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 determining 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 coverture. Only in such pronounced instances of a policy of protection 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; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251, 253; Campbell v. Crampton, 2 Fed. 417, 421, 423; Matthews v. 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 v. 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 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 inability of the parties to make it such." Campbell v. Crampton, 2 Fed. 417, 423.

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 be 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 enforce the woman's contract in the courts of her domicil, the law of the forum (and domicil) will be 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."

6

In Milliken v. Pratt, a leading case, a married woman domiciled 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 contracts 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 domiciliary 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 herself 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.

5 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. R. A. 214.

6125 Mass. 374, 28 Am. Rep. 241.

an utter incapacity, lasting throughout the joint lives of husband 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 by 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 incompetent 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 applicable 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.8

7 112 N. C. 59, 17 S. E. 14.

8 Male v. Roberts, Esp. 163; Thompson v. Ketcham, 8 Johns. (N. Y.) 189; 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, 724-725; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241. See Campbell v. Crampton, 2 Fed.

§ 73. Same — Capacity to Marry. - 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 thecontract, 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 con417, 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 facto, 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 v. 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 Sottomayor v. De Barros, supra, where it was held that a marriage in England between two first cousins domiciled in Portugal, whose law forbade such marriages, would be held void in England, though the English law did not prohibit first cousins from marrying.

trary to the law of the forum, unless it be contra bonos mores, as polygamous, or universally incestuous.2

3

Thus, in State v. Ross, a white woman residing in North Carolina 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 indicted there for fornication in living and cohabiting together without being lawfully married, they pleaded the South Carolina 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 marriage is questioned in the courts of the domicil, much conflict 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,5 no matter

2 State v. Ross, 76 N. C. 242, 22 Am. Rep. 678; Harral v. Harral, 39 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.

3 76 N. C. 242, 22 Am. Rep. 678.

4 Story, Conf. 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 Ill. 35, 44 Am. Rep. 81, 82; Succession of Hernandez, 46 La. Ann. 962, 24 L. R. A. 831, 841-842. But see Sottomayor v. De Barros, 3 P. D. 5, 7.

6 It is universally conceded that the forms and solemnities of the wedding