet or
other instrumentality to its destination, and therefore to be
constructively present there when it takes effect.' And the
fact that the mortal blow is given in one State while the death
ensues in another does not alter the principle. The place of the
mortal blow is the situs of the homicide, the death being a
1 Adams v. People, 1 Comst. (N. Y.) 173; People v. Adams, 3 Denio
(N. Y.), 190, 45 Am. Dec. 468 ; Lindsey v. State, 38 Ohio St. 507.
2 1 Comst. (N. Y.) 173.
» State V. Chapin, 17 Ark. 561, 65 Am. Dec. 452 ; People v. Adams,
3 Denio (N. Y.), 190, 45 Am. Dec. 468. See Com. t;. Macloon, 101 Masa
1, 100 Am. Dec 89.
600 SITUS OP CRIMES. § 204
mere consequence. Although it has sometimes been doubted
whether this was the rule at common law,* the overwhelming
weight of authority in the United States is in favor of this doc-
trine. The place of death is held to be immaterial.® A familiar
case of this kind is United States v. Guiteau.' President Gar-
field was shot by Guiteau in the city of Washington and died
at Long Branch, in New Jersey. The prisoner was tried and
convicted of murder in the courts of the District of Columbia.
But if in the State where the death occurs the law provides
expressly for the punishment of the criminal there, though the
mortal blow is given elsewhere, it is said that the courts of the
former State may assume jurisdiction to try the offender for
the murder.'
The same principle, it seems, governs in the case of an assault
with intent to kill, as where one standing in one State shoots
* 1 Hawk. P. C. c. 13, sec. 13; 1 Chitty, Grim. Law, 178 ; 1 Hale, P. C.
426. See Com. v. Linton, 2 Va. Cas. 205.
* United States v. Guiteau, 1 Mackey, 498, 47 Am. Eep. 247; Ex parte
McNeely, 36 W. Va. 84, 32 Am. St. Rep, 831 ; State v. Gessert, 21 Minn. 389 ;
State r. Bowen, 16 Kan. 475 ; State v. Foster, 8 La. Ann. 290, 58 Am. Dec.
678 ; Stout v. State, 76 Md. 317, 25 Atl. 299 ; State v. Carter, 27 N. J. L.
499 ; State v. Kelly, 76 Me. 331, 49 Am. Rep. 620 ; Simpson v. State, 92 Ga.
41, 44 Am. St. Rep. 75, and note ; State v. Hall, 114 N. C. 909, 41 Am. St.
Rep. 822.
« 1 Mackey, 498, 47 Am. Rep. 247.
' Com. V. Macloon, 101 Mass. 1, 100 Am. Dec. 89. In this case the mortal
blow was given upon the high seas, the death resulting therefrom in Massa-
chusetts. See also Tyler v. People, 8 Mich. 320, 333. It may be more doubt-
ful whether the same rule would apply where the place of the mortal stroke
is subject to a definite system of law of its own. The perpetrator commits no
overt act in the State where the death occurs, and the constitutional power of
that State to punish him may perhaps be questioned. The reasoning of the
court however in Com. v. Macloon, supra, leans towards the constitutionality of
such legislation. See Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, 82, note.
But see State v. Carter, 27 N. J. L. 499 ; State v. Kelly, 76 Me. 331. If
the accused has administered poison or delivered the blow in one State,
which he believes has resulted in death in that State, and afterwards takes his
rictim into another State, where for the better concealment of the crime he
decapitates him (the decapitation being the real, though unintended cause of
death), the situs of the homicide is the latter State, not the former. Jacksoa
». Com., 100 Ky. 239, 38 S. W. 1091 [Pearl Bryan Case].
S 204 SITUS OF CRIMES. 501
at another in a neighboring State, even though he misses him
altogether, provided the bullet or other missile reaches the terri-
tory of the latter State. The assailant is presumed to follow up
his bullet, and constructively makes the attempt to kill in the
State where the bullet strikes.^
A criminal conspiracy is complete where the conspiracy is
entered into, without regard to the further perpetration of the
illegal act which is the subject of the conspiracy. Hence if the
conspiracy is entered into in one State to execute a criminal act
in another, the situs of the conspiracy is the former State, and
that State has jurisdiction of that offense.' And while it is a
general rule of municipal law that the performance of the crim-
inal act itself merges the conspiracy, it may well be doubted if
this result would follow in cases where the conspiracy occurs in
one State while the criminal act itself takes place in another.
So accessaries before or after the fact in one State to a felony
committed in another are guilty in the State where they become
<accessaries. That State is the situs of their crime, and they
must be tried there.^"
The situs of a forgery, it is said, is the place where the forged
instrument is uttered and published with intent to defraud, not
the place where the writing is falsely made, added to, or altered.^^
» Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75.
9 Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, 82, note ; Dealy v. United
States, 152 U. S. 539 ; United States v. Britton, 108 U. S. 204; Ex parte
Rogers, 10 Tex. App. 655, 38 Am. Rep. 654. See United States v. Howell,
56 Fed. 21. And this is true perhaps even though the act to be done in pur-
suance of the conspiracy is not an illegal act in the State where it is to be per-
formed. See Lacey v. Palmer, 93 Va. 159, 31 L. R. A. 822, 24 S. E. 930.
10 Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, 82, note; State v.
Chapin, 17 Ark. 561, 65 Am. Dec. 452 ; State v. Wyckotf, 31 N. J. L. 65 ;
Johns V. State, 19 Ind. 421, 81 Am. Dec. 408 ; State v. Moore, 26 N. H. 448 ;
59 Am. Dec. 354. But see State v. Grady, 34 Conn. 118 ; Com. v. Chiovaro,
129 Mass. 497 ; Com. v. Pettes, 114 Mass. 311.
" Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, 83, note ; Lindsey v.
State, 38 Ohio St. 507 ; Ex parte Rogers, 10 Tex. App. 655, 38 Am. Rep. 654 ;
Rogers v. State, 11 Tex. App. 608 ; Foute v. State, 15 Lea (Tenn.), 712. See
Hanks v. State, 13 Tex. App. 289; Ex parte Carr, 28 Kan. 1. This is cer-
tainly the place of the utterance. But a forgery may be complete withoat
utterance. The place of the completion of the offense is the locus delictL
602 SITUS OF CRIMES. § 204
So, in the case of obtaining money or property under false
pretenses, if the false representations are made in one State
while the money or property is obtained in another, the crime
is completed in the latter State, not in the former, for the false
representations standing alone constitute no criminal offense.
The latter State is the situs of the crime. ^'^
The situs of a criminal libel is the situs of its publication.
Hence one who publishes a libel in one State in a newspaper
which circulates in another also, is liable to indictment in either
State, or in both.^'
With respect to the situs of the crime of larceny, some diffi-
culty arises where the goods have been stolen in one State and
are afterwards brought into another. A difference of opinion
exists in such case whether or not the thief may be prosecuted
in the latter State. On the one hand it has been said by emi-
nent authorities that each step taken by the thief after he has
stolen the goods constitutes a new asportation of them, and
hence a new larceny, and that he is therefore guilty of the lar-
ceny of the goods in each State to which he comes bringing
them with him."
As between two counties of the same State, it is admitted
that a thief stealing goods in one county and carrying them into
another may be tried in either county; the reason often assigned
for the doctrine being the fiction above given. ^^ But here there
12 Com. V. Van Tuyl, 1 Met. (Ky.) 1, 71 Am. Dec. 455 ; Stewart v. Jes-
sup, 51 Ind. 413, 19 Am. Rep. 739. See United States v. Plympton, 4 Cr.
C. C. 309; State v. Schaeffer, 89 Mo. 271, 1 S. W. 293.
1^ Com. V. Blanding, 3 Pick. (Mass.) 304; Com. v. Macloon, 101 Mass.
1, 100 Am. Dec. 89, 93.
" Simpson t-. State, 92 Ga. 41, 44 Am. St. Rep. 75, 82, note ; People t;.
Staples, 91 Cal. 23; Kidd v. State, 83 Ala. 58 ; Powell v. State, 52 Wis. 217 ;
Mack V. People, 82 N. Y. 235; People v. Burke, 11 Wend. (N. Y.) 129;
Dixon V. State, 15 Tex. App. 480 ; McKenzie v. State, 32 Tex. Cr. R. 568, 40
Am. St. Rep. 795 ; State v. Underwood, 49 Me. 181, 77 Am. Dec. 254 ; Hem-
maker V. State, 12 Mo. 453, 51 Am. Dec. 172 ; Com. v. Andrews, 2 Mass. 14,
3 Am. Dec. 17; Com. v. White, 123 Mass. 433. But see Com. i;. Uprichard,
3 Gray (Mass.), 434, 63 Am. Dec. 762; Com. v. Macloon, 101 Mass. 1, 100
Am. Dec. 89, 92.
" Com. V. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 92 ; Strouther's Quae,
92 Va. 789, 791.
§ 204 SITUS OP CRIMBfi. 508
is another principle of the common law that cornea Into play,
prohibiting the injustice of a double punishment to the thief
for the same offense, which would operate to prevent his punish-
ment in both counties. The same system of law that originates
the fiction furnishes this check upon it.
But as between two sovereign States this check is wanting.
If the fiction is to prevail, there is nothing to prevent (indeed
it is the sworn duty of the courts of each State to require) the
punishment of the thief in both States, or in as many as he
enters with the goods, provided the jurisdiction of his person
can be secured. Certainly it would seem that the removal of
the check upon injustice which is imposed when all the trans-
actions take place in the same State, should, as between several
States, remove also the fiction which is the origin of the possible
injustice.
There are a goodly number of authorities which take this
view of the question, and deny to the courts of the State whither
a thief has taken stolen goods, in the absence of express statutes
of the latter State, the right to try or punish him for the offense.
And this would seem to be the better rule."
In cases of crimes committed in a State by one construc-
tively, though not actually, present there, as in case of a per-
son in one State shooting a person in another, or sending him
poisoned candy, etc., through the mails, an interesting question
arises as to whether the criminal may be extradited to the State
where the crime has been committed, under the provisions of
the federal constitution to the effect that " a person charged
with treason, felony, or other crime, who shall flee from justice
and be found in another State shall, on demand of the executive
16 Strouther's Case, 92 Va. 789, 792 ; State v. Brown, 1 Hayw. (N. C.) 100 ;
Simmons v. Com., 5 Binn. (Penn.) 617; Simpson v. State, 4 Humph. (Tenu).
456; Com. v. Uprichard, 3 Gray (Mass.), 434, 63 Am. Dec. 762; Com. v.
Macloon, 101 Mass. 1, 100 Am. Dec. 89, 92; Lee v. State, 64 Ga. 203, 37
Am. Eep. 67; Beal v. State, 15 Ind. 378; State v. Newman, 9 Nev. 48, 16
Am. Rep. 3. If the larceny in the first State is forcible and violent, making
it a robbery, and the goods thus taken are brought into another State, it is cer-
tain that the party cannot be tried for robbery in the second State. This is
true even as between two counties of the same State. Com. v. Macloon, 101
Mass. 1, 100 Am. Dec. 89, 92.
504 SITUS OF CRIMES. § 204
authority of the State from which he fled, be delivered up, to
be removed to the State having jurisdiction of the crime." "
This provision, according to the current of authority, implies
that the accused must have been actually within the jurisdiction
of the accusing State and must have fled therefrom. If in fact
he was never within the jurisdiction of that State, he cannot
by a fair construction of words be said to have fled from its
justice.^^
" U. S. Const, art. iv. § 2, cl. 2.
18 Ex parte Smith, 3 McLean, 133 ; State v. Hall, 114 N. C. 909, 41 Am.
St. Rep. 822 ; Jones v. Leonard, 50 la. 106 ; Hartman v. Aveline, 63 Ind. 344.
In re Mohr, 73 Ala. 503. It is argued on the other side that if the wrongdoer
can be said to be constructively preseut in the State of the crime for the pur-
pose of giving it jurisdiction over the oflFense, his subsequent presence else-
where can only be accounted for by the fact that (constructively) he has fled
from that State. Certainly much failure of justice may result from the first
doctrine. For instance, in State v. Hall, supra, a person standing in North
Carolina shot another in Tennessee. The defendant was first indicted iu
North Carolina for the killing, but it was held that the crime was committed
in Tennessee, and that the North Carolina courts had no jurisdiction to pun-
ish him. It was subsequently held that he could not be extradited to Ten-
nessee, since he was not a "fugitive" from the justice of Tennessee. Two
judges strongly dissented. See 41 Am. St. Rep. 822, note, where the dissent*
ing opinion is given in full.
§ 205 NAIUBE OP REMEDY — FOBM OF ACTION. 606
PART VIL
SITUS OF REMEDIES.
CHAPTER XXII.
SITUS OF REMEDIES.
§ 205. Nature of the Remedy — Form of the Action. — It ii
an obvious proposition that the situs of the remedy is the forum
in which the remedy is prosecuted. Hence the "proper law'
controlling all matters pertaining to the remedy is the lex fori,
just as the lex situs of every other element in a given case
governs the effect of that element. In accordance with these
principles, it is well established that all matters touching the
remedy and the mode of procedure, whether the injury com-
plained of be a breach of contract, a tort, or a question of title,
are to be governed by the lex fori, regardless of the domicil of
the parties or the situs of the cause of action.*
It is sometimes extremely difficult to discern whether a par-
ticular inquiry relates to the remedy, or is a substantive part of
the cause of action or of the rights of the parties. The distinc-
tion however is one of the utmost importance, for upon it will
often depend the "proper law" which should govern a case.'
1 Pritchard v. Norton, 106 U. S. 124, 129 et seq. ; Bank v. Donnally, 8 Pet.
361 ; Ruhe v. Buck, 124 Mo. 178, 25 L. R. A. 178 ; Burchard r. Dunbar, 82
111. 450, 25 Am. Rep. 334 ; Hoadley v. Transportation Co., 115 Mass. 304 ;
Russell V. R. R. Co., 113 Cal. 258, 45 Pac. 323, 324 ; Thomson-Houston
Electric Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137, 1138 ; Downer v.
Chesebrough, 36 Conn. 39, 4 Am. Rep. 29; Wicks v. Dawson, 42 W. Va. 43,
24 S. E. 587.
2 Instances of these diflBculties have already been noted, and a criterion has
been kid down in the case of contracts by which to ascertain whether a par.
506 NATURE OF REMEDY — FORM OF ACTION. § 205
Difficult questions sometimes arise also, in actions ex con-
t'>-actu, from the fact that the form of the remedy will frequently
depend upon the form of the contract which constitutes the
cause of action.
For example, an action of assumpsit does not lie at common
law upon a sealed instrument. But supposing the instrument
to be made in one State and the remedy thereon to be sought in
another, it might be that under the law of one of these States
the instrument sued upon might be regarded as a sealed instru-
ment, while it might be unsealed by the law of the other State.
In such case, if the inquiry is directed solely toward the form
of remedy to be applied, the authorities are agreed that the lex
fori is to determine whether for that purpose the contract is
under seal, and the law of the viitus of the contract is imma-
terial.' But if the nature of the contract sued upon, as sealed
or unsealed, is inquired into, not with a view to ascertaining
the form of the remedy, but with the purpose of determining the
obligation and effect of the contract, the law of the situs of the
contract, not the lex fori, will control.*
In Le Roy v. Beard, ^ a covenant was executed and to be
performed in Wisconsin, which by the law of Wisconsin wa?
under seal (being sealed with a scroll or scrawl), but which the
law of New York did not regard as under seal. Assumpsit be-
ing brought thereon in New York, it was held that assumpsit,
not covenant, was the proper form of action in New York. In
the course of the opinion the court said: "It was obliged to be
in assumpsit in the State of New York. . . . We hold this, too,
without impairing at all the principle that, in deciding on the
obligation of the instrument as a contract, and not the remedy
ticular matter is a part of its obligation or relates to the remedy. See ante,
§§ 180, 182. See also Euhe v. Buck, 124 Mo. 178, 25 L. K. A. 178 ; Downer
V. Chesebrough, 36 Conn. 39, 4 Am. Rep. 29 ; Baxter Nat. Bank v. Talbot,
154 Mass. 213, 28 N. E. 163 ; Hoadley v. Transportation Co., 115 Mass. 304 ;
Burchard v. Dunbar, 82 111. 450, 25 Am. Rep. 334 ; post, §§ 209, 210.
» Pritchard v. Norton, 106 U. S. 124, 133 ; Le Roy v. Beard, 8 How. 451 ;
Bank v. Donnally, 8 Pet. 361, 373 ; "Warren v. Lynch, 5 Johns. (N. Y.) 239 ;
Andrews v. Herriot, 4 Cow. (N. Y.) 508 ; McClees v. Burt, 5 Met. (Mass.) 198.
* Pritchard v. Norton, 106 U. S. 124, 133 ; Le Roy v. Beard, 8 How. 451.
» 8 How. 451.
§ 206 NATURE OF REMEDY — FORM OF ACTION. 50l
on it elsewhere, the law of Wisconsin, as the lex loci contractus,
must govern."
In Trasher v. Everhart,' a single bill was made in Virginia
(where it was not deemed a specialty). Suit being brought
thereon in Maryland, it was held that assumpsit was not main-
tainable as upon a simple contract, but that the action must
be debt; because in Maryland, such single bill was deemed %
specialty.
So, in Warren v. Lynch,'' a promissory note executed in Vir-
ginia with a scrawl (which there made it a sealed instrument)
was held in New York, for the purpose of determining the proper
form of action, to be an unsealed instrument, the laws of New
York recognizing no instrument as sealed save such as were
sealed with wax or wafer.
On the other hand, in Watson v. Brewster,* suit was brought
in Pennsylvania, by whose law a scroll was a seal, upon a note
executed in New York with a scroll attached by way of seal.
It was again held that the nature of the instrument, as sealed
or unsealed, for the purpose of determining the form of the
remedy, should be governed by the lex fori.
So, the questions whether the remedy shall be at law or in
equity, in personam or in rem, summary or by regular process
of law, etc., are generally to be regarded as matters pertaining
to the remedy only, to be controlled by the lex fori.'
In Burchard v. Dunbar,^*' a promissory note was executed in
New York by a married woman for a debt of her husband, and
was charged upon her separate estate. An action of assumpsit
was brought on the note in Illinois, to which she and her hus-
band were made defendants, and judgment was recovered against
them in the lower court. By the law of New York the charge
• 3 Gill k J. (Md.) 234.
7 5 Johns. (N. Y.) 239. See also Andrews v. Herriot, 4 Cow. (N. Y.) 508 ;
McQees v. Burt, 5 Met. (Mass.) 198.
8 1 Penn. St. 381.
9 Burchard v. Dunbar, 82 111. 450, 25 Am. Rep. 334, 838 ; Drake v. Rice,
180 Mas.s. 410 ; New York L. Ins. Co. v. Aitkin, 125 N. Y. 660, 672 ; Buh«
». Buck, 124 Mo. 178, 25 L. R. A. 178.
10 82 111. 450, 25 Am. Rep. 334, 338.
608 NATURE OF REMEDY — FORM OF ACTION. § 205
was valid and could be enforced in an action at law against
her and her husband. By the Illinois law, it constituted an
equitable charge, enforceable only in equity. The court held
that while the obligation of the woman's contract was dependent
upon the law of New York, the mode of enforcing that obligation
was dependent upon the law of Illinois (lex fori), and that she
could not therefore be made liable in an action at law.
In Ruhe v. Buck, ^^ a married woman contracted in Dakota,
by whose law she could contract and sue and be sued like a feme
sole. She owned certain real estate in Missouri which was then
attached for the debt. By the law of Missouri, a married woman's
property could not be attached. The woman herself not being
within the jurisdiction of Missouri, the question was whether
the right to attach the Missouri property for the Dakota debt
was a part of the remedy or a substantive part of the contractual
obligation. It was held (some of the judges dissenting) that it
was a matter of remedy, to be controlled by the law of Missouri
(lex fori)."
" 124 Mo. 178, 25 L. R. A. 178.
^ Though a very close case, this decision would seem to be correct upon prin-
ciple. See ante, § 180. But it comes perilously near denying a remedy alto-
gether. Upon a married woman's contract executed in a State where it is
valid, a distinction must be drawn between the denial in the forum of a par-
ticular remedy, such as attachment, and the denial of all remedy. See Rich-
mond V. R. R. Co., 21 Gratt. (Va.) 611. It would be an absurd proposition
for the courts of the forum to admit that a contract made elsewhere is to be
regarded as valid in the forum, and then refuse to afford any remedy for its
enforcement. Hence the general rule is that if a suit is brought against a
married woman on a contract validly executed elsewhere, though by the lex
fori she is more or less incompetent to contract or be sued, the suit may never-
theless be maintained against her as if she were a feme sole, or as if it were a
case in which, under the lex fori, she were competent to contract. See Gibson
V. Sublett, 82 Ky. 596; Evans ». Cleary, 125 Penn. St. 204, 17 Atl. 440;
Spearman v. Ward, 114 Penn. St, 634, 8 Atl. 430 ; Stoneman v. R. R. Co.,
52 N. Y. 429. This statement must, however, be somewhat modified when
the forum is also the woman's domicil. See ante, § 72. The difficulty in Ruhe
V. Buck, supra, was that the married woman was not within the jurisdiction of
the Missouri courts, and therefore a denial of the right to attach her property
was almost equivalent to a denial of all remedy, unless she were accidentally
found within the jurisdiction. But this very qualification preyents it from
being a denial of all remedy, and merely limits it to a remedy in personam.
^* 206 MODES OP PROCEDURE — PARTIES. 509
It will be remembered that where the statute of a foreign
State creates a right not penal, prescribing no special remedy,
the right is regarded as transitory and susceptible of enforce-
ment anywhere, as in the case of extraordinary liabilities of
stockholders or directors of a corporation. But if special reme-
dies are provided by the same or other statutes for the enforce-
ment of the rights thus created, the courts of other States will
go no further towards their enforcement than their own ma-
chinery justifies them in going, with due regard to justice and
convenience."
§ 206. Modes of Procedure — Parties to the Suit. — It is
but a corollary of what has been already said, that the lex fori
governs all matters relating to the procedure in the trial of
causes, including the proper parties plaintiff and defendant, the
process, pleadings, and rules of practice, the court wherein the
cause is to be tried, the admissibility and effect of evidence,
the incidents of the trial, and the appellate procedure, — in-
deed, everything that pertains to the remedy.
We shall consider (1) The proper parties to the suit ; (2) The
process, pleadings, and rules of practice ; (3) Admissibility and
effect of evidence; (4) Incidents of the trial.
With respect to the ''proper law" governing who may be
plaintiffs in a suit, it may be laid down as a general proposition
that the lex fori determines the capacity of a party to sue in the
forum. In general all foreigners sui juris, and not otherwise
disabled by the lex fori, may maintain an action in the forum
to vindicate their rights or to redress their wrongs; and this is
true whether the foreign plaintiff be a mere private person, a
corporation, or a sovereign.^
Thus the lex fori determines whether a foreign married
woman shall sue in her own name, by her next friend, or with
her husband; * or whether the assignee of a chose in action, to
whom the equitable title thereto has been assigned under the
law of the place where the assignment occurs, shall sue in equity
*• This question is fully discussed ante, § 10.
1 Story, Confl. L. § 565 ; Hullett v. King of Spain, 1 Dow & C. 169
United States v. Wagner, L. R. 2 Ch. 582 ; The Sapphire, 11 Wall. 164.
a Robinson v. Queen, 87 Tenn. 445, 3 L. R. A. 214, 216, 11 S. W. 38.
510 PROCESS, PLEADINGS, AND PBACTICB. § 207
or at law ; or if at law, whether in his own name or in the name
of the assignor holding the legal title.' But if the law of the
place of assignment confers upon the assignee not only the
equitable but the legal title to the chose in action, the title so
conferred is a matter of substantive right, not of mere remedy,
and is to be controlled by the law of the place of the assignment
(lex loci contractus). In this connection, the distinction must
not be overlooked between the transfer of the legal title (inci-
dentally conferring upon the assignee the right to sue at law in
his own name) and the transfer of the equitable title only, but
with the special privilege of suing at law in his own name. The
latter relates to the remedy, and is governed by the lex fori;
the former relates to the obligation of the contract of transfer,
and is governed by the lex loci contractus.*
So also with regard to the parties defendant. Thus the ques-
tion whether a foreign sovereign or corporation may be sued,
and if so as to the mode of procedure, will depend upon the lex
fori.* Whether an infant defendant to a foreign cause of action
is to be sued in his own name, or by next friend or by guardian,
is to be determined by the lex fori, not by the law of the situs
of the cause of action." Upon the same principle the question
whether a married woman defendant may be sued alone, or must
be joined with her husband, depends upon the lex fori.''
§ 207. Process, Pleadings, and Rules of Practice. — The
nature, form, effect, and mode of execution of a process to sum-
mon a defendant will depend upon the lex fori, provided it is
not violative of the fundamental principles of justice embraced
' Levy V. Levy, 78 Penn. St. 507, 21 Am. Rep. 35 ; Leach v. Greene, 116
Mass. 534 ; Foss v. Nuttiug, 14 Gray (Mass.), 484 ; Orr v. Amory, 11 Mass.
25 ; Pearsall v. Dwight, 2 Mass. 84, 3 Am. Dec. 35, 38 ; Barth v. Furnace Co.,
63 111. App. 323.
* Levy V. Levy, 78 Penn. St. 507, 21 Am. Rep. 85 ; Jordan v. Thornton,
2 Eng. (Ark.) 224, 44 Am. Dec. 546 ; ante, § 164.
6 Duke of Brunswick v. King of Hanover, 2 H. L. Cas. 1 ; De Haber v.
Queen of Portugal, 17 Q. B. 171 ; Columbian Government v. Rothschild, 1 Sira.
94 ; Bank of Augusta v. Earle, 13 Pet. 579, 588-589.
« Ruhe V. Buck, 124 Mo. 178, 25 L. R. A. 178, 184.
' Robinson i;. Queen, 87 Tenn. 446, 3 L. R. A. 214, 11 S. W. 38. But sea
Eraxui V. Cleary, 125 Penn. St. 204, 17 Atl. 440; Halley r. Ball, 66 111. 260.
§ 207 PROCESS, PLEADINGS, AND PRACTICE. 611
in the term "due process of law."* There should always be,
and in the United States there must be, such notice given the
defendant as will properly notify him of the pendency of the
suit. If there be such notice, the form of it and the mode of
executing it, if valid by the lex fori, will be valid and binding
everywhere upon the defendant so notified. If the process is
not a sufficient notice to the defendant according to the lex fori,
and the judgment of the court is for that reason void under that
law, it will be of no binding effect elsewhere.*
Sometimes however the process is not confined to a mere sum-
mons, but may extend to the arrest of the defendant's person.
If we suppose, for example, a contract made in a State where
arrests in civil cases are not permitted, or not permitted in the
particular case, and suit to be brought thereon in a State where
the arrest of the defendant is permissible, a question may arise
whether this is a matter pertaining to the remedy or to the obli-
gation of the contract.
Applying the criterion already mentioned, namely, the inquiry
whether, if the law governing the obligation of the contract were
retroactively altered so as to be identical in terms with the lex
fori, it would impair the obligation of the contract, it would
seem quite clear that this is a matter pertaining to the remedy.'
This is certainly true, in the case above supposed, if the lia-
bility is general, binding the promisor personally to perform-
ance, and following his person wherever he may be. The lex
fori is to govern. But if the defendant's obligation is, by the
terms of his contract or by the "proper law," entirely in rem,
extending to his property merely, not to his person, so as to
exclude any personal liability on the part of the defendant, then
the exemption from liability to arrest, or to being proceeded
against in personam in any manner, perhaps becomes a part of
his substantive rights, and hence might no longer be controlled
by the lex fori.*
1 See ante, § 85.
2 Storv, Confl. L. § 568 ; Whart Confl. L. §§ 747-760 ; Dicey, Confl. L.
711.
« Ante, § 180.
* Story, Confl. L. §§ 568, 569, 571, 572 ; Melan v. Fitz James, 1 Bos. A
512 PEOCESS, PLEADINGS, AND PRACTICE. § 207
In Garr v. Stokes,^ the defendant was proceeded against ia
^ew Jersey upon a capias. He insisted that by the laws of
Kew York, where the contract was made, he was exempt from
arrest. But the court said: " It is not necessary to spend any
time to show the futility of such an objection. This is a ques-
tion of lex fori, and not of lex loci contractus."
In Melan v. Fitz James, ^ a bond was executed in France and
sued on in England, which bond by the French law was understood
to bind the property only, and not the person, of the obligor.
The defendant, being found in England, was arrested according
to the law of England, and applied for his discharge on the
ground that the law of France gave no such personal remedy,
but only a remedy against the property. Eyre, L. C. J., said:
**If it appears that this contract creates no personal obligation,
and that it could not be sued upon as such by the laws of France,
on the principle of preventing arrests so vexatious as to be an
abuse of the process of the court, there seems a fair ground on
which the court may interpose to prevent a proceeding so op-
pressive as a personal arrest in a foreign country at the com-
mencement of a suit in a case which, so far as one can judge at
present, authorizes no proceeding against the person in the
country in which the transaction passed. If there could be
none in France, in my opinion there can be none here. I can-
not conceive that what is no personal obligation in the country
in which it arises can ever be raised into a personal obligation
by the laws of another. If it be a personal obligation there it
must be enforced here in the mode pointed out by the law of
this country. But what the nature of the obligation is must be
determined by the law of the country where it was entered into;
and then this country will apply its own law to enforce it."
So also the lex fori will control the sufficiency and effect of
an appearance by the defendant. Thus, in Jones v. Jones,' a
Pul. 138 ; De La Vega v. Vianna, 1 B. & Ad. 284, 20 E. C. L. 387 ; Wood v.
Malin, 10 N. J, L. 208 ; Garr v. Stokes, 16 K J. L. 404, 405.
6 16 N. J. L. 404, 405. See Bullock w. Bullock, 61 N. J. Eq. 444, 27 AtL
435, 438.
« 1 Bos. & Pul. 142.
T 108 N. Y. 415, 486-427.
§ 208 EVIDENCE — PRESUMPTIONS — TRIAL. 613
defendant to a divorce suit in Texas resided in New York, and
was there served with process. He appeared specially in order
to deny the jurisdiction of the Texas court, and that court over-
ruling his objection he proceeded to file an answer. The Texas
court found against him, and he afterwards attacked the Texas
decree in New York on the ground that the Texas court had no
jurisdiction of his person. By the law of New York, a special
appearance to plead to the court's jurisdiction, even though
followed, when overruled, by an answer, did not give the trial
court jurisdiction. By the law of Texas it did. It was held
that the Texas law should control, and that the Texas court
had acquired jurisdiction of the defendant by his answer for all
the purposes of the suit.
The lex fori also controls with respect to the pleadings in the
suit and the rules of practice, as, for example, whether the plead-
ings are to be formal or informal, oral or written, by way of
declaration or complaint, under the common law or code sys-
tem, whether to be supported by affidavit or unverified, as to
the sufficiency of the allegations, the mode of pleading defenses,
etc.* So questions relating to the effect of a material variance,
amendments of pleadings, the filing of sereral defenses at the
same time, the forms of the general issues, the evidence which
may be given thereunder, etc., are all to be determined by the
lex fori.9
§ 208. Admissibility of Xhridence — Presumptions of Law
— Incidents of the Trial. — The admissibility of particular
evidence in a suit is to be governed in general by the lex fori,
for it partakes merely of the remedy. And this applies both to
8 Don V. Lippmann, 5 CI. & F. 1, 14, 15 ; Pritchard v. Norton, 106 U. S.
124, 130 et seq. ; Hubbell v. Land & Imp. Co., 95 Tenn. 585, 32 S. W. 965-
966 ; Lyons v. R. R. Co. (Tex.), 36 S. W. 1007 ; Harrison v. Edwards, 12 Vt.
648, 36 Am. Dec. 364, 366 ; Lynch v. Postlethwaite, 7 Mart. (La.) 69, 12 Am.
Dec. 495, 500. But if the question is not as to the proper mode of pleading a
defense, but as to the effect of the facts pleaded, this is in general to be deter-
mined by the law of the place where those facts transpire. See Vermont Bank
V. Porter, 5 Day (Conn.), 316, 5 Am. Dec. 157; post, § 211.
9 See Whart. Confl. L. §§ 788, 789 ; Bank v. Donnally, 8 Pet. 361, 369
et seq. ; McAllister v. Smith, 17 111. 328, 65 Am. Dec. 651.
33
614 EVIDENCE — PRESUMPTIONS — TRIAL. § 208
the kind and the amount of evidence necessary to prove a cause
of action.^
In The City of Carlisle.^ it wa8 held that a clause in the
British Shipping Act of 1854, making certain official entries
in log-hooks competent evidence in all courts, did not make
them so in suits hrought in other countries.
In Downer v. Chesebrough,' an action was brought in Con-
necticut against the indorser of a note, made and indorsed in
blank in New York, where it was made payable. The indorser
attempted to show that he had indorsed it to the holder only for
collection, and that there was a contemporaneous parol agree-
ment to that effect. By the law of New York a parol contract
could not be introduced in evidence to alter the legal import of
a blank indorsement. By the law of Connecticut (lex fori) it
could be. The lex fori was held to govern.
In Hoadley v. Transportation Co.,* a bill of lading for goods
was given by a carrier in Illinois, the goods to be shipped to
Massachusetts. The goods were destroyed by fire in Chicago,
from responsibility for which the bill of lading exempted the
carrier. It was urged by the shipper that he had never assented
to the terms of the contract. By the law of Massachusetts, the
mere receipt of the bill of lading by the consignor without dis-
sent constituted an assent to its terms. By the law of Illinois,
an actual assent was required. The Massachusetts court held
that this was a mere matter of evidence to be determined by the
law of Massachusetts (lex fori).
But presumptions which are conclusive, not merely prima
facie, in general are part of the substantive rights of the
parties, not matters of evidence or remedy merely, and there-
fore are regulated by the law properly governing those sub-
1 Pritchard v. Norton, 106 U. S. 124, 130 ; Scudder v. Bank, 91 U. S. 406 ;
Bowles V. Field, 78 Fed. 742 ; McAllister v. Smith, 17 111. 328, 65 Am. Dec
651 ; The City of Carlisle, 39 Fed. 807. But see, as to contracts required to
be in writing under the statute of Frauds of the forum, post, § 210.
« 39 Fed. 807.
» 36 Conn. 39, 4 Am. Rep. 29. See Baxter Nat. Bank v. Talbot, 154 Masa
213, 28 N. E. 163 ; ante, § 183.
* 115 Mass. 804, 15 Am. Rep. 106. See ante, § 151.
§ 208 EVIDENCE — PRESUMPTIONS — TRIAL. 515
stantive rights, not by the lex fori. Thus, if a contract under
seal be executed in one State, by whose law the seal conclu-
sively imports a valuable consideration, while suit is brought
thereon in a State where the seal has no such effect, the law of
the former State will control.^ So it has been held in Min-
nesota that a law of Wisconsin, making a tax-deed after the
expiration of two years conclusive evidence of the validity of
the tax-title to lands in Wisconsin, should be given the same
effect in Minnesota.'
The lex fori also governs other incidents of the trial, such as
motions for a continuance or for a new trial, motions in arrest
of judgment, and the relative priority of claims,'' And the rate
of interest for which judgment will be given, not as part of a
contract (for that will be governed by the lex solutionis '), but
by way of damages for the breach of a contract, or in recovering
the value of converted goods, will be regulated by the lex
fori.'
And in general questions as to the elements entering into the
quantum of damages and the mode in which they shall be paid,
ds well as the effect of matter arising after the judgment which
may be deemed a satisfaction or aggravation of damages, are to
be determined by the lex fori, as pertaining to the remedy."
Thus, in Evey v. E. R. Co.,^^ the plaintiff was injured in
Mexico by the negligence of the defendant railroad company,
and brought suit in Texas. By the law of Mexico he was per-
mitted to recover additional damages for injuries developing
after the first suit, and also to recover an "extraordinary in-
demnity" in consideration of his "social position." It was
held that these matters related to the remedy, to be controlled,
not by the law of Mexico (lex delicti), but by the law of Texas
(lex fori).
6 Pritchard v. Norton, 106 U. S, 124, 135 ; ante, § 177.
6 Bronson v. Lumber Co., 44 Minn. 348, 46 N. W. 570.
7 Story, Confl. L. §§ 323, 637 ; Harrison ». Sterry, 5 Cr. 289, 298.
8 Ante, § 184.
» Goddard v. Foster, 17 WalL 123 ; Carson v. Smith, 133 Mo. 606, 34 S. W
855, 858 ; ante, § 198. But see Peck v. Mayo, 14 Vt. 33, 39 Am. Dec. 205
w See ante, § 198. ^ 62 U. S. App. 118, 81 Fed. 294-
616 EXEMPTIONS. § 209
Even the very foreign law itself that governs or may govern
the substantive rights of the parties acquired abroad, must be
pleaded and proved in the courts of the forum in accordance
with the lex fori.^^
§ 209. Exemptions. — The principles by which to ascertain
the ''proper law" governing homestead and other exemptions
of property from execution or attachment are at present in a
state bordering upon chaotic confusion. Most of the statutes
creating such exemptions apply only to residents, so that the
property of non-residents, if sought to be subjected under execu-
tion or attachment, is not within their purview.
The doctrine probably recognized most generally in the
United States is that statutes of this character are mere mat-
ters of local policy, having no exterritorial force; that they
relate simply to the remedy; and therefore that the lex fori
is in all cases to determine what exemptions, if any, are to be
allowed.^ But it is by means apparent on the face of the mat-
ter that exemptions of this sort pertain merely to the remedy,
rather than to the obligation of the contract against which
the exemption is claimed. Nor is such always the case (it is
believed).
As has been already repeatedly shown, the criterion by which
to determine whether a particular matter relates to the obliga-
tion of a contract or to the remedy is to inquire whether, if the
contract were deprived of that element by retrospective legisla-
tion, tJie obligation of the contract would be impaired. If so,
the matter should be regarded as part of the obligation of the
contract, not as part of the remedy merely.'
" Story, Confl. L. § 637, note (a). See post, §§ 212 et seq.
1 Boykin v. Edwards, 21 Ala. 264; Kyle r. Montgomery, 73 Ga. 387;
Mineral Point R. R. Co. v. Barron, 83 111. 365 ; Newell v. Haden, 8 la. 140 ;
Burlington, etc. R. R. Co. w. Thompson, 81 Kan. 180, 47 Am. Rep. 497 ;
Morgan v. Neville, 74 Penn. St. 52 ; Stevens v. Brown, 20 W, Va. 450 ; Com-
mercial Nat. Bank v. R. R. Co., 45 Wis. 172 ; Lyon v. Callopy, 87 la. 567,
43 Am. St. Rep. 396 ; Atchison, etc. R. R Co. v. Maggard, 6 Colo. App. 85,
39 Pac 985 ; Harwell v. Sharp, 85 Ga. 124, 21 Am. St. Rep. 149 ; Wabash
R. R. Co. r. Dougan, 142 IlL 248, 34 Am. St Rep. 74 ; Barker v. Brow-^
(Ky.), 33 S. W. 833.
3 See ante, §§ 180, 18S.
§ 209 EXEMPTIONS. 617
In Edwards v. Kearzey,* the United States Supreme Court
decided that laws materially increasing exemptions, made ap-
plicable to pre-existing debts, impaired their obligation in re-
spect to the rights of the creditor, and were void as contrary to
the federal constitution.
On the other hand, it is equally well settled that, so far as
the debtor is concerned, exemptions are mere privileges granted
him and his family, and may be repealed at any time, without
impairing any vested rights of his, and a fortiori without im-
pairing the obligation of any contract.'*
If therefore the criterion above mentioned be applied to ex-
emptions of property from execution or attachment, it will be
seen that it is a part of the obligation of the debtor's contract
that his exemptions shall not be materially increased, but it is
no part of the obligation of the contract that they shall not be
diminished or taken away. According to this view, if the law
governing the obligation of the contract should permit a certain
exemption, while the law of the forum permits a greater amount
of property to be exempted, the former law should control. If
the lex fori authorizes a lesser exemption to the debtor, or no
exemption at all, the question relates to the remedy only, not to
the obligation of the contract, and should be governed by the
lex fori.
If this conclusion is correct, the question still remains, what
law shall govern the obligation of the contract in respect to
exemptions in cases where the exemption forms part of its obli-
gation ? In a previous section it has been shown that the
"proper law " governing the obligation of a contract (exclusive
of its validity) is the law in the minds of the parties at the
time the contract is entered into; and in the absence of other
evidence of the parties' intention, we must look to the law of
the situs of that particular element of obligation which is under
investigation.* The element of obligation under investigation
» 96 U. S. 595. See also Gunn v. Barry, 15 WalL 610 ; The Homestead
Cases, 22 Gratt. (Va.) 266.
* Massey v. Womble, 69 Miss. 347, 11 So. 188 ; Bull w. Conroe, 13 Wis. 288 1
Cooley, Const. Lim. 383. See Grand Lodge r. New Orleans, 166 TJ. S. 143.
6 Ante, § 181.
618 EXEMPTIONS. § 209
in this case is that relating to the mode of enforcing a judicial
proceeding against the debtor. The law of the situs of that
judicial proceeding therefore is the law " in the minds of the
parties " as governing the exemptions to be allowed. There is
only one place which might, with any degree of probability, be
regarded at the time of the contract as the place where the con-
tract is to be enforced in case of non-performance, namely, the
debtor's domicil. Hence the parties will generally be presumed
to have the law of the debtor's domicil in mind as governing
the exemptions of property to be allowed the debtor, and that
law should control in those cases where the exemptions are part
of the obligation of the debtor's contract.
This reasoning leads then to the conclusion that if the law of
the debtor's domicil permits a less exemption than the lex fori,
the law of that domicil should control; while the lex fori will
govern, if the lex domicilii of the debtor authorizes a greater
exemption than the lex fori.®
Although this is believed upon principle to be the correct
doctrine, no decision has been found to go so far. The ten-
dency of some of the cases has been to recognize the exemptions
as dependent, in part at least, upon the obligation of the con-
tract and upon the law of the debtor's domicil rather than the
lex fori, but they do not distinguish between the increase of
the exemption in the forum and its decrease or total abolition
there.'
• This rnle seems to operate hardly upon the debtor, but it is a no harder
case (though more frequent) than that presented by the rule of constitutional
law, upon which this doctrine is based, which declares that the legislature of
a State cannot retrospectively increase the debtor's exemption, though it may
retrospectively deprive him of the exemption altogether. As a matter of fact
almost all the actual cases arise under the second branch of the rule, and the
lex fori is the " proper law ; " or else the forum is identical with the debtor's
domicil ; so that the lex fori will usually control in any event.
T Singer Mfg. Co. v. Fleming, 39 Neb. 679, 42 Am. St. Rep. 613 ; Drake
V. R. R. Co., 69 Mich. 168, 13 Am. St. Rep. 382 ; 111. Cent. R. R. Co. v.
Smith, 70 Miss. 344, 35 Am. St. Rep. 651 ; Mo. Pac. R. R. Co. v. Sharitt, 43
Kan. 375, 19 Am. St. Rep. 143 ; Kansas City, eU;. R. R. Co. v. Cunningham,
7 Kan. App. 47, 51 Pac. 972 ; Mason r. Beebee, 46 Fed. 556. See La Sella v,
Woolery, 14 Wash. 70, 44 Pac. 115, 32 L. R. A- 75.
§ 209 EXEMPTIONS. 619
On the other hand, with the same indifference as to whether
the provisions of the lex fori call for an increase or diminution
in the amount of the exemption authorized by the law of the
debtor's domicil, perhaps the majority of the decisions hold that
it is in all cases a matter of remedy, to be controlled by the
lex fori, regardless of the law of the debtor's domicil.'
But whatever law is selected by the courts of the forum in a
particular case for their guidance in determining what property
within their jurisdiction is exempt from attachment or execu-
tion (whether the law of the forum or the law of the debtor's
domicil or of some third State), there can be no doubt of the
power of the forum to make such provisions touching the ex-
emption of any property within its limits as it may see fit.
Hence the decision of the courts of the forum, having jurisdic-
tion of the res in the particular case, is conclusive and binding
everywhere as between the parties to the litigation, under the
"full faith and credit" clause of the federal constitution.*
If therefore the courts of the forum (and situs of the property
» Mooney v. R. R. Co., 60 la. 346, 14 N. W. 343 ; Lyon v. Callopy, 87 la.
567, 43 Am. St. Rep. 396 ; Burlington, etc. R. R. Co. v. Thompson, 31 Kan.
180, 47 Am. Rep. 497 ; Morgan v. Neville, 74 Penn. St. 52, 57-58 ; Stevens
V. Brown, 20 W. Va. 450 ; Carson v. R. R. Co., 88 Tenn. 646, 17 Am. St.
Rep. 921 ; East Tenn. R. R. Co. v. Kennedy, 83 Ala. 462, 3 Am. St. Rep. 755 ;
Wabash R. R. Co. v. Dougan, 142 111. 248, 34 Am. St. Rep. 74.
' It will be remembered that when the question arises upon a garnishment
proceeding the courts are much divided as to whether the debt attached or
seized under execution has its situs with the garnishee or with his creditor,
the correct view being that for this purpose the actual situs of the debt is with
the garnishee wherever he may be sued. Ante, § 125. In Mason v. Beebee,
46 Fed. 556, the rather extraordinary and inconsistent ground is taken, that
while the debt is actually with the garnishee for the purpose of jurisdiction,
so as to permit it to be attached or seized, it must at the same time be regarded
as at the domicil of the garnishee's creditor for the purpose of determining the
exemptions to be applied. As a matter of fact (it is submitted), the court
erred in supposing that the situs of the property sought to be subjected has
anything to do with the matter of exemptions, save only in that, as the pro-
ceeding to seize the property must be in rem, the situs of the property is
also the situs of the remedy. The question must depend, upon principles
above mentioned, either upon the situs of the remedy or the situs of the
obligation of the contract for the enforcement of which the remedy is applied.
520 EXEMPTIONS. § 209
sought to be subjected) determine that the lex fori governs as to
exemptions, whether or not that be the "proper law" under the
rules of private international law, the decision is conclusive
everywhere ; and though it denies to the debtor exemptions to
which he would be entitled under the law of his domicil, it is a
complete defense, even in his domicil, to a suit brought by him
against the garnishee to recover the exempted property or its
value. ^**
But it does not necessarily follow that the judgment will be
conclusive in the courts of the debtor's domicil upon a suit
brought by the debtor against the attaching or execution cred-
itor for the amount of the exemption allowed by the law of the
debtor's domicil. Whether or not the judgment will have this
effect in a suit of this kind will depend upon whether the courts
of the first forum have adopted the "proper law" in deter-
mining the exemption rights of the parties. Thus, in Singer
Mfg. Co. V. Fleming, ^^ a corporation was garnished in Iowa
for a debt due to a debtor residing in Nebraska, where the plain-
tiff in the garnishment process also resided. By the law of
Nebraska the debt due by the garnishee was exempt from gar-
nishment; by the law of Iowa, the owner of the debt being a non-
resident, it was not exempt. The Iowa court held that the Iowa
law (lex fori) should control. In a subsequent suit in Nebraska
by the debtor against the garnishment plaintiff to recover the
money thus obtained under the decision of the Iowa court, the
Nebraska court, conceiving (erroneously) that the Iowa court
had not enforced the "proper law " (which the Nebraska court
believed to be the law of Nebraska, the debtor's domicil), held
that, while the Iowa judgment would be a complete defense in
Nebraska in a suit against the garnishee, it was no defense
there in a suit against the garnishment plaintiffP
10 Singer Mfg. Co. v. Fleming, 39 Neb. 679, 42 Am. St, Bep. 613 ; Chicago,
etc. E. R. Co. V. Moore, 31 Neb. 629, 28 Am. St. Rep. 534; East Tenn. R. R.
Co. V. Kennedy, 83 Ala. 462, 3 Am. St. Rep. 755 ; Carson v. R. R. Co., 88
Tenn. 646, 17 Am. St. Rep. 921 ; Morgan v. Neville, 74 Penn. St. 52, 57-58.
u 39 Neb. 679, 42 Am. St. Rep. 613.
12 There is some reason to question whether this decision does not contra-
vene the *' full faith and credit " clause of the federal constitution, and does
$ 210 LIMITATIONS — STATUTE OF FRAUDS. 521
Nor does it follow that the mere fact that such a garnishment
proceeding is pending in another State will deprive the courts
of the debtor's domicil of jurisdiction to entertain an action
against the garnishee by the garnishment defendant.^'
It has also been held, with doubtful propriety, that if the
creditor is domiciled in the same State with the debtor, he may
be enjoined by the courts of the common domicil from suing the
latter in another State, with the design of evading the domi-
ciliary law touching exemptions."
§ 210. Certain Defenses, Matters of Remedy — Statute of
Ldmitations — Statute of Frauds. — Most of the defenses which
may be made to an action upon a foreign contract or other trans-
action relate to the substantive rights or liabilities of the par-
ties, and are governed by the law of the situs of the transaction.
But there are certain defenses which have their origin in the
fact that the law, while admitting the existence of the cause of
action, for one reason or another has prohibited an action to
be brought thereon. Such are usually held to be the defenses
founded upon the statute of limitations and the statute of Frauds,
in cases where such statutes provide that "wo action shall be
brought " upon the transactions embraced by their terms.
This is the form usually adopted in the case of statutes of
limitations, and there can be no question but that it is a matter
not conflict with Green v. Van Buskirk, 5 Wall. 307. But it is believed that
it does not, and that it more closely resembles Homthall v. Burwell, 109 N. C.
10, 13 S. E. 721. Both of these cases have been diacossed in a previoos sec*
tion. Ante, § 132.
18 lU. Cent. R. R. Co. v. Smith, 70 Miss. 344, 35 Am. St. Rep. 651 ; Mo.
Pac. R. R. Co. V. Sharitt, 43 Kan. 375, 19 Am. St. Rep. 143. But comity
demands that whichever proceeding is first brought to judgment should
operate as a complete defense to the other suit. See Chicago, etc. R. R. Co.
V. Sturm, 174 U. S. 710.
" Morton v. Hull, 77 Tex. 13 S. W. 849. See Harwell v. Sharp, 85 G».
124, 11 S. E. 561 ; Mason v. Beebee, 46 Fed. 556. In a very recent case, the
Missouri court held that a Missouri statute prohibiting creditors from sending
claims against residents of Missouri to other jurisdictions to be sued upon
for the purpose of evading the Missouri exemptions, was unconstitutional.
Whether or not this decision is sound, it shows the impropriety of tha
arbitrary granting of injunctions in such cases by the coui"ts, withoui special
authority. In re Flukes (Mo.), 57 S. W. 545.
522 LIMITATIONS — STATUTE OP FRAUDS. § 210
pertaining essentially to the remedy, and not to the obliga-
tion, of the defendant ; for (applying the criterion already de-
Bcribed) a retrospective statute, either adding to or diminishing
the period within which a suit may be brought upon a con.
tract, does not impair its obligation, provided a reasonable
period is permitted the promisee within which to sue.^ Hence
in general the rule of private international law is that the lex
fori must control the period within which the action is to be
brought.'^
And this applies not only to the terms of the statute, but to
the incidents connected therewith. Thus, it has been held that
the effect of partial payments as interrupting the running of the
statute of limitations upon a contract is to be governed by the
lex fori.* And so it is with regard to the effect of a written
acknowledgment of the claim.*
It may be observed in passing that a judgment for the defend-
ant upon a plea of the statute of limitations will not prevent
another suit upon the same transaction elsewhere.*
So far we have supposed the statute of limitations to be in the
usual form, merely prohibiting an action to be brought after a
certain period. The claim or debt is not extinguished by the
termination of the period named in the statute; it remains in-
tact. The only effect of such a statute is to prevent an action
1 Bell V. Morrison, 1 Pet. 351 ; Koshkonong v. Barton, 104 U. S. 668 ;
Wheeler v. Jackson, 137 U. S. 245 ; Hart v. Bostwick, 14 Fla. 162 ; Ludwig
V. Steward, 32 Mich. 27. See Munn v. Illinois, 94 U. S. 113, 134. For the
criterion, see ante, § 180.
2 Story, Confl. L. §§ 576, 577 et seq. ; Bank v. Donnally, 8 Pet. 361 ;
Pritchard v. Norton, 106 U. S. 124, 130 ; Burgett v. Williford, 56 Ark. 187,
19 S. W. 750; Johnston v. Railway Co., 50 Fed. 886; Great Western Tel.
Co. V. Purdy, 162 U. S. 329, 339. This rule applies also where the cause of
action is a foreign judgment. See Fauton v. Middlebrook, 50 Conn. 44 ;
Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051 ; Rice v. Moore, 48 Kan.
590, 30 Pac. 10 ; Ambler v. Whipple, 139 111. 311, 28 N. E. 841.
8 Obear v. Bank, 97 Ga. 587, 33 L. R. A. 384.
* See Walsh v. Mayer, 111 U. S. 31.
' Bank v. Donnally, 8 Pet. 361. And by parity of reason the same is true
in case of a judgment for defendant upon the plea that the contract sued upon
is not in writing under the statute of Frauds of the forum, or any other defense
not going to the merits of the claim.
§ 210 LIMITATIONS — STATUTE OF FRAUDS. 528
upon the claim after that period in the State where the statute
is enacted. It can have no effect elsewhere. Such is usually
the effect of the statute with regard to actions to enforce a chose
in action.
But if we suppose that the claim is rendered void after a cer-
tain period, not merely that an action therefor is prohibited to
be brought, we are confronted with a very different question.
In such cases the statute does not affect the remedy merely, but
goes to the substantive rights of the parties wherever those
rights are within its influence. Substantive rights are to be
governed by the law of the situs of the transaction under which
they arise, not by the law of the situs of the remedy. The pre-
scription acts found in some of the European States are of this
character.*
Other examples of the same principle may be found in regard
to the effect of adverse possession of specific personal property,
for the period prescribed by the statute of limitations. After
the lapse of that period, the statute becomes a sword instead
of a shield merely. An actual title is conferred upon the ad-
verse holder, and the original owner's claim is extinguished.
Hence, in the case of specific property claimed by adverse pos-
session, it is not the lex fori which will determine the period
during which it must be adversely held, but the law of the situs
of the adverse possession, that is the lex situs of the property
itself.
Thus, in Shelby v. Guy,' the defendant and those under whom
he claimed had been in adverse possession of certain slaves,
claimed by the plaintiff, for ten years while they both lived in
Virginia. Afterwards the defendant removed to Tennessee and
was there sued for the slaves. By the law of Virginia, five
years' possession of chattels barred an action of detinue. This
Virginia statute the defendant set up in the Tennessee courts
as a defense to the action. The Supreme Court of the United
• Story, Confl. L. § 582; Don v. Lippmann, 6 CI. & F. 1, 16 ; Perkin«
V. (iuy, 55 Miss. 153, 30 Am. Rep. 510 ; Lyman w. Campbell, 34 Mo. App.
213. This would seem to be a matter of discharge of the contract, to be con-
trolled by the lex solutionis.
' 11 Wheat. 361.
624 LIMITATIONS — STATUTE OF, FRAUDS. § 210
States held that it was a good defense, since it attached to the
possession of the property before it left Virginia.^
Another instance in which a statute of limitation may become
a substantive part of the claim arises in case of actions for death
by wrongful act or other statutory torts. If the same statute that
creates the remedy prescribes the time within which the action
thereon must be brought, it is generally construed as imposing
that period for the prosecution of the remedy as a condition
essential to prosecuting it at all. It becomes a part of the right
itself, and is governed by the same law that regulates the right
in other respects (lex loci delicti).' But if the period of limitation
is not prescribed by the same statute which confers the right,
but is found in a general statute, the general principle applies,
and it becomes a law relating to the remedy, which will have no
exterritorial force. In such case, the law of the situs of the
remedy (lex fori) again becomes the "proper law."^"
If the statute of Frauds is urged as a defense to an action
upon a verbal contract, the statute of Frauds of tbe forum pro-
viding that "no action shall be brought" upon the contract in
question unless in writing, etc., while the law governing the
obligation of the contract authorizes the contract to be verbal,
it would seem upon principle (again applying the criterion ^*)
that this should be regarded as a part of the obligation of the
contract, not of the remedy. For a retroactive statute applica-
ble to an existing oral contract, providing that no action should
be brought on such contracts unless in writing, would undoubt-
edly impair the obligation of the contract, since it takes away
all remedy. But it has been more generally held that this is a
8 This case leaves it undecided whether in the case of chattels it should
be the law of the actual or of the legal situs of the goods that should govern.
There can be little question however that the law of the actual situs of the
chattels should control.
9 Canadian Pac. R. R. Co. v. Johnson, 9 C. C. A. 587, 61 Fed. 738 ; The-
roux V. R. R. Co., 12 C. C. A. 52, 64 Fed. 84 ; Sea Grove, etc. Association v.
Stockton, 148 Penn. St. 145, 23 Atl. 1063 ; Rathbone v. Coe, 6 Dak. 91, 5f
N. W. 620 ; Cavanaugh v. Nav. Co., 13 N. Y. Supp. 540 ; ante, § 202.
10 Munos V. R. R. Co., 2 C. C. A. 163, 51 Fed. 188 ; Johnston v. R. R
Co., 50 Fed. 886; O'Shields ». R.R. Co., 83 Ga. 621, 10 S. E. 268.
" Ante, § 180.
§ 211 SET-OFF. 525
matter of remedy, of domestic policy, to be governed by the lex
fori, no matter where the contract is made or to be performed.^*
But if by the ** proper law" of the oral contract it is provided
that '*no action shall be brought" thereon unless it be in
writing, while the lex fori does not require it to be in writing,
obviously the lex fori does not raise any question of the im-
pairment of the obligation of the contract. On the contrary,
it enforces the obligation to a greater extent than would the
"proper law" of the contract. In this case, therefore, the
matter is one pertaining to the remedy, to be controlled by
the lex fori.^^
§ 211. Set-offs and Counter-claims. — There is another de-
fense which may involve some degree of conflict between the lex
fori and the law governing the obligation of a contract. This
is the plea of set-off. No difficulty however need arise if care
is taken to distinguish between the substantive validity and
effect of the claim sought to be set off, viewed as a mere claim
against the plaintiff , and its effect as a defense to the plaintiff's
action. In the first aspect, it is governed by its proper law,
the law of its situs, just as if it were an independent claim
upon which the defendant proposes to sue the plaintiff. In its
second aspect, as a defense to the plaintiffs action, the ques-
tion whether it may be alleged in defense thereof, the mode of
pleading it, and the effect of the plea, usually pertain to the
remedy merely, not to the substantive cause of action, and hence
are controlled by the lex fori.*
12 Leroux r. Brown, 14 Eng. L. & Eq. 247, 74 E. C. L. 800; Wolf v.
Burke, 18 Colo. 264, 32 Pac. 427; Downer r. Cliesebrough, 36 Conn. 39,
4 Am. Rep. 29 ; Hall v. Cordell, 142 U. S. 116. But see Baxter Bank ».
Talbot, 154 Mass. 213, 28 N. E. 163 ; Miller v. WUson, 146 111. 523, 34 N. E.
1111, 1112 ; Cochran v. Ward, 5 Ind. App. 89, 29 N. E. 795, See ante,
§§ 173, 174, where the law controlling the effect of the statute of Frauds ia
discussed.
18 See ante, §§ 173, 174 ; Downer v. Chesebrough, 36 Conn. 39, 4 Am.
Rep. 29 ; Wolf v. Burke, 18 Colo. 264, 32 Pac. 427. But see Cochran v.
Ward, 5 Ind. App. 89, 29 N. E. 795.
1 Story, Confl. L. § 574 ; Whart. Confl. L. §§ 788, 789 ; Dicey, Confl. L,
711; Davis v. Morton, 5 Bush (Ky.), 161, 96 Am. Dec. 345 ; Fuller v. Steig.
litz. 27 Ohio St. 355, 22 Am. Rep. 312 ; Midland Co. r. Broat, 50 Minn. 564
526 SET-OFF. § 211
But if the principal contract, in its very nature, implies a
denial of the right of set-off, as in case of negotiable paper,
where the gist of its negotiability lies in the fact that the maker
cannot plead set-offs or other equities against a subsequent bona
fide holder, the matter becomes part of the obligation of the
principal contract, and is to be controlled by the proper law
of that contract, not by the lex fori. Hence, to a contract
negotiable by its proper law, sued upon in another State, a set-
off or other equity cannot be pleaded, though it might be a
proper plea under the lex fori, if the contract were governed by
the latter law.''
On the other hand, if the contract is not negotiable by the
"proper law," and a set-off might be pleaded under that law, it
has been said that the set-off may be pleaded in the forum,
though by the lex fori the contract is negotiable."
But if we apply the criterion already used so often to distin-
guish the remedy from the obligation of the contract, it will be
seen that, while a retrospective law permitting a defendant in
an action by the holder of a negotiable security to plead set-offs
and defenses not before authorized would clearly impair the obli-
gation of the defendant's contract, a similar retrospective law,
applicable to a non-negotiable instrument (subject to equities)
and prohibiting the defendant to plead set-offs and counter-
claims, would not (it would seem) impair the obligation of the
contract sued upon, but would merely affect the remedy. The
latter question should therefore be governed by the lex fori.*
52 N. W. 972. The lex fori governs the statute of limitations as applied to a
set-off. See Ruggles v. Kieler, 3 Johns. (N. Y.) 263, 3 Am. Dec. 482.
2 Pritchard v. Norton, 106 U. S. 124, 133; Stevens v. Gregg, 89 Ky. 461,
12 S. W. 775, 776 ; Harrison v. Edwards, 12 Vt. 648, 36 Am. Dec. 364 ;
Wilson V. Lazier, 11 Gratt. (Va.) 477, 482. See ante, § 182.
8 Vermont Bank v. Porter, 5 Day (Conn.), 316, 5 Am. Dec. 157. See
Fuller 0. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 312, 317.
* See Pritchard v. Norton, 106 U. S. 124, 133 ; Midland Co. v. Broat, 50
Minn. 562, 52 N. W. 972, 973. See Bank v. Trimble, 6 B. Mon. (Ky.) 599.
§ 212 f OKEIGN LAWS TO BE PLEADED. 527
PART VIII.
PLEADING AND PROOF OF FOREIGN LAWS.
CHAPTER XXIII.
PLEADING AND PROOF OF FOREIGN LAWS.
§ 212. Foreign Laws must be Specially Pleaded. — It is a
fundamental principle of the common law that courts will take
judicial notice of the public laws of their own State, and that
such laws need not be specially pleaded nor proved. But the
laws of other States are universally regarded as facts which,
independently of statute, must be specially pleaded, wherever
the lex fori requires other facts, under like circumstances, to be
pleaded.^
But if the circumstances are such that, if the foreign law iu
question were any other fact, it need not be pleaded, neither
need the foreign law. Thus, if the foreign law is immaterial to
the merits, it of course need not be pleaded. So also if the
foreign law is a mere matter of evidence, the lex fori (follow-
ing the general rules of pleading) not requiring matter of evi-
dence to be pleaded, the failure to plead the foreign law is not
error.
Thus, in Thomson-Houston Electric Co. v. Palmer,' a note
was executed and made payable in Illinois. The consideration
for the note was an antecedent indebtedness. The suit was
brought in Minnesota upon the original indebtedness, to which
1 Thatcher ». Morris, 11 N. Y. 437; Thomson- Houston Electric Co. ».
Palmer, 52 Minn. 174, 53 N. W. 1137, 1138 ; Liverpool Steam Co. v. Ins.
Co., 129 U. S. 397, 445.
2 52 Minn. 174, 53 N. W. 1137.
528 PBOOF OF FOREIGN LAWS. § 218
the defendant pleaded payment by note. By the law of Illi-
nois, the giving and receiving of a note for the amount of a pre-
existing debt operated as a payment thereof, merging the debt.
By the law of Minnesota it did not, but suit might still be
brought upon the original debt. The plaintiff objected that
since the defendant relied upon a foreign law (the law of Illi-
nois), it should have been specially pleaded. But the Minne-
sota court held that inasmuch as the proof of that law (being the
"proper law"*) was merely by way of evidence of the truth
of the defendant's plea of payment, it need not be specially
pleaded.
In many of the States statutes have been passed dispensing
with the necessity for specially pleading foreign laws, but even
in such States they are usually required to be proved like other
facts.*
§ 213. Proof of Foreign Laws. — Foreign laws are matters
of fact, and like other facts should be proved, unless established
by legal presumptions. A court will not take judicial notice of
their existence or of their terms. And for this purpose the
States of this Union are foreign to one another.*
But i\iQ federal courts, in enforcing the laws of States within
their territorial jurisdiction, take judicial notice of them. In
such cases, the laws are to be regarded as domestic, not as
foreign, laws.*" A curious consequence flows from these prin-
ciples and from the fact that the Supreme Court of the United
States not only hears appeals from the federal courts, but under
certain circumstances from the highest State courts also. Al-
though the Supreme Court, sitting as a court of appeal to the
federal courts, will take judicial notice of the laws of the sev-
eral States, yet, if upon appeal from a State court of last resort,
it has no more capacity than the State court itself to take judi-
8 Ante, § 189.
* Post, §§ 213, 214.
1 Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 445 ; Chicago & A. R. R
Co. V. Ferry Co., 119 U. S. 615 ; In re Capper's Will, 85 la. 82, 52 N. W.
6, 8; Kelley v. Kelley, 161 Mass. Ill ; Ufford v. Spaulding, 156 Mass. 65.
• Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 445 ; Lamar v Micon,
112 U. S. 452 ; b. c. 114 U. S. 218.
§ 213 PROOF OF FOREIGN LAWS. 629
eial notice of the laws of other States than that from which the
appeal comes.'
Primarily, the mode of proving a foreign law depends upon
its nature, as statutory or common law, written or unwritten.
If the law which is to be proved is statutory^ the statute itself
must usually be produced, or such a copy thereof as may be ap-
proved as evidence under the law of the forum.* The judicial
decisions of the State whose law is to be proved are not usually
to be received in evidence to prove what is its statute law (for
they are not the best evidence), but they should be looked to in
order to determine the proper construction of such foreign stat-
utes after they have been otherwise established.^ And this is
true though the same provisions in the statutes of the forum
have been construed differently there.'
With respect to the common or unwritten law of a foreign
State or country, the general rule is that it is to be proved by
the best evidence the nature of the case will admit of. This
rule was formerly construed to require as a usual thing thai
such unwritten law must be proved by the testimony of lega)
practitioners of the foreign State or other persons learned in it?
laws.' It was thought inadmissible to introduce the reports oi
' Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 445 ; Hanley v. Don-
oghue, 116 U. S. 1 ; Renaud v. Abbott, 116 U. S. 277, 285.
♦ Whart Confl. L. §§ 772-778 ; Emery v. Berry, 28 N. H. 473, 61 Am.
Dec. 622, 626 ; Clarke v. Bank, 10 Ark. 516, 52 Am. Dec. 248, and note ;
Tenant r. Tenant, 110 Penn. St. 478, 1 Atl. 532; Phillips v. Gregg, 10 Watta
(Penn.), 158, 36 Am. Dec. 168.
6 Gilchrist v. Oil Co., 21 W. Va. 115, 45 Am. Rep. 555; Van Matre r.
Sankey, 148 111. 356, 23 L. R. A. 665, 36 N. E. 628 ; Hunt v. Hunt, 72 N. Y.
217, 28 Am. Rep. 129; Jessup r. Carnegie, 80 N. Y. 441, 36 Am. Rep. 643;
Ufford V. Spaulding, 156 Ma-is. 65, 69. The same rule prevails in the federal
courts. Bailey r. Maguire, 22 Wall. 350 ; Bucher v. R R. Co., 125 U. S.
555.
« Van Matre v. Sankey, 148 111. 356, 23 L. R. A. 665, 36 N. E. 628.
T Loring r. Thomdike, 5 Allen (Mass.), 257; Gardner v. Lewis, 7 Gill
(Md.), 378. See Whart. Confl. L. § 774. Where however the question is
not as to the law of a particular country, bnt as to its business or other
customs, or as to the general practice there, any person familiar with such
customs or practice is a competent witness, though he knows nothing of the
legal effect there of such customs or practice. See Ganer v. Lanesborongh,
34
530 PRESUMPTIONS AS TO FOREIGN LAWS. § 214
cases adjudged in a particular State as evidence of the common
law of that State. ^ But in recent years the opinions of the
courts have undergone a change in this respect, and it is now
pretty generally conceded that the published official reports of
adjudged cases are competent evidence for this purpose. ^ In
such cases it is the province of the jury to determine whether or
not such adjudications have been made in the foreign State, but
it is the duty of the court to construe them and to deduce the
rules of law they establish.-^" And such decisions must be pre-
sented in evidence at the trial. They cannot be used for the
first time in an appellate court. ^^
§ 214. PresumptionB as to Foreign La-ws. — Notwithstand-
ing the rules mentioned in the preceding section touching the
proof of foreign laws as facts, there are certain presumptions
indulged by the courts as to the state of the law in a foreign
country or State, which may operate as evidence thereof, in the
absence of proof to the contrary. In other words, presumptions
may arise with respect to foreign laws, just as in other matters
of fact, wherever the probabilities point to a particular conclu-
sion with sufficient force to overcome the legal principle that
the burden of proof rests upon the party alleging a fact.
One of these presumptions frequently indulged b}'' the courts,
in the absence of contrary evidence, relates to the existence of
the common law in a foreign State whose law is in issue, where
the laws of the latter State are based upon the common law sys-
tem of jurisprudence. It is a reasonable presumption, in the
absence of proof to the contrary, that a common law principle
applicable to the case is retained in such State.^ But where the
Peake, 18, explained in 11 CI. & F. 124 ; Phillips v. Gregg, 10 Watts (Penn.),
158, 36 Am. Dec. 168 ; Vander Donck v. Thelusson, 8 C. B. 812.
8 Gardner v. Lewis, 7 Gill (Md. ), 378, 393.
9 Latimer v. Elgin, 4 Dess. (S. G.) 26, 32; Uffbrd v. Spaulding, 156 Mass.
65, 69 ; Ames v. McCamber, 124 Mass. 85 ; Thomson-Houston Electric Co.
V. Palmer, 52 Minn. 174, 53 N. W. 1137.
10 Alexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N. E. 69 ; Ufford v.
Spaulding, 156 Mass. 65, 30 N. E. 360 ; Thomson-Houston Co. v. Palmer,
52 Minn. 174, 53 N. W. 1137.
11 Kelley v. Kelley, 161 Mass. 111.
1 Thorn v. Weatherly, 50 Ark. 237, 7 S. W. 33 ; Eureka Springs Co. v.
§ 214 PRESUMPTIONS AS TO FOREIGN LAWS. 531
common law of the forum in respect to the particular question
differs from the principles applied to the same question by the
courts of other common law States, so that it may reasonably be
doubted what the unwritten law of the foreign State may be,
the general rule is that that view of the common law taken by
the courts of the forum will prevail in the absence of evidence
of contrary rulings by the courts of the foreign State whose law
is in question.'
But it is to be observed that this presumption is applicable
only to those States whose system is based upon the common
law. It cannot be used to ascertain the law of a foreign State
not originally settled by English colonists, or whose laws are
founded upon some other system than the common law, such
as the civil or Roman law, the laws and customs of Indian
tribes, etc'
If the foreign law in issue is the unwritten law of a State not
originally subject to the common law, or in any event if it is a
statute or written law, the above presumption does not apply,
and in strictness it would seem that there were no such proba-
bilities one way or the other in general as would justify any
presumption as to the foreign law. Under this view, it is a
mere fact, open to inquiry, susceptible of proof, and like any
other material fact must be proved in order to sustain the alle-
gations. Without such proof, the case or the defense founded
Timmons, 51 Ark. 459, 11 S. W. 690 ; Mohr v. Miesen, 47 Minn. 228, 49
N. W. 862; Wolf v. Burke, 18 Colo. 264, 32 Pac. 427; Dunn v. Adams,
1 Ala. 527, 35 Am. Dec, 42 ; Peeti;. Hatcher, 112 Ala. 514, 21 So. 711, 712;
Flagg V. Baldwin, 38 N. J. Eq. 219, 48 Am. Rep. 308, 310; Benbow i;. Moore
(N. C), 19 S. E. 156; Jones v. Rice (Ga.), 18 S. E. 348; Knapp t;.
Knapp (Mich.), 55 N. W. 353 ; Sandidge v. Hunt, 40 La. Ann. 766, 5 So.
55, 57; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331.
2 Com. V. Graham, 157 Mass. 73 ; Harvey v. Merrill, 150 Mas.s. 1, 22
N. E. 49; Kelley v. Kelley, 161 Mass. Ill ; Buchanan v. Hubbard, 119 Ind.
187, 21 N. E. 538, 539 ; Houghtaling i;. Ball, 19 Mo. 84, 59 Am. Dec. 331.
3 Buchanan v. Hubbard, 119 Ind. 187, 21 N. E. 538, 539 ; Brown i'.
Wright, 58 Ark. 20, 22 S. W. 1022 ; Flagg v. Baldwin, 38 N. J. Eq. 219, 48
Am. Rep. 308, 310 ; Garner v. Wright, 52 Ark. 385, 12 S. W. 785 ; Feet v.
Hatcher, 112 Ala. 514, 21 So. 711, 712; Davison v. Gibson, 5 G C. A. 543,
56 Fed. 443.
632 PRESUMPTIONS AS TO FOEEIGN LAWS. § 214
thereon simply falls to the ground. To this strictly logical
view some of the courts have subscribed.*
But it must be conceded that the decided trend of the Ameri-
can decisions is towards the presumption, in the absence of con-
trary evidence, that the foreign law under which either party
claims is identical with the lex fori.^
* Atchison, etc. R. R. Co. v. Betts, 10 Colo. 431, 15 Pac. 821 ; Whitford
i> Panama R. R, Co., 23 N. Y. 465, 468 ; Leonard v. Nav. Co., 84 N. Y. 48,
53 ; Thompson v. Ketcham, 8 Johns. (N. Y.) 189 ; Murphy v. Collins, 121
Mass. 6 ; Kelley v. Kelley, 161 Mass. Ill, 114 ; Houghtaling v. Ball, 19 Mo.
84, 59 Am. Dec. 331. See Story, Confl. L. § 637, note (a). But even in
States whose laws are not based upon the common law, it may be presumed
without actual proof that injuries for which an inherent sense of justice de.
mands that redress should be given, such as ordinary breaches of contract,
deprivations of liberty without authority, physical injuries caused by mali-
cious attacks or negligent omissions, etc., will be actionable, or at least will
be recognized as wrongs, in the State where the act is done. See Whitford v.
Panama R. R. Co., 23 N. Y, 465, 468 ; W. U. Tel. Co. v. Phillips, 2 Tex. Civ.
App. 608, 21 S. W. 638, 641. See Machado v. Fontes, 2 L. R. Q. B. D. 231.
6 Davison v. Gibson, 5 C. C. A. 543, 56 Fed. 443 ; Sandidge v. Hunt, 4(!
La. Ann. 766, 5 So. 55; Allen v. Allen, 6 Rob. (La.) 104, 39 Am. Dec. 553;
Kuenzi v. Elvers, 14 La. Ann. 391, 74 Am. Dec. 434 ; Shattuck v. Chandler,
40 Kan. 516, 20 Pac. 225 ; Mo. Pac. R. R. Co. v. Sharitt, 43 Kan. 375, 19
Am. St. Rep. 143 ; Haggin v. Haggin, 35 Neb. 375, 53 N. W. 209 ; Brown v.
Wright, 58 Ark. 20, 22 S. W. 1022 ; Bath Gas Light Co. v. ClafiFy, 151 N. Y.
24, 45 N. E. 390 ; American Oak Leather Co, v. Bank, 9 Utah, 318, 33 Pac.
246; Gist v. Tel. Co., 45 S. C. 344, 23 S. E. 143 ; James v. James, 81 Tex.
373, 16 S. W. 1087; Kennebrew v. Machine Co., 106 Ala. 377, 17 So. 545;
Peet V. Hatcher, 112 Ala. 514, 21 So. 711, 712. A few of the cases hold that
in such case the proper foreign law is substituted by the lex fori, on the ground
that the laws of a country to which a party appeals for redress furnish primn
facie the rule of decision. See Monroe v. Douglas, 5 N. Y. 447; Carpenter v.
R.R. Co., 72 Me. 388, 39 Am. Rep. 340, 341 ; Buchanan v. Hubbard, 119
Ind. 187, 21 N. E. 538, 539. This is only true so long as the transaction is
presumed to be a purely domestic one, as it will be until a foreign element
is shown to exist. But as soon as a foreign element in the transaction
is proved, the " proper law " becomes applicable, and the lex fori ceases to
apply. After proof of such foreign element, the lex fori will govern, if at
all, not hy vi&Y oi substitution iov t\ie "proper law," but because the proper
law will be presumed to be identical with the lex fori. It is not the ' ' lex
fori" (in its technical sense) that is enforced, but the "proper law" pre-
sumed to be the same as the lex fori. It is a case of identity or similarity,
rather than of substitution.
§ 214 PRESUMPTIONS AS TO FOREIGN LAWS. 533
The true basis of this presumption, as a rule of law (if it is to
be considered as sound), is to be found in the unwillingness of
the courts to deny relief to litigants coming before them, merely
for want of a law to administer. Certainly the great weight of
authority is in favor of the rule. Nor is it in most instances
apt to work any material injustice, since a failure of both parties
to present to the court any evidence of the proper foreign law
may reasonably justify the court in presuming that neither
party finds anything there which would place him in a position
more advantageous than he occupies under the lex fori, or which
would place his adversary in a less advantageous position. It
is not unfair to presume therefore, whatever the real differ-
ences may be between the ''proper law" and the lex fori,
that for the purposes of the case in hand neither party can be
injured by the presumption that the two laws are similar.
INDEX.
[RBFBREKCES are to SKOnOMS.]
ABANDONMENT,
of domicil of choice, effect of, 65-66.
of husband by wife, effect of, upon wife's domicil, 48.
of wife bj husband, effect of, upon wife's domicil, 47, 61.
ACCEPTANCE,
of bill of exchange,
obligations imposed by, 182.
situs of, 164.
void, if not in writing, 173.
of offer, situs of contract at place of, 157.
ACCEPTOR OF BILL OF EXCHANGE. (See Acckptamcb.)
ACCESSARIES, situs of crime of, 204. {See Crimes.)
ACCOMMODATION INDORSERS. {See Indoksers.)
regarded as joint makers, 182.
situs of contract of, 165.
ACCUMULATIONS, laws prohibiting, 70, 144.
ACKNOWLEDGMENT OF CLAIM, effect of, upon statute of limita
tion, 210.
ACTIONS, 205-211. {See Remedy.)
for death by wrongful act, 199-202. (-See Death.)
local or transitory, 192.
ACTS, law governing, depends upon whether they are voluntary or invol
untary, 17.
ADMINISTRATION, 102-113.
a proceeding in rem, 104.
ancillary or auxiliary, 118.
appointment and qualification of representative, 105.
contribution between heirs or devisees, 112.
distribution of residuum, 139-150. {See Succession; Wills.)
exoneration of realty out of personalty, and vice versa, 112.
marshalling of assets, 110.
order of payment of decedent's debts, 110.
powers of representative over assets, 106.
assets abroad, 106.
assets transiently within State of appointment, 106.
assets subsequently removed to foreign State, 106.
assets in foreign State removed to State of appointment, lOfii
536 INDEX.
[References are to Sections.]
ADMINISTRATION, — continued.
powers of representative over assets,
duty of representative to collect foreign claims, 106.
judgment by or against one representative, effect of, as to an
other, 107.
situs of debts for purpose of, 106, 124.
transfer of assets in course of,
chattels, 106, 124.
choses in action, 106, 124.
land, 106.
negotiable securities, 124.
rights of creditor against decedent's land, 111.
suits by and against personal representatives, 107.
suits by representative for tortious death, 108. {See Death.)
voluntary payment of debt to foreign representative, 109.
ADMINISTRATOR, powers and duties of foreign, 102-113. {See Admin
ISTRATION.)
ADMISSIBILITY OF EVIDENCE, 208.
of parol evidence to explain indorser's contract, 183, 208.
ADOPTION,
decree of, in rem, 86.
analogous to decree of divorce, 101.
effect of, upon infant's domicil, 34, 44.
entitles infant to inherit, when, 12.
status of, 101.
ADULTERY, capacity to remarry of guilty party to divorce for, 73, 74.
ADVERSE POSSESSION OF CHATTELS, effect of, 210.
AFFINITY, effect of, upon marriage, 9, 73, 75.
AGE OF MAJORITY, law determining, 71.
AGENTS. {See Master.;
contracts by, situs of, 158.
implied authority of, 158.
partners as, 158, 181.
subsequent ratification of acts of, 128, 168.
torts of, 195.
ALIMONY, decree for, in personam, 95.
ALTERATION OF CONTRACT, effect of, 190.
AMBASSADOR, domicil of, 20.
ANCILLARY administration, 113. {See AoMiyiSTRATiON.)
guardianship, 114-116. {See Guardian.)
receivership, 117-118.
ANIMALS, torts by, 195.
ANIMUS MANENDI,
an essential element of domicil, 59, 62, 68.
change of mind in itinere, 62.
commencement of, 62.
death in itinere, 62.
INDEX. 637
[References are to Sectiona.]
ANIMUS MANENDI,— commued.
duration of, 63.
evidence of, 64.
infuturo not sufficient, 62.
must unite with presence, to create domicil of choice, 69, 62, 6&
presumptions as to, 64.
arising from mere presence, 64,
retention of last domicil, 64.
what, sufficient, 61.
ANTE NUPTIAL SETTLEMENT,
with respect to land, 80.
with respect to personalty, 82.
APPEARANCE OF DEFENDANT,
necessary for judgments in personam, 85-86.
not necessary for judgments in rem, 85-86.
sufficiency of, law determining, 207.
APPOINTMENT,
of administrators, 105. {See Administratiom.J
of executors, 105. (-See Administration.)
of guardians, 114-116. {See Guardian.)
of receivers, 117-118.
wills under power of, 150.
APPRENTICE, domicil of, 37.
ARREST,
for crimes, 203-204. {See Crimes.)
in civil cases, 207.
ASSAULT, 204. {See Crimes.)
ASSENT TO CONTRACT, law governing, 151, 206.
ASSETS,
administration of, 102-113. (-See Administratiok.)
exoneration of, 112.
land, as, 111.
legal or equitable, 110.
marshalling of, 110.
real or personal, 110.
ASSIGNEE,
of chose in action may sue in his own name, when, 165, 206.
for benefit of creditors, title of, 138-185. (See Assignment.)
in bankruptcy, title of, 137-138. {See Assignment.)
ASSIGNMENT,
of bill or note, right of maker or acceptor to plead invalidity of, 12^
182.
of debt, right of assignee to sue in his own name, 165, 206.
situs of debt, for purpose of, 122.
of fund, bill or check operating as, 181.
of insurance policy, 166.
of land, 11-12. (5ee Immovables.)
538 INDEX.
[References are to Sections- 3
ASSIGNMENT, — confmucd.
of personalty, 127-150.
absolute conveyances and sales, 128-130.
as between the parties, 128.
as to creditors, 129.
sales, reserving title in vendor, 130.
chattel mortgages, 132.
donations mortis causa, 131.
for benefit of creditors, 138-136,
in case of land, 11.
in case of personalty, 138-136.
fraud per se, 136.
preference of creditors, 136.
recordation of, 136.
subsequent removal of property, 133.
what creditors may attack, 134.
in bankruptcy or insolvency, 137-138.
distinguished from voluntary, how, 137.
given no exterritorial effect, 137
otherwise in England, 137.
what creditors may attack, 138.
transfers by marriage, 136.
transfers by succession, 139-141. {See Succession.)
transfers by will, 142-160. {See Wills.)
ASSUM>*TION OF RISK, doctrine of, in dangerous employments, 197.
ATTACHMENT,
by creditors, of personalty transferred, 129, 134, 138.
exemptions from, 126, 209.
issuance of, to be controlled by lex fori, 180.
situs of debt for purpose of, 126.
B.
BANKRUPTCY,
assignment in, 137-138.
distinguished from voluntary assignment, how, 137.
given no exterritorial effect, in United States, 137.
otherwise in England, 187.
what creditors may attack, 138.
discharge in, effect of, upon contracts, 191.
BANNS, omission of, in celebrating marriage, 77.
RASTARD.
domicil of. 33, 42.
constructive, 42.
original, 33.
legitimation of, 97-100. {See Legitimacy.)
right of, to succeed to personalty, 140.
subsequently legitimated, domicil of, 43.
aubaequently legitimated, right of. to succeed to property, 12.
INDEX. 689
[References are to Secttons.]
BIGAMOUS MARRIAGES, 74, 76.
BILL OF EXCHANGE. (See Negotiable Instruments.)
BILL OF LADING. (5ee Contracts.)
assent to, 151, 208.
place of performance of, 160.
validity of exemptions in, 169.
BOND. {See Contracts.)
effect of, as merging prior indebtedness, 189.
interest upon, 184.
situs of, 163.
BOTTOMRY BOND, authority of shipmaster to execute, 15&
BURDEN OF PROOF,
as to change of domicil, 29, 64.
as to foreign laws, 214.
as to negligence, 197.
BUSINESS CAPACITY, law governing, 71.
c.
CAPACITY,
a passive, not an active, element, 69.
a status, 69.
as relating to voluntary or involuntary transactions, 69.
for business in general, 71.
married woman, as trustee, 71.
period of infancy, 71.
period of wardship, 71.
settlements of guardian with ward, 71.
to assign insurance policy, 166.
to contract, 72, 171.
in case of infant, 72.
in case of married woman, 72, 166.
to make a will of lands, 12, 150.
to make a will of personalty generally, 70, 144.
under power of appointment, 150.
to marry, 73.
consanguinity or affinity, 73, 75.
guilty party to divorce prohibited to remarry, 73, 74
miscegenation, 73.
polygamous marriages, 75.
to succeed to decedent's estate,
as devisee or legatee, 12, 70, 144.
as heir or distributee, 12, 140.
CARRIER,
contract of, 160, 169. (See Bill of Lading ; Conteacts.)
evidence of assent to bill of lading, 151, 208.
exemption of, from liability as insurer, 169.
540 INDEX.
[References are to SectionB.]
CARRIER, — continued.
exemption of, from liability for negligence, 169.
liability of, for malicious acts of servants, 197.
liability of, for torts, 195-202. (See Torts.)
sleeping car company, liable as, 197.
CELEBRATION,
of contracts generally, law governing, 167-174. (See Contracts.)
of marriage, law governing, 77, 172.
CEREMONIES,
for contracts generally, law governing, 172-174.
for marriage contract, law governing, 77, 172.
for wills, law governing, 143.
CHAMPERTOUS CONTRACTS, validity of, 168, 176, 176.
CHARITABLE TRUSTS, validity of, 70, 144.
CHATTELS. (See Movables.)
CHECK, operation of, as assignment of fund, 181.
CHILD,
adoption of, 101. (See Adoption.)
decree for custody of, in rem, 96.
domicil of, 31-45. {5'ce Domicil.)
guardianship of, 40-41, 71, 114-116. (See Guardian.)
legitimacy of, 97-98.
legitimation of, 12, 33, 43, 97-100. (See Legitimacy.)
relation of parent and, a double status, 97.
rights and duties of parents towards, 83.
CHOICE, domicil of, 66-66. (See Domicil.)
CHOSE IN ACTION. (Sec Debt.)
CITATION. (See Process.)
CITIZENS,
of forum, lex fori substituted in favor of,
in case of executory contracts, when, 7-8, 72, 152.
in case of executed transfers of personalty,
absolute conveyances, 129.
administration, 102-113. (See AdministrationJ
assignments for benefit of creditors, 134-135.
assignments in bankruptcy, 138.
chattel mortgages, 132.
guardians, 114-116.
marital rights, 80-82.
receivers, 117-119.
succession, 140.
in case of status,
adoption, 101.
capacity, 70-74.
divorce, 89-94. (See Divobcb.)
legitimacy, 98-100.
marriage, 73-74.
INDEX. 64J
[References are to SectlooB.]
CITIZENS, -- continued.
of other States, lex fori substituted in favor of,
in case of administration, 102-113.
in case of assignments in bankruptcy, 138.
in case of receivers, 117-119.
CITIZENSHIP,
distinguished from domicil, 21.
how in United States, 21.
domicil inferred from, when, 66.
COLLISION,
interpretation of insurance policy excepting losses arising from, 186.
of ships upon high seas, law governing, 195.
COMITY, basis of private international law, 4.
COMMON CARRIER. (See Carrier.)
COMMON LAW OF ANOTHER STATE
presumptions as to, 214.
proof of, 213.
COMMUNITY OF PROPERTY, 80-82.
COMPARATIVE NEGLIGENCE, 197.
COMPENSATORY DAMAGES, 10, 198.
COMPETENCY. (See Capacity).
of parol evidence to explain indorser's contract, 183, 208.
of witnesses, generally, 208.
of witness, convicted of crime abroad, 10.
CONSANGUINITY, effect of, upon marriage, 9, 73, 76.
CONSIDERATION,
antecedent indebtedness a, 176, 182.
executed, 177.
executory, 176.
failure of, effect of, upon contract, 177.
for conveyance or mortgage of land, 11.
for promise, situs of, 154-155, 161-162, 176-179.
gaming, 161, 176, 178.
law of place of, governs validity of contract, when, 11, 176-179.
legality of, 178-179.
malum in se, or contra bonos mores, 9, 152, 177.
past services, as, 177.
sale of liquor, as, 161, 176, 178.
sale of prohibited articles, 178.
sale or hire of slaves, as, 177, 178.
sufficiency of, 177.
usurious, 179.
wagering, 161, 176, 178.
want of, 177.
CONSPIRACY, 204. (See Crimes.)
CONSTRUCTION. (See Interprbtatmmi.)
CONSUL, domicil of, 20.
642 INDEX.
[References are to Sectiou.]
CONTRA BONOS MORES,
foreign law, when substituted by lex fori, 9.
incestuous marriages, 9, 75.
polygamous marriages, 9, 75.
Sunday contracts, not, 9.
validity of contract, 9, 152, 177.
CONTRACTS,
alteration of, 190.
champertous, 168, 175, 176.
contra bonos mores, 9, 75, 162, 177. (See Contka Bonos Mobb8.|
gaming, 161, 176, 178.
implied from work done, etc., 151, 163.
in restraint of trade, 175.
insurance, 166, 170, 176, 186. (See Insurance Contbaots.)
insurer's liability of carrier, qualified by, 169.
interlineation of, 190.
interpretation of, 128, 186.
marriage, 73, 77, 77-78. (See Markiage.)
merger of, by substituted agreement, 189.
negotiable paper, 121-125, 164-165, 182-183, 211.
nuptial, touching consort's land, 80.
touching consort's personalty, 82.
of surety, discharged by notice to sue, 181.
to convey land, 11, 72, 174.
to marry, 77.
executed,
absolute conveyances and sales of land, 11-12.
of personalty, 128-130.
as between the parties, 128.
as to third persons, 129.
assignments for benefit of creditors, 11, 133-13&
fraud per se, 135.
personalty subsequently removed, 133.
preferences of creditors, 135.
recordation of assignments, 135.
what creditors may attack, 184.
donations mortis causa, 131.
liens upon land, 12.
upon personalty, 132.
marriage, 73, 77-78. (See Marriaob.)
mortgages, of land, 11.
of personalty, 132.
sales of chattels, with reservation of title, 130.
executor//,
discharge of, 187-191. (See Discharor.)
evidence of assent to, 151, 208.
interpretation of, 186.
lex fori controls, when. 6-10, 72-75, 162.
liability upon, transitory, 151.
INDEX. 643
[References are to SectionB.)
CONTRACTS, — connnuea.
executory,
obligation of, 180-186.
criterion to distinguisli remedy from, 180, 206.
goyerned by " law in minds of the parties," 181.
goyerned by lex solutionis, in general, 181.
in case of contract of acceptor or maker, 182.
in case of contract of drawer or indorser, 183.
in case of contract to pay interest, 184.
in case of contracts and coyenants touching land, 18&
situs of, or locus contractus, 153-166.
conflicting yiews as to, 163-166.
locus contractus analyzed, 154-156.
locus celebrationis, 157-168.
locus considerationis, 161-162.
locus solutionis, 169-160.
of contract to pay money generally, 163.
of insurance contract, 166.
of negotiable instruments, 164-166.
acceptor's contract, 164.
drawer's contract, 165.
indorser's contract, 166.
maker's contract, 164.
validity of, 167-179.
void in the making, — lex celebrationis, 167-174.
capacity, 72, 171.
entry into, prohibited, 168.
exemptions in bills of lading, 169.
exemptions in insurance poUcies, 170.
formal validity of, 172-174.
marriage, 77, 172. {See Marriage.)
on unstamped paper, 172.
required to be in writing, 173-174.
Toid in the performance, — lex solutionis, 175.
void in the consideration, — lex loci considerationis, 176-1791
executed consideration, 177.
executory consideration, 176.
failure of consideration, 177.
legality of consideration, 17&-179.
past consideration, 177.
sufficiency of consideration, 177
usurious consideration, 179.
want of consideration, 177.
CONTRIBUTION, between heirs or devisees, 112.
CONTRIBUTORY NEGLIGENCE, 197.
CONVERSION OF CHATTELS, 195.
CONVEYANCE. (-See Assignment j Contbactr.)
of land. 11-12.
544 INDEX.
[References are to Sections.]
CONVEYANCE, — continued.
of personalty, 128-150.
CORPORATION,
domicil, or situs of, 67.
legatee, right of, to be a, 70, 144.
officer of, right of, to compensation for Bervicet, 151.
stockholders of, statutory liabilities of, 10.
CORRESPONDENCE, situs of contract by, 157-158. (See Contbacts.}
COSTS, decree for, in personam, 95.
COUNTER-CLAIM, 211.
COVENANT,
action of, upon unsealed instrument, 205.
in conveyance of land, 12, 185.
of title, 185.
running with the land, 185.
to relinquish marital rights in land, 174.
COVERTURE. {See Married Woman.)
CREDIT, to be given foreign judgments, 86, 89-94.
CREDITORS,
domestic, preferred to foreign, 7-8.
in case of absolute conveyance of chattels, 129.
administration, 102-113.
assignments for benefit of creditors, 134-135.
assignments in bankruptcy, 138.
chattel mortgages, 132.
guardianship, 114-116.
marital rights, 80-82.
receivership, 117-119.
sales of chattels, reserving title, 130.
foreign, upon a par with domestic,
in case of administration, 102-113.
in case of assignments for benefit of creditors, 135.
in case of assignments in bankruptcy, 138.
in case of chattel mortgages, 132.
garnishments by, 125, 126, 209.
CRIMES,
disabilities resulting from, not recognized abroad, 10.
extradition for, 204.
local, not transitory, 203.
may be made transitory, when, 203.
situs of, 204.
accessaries, 204.
adultery, 74.
agency set in motion, taking effect in another State, 204.
agents, 204.
assault, 204.
bigamy, 74.
INDEX. 545
[References are to Sections.]
CRIMES, — continued.
situs of,
conspiracy, 204.
false pretenses, 204.
forgery, 204.
fornication, 74.
homicide, 204.
larceny, where goods are brought into another State, 204.
lewdness, 74.
robbery, where goods are brought into another State, 204.
CURTESY, of husband, 12, 80.
CUSTODY OF CHILDREN,
decree for, in rem, 96.
guardian's right to, 115.
D.
DAMAGES,
elements entering into estimate of, 208.
interest by way of, 208. {See Interest.)
limits placed upon, in general, 160.
limits upon, in actions for tortious death, 202.
several kinds of, 198.
compensatory, 10, 198.
penal, 10, 198.
punitive, 198.
DANGEROUS EMPLOYMENT, assumption of risk in, 197.
DAYS OF GRACE, 182.
DEATH BY WRONGFUL ACT,
action for, by representative, 108.
action for, where injury occurs in one State, and death in another, 195i
action for, in general, 199-202.
lex delicti controls, 200-202.
limit of damages, 202.
modern tendency to liberality, 200.
proper plaintiff, 108, 201.
time within which, to be brought, 202, 210.
DEBTS,
effect of payment of, to foreign representative, 109.
order of payment of, in administration, 110.
situs of, 106, 121-126.
actual, with debtor, 121-125.
constructive, or legal, with creditor, 121-124.
at creditor's actual situs, when, 121-124.
at creditor's legal situs, or domicil, when, 121-124.
for purpose of administration, 124.
for purpose of attachment and garnishment, 125.
for purpose of taxation, 123.
for purpose of voluntary transfer, 106, 122.
35
546 INDEX.
[References are to Secticms.]
DECEDENT, administration of assets of, 102-113. (See Administbatiom j
Succession.)
DECISIONS,
as evidence of foreign laws, 213.
value of, as authority, 16.
DECLARATIONS, as evidence of domicil, 64
DECREES. {See Jddgments.)
distinction between, in rem and in personam, 85-86.
ex-territorial effect of, 86-96.
for alimony, 95.
for costs, 95.
for custody of infants, 96.
for divorce, 87-94. (See Divorck.)
interest upon, 184.
priorities of foreign, 86.
statute of limitations applicable to foreign, 86.
DEEDS,
assignment, 11, 133-135. {See Assignmekt.)
conveyance of chattels, 128-132.
absolute transfer of, 128-130.
chattel mortgage, 132.
sale, reserving title, 130.
conveyance of lands, 11-12.
consideration for, 11.
covenants in, 12,
interpretation of, 12.
validity of, 12.
DELIVERY, PLACE OF, the locus celebrationis of bonds, notes, stc, 167,
163, 164.
DESCENT,
of land, 12.
adopted child as heir, 12.
bastard, subsequently legitimated, as heir, 12.
heirs, who to be, 12.
shares of parceners, 12.
of personalty, 139-141. (^ee Succession.)
DESERTION,
husband's, gives wife right to choose her own domicil, 47.
effect of, upon her domicil, where husband seeks divorce, 61.
wife's, leaves her domicil with husband's, 48.
DEVISE,
capacity to, 12, 13.
capacity to receive, 12.
interpretation of, 12, 145.
trusts in, 12, 70, 144.
validity of, 12, 13.
DIRECTORS OF CORPORATIONS,
liabilities of, 10.
INDEX. 647
[References are to Sections.]
DIRECTORS OF CORPORATIONS. — continued,
right of, to compensation for services rendered, 161.
DISABILITY. (See Capacity.)
domicil of persons under, 31-55. (See Domicil.)
of guilty party to divorce to re-marry, penal, 10, 74,
of penal nature, not recognized abroad, 10.
DISCHARGE OF CONTRACTS, 187-191.
by operation of law, in general, 190.
alteration or interlineation, 190.
drawer's or indorser's, 183, 190.
sureties, 181, 190.
by performance, 188.
by substituted agreement, 189.
merger, 189.
release, 189.
by tender, 188.
in bankruptcy, or insolvency, 191.
DISHONOR, notice of, to bind drawer or indorser, 183. 190.
DISTRIBUTION,
of bankrupt's assets, 137-188.
of decedent's assets, 102-113, 139-160. {See Adhimistbation ; Suc
cession; Wills.)
DIVORCE,
domicil of wife for purpose of, 28, 48, 50-62.
can she have more than one, 28.
deserted wife may choose her own domicil, 47.
deserting wife domiciled with husband for purpose of. 48, 51.
domicil of wife seeking, 50.
domicil of wife, whose husband seeks, 51.
effect of, upon marital rights, 12.
effect of, upon wife's domicil, 62.
a mensa, 62.
a vinculo, 52.
invalid, 52;
effect of foreign, 84-96.
alimony, 95.
costs, 95.
custody of minor children, 96.
jurisdiction to decree, dependent on domicil. 89-94.
both parties domiciled in State of, 89.
duration of residence, immaterial, 90.
neither party domiciled there, 90.
only one party domiciled there, 91-94.
recital of, effect of, 89.
proceedings for, quasi in rem, 87.
res in proceedings for, 88.
fraud in procurement of, vitiates decree. 89
548 INDEX.
[References are to BectionB*]
DIVORCE, — continued.
grounds for, law governing, 78, 84.
guilty party to, prohibited to remarry, 10, 78, 74.
DOMICIL,
abandonment of, 65-66.
area of, 24.
burden of proof touching change of, 29.
definition of, 23.
distinguished from citizenship or nationality, 21.
distinction how far recognized in United States, 21.
distinguished from residence, 20.
ambassadors, 20.
consuls, 20.
students, 20.
effect of change of, upon interpretation of will, 148, 186.
general rules touching, 27-30.
no person without a, 27.
only one, at a time, 28.
persons sui juris may change, at will, 30.
retained until another is gained, 29.
gives jurisdiction for divorce, 84, 89-94.
law of. (See Lex Domicilii.)
matrimonial, no such thing as, 81.
national, quasi-national, and municipal, 19.
of apprentice, 37.
of corporations, 67.
period of, for purpose of divorce, immaterial, 90.
several sorts of, 31-64.
of origin, 31-34.
of adopted child, 34.
, of bastard, 33.
of child born legitimate, 32.
of foundling, 84.
of legitimated child, 33,
constructive, 35-55.
of idiots, 54.
. of infants, 35-45.
adopted child, 44.
bastard, 42.
bastard subsequently legitimated, 43.
emancipated child. 45.
legitimate child, 37-41.
father alive, 37.
father dead, mother alive, 38.
mother's remarriage, 39.
mother and father both dead, 40-41.
power of guardian over, 41.
of lunatics, 55.
INDEX. 649
[References are to Sectioiia.]
DOMICIL, — continued,
constructive,
of married woman, 46-53.
generally same as husband's, 46.
of deserted wife, 47.
of deserting wife, 48.
of divorced wife, 52.
of wife of insane or incapacitated Iiusband, 49.
of wife seeking divorce, 50.
of wife wliose husband seeks divorce, 51.
of wife whose marriage is void or voidable, 6&
tf choice, 56-66.
actual presence, essential to, 59-60.
but not residence, 60.
animus manendi, essential to, 59, 61-64.
change of mind in itinere, 62.
commencement of animus, 62.
death in itinere, 62.
duration of the intention, 63.
evidence of the intention, 64.
circumstances, 64.
declarations, 64.
double residence, 64.
presumptions, 64.
mere presence, 64.
retention of last, 64.
future intent, not suflBicient, 62.
must accompany presence, 56, 62.
what animus suflScient, 61-63.
freedom of choice, 57-58.
motives for selection of, immaterial, 67.
of exiles, 57.
of fugitives from justice, 57.
of invalids, 58.
of prisoners, 57.
of refugees, 57.
DONATION MORTIS CAUSA, 131.
DOWER OF WIFE,
governed by lex situs, 12, 80.
jointure, a bar to, when, 147.
DRAFT. {See Negotiable Instruments.)
operation of, as assignment of fund, 181.
DRAWER OF BILL. (See Negotiable Instruments.)
discharge of, 188, 190.
notice of dishonor, etc., 183.
obligations of, 183.
situs of contract of, 165.
DUE PROCESS OF LAW, in judicial proceedings, 85-86
550 INDEX.
[References are to Sectiaaa^]
E.
ELECTION,
of widow to take jointure or dower, 147.
to take under a will, 146, 147.
EMANCIPATION, effect of, upon infant's domicil, 46,
EMPLOYER'S LIABILITY,
for negligence of servants, 195-197.
for torts by fellow-servants, 169, 197.
risk assumed by servant, when, 197.
EQUITABLE CONVERSION, 13.
EVASION OF PROPER LAW, 9, 77, 159.
EVIDENCE,
admissibility of, 208.
burden of proof, to establish change of domicil, 29.
of animus manendi, to create domicil, 64.
of assent to contract, 151, 208.
of foreign laws, 213-214.
of lex loci delicti, in case of torts, 193,
of presence, to create domicil, 60.
parol, to explain indorser's contract, 183, 208.
presumptions, 177, 197, 208.
conclusive, 177, 208.
prima facie, 177, 197, 208.
stamped contracts, 172, 210.
statute of frauds, 173-174, 210.
EXCEPTIONS TO OPERATION OF FOREIGN LAWS, 5-18
foreign law contra bonos mores, 9, 75, 152.
foreign law penal, 10, 74, 152, 194.
immovable property, 11-13.
injustice or detriment to people of forum, 7-8. {See Creditors.)
interests or policy of forum contravened by foreign law, 6, 135, 137-138
operation of, with respect to
administration, 102-113. (See Administration.)
adoption, 101.
assignments for benefit of creditors, 135.
assignments in bankruptcy, 138.
capacity, 71-75.
chattel mortgages, 132.
conveyances of personalty, 129.
distribution of decedent's estate, 139-141.
executed sales of chattels, 129.
with reservation of title, 180.
executory contracts, 6-10, 72-75, 162.
guardianship, 114-116.
legitimation, 97-100.
marital rights, 80-82.
INDEX. 551
[References are to Sections.]
EXCEPTIONS TO OPERATION OF FOREIGN LAWS, — eontinued.
operation of, with respect to
marriage, 73.
receivership, 117-119.
torts, 194-197.
EXCHANGE, RATE OF, on foreign contracts, 186.
EXECUTOR, powers and duties of foreign, 10^-113. {See Administka-
tion).
EXEMPTION,
from liability in bills of lading, 169.
from liability in insurance contracts, 170.
of property from attachment, etc.. 126, 209.
injunction against foreign garnishment, 209.
judgment decreeing, how far recognized elsewhere, 209.
when part of obligation, 209.
when part of remedy, 209.
EXILES, domicil of, 67.
EXONERATION of decedent's land out of personalty, and vice versa, 112.
EXTRADITION OF CRIMINALS, 204.
constructively present in another State, and there committing crime,
204.
EXTRATERRITORIAL EFFECT,
of administration, 102-113. {See Administration.)
of adoption, 101. (See Adoption.)
of assignment for benefit of creditors, 133-135. {See Assigkhbht.)
of assignment in bankruptcy, 137-138. (See Assionhent.)
of contracts. {See Contkacts.)
of conveyances, 11-12, 127-1.32.
of crimes, 203-204. {See Crimes.)
of divorce, 87-94. (See Divorce.)
of donation mortis causa, 131.
of intestacy, 139-141. {See Spccession.)
of judgments and decrees, 85-86. (See Judgments.)
of legitimation, 97-100. {See Legitimacy.)
of marriage, 73, 77-78. {See Marriage.)
of mortgages, 11-12, 132.
of penal laws, 10.
of torts, 192-202. {See Torts.)
of wills, 142-150. (5ec Wills.)
FALSE IMPRISONMENT, 196.
FALSE PRETENSES, 204. {See Crimes.)
FATHER. {See Child.)
by adoption, status of, 101. {See Adoption.)
domicil of child, same as that of, 32, 37.
652 INDEX.
[References are to Sections.]
FATHER, — continued.
marriage or acknowledgment of, as legitimating bastard, 97-1001
relation of child and, a double status, 97.
rights and duties of, towards child, 83.
FELLOW-SERVANTS, torts by, 169, 197.
FIDUCIARIES, status of, 102-118, 133-135, 137-138.
administrators, 104-113. (iS'e^ ADMiNik5TRATioN.)
assignees for benefit of creditors, 133-135. {See Assignment.)
assignees in bankruptcy, 137-138. (.See Assignment.)
executors, 104-113. {See Administration.)
guardians, 114-116. [See Guardian.)
receivers, 117-118.
FOREIGN ADMINISTRATION. {See Administratiok.)
FOREIGN ADOPTION LAWS. {See Adoption.)
FOREIGN ASSIGNMENTS. (See Assignments.)
FOREIGN CONTRACTS. (5ee Contracts.)
FOREIGN CREDITORS. {See Creditors.)
FOREIGN CRIMES. (5ec Crimes.)
FOREIGN GUARDIANS. {See Guardians.)
FOREIGN INDORSERS. (5ec Indorsers.)
FOREIGN JUDGMENTS. (See Judgments.)
FOREIGN LAWS,
exceptions to operation of. {See Exceptions.)
exterritorial effect of. {See Extraterritorial Effect.)
pleading and proof of, 212-214.
FOREIGN LEGITIMATION LAWS. (See Legitimact.)
FOREIGN MARRIAGES. (See Marriage.)
FOREIGN RECEIVERS. (See Receivers.)
FOREIGN STATUS. (See Status.)
FOREIGN SUCCESSION. (See Succession.)
FOREIGN TORTS. (See Torts.)
FOREIGN WILLS. (See Wills.)
FORGERY, 204. (See Crimes.)
FORM,
validity of contracts in point of, 172-174.
validity of marriages in point of, 77, 172.
FORUM, law of. (See Lex Fori.)
FOUNDLING, original domicil of, 34.
FRAUDS,
effect of, upon marriage, 78.
effect of, in procurement of foreign divorce, 89.
per se, in assignments for benefit of creditors, 135.
statute of, 173-174, 210. (See Statute of Frauds.)
FREEDOM OF WILL, essential to domicil of choice, 57-68.
INDEX. 653
[References are to Sectiou.]
FUGITIVE FROM JUSTICE,
domicil of, 67.
extradition of, 204.
FULL FAITH AND CREDIT, to be given foreign Judgments, 86, 89-94
FUTURES, validity of contracts relating to, 176.
G.
GAMING CONTRACTS, 161, 176, 17&
GARNISHMENT,
exemptions in case of, 129, 209.
foreign, how far recognized, 209.
injunction against, in another State, 209.
situs of debt for purpose of, 125.
GRACE, DAYS OF, 182.
GUARANTOR. (-See Suretibs.)
GUARDIAN,
capacity of ward to settle with, 71.
decree appointing, in rem, 96.
effect of want of consent of, upon ward's marriage, 77.
power of, to change ward's domicil, 40-41.
status of, 114-116.
with respect to ward's person, 115.
with respect to ward's property, 116.
GUILTY PARTY TO DIVORCE, prohibited to re-marry, 10, 73, 74
a decree t»t personam, 74.
a penal disability, 10, 74.
marriage by, 73, 74.
H.
HEIRS,
contribution among, 112.
interpretation of the term in contracts and wills, 145-146, 186.
who are, 12.
HERITABLE BONDS, 112, 146.
HIGH SEAS,
assignment of ship upon, 120.
collisions upon, 195.
conveyance of ship upon, 120, 129.
marriage upon, 77.
situs of cargo of ship upon, 120.
situs of ship upon, 120, 129.
torts on ships upon, 195.
HOLDER FOR VALUE, of negotiable paper who Is, ISSt^
HOME. (See Domicil).
HOMESTEAD, (See Exemptiow.)
554 INDEX.
[References are to SeotlaabJ
HOMICIDE. 204. {See Cbimbs.)
HOTCHPOT, 146.
HUSBAND,
authority of, over wife, 79.
curtesy of, 12.
distributive share of wife in personalty of, 81, 139-141. (See Suo
CESSION.)
dower of wife in lands of, 80.
effect of change of domicil of, upon wife's domicil, 28, 80, 46-53. {Set
DOMICIL.)
marital rights of wife in property of, 80-82.
payment to, discharges debt to wife, when, 188.
release by, discharges debt to wife, when, 188.
surety for, wife as, 72.
I.
IDIOT, domicil of, 54.
ILLEGITIMATE CHILD. (See Babtaed ; Legitimaot.)
IMMORAL CONTRACTS, 9, 75, 152, 177.
IMMOVABLES,
assets in hands of heir, 110-112.
assignment of, for benefit of creditors, 11, 188.
assignment of, in bankruptcy, 137.
charges and liens upon, 12, 111.
contract to convey, 11, 72, 174, 185.
contribution between co-heirs, 112.
conveyance of, 11-12.
covenants, contained in deeds, 12, 174, 185.
creditor's right to subject decedent's, 111.
deeds of, validity and interpretation of, 11-12.
descent of, 12.
adopted children, 12.
legitimated children, 12.
devises of, 12, 18.
interpretation of, 12, 145-148.
validity of, 12, 70, 80, 144.
equitable conversion, 13.
exoneration of, out of personalty, and vice verm, IIX
guardian's powers over ward's, 116.
marital rights in, 12, 80.
effect of divorce upon, 12.
mortgage of, 11.
personal representative's rights over, 106.
torts to, local or transitory, 192, 195.
what are, 13.
IMPEDIMENTS TO MARRIAGE, 73,78.
INDEX. 555
[References are to Bectioiw.]
IMPLIED CONTRACTS, 161, 163.
IMPRISONMENT,
effect of, upon dotnicil, 57.
when belonging to remedy, 207.
IN ITINERE,
effect upon domicil of change of intent, 62.
effect upon domicil of death, 62.
marital rights in personalty acquired, 81.
situs of contract made, 169.
IN TRANSITU. (-See In Itinere.)
INCAPACITY. (See Capacity.)
INCESTUOUS MARRIAGES, 75.
INDEFINITE TRUSTS, validity of, 70, 144.
INDORSER. (See Negotiable Insteuments.)
executed contract of, 165, 182.
passes title to indorsee, how far, 165, 182.
validity of, 165, 182.
executor or administrator as, 122, 124.
executory contract of, 165.
discharge of, 183, 190.
how far to be explained by parol evidence, 183, 208i
interest upon, 184.
obligation of, 183.
validity of. (5ee Considebation.)
for accommodation,
liability of, as joint maker, 182.
situs of contract of, 165.
prior indebtedness, a consideration for contract o^ 188.
situs of contract of, 165.
INFANT,
action against, 206.
adoption of, 12, 44, 86, 101. (See Adoption.)
capacity of,
for business generally, 71.
to contract, 72.
to make a will, 12, 70, 144.
domicil of, 30-45. (5ee Domicil.)
guardian's powers and duties with respect to, 114-116. (-Sec 6uabdiak.|
legitimacy of, 97-100. (See Legitimacy.)
parents, duty of, towards, 83.
period during which one remains an, 71.
INSANE PERSON,
domicil of, 55.
domicil of wife of, 49.
INSOLVENCY,
assignment in, 137-138. (See Assigwmbwt.)
discharge in, effect of, upon contract, 191.
556 INDEX.
[References are to Sectdona.]
INSOLVENCY, — continued.
distribution of decedent's assets in case of, 113.
receivers appointed, in case of, 117-118.
INSURANCE CONTRACTS,
assignment of, 166.
carrier's, how far qualified by contract, 169.
by notice, 169.
conditions and exemptions in, 170.
failure to pay premiums, 170.
insurable interest, 170.
interpretation of, 186.
misrepresentations, 170.
situs of, 166.
suicide of insured, 170.
validity of, 170.
validity of premium notes in consideration of, 176.
INTEREST,
as damages for failure to pay at maturity, 208.
obligation to pay, in general, 184.
acceptor or maker, 184.
drawer or indorser, 184.
no rate of, named, after maturity, 184.
upon coupon notes, 184.
upon judgments, 184.
upon legacies, 113.
upon value of chattels in trover, 208.
usurious, 179, 184.
INTERLINEATION OF CONTRACT, 190.
INTERPRETATION,
of contracts, 186.
of conveyances of personalty, 128.
of deeds, 12, 128.
of wills, 145-148, 186.
of wills under power of appointment, 150.
INTESTATE,
administration of property of, 102-11.3. {See Administration.)
succession to property of, 12, 139-141. (See Succession.)
INVALIDS, domicil of, 58.
INVOLUNTARY TRANSACTIONS, situs of, 17, 18.
transfers of personalty by assignment in bankruptcy, 137-138.
by marriage, 81, 136.
by will, 70, 142-150. (See Wills.)
J.
JOINT CONTRACT, situs of, 157, 182.
JOINTURE, a bar to wife's marital rights, 147.
INDEX. 657
[References are to Sections.]
JUDGMENTS,
by or against personal representatires, effect of, elsewhere, 107.
distinction between, in rem and in personam, 85-86.
exterritorial effect of, 86-96.
alimony, 96.
costs, 95.
custody of children, 96.
divorce, 87-94. (See Diyosce.)
when penal, 10, 86.
form of, pertains to remedy, 208.
interest upon, 184.
priorities of foreign, 86.
statute of limitations applicable to, 86. *
upon plea of statute of limitations or of frauds, not conclusive, 21(X
JUDICIAL SEPARATION, effect of, upon wife's domicU, 62.
JURISDICTION,
in adoption cases, 86, 101.
in divorce cases, 87-94. {See DiTOBCB.)
in exoneration, 112.
in marshalling of assets, 110, 112.
in personam, 85-86.
in rem, 85-86.
recital of, in decree of divorce, 89.
situs of cliattels for purpose of, 14, 120.
situs of debts for purpose of, 120, 121, 125.
LAND, (^ee Immovables.)
LAPSE, of bequest or devise, 147.
LAPSE OF TIME, effect of, upon right to sue, 210. (-See Limitations.
LARCENY, goods stolen in one State, brought into another, 204.
LEASEHOLDS, immovable property, 13.
LEGACY. {See Wills.)
interest upon, 113.
interpretation of, 145-148, 160, 186.
validity of, 70, 143-144.
LEGAL TENDER, what is, 188.
LEGATEE,
capacity to be a, 70, 144.
right of, to be paid by ancillary administrator, 113.
LEGITIMACY,
a permanent status, 97.
beneficial to child, 98, 100.
child born in lawful wedlock, 98.
558 INDEX.
[References are to Sections.]
LEGITIMACY, —conanuerf.
child born in unlawful wedlock, 98.
child born out of wedlock, 99-100.
legitimated by intermarriage of parents, 99, 100.
legitimated otherwise than by intermarriage, 100.
subsequent legitimation, entitles child to inherit, when, 12.
efifect of, upon child's original domicil, 33.
effect of, upon child's constructive domicil, 43.
LEGITIMATION. (See Legitimacy.)
LETTER, situs of contract by, 157-168.
LEX DOMICILII, when controUing,
capacity in general, 70-73.
for business, 71.
to contract, 72, 171.
to make a will, 70, 144.
to marry, 73, 74.
exemptions of property from attachment, etc., 209.
interpretation of contracts, 186.
interpretation of wills of land and personalty, 12, 146-146, 160.
involuntary transfers of personalty,
assignments in bankruptcy, 137-138. {See Assignment.)
marital rights, 80-82, 136.
succession, 139-141. (See Succession.)
will, 14^-150. (See Wills.)
status generally,
adoption, 101. (See Adoption.)
fiduciaries, 102-118. (See Fiduciabibs.)
legitimacy, 97-100. (See Legitimacy.)
marriage, 79-94. (See Marriage; Divorce.)
LEX FORI, when controlling,
administration of decedent's assets, 102-113. (See Administration
adoption, 101. (See Adoption.)
assignments for benefit of creditors, 133-135. (See Assignment.)
assignments in bankruptcy, 187-138. (^ee Assignment.)
chattel mortgages, 132.
contracts executory, 6-10, 72, 74, 162.
crimes, 203-204.
distribution of decedent's estate, 139-141. (See Succession.)
divorce, grounds of, 84.
executors, powers and duties of, 102-113. (See Administration.)
executed sales of chattels, 129.
reservations of title, 130.
guardian, relation of, to ward, 114-116. (See Guardian.)
legitimation, 97-100. (See Legitimacy.)
marriage contract, 73-76.
marital rights, 79-82.
receivers, status of, 117-119.
remedy, 206-211. (See Remedy.)
INDEX. 569
[References are to Bectiooa.]
LEX TORI,— continued.
substitution of, for proper law, 6-14.
contra bonos mores, 9.
immoTables, 11-13.
injustice to people of forum, 7-8.
policy of forum, 6.
torts, 194, 196, 200.
LEX LOCI CELEBRATIONIS, when controlling,
capacity to contract, 72, 171.
capacity to marry, 73-74.
formal yalidity of contract, 172-174.
formal validity of marriage, 77.
substantial validity of contract, 168-170.
validity of conveyances of personalty, 128-136. (See Absignmbnt.J
yalidity of marriage, 78.
what is the locus celebrationis of contracts, 157-158.
LEX LOCI CONSIDERATIONIS, when controlling,
validity of contracts, 11, 128, 176-179.
what is locus considerationis, 161-162.
LEX LOCI CONTRACTUS, when controUing,
executed contracts,
assignments for benefit of creditors, 138-136. (See Absionmbnt.)
chattel mortgages, 182.
conveyances of chattels, 128.
donations mortis causa, 131.
exemptions in bills of lading, 169.
exemptions in insurance policies, 170.
marriage, 73, 77-78.
nuptial settlements, 80-82.
sales of chattels, 128.
with reservation of title, 130.
executory contracts, 158-191.
locus contractus, 153-166.
conflicting views as to, 163.
true view, must be analyzed, 154.
locus celebrationis, 157-158.
locus considerationis, 161-162.
locus solutionis, 159-160.
LEX LOCI DELICTI, when controlling.
actions for torts generally, 195-202. {See Toets.)
actions for death by wrongful act, 108, 195, 199-202. (See Death.)
crimes, 203-204. (-Sec Crimes.)
LEX LOCI REI SIT^. {See Lex Fori.)
LEX LOCI SOLUTIONIS, when controlling,
discharge of contracts, 187-191.
obligation of contracts, 180-186.
validity of contracts, whose performance is prohibited, 77, 175.
what is locus solutionis, 159-160.
660 INDEX.
[References are to Sectiona.]
LEX SITUS. (S-ee Lex Fori.)
LICENSE, effect of omission of, upon marriage, 77.
LIENS,
of foreign judgments, 86.
upon chattels, 128, 132, 205.
upon lands, 11-12, 111, 206.
LIMITATIONS, STATUTE OF,
actions on foreign judgments, 86.
actions for tortious death, 202, 210.
adverse possession of chattels, 210.
application of, generally, 210.
effect of partial payments, 210.
effect of written acknowledgment, 210.
no action to be brought after lapse of time, 210.
transaction void by prescription, 210.
judgment for defendant, upon plea of, not conclusive, 210.
LIQUOR, contracts to pay for, 161, 176, 178.
LOANS OF MONEY. {See Usury.)
LOTTERY, contracts relating to, 161, 176, 178.
LUNATIC,
domicil of, 55. {See Dohicil.)
domicil of wife of, 49.
M.
MAINTENANCE,
contracts void for, 168, 176, 176. {See Champbrtous Contracts.}
of children, parent's duty as to, 83.
of wife, 95.
MARITAL,
powers of husband, 79.
rights in land, 12, 80.
effect of covenant to surrender, 174.
rights in personalty, 81-82.
in absence of nuptial agreement, 81.
in case of nuptial agreement, 82.
union or status, 79-94. {See Marriage ; Divorce.)
MARRIAGE,
by divorced person prohibited to remarry, 73, 74.
contract for, 77.
contract of, 77-78.
effect upon, of evasion of domiciliary law, 9.
of consanguinity and aflSnity, 9, 73, 76.
effect of, upon infant's domicil, 45.
upon woman's domicil, 46-53.
validity of, 77-78.
in point of form, 77.
in point of substance, 78.
INDEX. 561
[References are to Sections.]
MARRIAGE, — continued.
incestuous, 9, 76.
legitimation by, 97-100. (See Leoitiuact.)
miscegenation, 73.
polygamous, 9, 76.
status of, 79-96.
authority of husband over wife, 79.
commencement of, 79.
dissolution of, 84-96. (See Divorce.)
grounds for, governed by lex fori, 84.
duality of, 97.
incidents of, 80-83.
marital rights, 80-82, 136.
rights and duties of parents to offspring of. Si
transfer of personalty by, 80-82, 136.
will revoked by, 149.
MARRIED WOMAN,
action against, 206, 206.
authority of husband over, 79.
capacity of, to be a trustee, 71.
capacity of, to contract, 72, 205.
capacity of, to make a will, 12, 70, 144, 160.
capacity of, to transfer insurance policy, 166.
charge upon separate estate of, 12, 205.
debt of, when discharged by payment to, or release by, husband, 188.
distributive share of, in husband's personalty, 81, 139-141. (See Sco
CESSION.)
divorce of, 84-96. (.See Divorce.)
domicil of, 28, 30, 46-53. (See Domicil.)
dower of, 12.
jointure of, 147.
marital rights of, in husband's personalty, 81-82.
marital rights of husband in personalty of, 81-82.
support of child by, 83.
MARRY,
capacity to, 73. (See Capacity.)
contract to, 77.
MARSHALLING OF ASSETS in administration, 110.
MASTER,
domicil of, is domicil of apprentice, 37.
liability of,
for malicious acts of servants, 197.
for negligence of servants, 196-197.
for torts by fellow-servants, 169, 197.
risk assumed by servant, when, 197.
of ship, authority of, 158,
MATRIMONIAL DOMICIL, no such thing as, 81
MATRIMONY. (See Marriage.)
36
662 INDEX.
[References are to Sections.]
MERGER, of contract by substituted agreement, 189.
MERTON, STATUTE OF. 12.
MINISTER, domicil of foreign, 20.
MINORITY. {See Infant.)
MISCEGENATION, 73.
MORTGAGE,
of chattels, 132.
of lands, 11-12.
MORTMAIN, STATUTES OF, not restrictive of testamentary capacity,
70, 144.
MOTHER. {See Child.)
by adoption, status of, 101. (See Adoption.)
domicil of child, when that of, 38, 39, 42.
duality of relation of child and, 97.
duty of, to support child, 83.
MOVABLES,
application of lex delicti to, in case of torts, 192, 195.
application of lex domicilii to,
assignments in bankruptcy, 137-138.
guardian and ward, 114-116. (See Guardian.)
marital rights, 80-81.
succession, 139-141. (See Succession.)
taxation, 123.
wills, 142-150. (See Wills.)
application of lex loci contractus to,
absolute conveyances or sales, 128.
assignments for benefit of creditors, 133.
assignments of chose in action, 122, 13S.
chattel mortgages, 132.
donations mortis causa, 131.
marriage settlements, 82.
sales, reserving title, 130.
vendor's lien or privilege, 128.
application of lex situs et fori to,
absolute conveyances, 129.
administration, 102-118. (See Administration.)
assignments for benefit of creditors, 134-135.
assignments in bankruptcy, 137-138.
assignments of chose in action, 122, 134-135, 137-188.
chattel mortgages, 132.
guardian and ward, 114-116. {See Guardian.)
liens, 128, 132.
marital rights, 80-82.
receivers, 118-119.
sales, reserving title, 130.
succession, 139.
wills, 70, 144.
INDEX. 66b
[Referenoea are to Sections.]
MOVABLES, — continued.
situs of, 119-125.
chattels, 120.
debts, 121-125.
for purposes of administration, 124.
for purposes of assignment, 122.
for purposes of attachment and garnishment, 126i
for purposes of taxation, 123.
ships upon high seas, 120, 195.
MUNICIPAL DOMICIL,
distinguished from national, 119.
is existence of, essential to national domicil ? 24.
MURDER, 204. {See Crimes.)
N.
NATIONAL DOMICIL,
distinguished from municipal, 19.
is existence of municipal domicil essential to f 24.
NATURE OF CONTRACT, law governing, 181, 205.
NECESSARIES, duty of parent to supply infant child with, 83.
NEGLIGENCE,
committed in one State, injury resulting in another, 195.
comparative, 197.
contributory, 197.
death in one State resulting from injury in another, 195.
presumption of, 197.
validity of contracts exempting from liability for, 169.
NEGOTIABLE INSTRUMENTS. (5ee Indorser ; Contracts.)
accommodation indorsers,
liability of, 182.
situs of contract of, 165.
days of grace, 182.
defenses to. 182-183, 210, 211.
interest upon, 184.
merger of prior indebtedness by receipt of, 189.
notice of dishonor, 183.
obligations of acceptor, 182.
of drawer, 183.
of indorser, 183.
of maker, 182.
operation of bill or check, as assignment of fund, 181.
parol explanation of indorser's contract, 183, 208.
pleas in actions upon,
by acceptor or maker, 182, 210, 211.
by drawer or indorser, 183, 211.
presentment, 183.
protest, 188. '
564 INDEX.
[References are to Sections.]
NEGOTIABLE INSTRUMENTS, — continued.
purchaser of, for value, who is, 182.
situs of, 121-125, 164-165.
validity of. (^ee Consideration.)
in point of form, 173.
NEGROES, marriages of whites and, 73,
NON-RESIDENT,
creditors. (See Cbeditobs.)
defendants,
in divorce causes, 87-94. (5ee Divorce.)
in proceedings in personam, 85-86.
in proceedings in rem, 85-86.
transfer of personalty of. {See Movables.)
NOTE. {See Negotiable Instruments ; Contbacts.)
interest upon, 184.
merger of prior indebtedness, by receipt of, 189.
situs of, 163-165.
NOTICE,
carrier's liability as insurer qualified by, 169.
of assignment of chose in action, 182, 211.
of dishonor of negotiable paper, 183, 190.
NUPTIAL AGREEMENT,
with respect to chattels, 82.
with respect to land, 80.
o.
OBLIGATION OF CONTRACT,
criterion to distinguish remedy from, 180, 206.
nature of, 180.
particular contracts,
acceptor's contract, 182.
contracts touching land, 185.
contracts to pay interest, 184. {See Interest.)
covenants running with land, 185.
drawer's contract, 183.
indorser's contract, 183.
maker's contract, 182.
OFFENSES, 203-204. {See Crimes.)
OFFER, place of acceptance of, the locus celebrationis of contract, 128, 157
ORDER OF PAYMENT. (See Priority.)
ORDER OF PUBLICATION,
how far sufficient in divorce causes, 89, 91-94.
insufficient for proceedings in personam, 86.
sufficient for proceedings in rem, 85.
ORIGIN,
domicil of, 31-34. (See Domioil.)
of private international law, 1.
INDEX. 565
[Beferencea are to Sectiona.]
P.
PARENT. (See Child.)
PAROL CONTRACTS, validity of, 173-174, 210.
PAROL EVIDENCE,
to explain indorser's contract, 183.
to explain written contract, 208.
PARTIAL PAYMENTS, effect of, upon statute of limitations, 2ia
PARTNERS,
authority of, to bind firm, 168.
liability of, for firm debts, 181.
sharing in profits creates, 181.
some of whom residents, lex fori substituted for, when, 8.
in case of discharge in bankruptcy, 191.
PASSENGER, liability of carrier to, for agent's assault, 197. {See Cakhier [
PAYMENT,
effect of, in discharging contract, 188.
effect of partial, upon statute of limitations, 210.
place of, the locus solutionis of bond or note, 163, 164.
of drawer's or indorser's contract, 166.
PENAL DAMAGES FOR TORTS, distinguished from punitive, 10, 198.
PENAL LAWS, not enforceable, 10, 74, 194.
PENALTY, effect of foreign judgment for, 10, 86.
PERFORMANCE OF CONTRACT,
as discharge, 188.
effect of tender of, 188.
law of place of, controls contract, when, 154-165, 175, 180-191.
discharge of contract, 187-191.
obligation of contract, 180-186.
validity of contract, 175.
place of, 159-160, 16^-166.
prohibited, 175.
PERPETUITIES, testamentary dispositions creating, 12, 70, 144.
PERSONAL REPRESENTATIVE, 102-113. (See Administhation.)
PERSONALTY. {See Movables.)
PERSONS,
capacities of, 70-75. {See Capacity.)
situs of, 18-66.
actual, 18.
legal, or domicil, 19-66. {See Dohicil.)
status of, 68-96. (See Status.)
PLEADING,
governed by lex fori, 207.
of foreign laws, 212.
POLICY OF FORUM, lex fori substituted for proper law, because of, 6
iSee Lex Foui '
566 INDEX.
[References are to Sections.]
POLICY OF INSURANCE. (See Insurangk Contractb.)
POLYGAMOUS MARRIAGES, 74, 75.
POST-NUPTIAL SETTLEMENTS, 80-82.
POWER OF APPOINTMENT, wills under, 150.
PRECEDENTS, value of, 16.
PREFERENCE OF CREDITORS, in assignments, 135.
PRESCRIPnON, transactions void by, 210. (See Limitations.)
PRESENCE,
essential to domicil of choice, 59-60.
evidence of domicil, when, 64.
PRESENTMENT, of negotiable paper, 183.
PRESUMPTIONS,
as to domicil, 64.
as to existence of common law in another State, 214.
as to foreign laws in general, 214.
as to negligence, 197.
as to place of performance of contract, 159-160, 163-166.
PRETERMITTED CHILD, will revoked by birth of, wlien, 149.
PRINCIPAL AND AGENT. (See Agent ; Master.)
PRINCIPAL AND INTEREST. (See Interest.)
PRINCIPAL AND SURETY. (See Sdrbties.)
PRIORITY,
of debts, in administration, 110.
of foreign judgments, 86.
PRIVATE INTERNATIONAL LAW, distinguished from public, 2.
PROBATE, decree of, in rem, 86.
PROCESS,
actual service of, required in proceedinsrs in personam, 85-86.
constructive service of, sufficient for proceedings in rem, 85-86.
of arrest in civil cases, 207.
of law in judicial proceedings, 85-86.
to commence an action, 207.
PROMISE. (See Contracts.)
of marriage, 77.
PROMISSORY NOTE. (See Negotiable In8TR0ment8.)
interest upon, 184.
merger of prior debt in, 189.
situs of, 163-165.
PROOF. (See Evidence.)
PROPER LAW,
meaning of term, 5.
what is the " proper law " governing,
administration, 102-113. (See Administration.)
adoption, 101. (See Adoption.)
assignments for benefit of creditors, 133. (See Assignment.)
assignments in bankruptcy, 137-138. (See Assignment.)
INDEX. 667
[Beferencea are to Sectiona.]
PROPER LAW, — continued.
what is the " proper law " governing,
assignments of chose in action, 122.
capacity, 70-76.
for business generally, 71.
to contract, 72.
to make a will, 70, 144.
to make a will under power of appointment, 150.
to marry, 73-76.
contracts, executory. (Siee Contracts.)
discharge of, 187-191. {See DiscHARaB.)
interpretation of, 128, 186.
obligation of, 180-186. (5«e Obliqation.)
validity of, 167-179.
void in the consideration, 176-179. (See Consideration.)
void in the making, 168-174.
capacity, 72, 171.
entry into prohibited, 168.
exemptions in bills of lading, 169.
exemptions in insurance policies, 170.
formal validity, 171-174.
stamped, 172.
statute of frauds, 173-174.
void in the performance, 175.
champertous contracts, 168, 175, 176.
in restraint of trade, 175.
promise of marriage, 77.
conveyances of land, 11-12,
conveyances of personalty, 128.
crimes, 203-204.
curtesy, 12, 80.
descent, of land, 12.
devise of land, 12, 145-148, 150.
divorce, 87-94. (See Divorce.)
donations mortis causa, 131.
dower, 12, 80.
guardian and ward, 114-116. (See GtTARDiAir.)
legacies, 70, 142-150. (-See Wills.)
legitimacy, 97-100. (See Legitimacy.)
legitimation, 98-100. (-See Legitimacy.)
marital rights, 80-82.
marriage contract, 73-78. (See Marriage.)
marriage status, 79-96. (•See Marriage.)
mortgages, 11-12, 132.
nuptial contracts, 80-82.
receivers, 117-119.
remedies, 205-211. (5ee Remedy.)
sales of chattels, 128.
reserving title, 130.
568 INDEX.
[References are to Sections.]
PROPER LAW,— continued.
what is the " proper law " governing,
status. {See Status.)
succession, 139-141. {See Succession.)
taxation of personalty, 123.
torts, 192-202. {See Tokts.)
wills, 12, 142-150. {See Wills.)
PROTEST, of negotiable paper, 183, 190.
PUBLIC INTERNATIONAL LAW, distinguished from private, 2.
PUBLICATION, ORDER OF,
how far sufficient in divorce causes, 89, 91-94.
insufficient for proceedings in personam, 85-86.
sufficient for proceedings in rem, 85-86.
PUNITIVE DAMAGES, distinguished from penal damages, 198.
Q.
QUANTUM MERUIT, liability upon, 151, 163.
QUASI-CONTRACTS, 10, 151, 163.
QUASI IN REM, divorce a proceeding, 87, 91.
R.
RATE OF EXCHANGE, 186.
RATE OF INTEREST. (-See Interest.)
RATIFICATION, of agent's contract, 158.
REAL PROPERTY. {5ee Immovables.)
RECEIVERS,
status of, 117-118.
suits by and against, 118.
title of, to personalty elsewhere, 15, 117.
RECITAL OF JURISDICTION, in foreign decree of divorce, 1
RECORDATION, of transfers of personalty, 129-135.
RECOUPMENT, 211.
REFUGEES, domicil of, 57.
RELEASE,
discharge of contract by, 189.
by husband, as discharge of debt to wife, 188.
of marital rights in land, 174.
RELIGIOUS RITES, effect of omission of, upon marriage, 77.
REMEDY,
action, form of, 205.
against infant, 206.
against married woman, 205, 206.
assumpsit upon sealed contract, 205.
by assignee of chose in action, 206.
INDEX. 669
[References are to Sections.]
REMEDY, — continued.
action, form nf,
covenant upon unsealed contract, 205.
parties to, 205-206.
criterion to distinguish obligation from, 180, 206.
damages, elements entering into estimate of, 20&
evidence, 208. (See Evidence.)
exemption lavrs, 209. {See Exbmptioh.)
pleadings, 207.
practice, rules of, 207.
presumptions of law, 208.
if conclusive, matter of substance, 208.
if prima facie, matter of evidence, 208.
process, 207. {See Pbockss.)
of arrest, 207.
set-off, 211.
situs of, 205-211.
special statutory, 10, 205.
statute of frauds, 172-174, 210.
statute of limitations, 210. {See Limitations.)
adverse possession of chattels, 210.
claim void by prescription, 210.
no action to be brought, 210.
REPORTS OF ADJUDGED CASES, as evidence of foreign laws, 2ia
RESERVATION OF TITLE, sale of chattels, with, 130.
RESIDENCE,
as evidence of domicil, 64.
co-founded with domicil, 20, 21.
identical with domicil in United States, 21.
distinguished from domicil generally, 20.
double, effect of, upon domicil, 64.
effect of, upon rights of creditors. ( See Crkditobs.)
not essential to domicil of choice, 60.
suits against defendants with, elsewhere, 85-94.
RESTRAINT OF TRADE, contracts in, 175.
REVENUE LAWS, no exterritorial force given to, 9, 172.
REVOCATION OF WILLS, 149.
s.
SALES,
of land, 11-12, 72, 174, 185. {See Iumovablbs.)
of personalty, 128-130.
as between the parties, 128.
as to third persons, 129.
executory. (See Cohteacts.)
warranty implied in, 181.
with reservation of title, 130.
570 INDEX.
[Beferenoes are to Sections.]
SCIENTER, proof of, in action for tort, 196, 197.
SCROLL, as a seal, 206.
SEAL,
action upon contract under, 206-
consideration imported by, 161, 177, 207.
release of contract under, 189.
scroll, as a, 205.
what is a, 205.
SEPARATE ESTATE, charge upon wife's, 12, 205.
SEPARATION, effect of judicial, upon wife's domicil, 62.
SERVICES, implied contract to pay for, 151, 163.
SET-OFF,
effect of, as a defense, 211.
validity of counter-claim, 211.
SETTLEMENTS, effect of marriage, 80, 82.
SHAREHOLDERS OF CORPORATIONS, liability of, la
SHIP UPON HIGH SEAS,
collision, 196.
conveyance of, 129.
master, authority of, 158.
situs of, 120.
torts upon, 196.
SICK PERSONS, domicil of, 58.
SITUS. {See Pkopek Law.)
basis of private international law, 4.
law of, identical with lex fori. (See Lex Fori.)
of contracts . { See Contracts. )
of corporations, 67.
of crimes, 203-204. {See Cbihes.)
of debts, 121-125.
for purpose of administration. {See Administration.
for purpose of assignment, 122.
for purpose of attachment and garnishment, 125.
for purpose of taxation, 128.
of land, 11-13. {See Immovables.)
of marriage contract, 73-78. {See Marriage.)
of negotiable paper, 121-125, 164-165, 182-183.
of personalty, 14-15, 119-126. (See Movables.)
of persons, 17-18, 19-66.
actual, 18.
legal, or domicil, 19-66. {See Domicil.^
of remedy, 205-211. (^ee Rbmbdt.)
4 status, 68-118.
administrators, 102-113. {See Administration.)
adoption, 101.
assignee for benefit of creditors, 133-136.
assignee in bankruptcy, 137-138.
INDEX. 671
[References are to Sectiona.]
SITUS, — continued,
of status,
capacity, 69-75. (See Capacity.)
executors, 102-113. (See Administration.)
guardians, 114-116. (See Giiabdian.)
legitimacy, 97-100. {See Legitimacy.)
marriage, 76-96. (jSee Makriage; Divorcb.)
receivers, 117-118.
of succession, 12, 139-141. (6'ee Succession.)
of torts, 192-202. ( See Torts . )
of wills, 12, 142-150. (See Wills.)
SLAVERY, contracts relating to, 9, 177, 178.
SLAVES, regarded as immovables, when, 13.
SLEEPING-CAR COMPANY, a carrier, 197.
SOLEMNITIES,
of marriage, 77, 172.
of other contracts, 172-174.
STAMP LAWS, effect of, upon contracts, 172.
STATUS,
change of person's situs does not usually affect his, 15.
except in cases of local and temporary, 96, 114-118.
definition of, 68.
law governing, 68-118.
adoption, 101.
capacity, 69-75. (See Capacity.)
fiduciaries. 102-118.
administrators, 102-113. (See Administration.)
assignees for benefit of creditors, 1.33-135.
assignees in bankruptcy, 137-138.
executors, 102-113. (See Administration.)
guardians, 114-116. (See Guardian.)
receivers, 117-118.
legitimacy, 97-100. (See Legitimacy.)
marriage, 73-96. (See Marriage ; Divorcb.)
STATUTES,
of frauds, 173-174,210.
of limitations, 210. (See Limitations.)
presumptions as to foreign, 214.
proof of foreign, 213.
special remedies by foreign, 10.
STOCK, situs of, 121-125. (See Debts.)
STOCKHOLDERS OF CORPORATION, liabilities of, 10.
STUDENTS,
domicil of, 20.
right of, to vote, 20.
SUBSTITUTED PROCESS,
how far sufficient in divorce causes, 89,91-94.
672 INDEX.
[References are to Sections.]
SUBSTITUTED PROCESS, — contmued.
insufficient for proceedings in personam, 85-8d
sufficient for proceedings in rem, 85-86.
SUCCESSION. (See Administration.)
to land, 12.
to personalty, 139-141.
capacity of distributees to take, 140.
bastards, 140.
children by adoption, 12.
collaterals of half-blood, 140.
legitimated child, 12.
distributees, who are, 140.
shares of, 140.
titles of administrator and distributee contrasted, 189.
SUIT. <A!>ee Action.)
SUMMONS. (See Pkocbss.)
SUNDAY,
contracts, not contra bonos mores, 9.
validity of contracts made on, 168.
validity of contracts to be performed on, 175.
SUPPORT,
of child, duty of parents as to, 83.
of wife, duty of husband as to, 79, 95.
SURETIES,
discharge of, 181, 190.
married women as, 72.
obligatioD of joint, 181, 182.
T.
TAXATION,
as evidence of domicil, 64.
situs of chattels for purpose of, 123.
situs of debts for purpose of, 123.
TELEGRAM, situs of contract by, 157.
TELEGRAPH COMPANY, exemption of, from liability for mistakes, 169
TENDER OF PERFORMANCE, effect of, 188.
TERMS FOR YEARS, immovable property, 13.
TESTAMENTARY DISPOSITIONS. (5ee Wills.)
TESTAMENTARY GUARDIAN, right of, to change ward's domicU, 40-41
(See Guardian.)
TORTS,
actions for, local or transitory, 192.
common law or statutory, 193.
damages for, compensatory, penal or punitive, 198.
INDEX. 573
[Baferencea are to Seotiona.]
TOUTS, — continued.
death by wrongful act, 199-202.
conditions of action for, determined by lex delicti, 202.
damages, limit of, 202.
injury in one State, death in another, 195.
luuitations, period of, 202, 210.
proper plaintiff, 108, 201.
fellow-servants, 197.
lex loci delicti controls, 195-197.
exceptions to operation of lex delicti, 194.
liability of carriers, 195, 199-202.
of carrier of passengers for malicious act of servant, 107.
negligence,
comparative, 197.
contributory, 197.
in one State, injury in another, 19&
presumed, when, 197.
presumptions as to lex delicti, 198.
risk, assumption of, 197.
situs of, 195.
by agents, 195.
by animals, 195.
committed on high seas, 195.
to personalty, 195.
to real property, 195.
TRADE, contracts in restraint of, 175.
TRANSFERS OF PROPERTY. (5ec Assignments.)
TRESPASS. {See Tokts.)
TRUSTEE, (^ee Fidociaries.)
capacity of married woman to be a, 71.
in bankruptcy, 138-139.
in deeds of assignment, 133-135.
TRUSTS,
by implication, 80.
charitable, 70, 144.
in wills, 70, 144, 146.
precatory, 146.
u.
USURY, effect of, upon contracts, 179.
V.
VALIDITY,
of assignments of property, 11-12, 122, 127-188. (See Assignments.)
of contracts executory, 72, 77, 168-179. (See Contracts.)
of foreign divorce, 87-94 (See Divorce.)
574 INDEX.
[References are to Sections.]
VALIDITY, — continued.
of foreign judgments and decrees, 85-86, 95-96. (See Judgments.)
of marriage, 73-78. {See Marriage.)
of nuptial agreements, 80-82.
of wills, 12, 142-160. {See Wills.)
VENDOR,
lien of, upon sale of chattels, 128.
reservation of title in, 130.
warranty of title by, 181.
VESSEL. {See Ship.)
VIS MAJOR, contract discharged by, 181.
VOLUNTARY ASSIGNMENTS, and transfers of property, 12, 120-136
{See Assignment.)
VOTE,
right to, as eyidence of domicil, 64.
student's right to, 20.
w.
WAGERING CONTRACTS, validity of, 161, 176, 178.
WAGES, EXEMPTION OF, upon garnishment, 126, 209.
WARD. {See Guardian.)
WARRANTY,
covenants of, in conveyances of land, 186.
implied, in sale of chattels, 181.
WIDOW,
distributive share of, in personalty of husband, 81.
domicil of, 52.
dower of, 12, 80.
jointure, as a bar to dower of, 147.
WIFE. (See Married Woman.)
WILLS,
of land, 12, 145, 150.
capacity to make, 12.
capacity to take under, 12.
interpretation of, 12, 145, 150.
trusts in, 12. {See Trusts.)
validity of, 12.
of land and personalty, 142.
of personalty, 70, 142-150.
accumulations, 70, 144.
capacity of legatee, 70, 144.
capacity to make, 70, 144.
formal validity of, 148.
interest on legacies, 118.
INDEX. 576
[References are to Sectiona.]
WILLS, — continued.
of personalty,
interpretation of, 145-148, 150, 186.
domicil of testator changed after execution of, 148, 186.
election, 146, 147.
hotchpot, 146.
jointure, as a bar to dower, 147.
lapse, 147.
perpetuities, 70, 144.
revocation of, 149.
birth of pretermitted child, 149.
burning, tearing, etc., 149.
subsequent marriage, 149.
subsequent removal to a State whose law invalidates, 70, 143-
144.
subsequent will, 149.
statutes of mortmain, 70, 144.
substantial validity of, 70, 144.
under powers of appointment, 150.
capacity to make, 150.
formal validity of, 150.
interpretation of, 150.
substantial validity of, 150.
WITNESSES,
competency of, determined by lex fori, 208.
convicted of offense abroad, competency of, 10.
WRITING, contracts required to be in, 173-174, 210.
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