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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 control 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 consideration 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 judgment 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, 2 L. R. A. 703, 705; Ex parte Dickinson, 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.

4 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, 37 Atl. 420; Dammert v. Osborn, 140 N. Y. 30, 44.

5 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.

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 conflicting 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 interfere with her own to the injury of her citizens; that whether they do or not must depend upon the condition of the country in which the foreign law is sought to be enforced; the particular 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."

87. 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 importance, 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 enforcement 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

6 Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703, 706; Cross v. U. S.

Trust Co., 131 N. Y. 330, 343; Hollis v. Seminary, 95 N. Y. 166.

7 Porter, J., in Saul v His Creditors, 5 Mart. N. 8. (La.) 569, 16 Am. Dec. 212, 225,

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 remarkable 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 instituted. The existence of this exception to the enforcement of the "proper law" is beyond dispute, though its limits are not yet precisely defined.1

A dictum in a leading Louisiana case will serve to illustrate the operation of this exception. In that case the court, arguendo, supposes a person domiciled in Spain to enter into a contract 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 v. Neff, 95 U. S. 714, 723; Cole v. Cunningham, 133 U. S. 107, 126; Barnett 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 v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671; May v. Bank, 122 Ill. 551, 13 N. E. 806; Matthews v. Lloyd, 89 Ky. 625, 13 S. W. 106, 107; Marshall v. Sherman, 148 N. Y. 9, 10, 29, 42 N. E. 419; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 15; Hornthall 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 N. E. 250, 8 L. R. A. 62, 63; Gilman v. 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 also Baldwin v. Gray, 4 Mart. N. s. (La.) 192, 16 Am. Dec. 169, 170.

Louisiana citizen. The defendant urges the law of his domicil as fixing his age of majority (which is a status) and his consequent capacity to make a binding contract.3 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 injustice 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 proper law must result in injustice to the citizen of the forum. The mere fact that such enforcement would subject him to a just liability, which he might escape were the lex 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 where 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.5

6

So, in a Tennessee case, a married woman, domiciled in Kentucky, 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 exception are not as yet very definitely settled. If there be only

8 See post, §§ 71, 72.

4 Post, §§ 128 et seq.

5 Post, § 129; May v. Bank, 122 Ill. 551, 13 N. E. 806; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671; Frank v. 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, 11 S. W. 38, 3 L. R. A. 214.

one party who complains of the injustice done him by the enforcement 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.2

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 accruing to the citizens of the forum will enure also to the benefit of those partners who were citizens of other States, because they were jointly interested and their interests could not be separated.3

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 provision 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 extend 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 Ill. 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. Dec. 671, 672, 674.

Rep. 345, 349. This case itself See also Atherton Co. v. Ives, 20 66 N. H. 557, 23 Atl. 368.

Chafee v. Bank, 71 Me. 514, 36 Am. merely makes the suggestion to refute it. Fed. 894, 897; Sturtevant v. Armsby Co., Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368; Hibernia Bank

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