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.2

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 probabilities 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 allegations. 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; Peet v. Hatcher, 112 Ala. 514, 21 So. 711, 712; Flagg v. Baldwin, 38 N. J. Eq. 219, 48 Am. Rep. 308, 310; Benbow v. Moore (N. C.), 19 S. E. 156; Jones v. Rice (Ga.), 18 S. E. 348; Knapp v. 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 Mass. 1, 22 N. E. 49; Kelley v. Kelley, 161 Mass. 111; Buchanan v. Hubbard, 119 Ind. 187, 21 N. E. 538, 539; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331.

3 Buchanan v. Hubbard, 119 Ind. 187, 21 N. E. 538, 539; Brown v. 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; Peet v. Hatcher, 112 Ala. 514, 21 So. 711, 712; Davison v. Gibson, 5 C. C. A. 543, 56 Fed. 443.

thereon simply falls to the ground. To this strictly logical view some of the courts have subscribed.1

But it must be conceded that the decided trend of the American decisions is towards the presumption, in the absence of contrary evidence, that the foreign law under which either party claims is identical with the lex fori.5

Atchison, etc. R. R. Co. v. Betts, 10 Colo. 431, 15 Pac. 821; Whitford v 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. 111, 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 demands that redress should be given, such as ordinary breaches of contract, deprivations of liberty without authority, physical injuries caused by malicious 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.

• Davison v. Gibson, 5 C. C. A. 543, 56 Fed. 443; Sandidge v. Hunt, 40 La. Ann. 766, 5 So. 55; Allen v. Allen, 6 Rob. (La.) 104, 39 Am. Dec. 553; Kuenzi v. Elvers, 14 La. Aun. 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. Claffy, 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 prima 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 by way of substitution for the "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" presumed to be the same as the lex fori. It is a case of identity or similarity, rather than of substitution.

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 differences 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.

[REFERENCES ARE TO SECTIONS.]

ABANDONMENT,

of domicil of choice, effect of, 65-66.

of husband by wife, effect of, upon wife's domicil, 48.
of wife by husband, effect of, upon wife's domicil, 47, 51.
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 ACCEPTANCE.)
ACCESSARIES, situs of crime of, 204. (See CRIMES.)
ACCOMMODATION INDORSERS. (See INDORSERS.)

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, 113.

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.

assets transiently within State of appointment, 106.

assets subsequently removed to foreign State, 106.

assets in foreign State removed to State of appointment, 106.