« iepriekšējāTurpināt »
of a universal nature, such as infancy and coverture, are fixed by the law of the domicil, it becomes the interest of all nations mutually to respect and sustain that law. (6)
The lex loci operates not only in respect to the nature, obliga
on the Conflict of Laws, $$ 113, 225. Anstruther v. Adair, 2 Myl. & K. 513. Scrimshire v. Scrimshire, 2 Hagg. Cons. 407. Lord Eldon's opinion, in Lashley v. Hoy, cited in Robertson on Personal Succession, App. pp. 427, 428. But if A. and B., domiciled in Louisiana, elope to the state of Mississippi, and marry, and shortly thereafter return, the conjugal rights under the marriage are held to be according to the law of domicil, as the law of the land would otherwise be fraudulently evaded; and it was not in such a case the intention of the parties to shift their domicil. Le Breton v. Nouchet, 3 Martin (Louis.) 60. See also Hub. de Conflictu Legum, sec. 10. Nor can a contract of marriage, entered into in Louisiana, provide that the rights of the parties shall be according to the provisions of any foreign specified law. Bourcier v. Lanusse, 3 Martin (Louis.) 581. If, however, the parties agree, previously to their marriage, upon a place of residence after it, and actually settle there, it becomes the place of their matrimonial domicil, and the marital rights of the husband to the wife's property are de termined by the law of that domicil. Kneeland v. Ensley, Meigs (Tenn.) 620. Le Breton v. Miles, 8 Paige, 261.1
(6) Mr. Justice Story, in treating of the capacity of persons, in his Commentaries on the Conflict of Laws, ch. 4, has thoroughly examined the conflicting opinions and infinite distinctions with which the host of civilians of continental Europe have overwhelmed and perplexed the subject; and he has deduced the following rules as best established in the jurisprudence of England and America, viz. : (1.) The capacity, state, and condition of persons, according to the law of their domicil, will generally be regarded as to acts done, rights acquired and contracts made in the place of their domi. cil. (2.) That as to acts done, and rights acquired, and contracts made in other countries, the law of the country where they are done, acquired, or made, will generally govern in respect to the capacity, state, and condition of persons. And, therefore, in regard to questions concerning infancy, competency to marry, incapacities incident to coverture, guardianship, and other personal qualities and disabilities, the law of the domicil of birth, or other fixed domicil, is not generally to govern, but the lex loci contractus aut actus. (3.) Personal disqualifications, arising from customary or positive law, and of a penal nature, are territorial, and not generally regarded in other countries, where the like disqualifications do not exist. Story’s Com. SS 101, 102, 104. On this subject of the capacity of persons to contract, the continental jurists generally adopt the law of the domicil, and the English common law the lex loci contractus. Burge, in his Com. on Colonial and Foreign Laws, vol. i. pp. 244–260, cites largely from the conti nental civilians, to show that the wife's rights, capacities, and disabilities, under the contract of marriage, are determined by the law of the husband's domicil, when the marriage took place. This is the law in this country, if the parties had not in view, at the time, another place of residence. If the husband and wife have different domicils at the time of the marriage, the law of the husband's domicil governs the marital rights ; and if neither party have any determinate domicil at the time, the lex loci contractus governs. Kneeland v. Ensley, Meigs, 620. Primâ facie, at least, the husband's domicil is that of the wife. Whitcomb v. Whitcomb, 2 Curteis, 351.
1 See Lyon v. Knott, 26 Miss. 548.
tion, and construction of contracts, and the formalities and authentications requisite to the valid execution of them, but also as to their discharge. It is a general rule, that whatever constitutes a good defence, by the law of the place where the contract is made or is to be performed, is equally good in every other place where the question may be litigated. Upon this principle, the discharge of a debtor under the bankrupt or insolvent laws of the country where the contract was made, and in cases free from partiality and injustice, is a good discharge in every other country, and pleadable in bar. The same law which creates the charge is to be regarded when it operates in discharge of the contract. (C) ?
But if a contract be made under one government, and is to be performed under another, and the parties had in view the laws of such other country in reference to the execution of the contract, the general rule is, that the contract, in respect to its construction and force, is to be governed by the law of the country or state in which it is to be executed, and the foreign law is in such cases adopted, and effect given to it. (d) 8 This exception to the appli
(c) Ballantine v. Goulding, 1 Cooke's B. L. 347, 1st edit. Potter v. Brown, 5 East, 124. Van Raugh v. Van Arsdale, 3 Caines, 154. Smith v. Smith, 2 Johns. 235. Hicks v. Brown, 12 Johns. 142. Blanchard v. Russell, 13 Mass. 1. Bradford v. Farrand, Ibid. 18. Prentiss v. Savage, Ibid. 20. Van Reimsdyk v. Kane, 1 Gall. 371. Le Roy v. Crowninshield, 2 Mason, 151. Green v. Sarmiento, Peters Cir. C. 74., Harrison v. Edwards, 12 Vermont, 648. Story on the Conflict of Laws, $$ 334, 351 a. See, also, supra, p. 393. All the foreign jurists agree that every contract must conform to the formalities and solemnities required by the lex loci, in respect to their valid execution; and the like doctrine is recognized in Alves v. Hodgson, 7 Term Rep. 241 ; Clegg v. Levy, 3 Campb 166; Vidal v. Thompson, 11 Martin (Louis.) 23; Depau v. Humphreys, 20 Idem, 1, 22; but a contrary rule was declared in Wynne v. Jackson, 2 Russell, 351, and James v. Catherwood, 3 Dowl. & Ry. 190. Mr. Justice Story adds the weight of his opinion to the rule first mentioned. Com. on the Conflict of Laws, 215219.
(d) Hub. de Conflictu Legum, sec. 10. Voet, ad Pand. 4, 1, 29. Lord Mansfield,
2 And, on the other hand, a discharge of a contract by the law of a place where the contract was not made, or to be performed, will not be a discharge in any other country. Very 1. McHenry, 29 Maine, 206.
It is held, in Leroux t. Brown, 14 E. L. & Eq. 247, that the 4th sec. of statute of frauds does not make the agreements void, but only prevents their being enforced by action; and, therefore, (the court concludes,) a parol agreement, not to be performed in a year, though made in France and valid there, cannot be enforced in England.
Is this argument satisfactory?
3 See Dacosta v. Davis, 4 Zabr. 319; Emerson v. Patridge, 1 Wms. 8; Davis v. Clemson, 6 McL. 622; Lennig v. Ralston, 23 Penn. 137. If a contract is to be performed partly in one
cation of the lex loci is more embarrassed than any other branch of the subject, by distinctions and jarring decisions; and the notice of a few of them may be instructive, and serve to give
some precision to the doctrine. Thus, the days of grace * 460 allowed upon bills of exchange, are to be computed * ac
cording to the usage of the place in which they are to be paid, and not of the place in which they were drawn, for that is presumed to have been the intention of the parties ; (a) whereas, by the general understanding, and course of decisions and practice, the drawer or indorser, upon the return of a foreign bill under protest, pays the damages allowed by the law of the place where the bill was drawn or indorsed. (6) If interest be not stipulated in the contract, and the money be payable at a given time, in a different territory, and there be default in payment, the law of the place of payment regulates the allowance of interest, for the default arises there. (c)2 The drawer may, consequently, be liable to one rate of damages, and the indorser to another, if he indorses at a different place ; for every indorsement is a new contract. (d) If, however, the rate of interest be specified in the
in Robinson v. Bland, 2 Burr. 1077. Dig. 42, 5. Ibid. 44, 7, 21. Story's Com. on the Conflict of Laws, 233, 234. Baldwin J., in Strother v. Lucas, 12 Peters U. S. 436, 437, Andrews v. Pond, 13 Peters U. S. 65. Bell v. Bruen, i How. U. S. 182. Le Breton v. Miles, N. Y. Court of Chancery, 8 Paige, 261. The principle was applied in this last case to an antenuptial contract, made in reference to another country, as the future domicil of the parties; and it was laid down as a rule of law, that when parties marry in reference to the laws of another country as their intended domicil, the law of the intended domicil governs the construction of their marriage contract, as to the rights of personal property. See, also, Prentiss v. Savage, 13 Mass. 23; Thompson v. Ketcham, 8 Johns. 189; Cox & Dick v. United States, 6 Peters U. S. 172; Fanning v. Consequa, 17 Johns. 511. If A. in America orders goods from England, and the English merchant executes the order, the contract is governed by the law of England, for the contract is there consummated. Casaregis's Dis. 179. Whiston v. Stodder, 8 Martin (Louis.) 93.
(a) Vidal v. Thompson, 11 Martin (Louis.) 23. Bank of Washington v. Triplett, 1 Peters U. S. 25. Blodgett v. Durgin, 32 Vermont, 361.
(6) Hendricks v. Franklin, 4 Johns. 119. Graves v. Dash, 12 Idem. 17. Slocum v. Pomeroy, 6 Cranch, 221. Hazlehurst v. Kean, 4 Yeates, 19. Pothier's Oblig. n. 171.1
(c) Cooper v. The Earl of Waldegrave, 2 Beavan, 282.
(d) Champant v. Lord Ranelagh, Prec. in Ch. 128. Fanning v. Consequa, 17 Johns. 511. Henry on Foreign Law, 53. Story on the Conflict of Laws, pp. 261, 262. It
country and partly in another, each portion is to be interpreted according to the laws of the country where it is to be performed. Pomeroy v. Ainsworth, 22 Barb. (N. Y.) 118.
1 Thorp v. Craig, 10 Iowa, 461. Kuenzi v. Elvers, 14 Louis. An. 391.
: A promissory note, payable generally, must bear the rate of interest of the place where it is made. Hawley o. Sloo, 12 Louis. An. 815.
contract, and it be according to the law of the place where the contract was made, though the rate be higher than is lawful by the law of the place where payment was to be made, the specified rate of interest at the place of the contract has been allowed by the courts of justice in that place, for that is a part of the substance of the contract. (@) The general doctrine is, that the law
e of the place where the contract is made is to determine the rate of interest when the contract specifically gives interest; and this will be the case, though the loan be secured by a mortgage on land in another state, unless there be circumstances to show that the parties had in view the laws of the latter place in respect to
may be laid down as a general rule, that negotiable paper of every kind is construed and governed, as to the obligation of the drawer or maker, by the law of the country where it was drawn or made; and as to that of the acceptor, by the law of the country where he accepts; and as to that of the indorsers, by the law of the country in which the paper was indorsed. Potter v. Brown, 5 East, 124. De la Chaumette v. Bank of E. 9 Barn. & Cress. 208. 2 Bell's Com. 692, 693. Slocum v. Pomeroy, 6 Cranch, 221. Ory v. Winter, 16 Martin (Louis.) 277. Blanchard v. Russell, 13 Mass. 1. Pardessus, Cours de Droit, tom. v. secs. 1497–1499.8 Notice of the dishonor of a foreign bill and protest is to be given according to the law of the place where the acceptance is dishonored, though the other parties resided in England; for the bill, being made payable in France, was a foreign bill, and, as between the drawer and payee, is to be taken as made there. Rothschild v. Currie, 1 Adol. & Ell. N. S. 43. Sherrill v. Hopkins, 1 Cowen, 103. Story's Com. 237, 284-289, 298. Boyce v. Edwards, 4 Peters U. S. 111. Aymar v. Sheldon, 12 Wendell, 439. Gaston J., in Hatcher v. McMorine, 4 Dev. (N. C.) 124. If the drawee accepts a bill in New York, when it was drawn in another state by the drawer, who resides in that other state, the contract of acceptance, as to presentment, &c., is governed by the law of New York. Worcester Bank v. Wells, 8 Metcalf, 107.4
(e) Depau v. Humphreys, 20 Martin (Louis.) 1. The decision in this case is accompanied with a full discussion of the authorities in the English and American law, and of the opinions of the European continental civilians. The law of this case has been critically examined by Mr. Justice Story, (Com. on the Conflict of Laws, 248, 254,) and he does not think that the foreign jurists bear out the case. See below, note a, the result of the authorities there referred to.
3 King v. Doolittle, 1 Head, 77. Rose v. Thames Bank, 15 Ind. 292.
• The principle of this rule has been applied to a case where a bill was drawn in New York on London, and was paid by the acceptor. The contract between the acceptor and drawer was to be interpreted by the laws in force in London. Lizardi v. Cohen, 3 Gill, 430.
As an indorsement is not binding until the bill is transferred, the place of effectual transfer is the place of contract. Cook v. Litchfield, 5 Sandf. (N. Y.) 330. Affirmed by the Court of Appeals, 5 Seld. (N. Y.) 280. Young v. Harris, 14 B. Mon. 556.
A bill of exchange, payable in New York, is governed, as to its mode of transfer, as between indorsee and drawer, by the laws of New York. Everett o. Vendryes, 25 Barb. (N. Y.) 383. S. C. 19 N. Y. 436.
interest. (f) When that is the case, the rate of interest * 461 of * the place of payment is to govern. (a) According to
(f) De Wolf v. Johnson, 10 Wheaton, 367. Story's Com. on the Conflict of Laws, pp. 239, 242, 244. The place or country in which a bill of exchange is accepted is considered the locus contractus, as regards the acceptor. P. Voet, de Stat. secs. 9, 1, 2, 14. De la Chaumette v. Bank of England, 9 B. & Cress. 208. S. C. 2 Barn. & Adol. 385.
(a) De Wolf v. Johnson, 10 Wheaton, 367. Scofield v. Day, 20 Johns. 102. Quince v. Callender, 1 Desaus. (S. C.) 160. The authorities are numerous to show the general rule to be, that interest is to be paid according to the law of the place where the contract is made, unless the payment was to be made elsewhere, and then it is to be accord.ing to the law of the place where the contract was to be performed. Fanning v. Consequa, 17 Johns. 511. Boyce v. Edwards, 4 Peters U. S. 111. Scofield v. Day, 20 Johns. 102. Robinson v. Bland, 2 Burr. 1078. Quince v. Callender, 1 Desaus (S. C.) 160. Story's Com. on the Conflict of Laws, 241, 243, 246. Cooper v. The Earl of Waldegrave, 2 Beavan, 282. Archer v. Dann, 2 Watts & Serg. 328, 364. Thomas v. Beckman, 1 B. Monr. 34. In Pecks v. Mayo, 14 Vermont, 33, a promissory note was made in Canada and indorsed in Vermont, in both of which countries the rate of interest is six per cent., and was payable at New York at a day certain, where the rate of interest is seven per cent. It was held, after a thorough discussion of the authorities, that both the maker and indorsers were liable to pay the New York interest. The rules were declared to be, (1.) If a contract be entered into in one place, to be performed in another, the parties may stipulate for the rate of interest of either country. (2.) If the contract stipulate generally for interest, without fixing the rate, it shall be the rate of interest at the place of payment. (3.) If no interest be stipulated, and payment be not made at the day, interest, by way of damages, is according to the law of the place of payment. In Chapman v. Robertson, 6 Paige, 627, the debtor borrowed money in England upon a bond and mortgage, executed in New York, on lands in New York, at the New York rate of interest, and it was held that the mortgage was a valid security for the bond, and that the usury law of England was no defence. Chancellor Walworth fully concurred in the decision of Depau v. Humphreys, in Louisiana, and held, that if the contract was made in New York, upon a mortgage here, it was not a violation of the English usury law, though the money was made payable to a creditor in England. The contract was made in New York, in reference to the laws of New York, and must be governed by them. New York was the domicil of the debtor. The mortgage gave locality to the contract, within the intent and meaning of the parties, and it must be governed by the ler loci rei sitæ. Had it been a mere personal contract, without any mortgage, the conclusion might possibly have been otherwise, though I think the conclusion in the case is, that the English law of usury would not have been a defence; for in the Louisiana case there was no mortgage. The principle now established in Louisiana and New York is that the place where the contract was made determines its validity as to interest, though made payable in another state or country, where the rate of interest is lower. This principle has much to recommend it for reasonableness, convenience, and certainty, except in cases where the whole arrangement was evidently and fraudulently intended as a mere cover for usury.1
i Fisher v. Otis, 3 Chandler, 83. When the usury laws of the state, where the contract is made, only impose a penalty, not avoiding the contract, they will not be applied if the suit is brought in another state. Watriss 0. Pierce, 32 N. Hamp. 560. See infra, p. [462.] And see McFadin v. Burns, 5 Gray, 599.