(yUrUJ Oyl^-cf ^"^^d-iy-t!^^ 
 
 
 
 c^ (ru-/u^ 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 w
 
 SHORTER SELECTION 
 
 OF CASES ON 
 
 THE CONFLICT OF LAWS 
 
 Br 
 JOSEPH HENRY BEALE, Jr. 
 
 BUSSEY PROFESSOR OF LAW IN HARVARD UNIVERSITY 
 
 CAMBRIDGE 
 HARVARD UNIVERSITY PRESS
 
 T 
 B3L,55c5j 
 
 Copyright, 1907, 
 By Joseph Henry Beale, Jb.
 
 A SHORTER SELECTION OF 
 
 CASES ON THE CONFLICT OF LAWS. 
 
 PART I. 
 JURISDICTION. 
 
 CHAPTER I. 
 LAW. 
 
 McDonald v. mallory. 
 
 Court of Appeals, New York. 1879. 
 
 [Reported 11 N. Y. 546.] 
 
 Rapallo, J.^ For the purposes of this appeal the wrongful act or 
 neglect causing the death of the plaintiff's intestate must be treated as 
 having been committed upon the high seas. The complaint does not 
 specifically allege that the disaster was caused by the unlawful or 
 negligent lading of the petroleum on board of the vessel in the port 
 of New York, and consequently the question whether that fact, if 
 alleged, would establish that the wrong complained of was committed 
 within the territorial bounds of this State, need not be considered. 
 
 We shall therefore come directly to the principal point argued, 
 which is, whether under the statute of this State, which gives a right 
 of action for causing death by wrongful act or neglect, an action can 
 be maintained for thus causing a death on the high seas, on board of a 
 vessel hailing from and registered in a port within this State and 
 owned by citizens thereof; the person whose death was so caused 
 
 ^ The opinion only is given ; it sufficiently states the case, — Ed. 
 1
 
 2 Mcdonald v. mallory. [chap, l 
 
 being also a citizen of this State, the vessel being at the time 
 employed by the owners in their own business, and their negligence 
 being alleged to have caused the death. 
 
 It is settled by the adjudications of our own courts that the right of 
 action for causing death b}' negligence exists onl}' by virtue of the 
 statute, and that where the wrong is committed within a foreign State 
 or country, no action therefor can be maintained here, at least without 
 proof of the existence of a similar statute in the place where the 
 wrong was committed. (Whitford v. Panama R. R. Co., 23 N, Y. 
 465 ; Crowle}- r. Panama R. R. Co., 30 Barb. 99 ; Beach v. Bay 
 State Steamboat Co., 30 id. 433 ; Vandeventer v. N. Y. and New 
 Haven R. R. Co., 27 id. 244.) These decisions rest upon the plain 
 ground that our statute can have no operation within a foreign juris- 
 diction, and that with respect to positive statute law it cannot be 
 presumed that the laws of other States or countries are similar to 
 our own. (Opinion of Demo, J., 23 N. Y. 467, 468, 471.) The 
 liability of a person for his acts depends, m general, upon the laws 
 of the place where the acts were committed, and although a civil right 
 of action acquired, or liability incurred, in one State or country for a 
 personal injury may be enforced in another to which the parties may 
 remove or where they be found, yet the right or liability must exist 
 under the laws of the place where the act was done. Actions for 
 injuries to the person committed abroad are sustained without proof 
 in the first instance of the lex loci, upon the presumption that the right 
 to compensation for such injuries is recognized by the laws of all 
 countries. But this presumption cannot apply where the wrong com- 
 plained of is not one of those thus universall}' recognized as a ground 
 of action, but is one for which redress is given only by statute. 
 
 Keeping tliese principles in view it is clear that in order to maintain 
 this action it is necessary to establish that the statute law in question 
 was operative on board of the vessel upon which the injury was cont- 
 ra itted. In all the cases which have been decided, the place of the 
 injury was actually within the limits of a foreign territory, subject to 
 its ov>'n laws, and where there could be no claim that the laws of this 
 State or country were operative. In the present case the locus in quo 
 was not within tlie actual territorial limits of any State or nation, nor 
 was it sul)joct to the laws of any government, unless the rule which 
 exists from necessity is applied, tliat every vessel on the high seas is 
 constructively a part of the territory of the nation to which she l)elongs, 
 and its laws are operative on board of her. In this respect the case is 
 new. 
 
 There can be no question tliat if this case were one arising under the 
 laws of tlie United States the rule referred to would apply, and acts 
 done on lioanl of her while on the high seas would be governed by 
 those laws. The question now presented is whether in respect to 
 matters not committed by the Constitution exclusively to the Federal 
 government nor legislated upon by Congress, but regulated entirely
 
 CHAP. I.] Mcdonald v. mallory. 3 
 
 b}' State laws, the State to which the vessel belongs can be regarded 
 as the sovereignty whose laws follow her until she comes within the 
 jurisdiction of some other government. 
 
 This precise question arose in the case of Kell}' v. Crapo (45 N. Y. 
 86 ; and 16 Wall. 610), though in a different form. The question 
 there was whether a vessel upon the high seas was subject to the 
 insolvent laws of the State of Massachusetts, to which State the vessel 
 belonged, that is, where she was registered and her owner resided, 
 so that by operation of those laws, and without any act of the owner, 
 the title to the vessel could be transferred while She was at sea by a 
 proceeding in i7ivittim, to an official assignee, and his title thus 
 acquired would take precedence of an attachment levied upon her 
 ill ihe State of New York after she had come within this State. 
 
 It was conceded in that case, in this court as well as in the Supreme 
 Court of the United States, that unless the vessel was actually or con- 
 etructively within the jurisdiction of the State of Massachusetts her 
 insolvent law could not operate upon her so as to defeat a title acquired 
 under the laws of the State within whose actual territorial jurisdiction 
 ehe afterwards came. (16 Wall. 622.) But in support of the title of 
 the assignee in insolvency it was urged that the rule before referred to 
 applied to her, and that while at sea she was constructively a part of 
 the territory of the State of Massachusetts and subject to her laws. 
 
 This court held that the rule invoked was not applicable to a State, 
 and State laws, but that the jurisdiction referred to was vested in the 
 government of the United States, and that the national territory and 
 its laws only were extended b}- legal fiction to vessels at sea. 
 
 This decision was reversed by the Supreme Court of the United 
 States (Crapo v. Kelh', 16 Wall. 610), and as we understand the 
 prevailing opinion in that court, it holds that the relations of a State 
 to the Union do not affect its status as a sovereign, except with respect 
 to those powers and attributes of sovereignty' which have b}- the Con- 
 stitution been transferred to the government of the United States, and 
 that in all other respects it stands as if it were an independent sov- 
 ereign State, unconnected with the other States of the Union. Upon 
 this principle it was held that the vessel while at sea Was constructively 
 part of the territorv of the State of Massachusetts and subject to its 
 laws. (16 Wall. 623, 624, 631-632.) It is difficult to conceive any 
 other principle upon which that conclusion could have been reached. 
 
 In respect to crimes committed on the high seas, the power to 
 provide for their punishment has been delegated to the Federal govern- 
 ment, and for that reason State laws cannot be applicable to them ; but 
 I cannot escape the conclusion that under the principle of the case of 
 Crapo V. Kelly civil rights cf action, for matters occurring' at sea on 
 board of a vessel belonging to one of the States of the Union must 
 depend upon the laws of that State, unless the}' arise out of some 
 matter over which jurisdiction has been vested in and exercised by 
 the government of the United States, or over which the State has
 
 4 Mcdonald v. mallory. [chap, l 
 
 transferred its rights of sovereignty to the United States ; and that to 
 this extent the vessel must be regarded as part of the territory of the 
 State, while in respect to her illations with foreign governments, 
 crimes committed on board of her, and all other matters over which 
 jurisdiction is vested in the Federal government, she must be regarded 
 as part of the territory of the United States and subject to the laws 
 thereof. 
 
 The facts alleged in the complaint, and admitted by the demurrer, 
 present a strong case for the application of the rule that the laws of 
 the State to which the vessel belongs follow her until she comes 
 within some other jurisdiction. The defendants, by whom the wrong 
 is allet^ed to have been committed, were, at all times up to its final 
 consummation by the death of the plaintiff's intestate, citizens and 
 residents of this State, and subject to its laws, and the deceased was 
 also a citizen of this State. The death was caused either by the 
 illegal and negligent act done in this State of lading the dangerous 
 and prohibited article on board the vessel and sending the deceased to 
 sea in her thus exposed, or by the negligence or wrongful acts of the 
 defendants committed at sea through their agents. The complaint 
 does not distinctly specify which, but it must have been one or the 
 other. If the latter, then, at the place where the injury was consum- 
 mated there was no law by which to determine whether or not it 
 rendered the defendants liable to an action, unless the law of the 
 State to which the vessel belonged followed her. In the present case 
 the defendants were, at the time of the wrongful act or neglect, and of 
 the injury, within this State and subject to its laws, and none of the 
 ol)jections, suggested in the various cases which have been cited, to 
 subjecling them to liability under the statute, for acts done out of the 
 territory of the State, can appl}'. There can be no double liability, as 
 suggested by Denio, J., in 23 N. Y. 467, 471, for the locus in quo 
 was not subject to the laws of any other country ; nor can it be said 
 that the deceased or his representatives were under the protection of 
 the laws of any otlier government, as is said in some of the other cases 
 cited. It is a case where no confusion or injustice can result from the 
 application of the principle declared by the Supreme Court,\that the 
 laws of the State as well as of the United States, enacted within their 
 respective spheres, follow the vessel when on the high seas.\ In the 
 opinion of the court at General Term in this case it is expressly con- 
 ceded that both the laws of the State and the nation have dominion on 
 a vessel on the high seas, but the demurrer was sustained on the 
 ground that this right of jurisdiction has not been exercised by the 
 State of New York, and its statutes are restricted in their operation 
 to the actual territorial bounds of the State. 
 
 No such restriction is contained in the statute now under considera- 
 tion. Its language is broad and general and b}' its terms it operates 
 in all places. Its operation on cases arising in other States and 
 countries has not been denied by reason of anything contained in
 
 CHAP. I.] Mcdonald v. mallory. 5 
 
 the act itself or m any other legislative act, but on general principles 
 of law. 
 
 But the court rests its conclusion upon the act of the Legislature of 
 this State which defines its boundaries and declares that the sovereignty 
 and jurisdiction of this State extends to all the places within the 
 boundaries so declared (1 R. S. 62, 65), and it construes that act as 
 a renunciation or abrogation of any effect which might on general 
 principles of law be given to its statutes on board of vessels on the 
 high seas. 
 
 We are unable to concur in this view. The act referred to was 
 intended to define simply the actual territorial bounds of the State, 
 and the declaration that its sovereignty and jurisdiction should extend 
 to all places within those bounds was not intended to nor could it 
 operate as a restriction upon subsequent legislation, nor had it an}' 
 reference to such a question as that now before us. Whatever opera^ 
 tion our laws may have on board of vessels at sea depends upon 
 general principles, and there is nothing in the legislation of our State 
 which places it in this respect on a different footing from any other. 
 Is is not claimed that the sovereignty and jurisdiction of this State 
 extend to its vessels when at sea, as they do to places within its 
 boundaries, for all purposes, such as service of process, the execu- 
 tion of judgments and the like, but only that when acts done at sea 
 become the subject of adjudication here, the rights and liabilities of 
 parties may in some cases be determined with reference to our statutes. 
 There is nothing inconsistent with this in the act referred to, or in the 
 assertion of sovereignty and jurisdiction for all purposes over places 
 within the bounds of the State. 
 
 The decision of this court in Kelly v. Crapo is referred to as the 
 highest evidence that this State never intended that its laws should 
 extend to vessels on the high seas. That decision recognized the 
 general principle that the laws of a nation do so extend, but was based 
 upon the theory that the relation of the State to the Union was such 
 that this attribute of sovereignty had become merged in the powers 
 granted to the general government. But the judgment of the Supreme 
 Court of the United States having established the contrary view, and 
 that in matters not the subject of Federal legislation, the laws of the 
 State follow the vessel, thus making the laws of the State and of the 
 United States, in their respective spheres, together constitute the law 
 of the nation to which the vessel belongs, we adopt that decision as the 
 judgment of the tribunal to whom the ultimate determination of ques- 
 tions of that nature properly belongs. 
 
 There is nothing in the nature of this action which renders it exclu- 
 sively the subject of Federal cognizance. The jurisdiction of the 
 States and of the United States in the matter of personal torts com- 
 mitted at sea, such as assaults by a master on his crew, injuries to 
 passengers, and the like, are concurrent, though remedies by proceed- 
 ings in rem can be administered only by the Courts of Admiralty of the
 
 6 DOBREE V. NAPIER. [CHAP. I. 
 
 United States. The field of legislation in respect to cases like the 
 present one has not been occupied b}' the general government and is 
 therefore open to the States. (Steamboat Co. v. Chase, 16 Wall. 
 522, 530, 533.) Indeed the United States Court of Admiralty would 
 have no jurisdiction in such a case (Steamboat Co. v. Chase, 16 Wall. 
 522, 530, 533; Sherlock v. Allen, 93 U. S. 99), and there is no 
 greater objection to extending the operation of a statute of this 
 description to a vessel at sea than there was to giving similar opera- 
 tion to a State insolvent law. 
 
 DOBREE V. NAPIER. 
 Court of Common Pleas. 1836. 
 
 [Reported 2 Bingham's New Cases, 781j. 
 
 TiKDAL, C. J.^ The plaintiffs declare in this action against the two 
 defendants for seizing and taking a steam vessel of the plaintiffs, and 
 converting the same to their use. 
 
 The defendants sever in their pleading, but each puts upon the 
 record substantially the same justification, to which the answers givea 
 b\- the replication are the same, and the same questions of law are 
 raised thereon. 
 
 It will be sufficient, therefore, to consider the case as it is raised 
 upon the pleadings with respect to the first-named defendant, Charles 
 Napier. 
 
 The third special plea of the defendant Charles Napier alleges, that 
 as a servant of the Queen of Portugal, and b}- her command, he seized 
 and took the steam vessel of the plaintiffs as lawful prize, and that 
 such proceedings were thereupon had, according to the laws of Portugal, 
 in a court of law in the kingdom of Portugal of competent jurisdiction 
 in tliat behalf, that afterwards, in and by the said court, the said steam 
 vessel was adjudged to have been justly and lawfully taken, and was 
 then in due course and form of law condemned as lawful prize, and as 
 forfeited to tlie Queen of Portugal. In answer to this plea, the plain- 
 tiff in his replication alleges certain facts, which bring the service of 
 the defendant Charles Napier under the Queen of Portugal, upon the 
 occasion in question, witliin the restrictions of the statute 59 G. 3. c. 
 69. s. 2., generally known by the name of the Foreign Enlistment Act; 
 and to this replication the defendant demurred. 
 
 We think it is perfectly clear, that, except for the facts introducea 
 by the replication, tlie plea, standing alone ;md unanswered, would be 
 a conclusive bar to the plaintiff's riglit of action. The sentence of a 
 foreign court of competent jurisdiction, condemning a neutral vessel 
 taken in war, as prize, is binding and conclusive on all the world ; and 
 
 ^ The opinion only is given ; it sufficiently states the case. Part of the opinion, in- 
 volving a different question, is omitted. — Ed.
 
 DKAP. I.J DOBREE V. NAPIER. 7 
 
 no English court of law can call in question the propriet}-, or the 
 grounds, of such condemnation. It is sufficient to refer to the case 
 of Hughes V. Cornelius and others, Sir T. Raym. 473, as a decisive 
 authority on that point. It follows that after the sentence of the Court 
 of Lisbon, it cannot be controverted in this, or an}' other English court, 
 that the steam vessel was rightly taken by the Queen of Portugal as 
 prize, and that all the property of the plaintiffs therein became, by 
 such capture and condemnation, forfeited to the Queen, and vested in 
 her. 
 
 But the plaintiffs contend that the replication, "by the facts therein 
 disclosed, shows that the service of the defendant Charles Napier under 
 the Queen of Portugal, by virtue of which service alone he justifles the 
 seizing of the steam vessel, is made illegal by an English statute, viz. 
 the statute 59 G. 3. c. 69., and that such illegality of the service pre- 
 vents him from making an}- justification under the Queen of Portugal, 
 and renders him liable to all the damages which the plaintiffs have sus- 
 tained b}' reason of the seizure. And whether the conclusion which 
 the plaintiff's draw from these premises is the just conclusion or not, 
 is the question between these parties. The seizure by the Queen of 
 Portugal must be admitted to be justifiable ; no objection can be taken 
 against the forfeiture of the propert}- in this vessel to tlie Queen, under 
 the sentence of condemnation. The plaintiffs, therefore, in contem- 
 plation of law, have sustained no legal injur}' by reason of the seizure. 
 Again no one can dispute the right of the Queen of Portugal, to appoint 
 in her own dominions, the defendant or any other person she may 
 think proper to select, as her officer or servant, to seize a vessel which 
 is afterwards condemned as a prize ; or can deny, that the relation of 
 lord and servant, de facto, subsists between the Queen and the defend- 
 ant Napier. For the Queen of Portugal cannot be bound to take any 
 notice of, much less owe any obedience to, tlie municipal laws of this 
 country. Still, however, notwithstanding the loss by seizure is such, 
 as that no court of law can consider it an injury, or give any redress 
 for it ; and that the service and employment of the defendant is a ser- 
 vice and employment de facto; the plaintiffs contend they can make 
 the servant responsible for the whole loss, only by reason of his being 
 obnoxious to punishment in this country, for having engaged in such 
 service. No case whatever has been cited which goes the length of 
 this proposition ; the authorities referred to establishing only, that 
 where an act prohibited by the law of this country has been done, the 
 doer of such illegal act cannot claim the assistance of a court of law in 
 this country to enforce such act, or any benefit to be derived from it, 
 or any contract founded upon it. To the full extent of these authorities, 
 we entirely accede ; but we cannot consider the law to be, that where the 
 act of the principal is lawful in the country where it is done, and the 
 authority under which such act is done is complete, binding, and un- 
 questionable there, the servant who does the act can be made responsible 
 in the courts of this country for the consequence of such act, to the same
 
 8 BLANKARD V. GAI.DY. [CHAP. I. 
 
 extent as if it were originall}' unlawful, merely by reason of a personal 
 disability imposed bj' the law of this country upon him, for contracting 
 such engagement. Such a construction would effect an unreasonable 
 alteration in the situation and rights of the plaintiffs and the defendant. 
 The plaintiffs would, without any merit on their part, recover against 
 the servant the value of the property to which they had lost all claim 
 and title by law against the prhicipal ; and the defendant, instead of 
 the measure of punishment intended to be inflicted by the statute for 
 the transgression of the law, might be made liable to damages of an 
 incalculable amount. Again, the only ground upon which the authority 
 of the servant is traversable at all in an action of trespass, is no more 
 than this ; to protect the person or property of a party from the offi- 
 cious and wanton interference of a stranger, where the principal might 
 have been willing to waive his, rights. It is obvious that the full 
 benefit of this principle is secured to the plaintiffs by allowing a traverse 
 of the authority de facto, without permitting them to impeach it by a 
 legal objection to its validity, in another and foreign country. And 
 we think there is no material difference between the third and the first 
 and second special pleas on this record. For as we hold that the au- 
 thority- of the Queen of Portugal to be a justification of the seizure " as 
 prize," there is as little doubt but that she might direct a neutral ves- 
 sel to be seized when in the act of breaking a blockade b}' her estab- 
 lished, which is the substance of the first special plea, or of supplying 
 warlike stores to her enemies, which is the substance of the second. 
 We therefore give judgment on the first three special pleas, for the 
 defendants. 
 
 Judgment for Defendants. 
 
 BLANKARD v. GALDY. 
 
 King's Bench. 1693. 
 {^Reported 2 Salkeld, 411.3 
 
 In debt on a bond, the defendant prayed oyer of the condition, and 
 pleaded the statute E. 6. against buying oflfices concerning the admin- 
 istration of justice ; and averred. That this bond was given for the 
 purchase of the ofllcc of provost-marshal in Jamaica, and that it con- 
 cerned the administration of justice, and that Jamaica is part of the 
 revenue and possessions of the Crown of England : The plaintiff replied,
 
 CHAP. I.] BLANKARD V. GALDY. 9 
 
 that Jamaica is an Island beyond the seas, which was conquered from 
 the Indians and Spaniards in Queen Elizabetli's time, and the inhabit- 
 ant? are governed by their own laws, and not by the laws of England : 
 The defendant rejoined, That before such conquest they were governed 
 by their own laws ; but since that, b}- the laws of England : Shower 
 argued for the plaintiff, that, on a judgment in Jamaica, no writ of 
 error lies here, but only an appeal to the Council ; and as they are 
 not represented in our Parliament, so they are not bound by our stat- 
 utes, unless specially named. Vide And. 115. Pemberton contra 
 argued, that by the conquest of a nation, its liberties, rights, and prop- 
 erties are quite lost ; that by consequence their laws are lost too, for 
 the law is but the rule and guard of the other ; those that conquer, can- 
 not by their victory lose their laws, and become subject to others. 
 Vide Vaugh. 405. That error lies here upon a judgment in Jamaica, 
 which could not be if the}' were not under the same law. Et per Holt, 
 a J. & Cur., 
 
 First, in case of an uninhabited country newlj' found out b}' English 
 subjects, all laws in force in England are in force there ; so it seemed 
 to be agreed. 
 
 Secondl}-, Jamaica being conquered, and not pleaded to be parcel of 
 the kingdom of England, but part of the possessions and revenue of 
 the Crown of England, the laws of England did not take place there, 
 until declared so by the conqueror or his successors. The Isle of Man 
 and Ireland are part of the possessions of the Crown of England ; yet 
 retain their ancient laws : That in Davis 36. it is not pretended, that 
 the custom of tanistry was determined by the conquest of Ireland, but 
 by the new settlement made there after the conquest : That it was im- 
 possible the laws of this nation, by mere conquest, without more, 
 should take place in a conquered country ; because, for a time, there 
 must want officers, without which our laws can have no force : That if 
 our law did take place, yet they in Jamaica having power to make new 
 laws, our general laws may be altered by theirs in particulars ; also 
 they held, that in the case of an infidel country, their laws by conquest 
 do not entirely cease, but onlj- such as are against the law of God ; and 
 that in such cases where the laws are rejected or silent, the conquered 
 country shall be governed according to the rule of natural equity. 
 
 Judgiaent pro quer.^ 
 
 1 Another report of the same case may be found in 4 Mod. 222. In thnt case the 
 Court is reported to have said : " And therefore it was held, that Jamaica was not gov- 
 erned by the laws of England after the conquest thereof, till new laws were made : for 
 they had neither sheriff or counties; they were only an assembly of people which are 
 not bound by our laws, unless particularly mentioned. In Barbadoes all freeholds are 
 subject to debts, and are esteemed as chattels till the creditors are satisfied, and then 
 the lands descend to an heir ; but the law is otherwise here ; which shows that though 
 that island is parcel of the possessions of England, yet it is not governed by the laws 
 made here, but by their own particular laws and customs." 
 
 Ace. Earl Derby's Case, 2 And. 116 ; Mem- 2 P. Wms. 75. See Cross v. HarrisoDi 
 16 How. 161; Airhart v. Massieu, 98 U. S. 491. —Ed.
 
 10 ~^~<-^ ^^ SWIFT V. TYSON. [CHAP. I. 
 
 SWIFT V. TYSON. 
 Supreme Court of the United States. 1842. 
 
 [^Reported 16 Peters Reports, 1.] 
 
 Mr. Justice Story delivered the opinion of the court. ^ 
 
 This cause comes before us from the Circuit Court of the Southern 
 District of New York, upon a certificate of division of the judges of 
 that court. 
 
 The action was brought by the plaintiff, Swift, as endorsee, against 
 the defendant, Tyson, as acceptor, upon a bill of exchange dated at 
 Portland, Maine, on the first day of Ma}', 1836, for the sum of one 
 thousand five hundred and forty dollars, thirty cents, payable six 
 months after date and grace, drawn by one Nathaniel Norton and one 
 Jairus S. Keith upon and accepted by Tyson, at the citj- of New York, 
 in favor of the order of Nathaniel Norton, and by Norton endorsed to 
 the plaintiff. The bill was dishonored at maturity. . . . 
 
 In the present case, the plaintiff is a bona fide holder (without 
 notice) for what the law deems a good and valid consideration, that is, 
 for a pre-existing debt ; and the only real question in the cause is, 
 whether, under the circumstances of the present case, such a pre-exist- 
 ing debt constitutes a valuable consideration in the sense of the general 
 rule applicable to negotiable instruments. We say, under the circum- 
 stances of the present case, for the acceptance having been made in 
 New York, the argument on behalf of the defendant is, that the con- 
 tract is to be treated as a New York contract, and therefore to be gov- 
 erned by the laws of New York, as expounded by its courts, as well 
 upon general principles as by the express provisions of the thirty- 
 fourth section of the Judiciary Act of 1789, ch. 20. And then it is 
 further contended, that by the law of New York, as thus expounded 
 by its courts, a pre-existing debt does not constitute, in the sense of 
 the general rule, a valuable consideration applicable to negotiable in- 
 struments. . . . 
 
 To say the least of it, it admits of serious doubt, whether any doc- 
 trine upon this question can at the present time be treated as finally 
 cstablislied ; and it is certain that the Court of Errors have not pro- 
 nounced any positive opinion upon it. 
 
 But, admitting the doctrine to be fully settled in New York, it 
 remains to be considered whether it is obligatory upon this comt, if it 
 differs from the principles established in the general commercial law. 
 It is observable that the courts of New York do not found their deci- 
 sions upon this point upon an}' local statute, or positive, fixed, or 
 ancient local usage : but the}' deduce the doctrine from the general 
 principles of commercial law. It is, however, contended, that the 
 thirty-fourth section of the Judiciary Act of 1789, ch. 20, furnishes a rule 
 
 ^ Part of the oiunion is omitted. — Ed.
 
 CHAP. I.] SWIFT V. TYSON. H 
 
 obligatory upon this court to follow the decisions of the State tribunals 
 in all cases to which they apply. That section provides "that the _ 
 laws of the several States, except where the Constitution, treaties,_or 
 statutes of the United States shall otherwise require or provide, shall 
 be regarded as rules of decision in trials at common law in the courtj^ 
 of the United States, in cases where they apply/' In order to main- 
 tain the argument, it is essential, therefore, to hold, that the word 
 ♦' laws," in this section, includes within the scope of its meaning the 
 decisions of the local tribunals. In the ordinary use of language it 
 will hardly be contended that the decisions of courts constitute laws. 
 They are, at most, only evidence of what the laws are ; and are not 
 of themselves laws. They are often re-examined, reversed, and quali- 
 fied by the courts themselves, whenever they are found to be either 
 defective, or ill-founded, or otherwise incorrect. Tlie laws of a State 
 are more usually understood to mean the rules and enactments promul- 
 gated by the legislative authority thereof, or long established local 
 customs having the force of laws. In all the various cases which have 
 hitherto come before us for decision, this court have uniformly sup- 
 posed that the true interpretation of the thirty-fourth section limited 
 its application to State laws strictly local, that is to say, to the positive 
 statutes of the State, and the construction thereof adopted by the local 
 tribunals, and to rights and titles to things having a permanent locality, 
 such as the rights and titles to real estate, and other matters immovable 
 and intraterritorial in their nature and character. It never has been 
 supposed by us that the section did apply, or was designed to apply, 
 to questions of a more general nature, not at all dependent upon local 
 statutes or local usages of a fixed and permanent operation, as, for 
 example, to the construction of ordinary contracts or other written 
 instruments, and especially to questions of general commercial law, 
 where the State tribunals are called upon to perform the like functions 
 as ourselves, that is, to ascertain upon general reasoning and legal 
 analogies, what is tl'ic trilff exposition of the contract or instrument, or 
 •what is the just rule furnished by the principles of commercial law to 
 govern the case. And we have not now the slightest diflficulty in hold- 
 ing, that this section, upon its true intendment and construction, is 
 strictly limited to local statutes and local usages of the character before 
 stated, and does not extend to contracts and other instruments of a 
 commercial nature, the true interpretation and effect whereof are to be 
 sought, not in the decisions of the local tribunals, but in the general 
 principles and doctrines of commercial jurisprudence. Undoubtedly, the 
 decisions of the local tribunals upon such subjects are entitled to, and 
 will receive, the most deliberate attention and respect of this court ; but 
 they cannot furnish positive rules, or conclusive authority, by which our 
 own judgments are to be bound up and governed. The law respecting 
 negotiable instruments may be truly declared in the language of Cicero, 
 adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 883, 887, to 
 be in a great measure, not the law of a single country only, but of the
 
 12 WESTERN UNION TEL. CO. V. CALL PUBLISHING CO. [CHAP. L 
 
 commercial world. Non erit alia lex Romse, alia Athenis, aha nunc, 
 alia posthac, sed et apud omnes gentes, et orani tempore, una eadem- 
 quc lex obtenebit. 
 
 It becomes necessary for us, therefore, upon the present occasion, 
 to express our own opinion of the true result of the commercial law 
 upon the question now before us. And we have no hesitation in say- 
 ing, that a pre-existing debt does constitute a valuable consideration in 
 the sense of the general rule already stated, as applicable to negotiable 
 instruments. . . . 
 
 WESTERN UNION TELEGRAPH CO. v. CALL 
 PUBLISHING CO. 
 
 Supreme Court of tue United States. 1901. 
 
 [Reported 181 United States, 92.] 
 
 This was an action commenced on April 29, 1891, in the District 
 Court of Lancaster County, Nebraska, by the Call Publishing Com- 
 pauv, to recover sums alleged to have been wrongfully charged and 
 collected from it by the defendant, now plaintiff in error, for tele- 
 graphic services rendered. According to the petition the plaintiff 
 had been engaged in publishing a daily newspaper in Lincoln, Neb- 
 raska, called The Lincoln Daily Call. The Nebraska State Journal 
 was another newspaper published at the same time in the same city, 
 by the State Journal Company. Each of these papers received Asso- 
 ciated Press despatches over the lines of the defendant. The petition 
 alleged : 
 
 "4th. That during all of said period the defendant wrongfully and 
 unjustly discriminated in favor of the said State Journal Company and 
 against this plaintiff, and gave to the State Journal Company an undue 
 advantage, in this: tliat while tiie defendant demanded, charged, and 
 collected of and from the plaintiff for the services aforesaid seventy- 
 five dollars per month for such despatches, amounting to 1500 words 
 or less daily, or at the rate of not less than five dollars per 100 words 
 daily per month, it charged and collected from the said State Journal 
 Com[)any for the same, like, and contemporaneous services only the 
 sum of S1..")0 per 100 words dailv per month. 
 
 " Plaintiff alleges that the sum so demanded, charged, collected, and 
 received by the said defendant for the services so rendered the plaintiff, 
 as aforesaid, was excessive and unjust to the extent of the amount of 
 the excess over the rate charged the said State Journal Company for 
 the same services, which excess was three dollars and fifty cents per 
 one hundred words daily per month, and to that extent it was an un- 
 just and wrongful discrimination against the plaintiff and in favor ol 
 the State Journal Company.
 
 CHAP. I.] WESTERN UNION TEL. CO. V. CALL PUBLISHING CO. 13 
 
 " That plaintiflf was at all times and is now compelled to pay said 
 excessive charges to the defendant for said services or to do without 
 the same ; that plaintili could not dispense with such despatches with- 
 out very serious injur\' to its business." 
 
 The telegraph compan3''s amended answer denied an}' unjust dis- 
 crimination ; denied that the sums charged to the plaintiff were unjust 
 or excessive, and alleged that such sums were no more than a fair and 
 reasonable charge and compensation therefor, and similar to charges 
 made upon other persons and corporations at Lincoln and elsewhere 
 for like services. The defendant further claimed that it was a cor- 
 poration, engaged in interstate commerce; that it had accepted the 
 provisions of the act of Congress entitled " An act to aid in the con- 
 struction of telegraph lines and to secure to the government the use of 
 the same for postal and other purposes," approved July 24, 1866 ; that 
 it had constructed its lines under the authority of its charter and that 
 act, and denied the jurisdiction of the courts of Nebraska over this 
 controversy. A trial was had, resulting in a verdict and judgment for 
 the plaintiff, which judgment was reversed by the Supreme Court of 
 the State. 44 Neb. 326. A second trial in the District Court resulted 
 in a verdict and judgment for the plaintiff, which was affirmed by the 
 Supreme Court of the State (58 Neb. 192), and thereupon the tele- 
 graph company sued out this writ of error. 
 
 Brewer, J.^ The contention of the telegraph company is substantially 
 that the services which it rendered to the publishing company were a 
 matter of interstate commerce ; that Congress has sole jurisdiction over 
 such matters, and can alone prescribe rules and regulations therefor ; 
 that it had not at the time these services were rendered prescribed anv 
 regulations concerning them ; that there is no national common law, 
 and that whatever ma}- be the statute or common law of Nebraska is 
 ■wholly immaterial ; and that therefore, there being no controlling 
 statute or common law, the State court erred in holding the telegraph 
 companv liable for any discrimination in its charges between the 
 plaintiff and the Journal company. In the brief of counsel it is said : 
 "The contention was consistently and continuously made upon the 
 trial hv the telegraph companv that, as to the State law, it could not 
 apply for the reasons already given, and that, in the absence of a 
 statute by Congress declaring a rule as to interstate traffic by tlie tele- 
 graph company, such as was appealed to by the publishing company, 
 there was no law upon the subject." V.The logical result of this con- 
 tention is that persons dealing with common carriers engaged in inter- 
 state commerce and in respect to such commerce are absolutely at the 
 mere}- of the carriers. \It is true counsel do not insist that the telegraph 
 company or any other company engaged in interstate commerce may 
 charge or contract for unreasonable rates, but they do not say that 
 they may not, and if there be neither statute nor common law control- 
 
 1 Part of the opinion, in which the charge of the court at the trial was given, is 
 omitted. — Ed.
 
 14 WESTER>J UNION TEL. CO. V. CALL PUBLISHING CO. [CHAP. L 
 
 ling the action of interstate carriers, there is nothing to limit their 
 oblii^ation in respect to the matter of reasonableness. We should be 
 verv loatli to hold that in the absence of congressional action there are 
 no restrictions on the power of interstate carriers to charge for their 
 services ; and if there be no law to restrain, tlie necessar}- result ia 
 that there is no limit to the charges they may make and enforce. . . . 
 Common carriers, whether engaged in interstate commerce or in 
 that wholl}- within the State, are performing a public service. They 
 are endowed by the State with some of its sovereign powers, such as 
 the right of eminent domain, and so endowed by reason of the public 
 service they render. As a consequence of this all individuals have 
 equal rights both in respect to service and charges. Of course, such 
 equality of riglit does not prevent differences in the modes and kinds 
 of service and different charges based thereon. There is no cast-iron 
 line of uniformity which prevents a charge from being above or below 
 a particular sum, or requires that the service shall be exactly along 
 the same lines. But that principle of equalit}- does forbid any differ- 
 ence in charge which is not based upon difference in service, and even 
 when based upon difference of service, must have some reasonable re- 
 lation to the amount of difference, and cannot be so great as to produce 
 an unjust discrimination. To affirm that a condition of things exists 
 under which common carriers anywhere in the country, engaged in an}' 
 form of transportation, are relieved from tlie burdens of these obliga- 
 tions, is a proposition which, to say the least, is startling. And yet, 
 as we have seen, that is precisely the contention of the telegraph com- 
 pany, nt contends that there is no federal common law, and that 
 such has been the ruling of this court ; there was no federal statute 
 law at the time applicable to this case, and as the matter is interstate 
 commerce, wholly removed from State jurisdiction, the conclusion is 
 reached that there is no controlling law, and the question of rates is 
 left entirel}' to the judgment or whim of the telegraph company. ^ 
 
 This court has often held that the full control over interstate com- 
 merce is vested in Congress, and that it cannot be regulated b}- the 
 States. It has also held that the inaction of Congress is indicative of 
 its intention that such interstate commerce shall be free, and many 
 cases are cited by counsel for the telegraph company in which these 
 propositions have been announced. Reference is also made to opinions 
 in wliicli it has been stated that there is no federal common law differ- 
 ent and distinct from tiic common law existing in the several States. 
 Thus, in Smith v. Alabama, 124 U. S. 4G5, 478, it was said by Mr. 
 Justice Matthews, speaking for the court: 
 
 " There is no common law of the United States in the sense of a 
 national customary law distinct from the common law of England as 
 adopted by the several States, each for itself, applied as its local law, 
 and subject to such alteration as may be [)rovided by its own statutes. 
 Wlieaton v. Peters, 8 Pet. 591-. A determination in a given case of 
 what thnt law is may be different in a court of the United States from
 
 CHAP. I.] WESTERN UNION TEL. CO. V. CALL PUBLISHING CO. 15 
 
 that which prevails in the judicial tribunals of a particular State. This, 
 arises from the circumstance that courts of the United States, in cases 
 witliin their jurisdiction where the}' are called upon to administer the 
 law of the State in which they sit, or by which the transaction is 
 governed, exercise an independent, though concurrent, jurisdiction, 
 and are required to ascertain and declare the law according to their 
 own judgment. This is illustrated by the case of Railroad Co. v. 
 Lockwood, 17 Wall. 357, where the common law prevailing in the 
 State of New York in reference to the liability of common carriers for 
 negligence received a different interpretation from that placed upon it 
 by the judicial tribunals of the State; but the law as applied is none 
 the less the law of that State," p. 478. 
 
 Properl}' understood, no exceptions can be taken to declarations of 
 this kind. There is no body of federal common law separate and dis- 
 tinct from the common law existing in the several States in the sense 
 that there is a body of statute law enacted by Congress separate and 
 distinct from the body of statute law enacted b}- the several States. 
 But it is an entirely different thing to hold that there is no common 
 law in force generalh' throughout the United States, and that the 
 countless multitude of interstate commercial transactions are subject 
 to no rules and burdened by no restrictions other than those expressed 
 in the statutes of Congress. 
 
 What is the (common law? According to Kent: " The common law 
 includes those principles, usages, and rules of action applicable to the 
 government and securit}' of person and propert}' which do not rest for 
 their authoritj- upon any express and positive declaration of the will of 
 the legislature." 1 Kent, 471. As Blackstone says : '' Whence it is 
 that in our law the goodness of a custom depends upon its having been 
 used time out of mind ; or, in the solemnity of our legal phrase, time 
 whereof the naemory of man runneth not to the contrary. This it is 
 •that gives it its weight and authorit}' ; and of this nature are the 
 maxims and customs which compose the common law, or lex non 
 scripta, of this kingdom. This unwritten, or common, law, is properly 
 distinguishable into three kinds : 1. General customs ; which are the 
 universal rule of the whole kingdom, and form the common law, in its 
 stricter and more usual signification." 1 Blackstone, 67. In Black's 
 Law Dictionar}', page 232, it is thus defined : ' ' As distinguished from 
 law created by the enactment of legislatures, the common law comprises 
 the body of those principles and rules of action relating to the govern- 
 ment and security of persons and propertj-, which derive their authoritj^ 
 solely from usages and customs of immemorial antiquity, or from the 
 judgments and decrees of the courts recognizing, affirming, and enforc- 
 ing such usages and customs ; and, in this sense, pai'ticularly the 
 ancient unwritten law of England." 
 
 Can it be that the great multitude of interstate commercial trans- 
 actions are freed from the burdens created by the common law, as so 
 defined, and are subject to no rule except that to be found in the
 
 16 WESTERN UNION TEL. CO. V. CALL PUBLISHING CO. [CHAP. L 
 
 statutes of Congress ? We are clearl}' of opinion that this cannot be 
 so, andCthat the principles of the common law are operative upon all 
 interstate commercial transactions except so far as they are modified 
 bv congressional enactment. ) 
 
 But this question is not a new one in this court. In Interstate 
 Commerce Commission v. Baltimore & Ohio Railroad, 145 U. S. 263, 
 275, a case which involved interstate commerce, it was said by Mr. 
 Justice Brown, speaking for the court : 
 
 "Prior to the enactment of the act of February 4, 1887, to regulate 
 commerce, commonly known as the interstate commerce act, 24 Stat. 
 379, c. 104, railway traffic in this country was regulated by the princi- 
 ples of common law applicable to common carriers.'' 
 
 In Bank of Kentucky v. Adams Express Co., and Planters' Bank v. 
 Express Co. , 93 U. S. 174, 177, the express companies received at 
 New Orleans certain packages for delivery at Louisville. These were 
 interstate shipments. In the course of transit the packages were 
 destroyed by fire, and actions were brought to recover the value 
 thereof. The companies defended on the ground of an exemption 
 from liability created by the contracts under which they transported 
 the packages. Mr. Justice Strong, delivering the opinion of the court 
 after describing the business in which the companies were engaged, 
 said : 
 
 ''Such being the business and occupation of the defendants, they 
 are to be regarded as common carriers, and, in the absence of stipula- 
 tions to the contrary-, subject to all the legal responsibilities of such 
 carriers." 
 
 And then proceeded to show that they could not avail themselves of 
 the exemption claimed by virtue of the clauses in the contract. The 
 whole argument of the opinion proceeds upon the assumption that the 
 common-law rule in respect to common carriers controlled. 
 
 Reference may also be made to the elaborate opinion of District 
 Judge Shiras, holding the Circuit Court in the Northern District of 
 Iowa, in Murray /'. Chicago & Northwestern Railway, 62 Fed. Rep. 24, 
 in which is collated a number of extracts from opinions of this court, 
 all tending to show recognition of a general common law existing 
 throughout tlie United States, not, it is true, as a body of law distinct 
 from the common law enforced in the States, but as containing the 
 general rules and principles by which all transactions are controlled, 
 except so far as those rules and principles are set aside b}- express 
 statute. It would serve no good purpose to here repeat those quota- 
 tions ; it is enough to refer to the opinion in which the}' are collated. 
 
 It is further insisted that even if there be a law which controls there 
 is no evidence of discrimination such as would entitle the plaintiff to 
 the verdict which it obtained. But there was testimon}' tending to 
 show the conditions under which the services were rendered to the two 
 publishing companies, and it was a question of fact whether, upon the 
 differences thus shown, there was an unjust discrimination. And
 
 CHAP. I.] » KLINE V. BAKER. 17 
 
 questions of fact, as has been repeatedly held, when once settled in 
 the courts of a State, are not subject to review in this court. Dower 
 V. Richards, 151 U. S. 658; Egan v. Hart, 165 U. S. 188; Chicago, 
 Burlington, etc. Railroad v. Chicago, 166 U. S. 226-242 ; Hedrick v. 
 Atchison, Topeka & Santa Fe Railroad, 167 U. S. 673, 677; Gard- 
 ner V. Bonestell, 180 U. S. 362. 
 
 These are the only questions of a federal nature which are pre- 
 sented b\- the record, and finding no error in them the judgment of 
 the Supreme Court of Nebraska is 
 
 Affirmed. 
 
 KLINE V. BAKER, 
 Supreme Judicial Court of Massachusetts. 1868. 
 
 [Reported 99 MassachuscUs Reports, 253.] 
 
 Gray, J. This action of replevin is brought b}- the seller of intoxi- 
 cating liquors against a deputy sheriff attaching the same as the prop- 
 erty of the purchaser. The plaintiff contends that the sales were 
 induced by fraud of the purchaser and therefore passed no title to him ; 
 and the burden of proving this proposition is upon the ^iaintrff.^ ' 
 
 The seller resided in Pennsylvania, and the purchaser in Illinois. 
 The goods were sold in two lots, one in June and the other in August, 
 1865, upon distinct orders sent by the purchaser to the seller. Al- 
 though the first order was in accordance with terms of sale agreed on 
 between the agents of the parties in Illinois, neither sale was complete 
 until deliver}' of the goods. That delivery in each case was made to a 
 railroad corporation in Philadelphia, which, in the absence of any 
 agreement between the parties to the contrar}', was in law a deliver}' to 
 the purchaser. Each contract of sale therefore was completed in Penn- 
 sylvania, and its validity must be governed by the laws of that State. 
 Orcutt V. Nelson, 1 Gray, 536 ; Finch v. Mansfield, 97 Mass. 89 ; 2 
 Kent Com. (6th ed.) 458. 
 
 The laws of another State are not laws of this Commonwealth, which 
 our citizens are bound to know, or of which our courts have judicial 
 knowledge ; but they are facts, of which both citizens and courts must 
 be informed as of other facts. As foreign laws can only be known so 
 far as they are proved, no evidence of them can be admitted at the 
 argument before this court, which was not offered at the trial or other- 
 wise made part of the case reserved. Knapp v. Abell, 10 Allen, 485 ; 
 Bowditch V. Soltyk, 99 Mass. 138. When the evidence consists of the 
 parol testimony of experts as to the existence or prevailing construc- 
 tion of a statute, or as to any point of unwritten law, the jury must 
 determine what the foreign law is, as in the case of any controverted 
 fact depending upon like testimon}', Holman v. King, 7 Met. 384 ; 
 Dyer u. Smith, 12 Conn. 384 ; Moore v. Gwynn, 5 Ired. 187 ; Ingrar 
 
 2
 
 18 KLINE V. BAKER. , [CHAP. I. 
 
 ham V. Hart, 11 Ohio, 255. But the qualifications of the experts, or 
 other questions of competency of witnesses or evidence, must be passed 
 upon by the court ; and wlien tlie evidence admitted consists entirely 
 of a written document, statute, or judicial opinion, the question of its 
 construction and effect is for the court alone. Church v. Hubbart, 2 
 Cranch, 187; Ennis v. Smitli, 14 How. 400 ; Owen v. Boyle, 15 Maine, 
 147; State v. Jackson, 2 Dev. 563 ; People v. Lambert, 5 Mich. 349 ; 
 Bremer v. Freeman, 10 jNIoore P. C. 306 ; Di Sora v. Phillipps, 10 
 II. L. Cas. 624. And if the evidence is uncontradicted, and will not 
 support the action, it is the duty of the court so to instruct the jur\-. 
 
 B}- the law of Massachusetts, purchasing goods with an intention 
 not to pay for them is of itself a fraud which will render the sale void 
 and entitle the seller to reclaim the goods. Dow y. Sanborn, 3 Allen, 
 181. The only evidence, introduced at the trial of the law of Penn- 
 sylvania upon this subject was the cases of Smith r. Smith, 21 Penn. 
 State, 317, and Backentoss v. Speicher, 31 Penn. State, 324, as pub- 
 lished in the official reports, by which it appears that, in the opinion of 
 the Supreme Court of that State, there must be "■ artifice, intended and 
 fitted to deceive, practised b}- the buyer upon the seller," in order to 
 constitute such a fraud as will make the sale void ; and that the buy- 
 er's intention not to pay for the goods and concealment of his own 
 insolvency is not such a fraud. These reports were competent, and, in 
 the absence of all other evidence, conclusive proof, of the law of Penn- 
 sylvania. Gen. Sts. c. 131, § 64. Penobscot & Kenebec Railroad Co. 
 V. Bartlett, 12 Gray, 244. 
 
 But the plaintiff introduced evidence that Burleigh, who was either a 
 partner or the manager of the business of Dore, the purchaser, represented 
 to Sheble, the agent of the plaintiff, at the time of negotiating witli him 
 for the purchase of the first lot of liquors, and within ten days before 
 sending the order for them to Philadelphia, that Dore had a farm worth 
 ten thousand dollars, and other means amplj" sufficient to carr}' on his 
 business, and that he ylwaNS purchased for cash and did not owe any 
 man ; and that these repiesentations were false. This was clearly suf- 
 ficient evidence of fraudulent representations intended to induce and in 
 fact inducing the [)laintiff to sell to Dore, or, in the language of the 
 Supreme Court of Pennsylvania, " artifice, intended and fitted to de- 
 ceive, practised by tlie buyer upon the seller," to warrant a jur}' in 
 finding that the purchase made immediately afterwards on a credit of 
 sixty days, as well as the subsequent purchase made before tliat credit 
 bad expired, was fraudulent and passed no title. The learned judge 
 therefore erred in ruling that upon the evidence the plaintiff could not 
 recover, and in directing a verdict for the defendant. Nichols r. Pin- 
 ner, 18 N. Y. 295, and 23 N. Y. 264 ; Hall v. Naylor, IS N. Y. bSH ; 
 Reenie '•. Parthemere, 8 Penn. State, 460; Seaver t'. Dingley, 4 Greenl. 
 306 ; Wiggin v. Day, 9 Gray, 97. 
 
 Exceptions sustained.
 
 CHAP. I.] FOREPAUGH V. D. L. & W. RAILROAD CO. 19 
 
 Story, J., in Owings v. Hull, 9 Pet. 607 (1835). [In error to the 
 Circuit Court for the District of Maryland.] We are of opinion that 
 the Circuit Court was bound to talve judicial notice of the laws of 
 Louisiana. The Circuit Courts of the United States are created by 
 Congress, not for the purpose of administering the local law of a single 
 State alone, but to administer the laws of all the States in the Union 
 in cases to which they respectively apply. The judicial power con- 
 ferred on the general government by the Constitution extends to many 
 cases arising under the laws of the different States. And this court is 
 called upon, in the exercise of its appellate jurisdiction, constanth' to 
 take notice of and administer the jurisprudence of all the States. That 
 jurisprudence is, then, in no just sense, a foreign jurisprudence, to be 
 proved, in the courts of the United States, by the ordinary modes of 
 proof b}' which the laws of a foreign countrv are to be established ; 
 but it is to be judicially taken notice of in the same manner as the laws 
 of the United States are taken notice of by these courts. 
 
 Bradley, J., in United States v. Perot, 98 U 8. 428 (1879). We 
 are bound to take judicial notice that the Mexican league was not the 
 same as the American league. The laws of Mexico, of force in Texas 
 previous to the Texan Revolution, were the laws not of a foreign, but 
 of an antecedent government, to which the Government of the United 
 States, tlirough the medium of the Republic of Texas, is the direct 
 successor. Its laws are not deemed foreign laws ; for as to that por- 
 tion of our territor}' they are domestic laws ; and we take judicial 
 notice of them. Fremont v. U. S., 17 How. 542, 557. 
 
 FOREPAUGH v. DELAWARE, LACKAWANNA & WESTERN 
 
 RAILROAD CO. 
 
 Supreme Court of Pennsylvania. 1889. 
 
 [Reported 128 Pennsylvania State Reports, 217.] 
 
 Mitchell, J. Plaintiff, being the proprietor of a circus, made a 
 special contract with defendant for the transportation of a number of 
 his own cars, upon certain conditions and terms elaborately set out in 
 writing, among which was a stipulation that, in consideration that the 
 service was to be performed " for much less than the ordinary, usual, 
 and legal rates charged other parties for a like amount of transporta- 
 tion," the plaintiff released the defendant from all liability for or on 
 account of loss, damage, or injur}' to anv of the animals, property, or 
 things thus transported, "although such loss, damage, or injury may
 
 20 FOEEPAFGH V. T). L. & \Y. RAILROAD CO. [CHAP. I. 
 
 be caused by the negligence of the [defendant], its agents or em- 
 plo3-es." Damage having occurred by tlie negligence of defendant, 
 plaintiff brought this suit, and the sole question before us is whether it 
 can he maintained in the face of the stipulation above set forth. 
 
 The contract was made, was to be performed, and the alleged breach 
 occurred, in New York. No possible element was wanting, therefore, 
 to make it a New York contract. It is admitted that in New York the 
 stipulation is valid, and this action could not be maintained. Cragin v. 
 Railroad Co., ol N. Y. 61; Mynard c. Railroad Co., 71 N. Y. 180; 
 Wilson ;■. Railroad Co., 97 X. Y. 87. Why, then, should plaintiff, by 
 stepping across the boundary into Pennsylvania, acquire rights which 
 he has not paid for, and his contract does not give him ? 
 
 It is argued that the validity of this contract is a question of com- 
 mercial law, and therefore the mere decisions of the New York courts 
 are not binding; and, in the absence of any statute in New York 
 expressly authorizing such a contract, the courts of this State must 
 follow their own views of the commercial as part of the general com- 
 mon law, though different views ma}' be held as to such law hy the 
 courts of New York. This is the main argument of the plaintiff, and, 
 as it is one which is frequently advanced, and affects a number of 
 important questions, it is time to sa^' plainly that it rests upon an 
 utterly' inadmissible and untenable basis. There is no such thing as a 
 general commercial or general common law, separate from, and irrespec- 
 tive of, a particular State or government whose authority makes it law. 
 Law is defined as a rule prescribed by the sovereign power. B}' whom 
 is a general commercial law prescribed, and what tribunal has authoi'ity 
 or recognition to declare or enforce it, outside of the local jurisdiction 
 of the government it represents? Even the law of nations, the widest 
 reaching of all, is a law only in name. It has but a moral sanction, 
 and the only tribunal that undertakes to enforce it is the armed hand, 
 the ultima ratio region. The so-called commercial law is likewise a 
 law only in name. Upon many questions arising in the business deal- 
 ings of men, the laws of modern civilized States are substantially the 
 same; and it is therefore common to sa}' that such is the commercial 
 law, but, except as a convenient phrase, such general law does not 
 exist. There must be a State or government, of which every law can 
 be predicated, and to whose authority it owes its existence as law. 
 Without such sanction, it is not law at all ; with such sanction, it is 
 law without reference to its origin, or the concurrence of other States 
 or people. Such sanction it is the i)rerogative of the courts of each 
 State themselves to declare. Their jurisdiction is final and exclusive, 
 and in this respect there is no distinction between statute and common 
 law. It is universally conceded that, as to statutes, the decisions of 
 the State courts are binding upon all other tril)unals, yet such decisions 
 have no higlier sanction than those upon the common law ; for what 
 the latter determine, equally with the former, is the law of the particu- 
 lar State. The law of Pennsylvania consists of the Constitution.
 
 CHAP, I.] FOREPAUGH V. D. L. & W. EAILROAD CO. 21 
 
 treaties, and statutes of the United States, the Constitution and 
 statutes of this State, and the common law, not of any or all other 
 countries, but of Pennsylvania. There is a common law of England, 
 and a common law of Pennsylvania mainly founded thereon, but with 
 certain differences : and the only tribunal competent to pass authorita- 
 tively on such differences is a Pennsylvania court. To take a familiar 
 illustration : In the United States the universal doctrine has always 
 been that the English colonists brought with them, and made part of 
 their laws, all the common law of England that was not unsuited to 
 their new situation. No part of the common law of England is better 
 settled than the doctrine of ancient lights. The Court of Chancer}- of 
 New Jersey, in Robeson v. Pittenger, 2 N. J. Eq. 57 (1838), held 
 that the same doctrine was part of the common law of New Jerse}'. 
 The Supreme Court of Pennsylvania, on the other hand, starting with 
 the same premises, and reasoning on the same principles but, proceed- 
 ing cautioush' from the dictum of Rogers, J., in H03' v. Sterrett, 
 2 Watts, 331 (1834), to the unanimous decision of the court in 
 Haverstick v. Sipe, 33 Pa. St. 368 (1859), held that the doctrine 
 of ancient lights bj' prescription was not part of the common law of 
 Pennsylvania. No tribunals of any other State presume to question 
 that the common law of New Jersey and the common law of Penn- 
 sylvania differ on this point. What is law in one State is not law in 
 the other, not because it was or was not the common law of England, 
 but because it is or is not the law of the respective States ; and, though 
 it rests only on the decisions of the courts, it is none the less absolutely 
 and indisputably the law, than if it had been made so by statute. I 
 have purposelv selected an illustration from the law relating to real 
 estate, because, if I took one from the commercial law, it might seem 
 like assuming the very question under discussion. But the example is 
 none the less pertinent. The point is the force of judicial decisions on 
 the common law, and the assumption that there is an}' tenable basis for 
 holding them less binding upon such law than upon statutes. The so- 
 called commercial law derives all its force from its adoption as part of 
 the common law, and a decision on the commercial law of a State 
 stands upon precisely the same basis as a decision upon any other 
 branch of the common law. The onl}' ground upon which any foreign 
 tribunal can question either is that it does not agree with the premises 
 or the reasoning of the court. But the same ground would enable it to 
 question a decision upon a statute because a different construction 
 seemed to it nearer the true intent of the legislative language, and this, 
 it is universall}'. conceded, no foreign court can do. There is no differ- 
 ence in principle. The decisions of a State court, upon its common 
 law and on its statutes, must stand unquestioned, because it is the 
 only authorit}' competent to decide ; or they must be alike question- 
 able by any tribunal which ma}' choose to differ with its reasons or 
 its conclusions. 
 
 It is not probable that the doctrine of such a distinction would ever 
 have got a foothold in jurisprudence, and it would certainly have been
 
 OO FOKEPAUGH V. D. L. & W. RAILROAD CO. [CHAP. I. 
 
 long ago abandoned, had it not been for the unfortunate misstep that 
 wa^made in the opinion in Swift v. Tyson, 16 Pet. 1. Since then the 
 courts of the United States have persisted in the recognition of a 
 mythical commercial law, and have professed to decide so-called com- 
 mercial questions by it, in entire disregard of the law of the State 
 where the question arose. It is argued now that, as to such questions, 
 the State courts also have similar Uberty. It would be sufficient an- 
 swer to this argument that such a course, by reading into a contract a 
 new duty not in contemplation of the parties, and not part of it by 
 the law of the place where it is made, is, in principle and in practical 
 effect, imi)airing the obligation of the contract, which even the sover- 
 eign power of a State is prohibited from doing. But we prefer to 
 rest the matter on the broader ground that the doctrine itself is un- 
 sound. The best professional opinion has long regarded it as indefen- 
 sible on principle, and is thus very recently summed up by the most 
 le:irned of living jurists: '^ Questions growing out of contracts made 
 and to be performed in a State are decided by the national court of last 
 resort, not in accordance with the unwritten or customary law of the 
 State where they originated, as expounded by its courts, but agreeably 
 to some theoretic view of a general commercial law, which does not 
 exist, and is not to be found in the books. The State courts, on the 
 other hand, adhere to their own precedents, and do not consider them- 
 selves entitled to impair the obligation of contracts that have been 
 made in reliance on the principles which they have laid down through 
 a long series of years. The result is a conflict of jurisdiction which 
 there are no means of allaying. . . . \Yhether a recovery shall be had 
 on a promissory note which has been taken as collateral security for an 
 antecedent debt against a maker from whom it was obtained by fraud, 
 is thus made to turn in New York, Pennsylvania, and Ohio, not on any 
 settled rule, but on the tribunal by which the cause is heard ; and, if 
 that is federal, the plaintiff will prevail ; if it is local, the defendant. 
 Such a result tends to discredit the law. . . . The enumeration might 
 l)e carried further, but enough has, perhaps, been said to show that no 
 uniform rule can be deduced from the decisions of the English and 
 American courts under the commercial law, and that the certainty 
 requisite to justice can be obtained onl\' by following the local tribunals 
 as regards the contracts made in each localit}'. The several States of 
 this country are collectiveh* one nation, but they are as self-governing 
 in all that concerns their purely* internal commerce as if the general 
 g(nernment did not exist ; and when the will of the people of New 
 York or Pennsylvania is declared on such matters, thrQugh their repre- 
 sentatives in the local legislatures, expressly or by long-continued 
 acquiescence in the rules enunciated by their judges, it cannot be set 
 aside by Congress short of an amendment of the Constitution. Had 
 the New Y'ork legislature declared that notes made and negotiated in 
 that State siiould follow the rule laid down in Coddington v. Bay 
 [20 Johns. 637], the federal tribunals would have been bound to carry 
 it into effect, notwithstanding any attempt of the national legislature
 
 CHAP. I.] FOREPAUGH V. D. L. & M\ EAILKOAD CO. 23 
 
 to introduce a different principle ; and it is inconceivable that the 
 judicial department of the government can exercise a greater authority 
 in this regard than the legislature." Hare, Const. Law, 1107, 1117, 
 and see Lecture 51, passim. 
 
 We conclude, therefore, that the distinction between the binding 
 effect of decisions on commercial law and on statutes is utterh- 
 untenable ; that the law declared b}- State courts to govern on con- 
 tracts made within their jurisdiction is conclusive everywhere ; and the 
 departure made by the United States courts is to be reo-retted, and 
 certainly not to be followed. In entire accordance with this view are 
 our own cases of Brown v. Railroad Co., 83 Pa. St. 316, and Brooke 
 V. Railroad Co., 108 Pa. St. 530, 1 Atl. Rep. 206 ; and the decisions 
 in Ohio : Knowlton v. Railway Co., 19 Ohio St, 260 ; in Illinois : Penn- 
 sylvania Co. V. Fairchild, 69 111. 260 ; Railroad Co. v. Smith, 74 III. 
 197 ; in Iowa : Talbott v. Transportation Co., 41 Iowa, 247 ; Robinson 
 V. Transportation Co., 45 Iowa, 470; in Connecticut: Hale v. Naviga- 
 tion Co., 15 Conn. 539; in Kansas: Railroad Co. v. Moore, 29 Kan. 
 632; in South Carolina: Bridger v. Railroad Co., 27 S. C. 462, 3 S. E. 
 Rep. 860 ; in Georgia : Railroad Co. v. Tanner. dS Ga. 390 ; in Missis- 
 sippi : McMaster v. Railroad Co., 65 Miss. 271, 4 South. Rep, 59; in 
 Texas : Cantu v. Bennett, 39 Tex. 303 ; Ryan v. Railway Co., 65 Tex. 
 13, and perhaps in other States. I will not notice them in detail 
 further than to quote the terse and forcible summary made by Scott, J,, 
 in Knowlton v Railway Co. : '' As the contract was made within the! 
 jurisdiction of New York, and contemplated no action outside of thati 
 jurisdiction, it is clear that the question of its validity must be deter-' 
 mined solely by the laws of New York. The rights and obligations of 
 the parties to such a contract, and in respect to the manner of its 
 execution, cannot be affected by the laws or policy of other States. ! 
 If no cause of action arose to the plaintiff under his contract when the 
 accident occurred, the transaction cannot be converted into a cause of 
 action by the fact that the parties have subsequently come within the 
 jurisdiction of Ohio." Holding, therefore, that the validity of this 
 contract is to be determined by the law of New York, as decided hj 
 the courts of that State, is there any reason wh}' the courts of this 
 State should not enforce it? CThe general rule is that courts will 
 enforce contracts valid by the law of the place where made, unless 
 the}- are injurious to the interests of the State, or of its citizens. > 
 Story, Confl. Laws, §§ 38, 244. The injury may be indirect by offend- 
 ing against justice or morality, or by tending to subvert settled public ' 
 policy (2 Kent, Com. 458 ; Greenwood v. Curtis, 6 Mass. 358 ; Bliss 
 V. Brainard, 41 N, H. 256) ; but this does not imply that courts will 
 not sustain contracts that would not be valid if made within their juris- 
 diction, or will not enforce rights that could not be acquired there. 
 Thus, for example, the courts of Pennsylvania have always enforced 
 contracts for a higher rate of interest than would be valid under the 
 laws of this State. Ralph v. Brown, 3 Watts & S. 395 ; Wood v. 
 Kelso, 27 Pa. St. 243 ; Irvine v. Barrett, 2 Grant, Cas. 73. The con-
 
 24 FOKEPAUGH V, D. L. & W. RAILROAD CO. [CHAP. I. 
 
 tract in the present case does not direct]}' affect the State or its citizens 
 in anj' wa}'. Nor is it in any wa}' contrary' to justice or moraUtj-. It 
 ma}- be doubted whether it is even so far contrary to the policy of the 
 State that it would have been invalid iC it had been made here. It 
 has some exceptional features, which, it is argued, take it out of the 
 ordinar}- lules governing the contracts of common carriers ; and the 
 case of Coup v. Railroad Co., 56 Mich. Ill, 22 N. W. Rep. 215, is a 
 strong authority for that position. But without stopping to discuss 
 that point, which our general view renders unnecessar}', it is sufficient 
 to say that, even if it would not have been valid if made here, its 
 enforcement as a New York contract does not in any way derogate 
 from the laws of Pennsylvania, or injure or affect the polic}' of the 
 State, any more than would a foreign contract for what would be 
 usurious interest here, and that, as already said, the courts have never 
 hesitated to enforce. 
 
 The argument of duress ma}' be brief!}' dismissed for want of any 
 evidence in the case to sustain it. There is no evidence that defend- 
 ant was unwilling to accept the ordinary and usual rates for the trans- 
 portation of plaintiff's cars and property. If they had been offered by 
 plaintiff and refused, there might have been some ground for the 
 present argument, though, in view of the peculiar nature of the 
 property, and the special facilities required, even that is far from clear. 
 But in fact plaintiff got a large reduction of rates, and part of the 
 consideration for such reduction was the agreement that he should be 
 his own insurer against loss by accident. There was nothing com- 
 pulsory about such a contract, and plaintiff comes now with a very 
 bad grace to assert a right that he expressly relinquished for a sub- 
 stantial consideration. 
 
 The learned court below was right in entering judgment for the 
 defendant on the facts found in the special verdict. 
 
 Judgment affirmed. 
 
 Williams, J. (dissenting). I dissent from the judgment in this case 
 because I cannot agree that a well-settled rule of public policy of this 
 commonwealth must give way to considerations of mere comity. The 
 contract set up as a defence to this action is a release to a common 
 carrier from liability for its own negligence. It is well settled in this 
 State that such a release is against public policy. Comity does not 
 require more of us than to give effect to the lex loci co/itradus., when 
 not subversive of the public policy of our own State. This has been 
 distinctly held by the Court of Appeals of New York, in which this 
 release was executed, and in whose behalf comity is asked. I would 
 follow the Court of Appeals, because comity fan require no more of 
 us in any given case than the courts of the place of tlic contract would 
 yield to us for comity's sake, and because I believe the rule to rest on 
 solid ground 
 
 Sterrett, J., concurs in the foregoing dissent.
 
 SECT. I.J 
 
 BELL V. KENNEDY. 25 
 
 CHAPTER II. 
 
 JUKISDICTION OVER PERSONS AND THINGS. 
 
 SECTION I. 
 
 DOMICILE.^ 
 
 BELL V. KENNEDY. 
 
 House of Lords. 1868. 
 
 [Reported Law Reports, 1 House of Lords (Scotch), 307.] 
 
 The Lord Chancellor (Lord Cairns). ^ My Lords, this appeal 
 arises in an action commenced in the Court of Session, I regret to 
 say so long ago as the year 1858; in the course of which action 
 no less than sixteen interlocutors have been pronounced by the 
 court, all, or the greater part of which, become inoperative or imma- 
 terial if your Lordships should be unable to concur in the view taken 
 by the court below of the question of domicile. 
 
 The action is raised by Captain Kennedy, and his wife, the 
 daughter of the late Mrs. Bell ; and the defender is Mrs. Kennedy's 
 fath°er, the husband of Mrs. Bell. The claim is for the share, said 
 to belong to Mrs. Kennedy, of the goods held in communion between 
 Mr. and Mrs. Bell. This claim proceeds on the allegation that the 
 domicile of Mrs. Bell, at the time of her death on the 28th of Sep- 
 tember, 1838, was in Scotland. And the question itself of her domi- 
 cile at that time depends upon the further question, what was the 
 domicile of her husband? Her husband, the appellant, is still 
 living; and your Lordships have therefore to consider a case which 
 seldom arises, the question, namely, of the domicile at a particular 
 time of a person who is still living. 
 
 Mr. Bell was born in the island of Jamaica. His parents had 
 come there from Scotland, and had settled in the island. There 
 appears to be no reason to doubt but that they were domiciled in 
 Jamaica. His father owned and cultivated there an estate called the 
 
 1 For the general principles of nationality see Calvin's Case, 7 Co. 1; U. S. v. Wong 
 Kim Ark, 169 U. S. 649. — Ed. 
 
 2 The statement of facts is omitted, as are also the concurring opinions of Lords 
 Cranworth, Chelmsford, and Colonsay. — Ed.
 
 26 TIELL V. KENNEDY. [CHAP. II. 
 
 Woodstock estate. His mother died when the appellant was about 
 the age of two years, and immediately after his mother's death he 
 was sent to Scotland for the purpose of nurture and education. By 
 his father's relatives he was educated in Scotland at school, and he 
 afterwards proceeded to college. His father appears to have died 
 when he was about the age of ten years, dying, in fact, as he was 
 coming over to Great Britain for his health, but with the intention 
 of returning to Jamaica. 
 
 The appellant, after passing through college in Scotland, travelled 
 upon the Continent; and soon after he attained the age of twenty-one 
 years he went out again to Jamaica, in the year 1823, with the inten- 
 tion of carrying on the cultivation of the Woodstock estate, which, 
 in fact, was the only property he possessed. He cultivated this 
 estate and made money to a considerable amount. He arrived at a 
 position of some distinction in the island. He was the custos of 
 the parish of St. George, and was a member of the Legislative 
 Assembly. He married his late wife, then Miss Hosack, in Jamaica 
 in the year 1828; and he had by her, in Jamaica, three children. 
 
 It appears to me to be beyond the possibility of doubt that the 
 domicile of birth of Mr. Bell was in Jamaica, and that the domicile 
 of his birth continued during the events which I have thus described. 
 In the year 1834 a change was made in the law with regard to 
 slavery in the island of Jamaica, which introduced, in the first 
 instance, a system of apprenticeship, maturing in the year 1838 into 
 a complete emancipation. This change appears to have been looked 
 upon by Mr. Bell with considerable disfavor, and, his health fail- 
 ing, in the year ^837 he determined to leave Jamaica, and to return 
 to some part, at all events, of Great Britain. He entered into a con- 
 tract for the sale of the Woodstock estate, the purchase-money being 
 made payable by certain instalments; and in 1837 he left the island, 
 to use his own expression, "for good." He abandoned his residence 
 there without any intention at that time, at all events, of returning 
 to the island. He reached London in the month of June, 1837. He 
 remained in London for a short time, apparently about ten days, and 
 he then went on to Edinburgh, and took up his abode under the roof 
 of the mother of his wife, Mrs. Hosack, who at that time was living 
 in Edinburgh. 
 
 I ought to have stated that while the appellant was in Jamaica be 
 appears to have kept up a correspondence with his relatives and 
 friends in Scotland. In the year 1833 he acquired (I prefer to use 
 the term "acquired" rather than the word "purchased ") the estates 
 of Glengabers and Craka. He appears to have taken to those estates 
 mainly in settlement of a claim for some fortune or money of his 
 wife secured upon them. It is apparent, however, that he had at no 
 time any intention of residing upon Glengabers, and. in fact, the 
 acquisition of those estates bears but little, in my opinion, upon the 
 question of domicile, because in 1833, when he acquired them, his
 
 SECT. I.] BELL V. KENNEDY. 27 
 
 domicile, beyond all doubt, was, and for some years afterwards con- 
 tinued to be, in Jamaica. 
 
 He wrote occasionally at that time from Jamaica, evincing a desire 
 to buy an estate at some future period in Scotland, if he could obtain 
 one to his liking, and even an intention, if he could obtain such an 
 estate, of living in Scotland, but nothing definite appears to have 
 been arranged or said upon the subject; and, in fact, at this time 
 other suggestions as to other localities appear to have been occasion- 
 ally entertained and considered by him. 
 
 In these letters he frequently uses an expression that was much 
 insisted upon at the bar — the expression of "coming home;" but 
 I think it will be your Lordships' opinion that the argument is not 
 much advanced, one way or the other, by that expression. It ap- 
 pears to me to be obviously a form of language that would naturally 
 be used by a colonist in Jamaica speaking of the mother country in 
 contradistinction to the colony. 
 
 Up to this point, my Lords, there is really no dispute with regard 
 to the facts of the case. The birth-domicile of the appellant in 
 Jamaica continued, at all events till 1837, and the onus lies upon 
 those who desire to show that there was a change in this domicile, 
 by which I mean the personal status indicated by that word, — the 
 onus, I say, lies upon those who assert that the personal status thus 
 acquired, and continued from the time of his birth, was changed, to 
 prove that that change took place. The law is, beyond all doubt, 
 clear with regard to the domicile of birth, that the personal status 
 indicated by that term clings and adheres to the subject of it until 
 an actual change is made by which the personal status of another 
 domicile is acquired. 
 
 I do not think it will be necessary to examine the various defini- 
 tions which have been given of the term "domicile." The question 
 which I will ask your Lordships to consider in the present case is, 
 in substance, this: Whether the appellant, before the 28th of Sep- 
 tember, 1838, the day of the death of his wife, had determined to 
 make, and had made, Scotland his home, with the intention of estab- 
 lishing himself and his family there, and ending his days in that 
 country? The onus, as I have said, is upon the respondents to 
 establish this proposition. 
 
 I will ask your Lordships, in the first place, to look at the facts 
 subsequent to the return of the appellant to Scotland, as to which 
 there is no dispute, then at the character of the parol evidence which 
 has been adduced, and, finally, at a few passages in the correspond- 
 ence which is in evidence. 
 
 As regards the facts which are admitted, they amount to this: 
 The appellant lived under the roof of Mrs. Hosack from the time of 
 his arrival in Edinburgh, in the year 1837, until the 1st of June, 
 1838. He appears to have borne the whole, or the greater part of 
 her house-keeping expenses during that time. He inquired for, and
 
 28 BELL V. KENNEDY. [CHAP. II. 
 
 looked after, various estates, in the south of Scotland especially, and 
 he indicated a preference for the estates of Blairston or Auchin- 
 draine, of Mollance, and of Enterkine. With regard to Blairston or 
 Auchindraine, it does not appear, so far as I can discover, to have 
 been actually offered to him for sale. With regard to Mollance, 
 before he came to any determination as to it, it was sold to another 
 person. With regard to Enterkine, at the time we are speaking of, 
 the 1st of June, 1838, a negotiation had been going on by letters 
 written between the appellant and those who were proposing to sell 
 the estate, but the offer which he ultimately made for it had at that 
 time been refused, and, on the 1st of June, 1838, there was no pend- 
 ing offer on his part for the property. Mrs. Bell, his wife, at this 
 time was expecting her confinement. The house of his mother-in- 
 law, in which they were sojourning, was not sufficiently commodious 
 for their wants, and the appellant took for one year a furnished 
 house in Ayrshire, called Trochraigue. He took it with no inten- 
 tion, apparently, of buying the estate, although it appears to have 
 been for sale, but with the intention of living for a year in the 
 house, and he hired servants for his accommodation. He removed 
 to Trochraigue on the 1st of June, 1838, and, while so sojourning 
 there, Mrs. Bell died in her confinement on the 28th of September in 
 that year. 
 
 It appears to me, beyond all doubt, that prior to this time the 
 appellant had evinced a great and preponderating preference for 
 Scotland as a place of residence. He felt and expressed a great 
 desire to find an estate there with a residence upon it, with which 
 be would be satisfied. His wife appears to have been even more 
 flxious for this than he himself was; and her mother and their 
 riends appear to have been eager for the appellant to settle in 
 Scotland. There is no doubt that, since the death of his wife, he 
 actually has bought the estate which I have mentioned, the estate of 
 Enterkine, and that his domicile is now in Scotland. All that, in 
 my opinion, would not be enough to effect the acquisition of a Scotch 
 domicile. There was, indeed, a strong probability up to the time of 
 the death of his wife that he would ultimately find in Scotland an 
 estate to his liking, and that he would settle there. But it appears 
 to me to be equally clear that if, in the course of his searches, a 
 property more attractive or more eligible as an investment had been 
 offered to him across tiie Border, he might, without any alteration 
 or change in the intention which he expressed or entertained, have 
 acquired and purchased such estate and settled upon it, and thus 
 have acquired an English domicile. In point of fact, he made more 
 or less of general iiuiuiry after estates in England; and a circum- 
 stance is told us by one of the witnesses, Mr. Telfer, which seems to 
 me of great significance. Mr. Telfer says that his relations enter- 
 tained great apprehension or dread that he would settle in England — 
 a state of feeling on their part totally inconsistent with the notion
 
 SECT. I.] BELL V. KENNEDY. 29 
 
 that he had, to their knowledge, at that time determined ultimately 
 and finally to settle in Scotland. 
 
 These being the admitted facts, let me next turn to the character 
 of the parol evidence in the case. As to the evidence of the mem- 
 bers of the Hosack family, and of the servants, very little is to be 
 extracted from it in the shape of information upon which we can 
 rely. They speak of what they considered and believed was the 
 intention of the appellant; but as to anything he said or did, to 
 which alone your Lordships could attend, they tell us nothing beyond 
 what we have from the letters. As to the evidence of the appellant 
 himself, I am disposed to agree very much with what was said at the 
 bar, that it is to be accepted with very considerable reserve. An 
 appellant has naturally, on an issue like the present, a very strong 
 bias calculated to infiuence his mind, and he is, moreover, speaking 
 of what was his intention some twenty-five years ago. I am bound, 
 however, to say, and therein I concur with what was said by the 
 Court of Session, that the evidence of the appellant appears to be 
 fair and candid, and that certainly nothing is to be extracted from it 
 which is favorable to the respondents as regards the onus of proof 
 which they have to discharge. 
 
 I will now ask your Lordships to look at what to my mind appears 
 the most satisfactory part of the case, namely, the correspondence 
 contemporaneous with the events in the years 1837 and 1838. I do 
 not propose to go through it at length, but I will ask you to consider 
 simply certain principal epochs in the correspondence from which, as 
 it appears to me, we derive considerable light as to the intentions of 
 the appellant. 
 
 In the first place, I turn to a letter written by the appellant on the 
 26th of September, 1837, three months after the appellant and his 
 wife had come to Scotland. He is writing from Minto Street, Edin- 
 burgh, to his brother-iu-law, Mr. William Hosack, in Jamaica, and 
 he says: "I have not got rid of my complaint as yet, and still find 
 difficulty in walking much, and was obliged to forego the pleasures 
 of shooting, on which I had so much set my heart. This country i.s 
 far too cold for a person not having the right use of his limbs. In 
 fact I have been little taken with anything, and would go to Canada, 
 Jamaica, or Australia, without hesitation. I enjoy the fresh butter 
 and gooseberries." Of the latter — that is, of the gooseberries — he 
 proceeds to state some evil consequences which he had suffered, and 
 then he says: "Everything else is as good, or has an equivalent 
 fully as good, in Jamaica. My mind is not made up as to the pur- 
 chase of an estate. Land bears too high a value in proportion to 
 other things in this country, owing to the members of the House of 
 Commons and of Lords being all landowners, and having thereby 
 received greater legislative protection. The reform voters begin 
 to see this, and as soon as the character of the House of Commons 
 changes enough (and it is changiug prodigiously) the value of land
 
 30 BELL V. KENNEDY. [CHAP. U, 
 
 will come to its true value in the State. I have formed these views 
 since I came home, and have lost in proportion my land-buying 
 mania." Thus, having, as I have stated, a domicile by birth in 
 Jamaica, and having come to this country with an indeterminate 
 view as to what property he should become the purchaser of, writing 
 three months afterwards, he says: "I have been little taken with 
 anything, and would go to Canada, Jamaica, or Australia, without 
 hesitation." Nothing can be more significant as to the absence of 
 any determination in his mind to make Scotland his fixed home, and 
 to spend the remainder of his days there. 
 
 I come to the 27th of December, 1837, when the appellant, again 
 writing to the same brother-in-law in Jamaica, says: "As to the 
 country, I like none of it. I have not purchased an estate, and not 
 likely to do so. I had my guns repaired, bought a pointer, pur- 
 chased the shooting of an estate for £10, have never been there, nor 
 fired a shot anywhere else. Have had a fishing rod in my hands only 
 for two hours, and caught nothing. I bought a horse, and might as 
 well have bought a bear. He bites so, it would have been as easy 
 to handle the one as the other. I exchanged him for a mare, and, 
 positively, I have sent her to enjoy herself in a farm straw yard, 
 without ever having been once on her back, or even touched her in 
 any way." Here, again, we find that so far from his expressing a 
 liking for the country upon better acquaintance, he says he does not 
 like it, and so far from a deteimination to purchase an estate in 
 Scotland and end his days upon it, he says, "I have not purchased, 
 an estate, and am not likely to do so." 
 
 Passing over three months more, I come to a letter dated the 20th 
 of March, 1838, by Mrs. Bell, the wife's expressions being even 
 more significant than those of her husband; for it is obvious that 
 she, of the two, was more inclined to settle in Scotland. She writes: 
 "The extreme severity of the winter has put us a good deal out of 
 conceit of Scotland, but independent of that, I don't find the satis- 
 faction in it I anticipated. If circumstances permitted, I would not 
 mind to return to Jamaica, though, I dare say, after being here a 
 few years I might not like it. This country is so gloomy, it is sadly 
 depressing to the spirits, so unlike what one has been used to in 
 dear, lovely Jamaica. The vile pride and reserve of the people is 
 here too great a source of annoyance. A man is not so much valued 
 on the manners and education of a gentleman as on the rank of his 
 great grandfather — that is to say, among a certain class. You will 
 perceive from this we are still at Number 9. Bell has several prop- 
 erties in view, but is as undetermined about where we may settle as 
 when he left Jamaica. Next week he goes to Ayrshire to look at an 
 estate, and from thence to Galloway and Dumfriesshire. If we don't 
 fix very soon we purpose taking a furnished house in the country for 
 twelve months." Now, the whole of this passage, I think, is of con- 
 siderable importance, but the last sentence I have read affords a key
 
 SECT. I.] BELL V. KENNEDY. 31 
 
 which may be useful in letting us into the design of the spouses in 
 taking the furnished house of Trochraigue. The interpretation given 
 by this letter is, that it was equivalent to saying that they had not 
 at that time fixed upon a residence. 
 
 I pass on for two months more. The offer which in the interval he 
 had made for Enterkine had been refused. The furnished house at 
 Trochraigue had been taken„ The appellant and his wife were upon 
 the eve of taking possession of it on the 1st of June, 1838; and on 
 the 28th of May, 1838, the appellant writes to his brother-iu law in 
 Jamaica: "I have taken a country house at Trochrigg." "1 leave 
 this for it on the 1st of June. It is situated two miles from Girvan, 
 which is twenty miles west of Ayr, on the seacoast. Therefore for 
 the next twelve months you can address to me Trochrigg, near 
 Girvan, Ayrshire, Scotland. The offer which I wrote you I have 
 made for Enterkine 1 received no answer to until sixteen days after, 
 and then I got an answer stating they had a better offer. Of this I 
 believe as much as I like, for I see it advertised again in the Satur- 
 day's paper. I do not know whether I shall make anything of this 
 estate for the present, and I care not. It is still very cold, and if 
 I do not make a purchase in the course of this year, I perhaps will 
 take a trip next summer to the south of France, and see whether I 
 don't find it warmer there." That is to say in the next summer, 
 which would be the summer of 1839, he was in expectation that Mrs. 
 Bell and his family would be able to accompany him to "take a trip 
 to the south of France, and see whether he did not find it warmer 
 there," not, as it seems to me, for the purpose of enjoying a tempo- 
 rary sojourn, but, if he found it a more agreeable climate, for the 
 purpose of making it his permanent residence. 
 
 There is only one other passage to which I would ask your Lord- 
 ships' attention. It is in a letter written one month afterwards, 
 while Mr. and Mrs. Bell were at Trochrigg, on the 16th of June. 
 Writing to Mr. "William Hosack, the appellant says: " There are 
 several gentlemen's seats in the neighborhood, but none of them 
 reside in them. We will probably have only three or four acquaint- 
 ances, and shall be, in that respect, much the same as in Jamaica. 
 We must, however, make the most of it for twelve months, in the 
 hope that during that time I may be able to find some estate that will 
 be suitable for me as a purchase." 
 
 I find nothing after this material in the correspondence before the 
 death of Mrs. Bell, and the last sentence I have read appears to me 
 to sum up and to describe most accurately the position in which the 
 appellant was at Trochrigg; he was there in the hope that, during 
 the "twelve months," he might be able to find some estate which 
 might be suitable to him for purchase; but upon that contingency, 
 as it seems to me, depended the ultimate choice which he would 
 make of Scotland, or some other country, as a place of residence. 
 If his hope should be realized, we might from this letter easily infer
 
 32 BELL r. KENNEDY. [CHAP. IL 
 
 that Scotland would become his home. If his hope should not be 
 realized, I see nothing which would lead me to think, but everything 
 which would lead me to doubt, that he would have elected to remain 
 in Scotland as his place of residence. 
 
 It appears to me, on the whole, upon consideration of the facts 
 which are admitted in the case, and the parol evidence, and the 
 correspondence to which 1 have referred, that so far from the respon- 
 dents having discharged the onus which lies upon them to prove the 
 adoption of a Scotch domicile, they have eutirely failed iu discharg- 
 ing that burden of proof, and that the evidence leads quite in the 
 opposite direction. There is nothing in it to show that the appel- 
 lant's personal status of domicile as a native and an inhabitant of 
 Jamaica has been changed on coming here by that which alone could 
 change it, his assumption of domicile iu another country. I am, 
 therefore, unfortunately unable to advise yon to concur in the opin- 
 ion of the Court of Session. The Lord Ordinary entertained the 
 opinion that the appellant, from the first moment of his arrival in 
 Scotland, and of his sojourn at Mrs. Hosack's house, had acquired a 
 Scotch domicile. But nothing could be more temporary — nothing 
 more different from the state of things that would lead to the con- 
 clusion of the assumption of a Scotch domicile — than the circum- 
 stances under whicli that sojourn took place. Lord Cowan, in 
 delivering the opinion of the Court of Session, appears, on the other . 
 hand, to have thought that the Scotch domicile was not acquired at 
 the time of arrival in Scotland, but was acquired at the time of tak- 
 ing possession of Trochrigg. But if we are to put upon the occupa- 
 tion of Trochrigg the interpretation which the appellant himself put 
 upon it at the time, so far from its being an assumption of a Scotch 
 domicile, it appears to me to have borne an entirely different con- 
 struction, and to have been a temporary place of sojourn, in order 
 that a determination might be arrived at in the course of the sojourn 
 as to whether a Scotch domicile should or should not ultimately be 
 
 acquired. 
 
 There is one passage iu the judgment of the Court of Session, 
 delivered by Lord Cowan, to which I must ask your Lordships more 
 particularly to refer, for it appears to me to afford a key to what I 
 think, with great respect, I must call the fallacious reasoning of the 
 judgment. After speaking of the parol evidence giveii by the appel- 
 lant. Lord Cowan uses these words: "For after all, what do the 
 statements^of the defender truly amount to? Simply this, that prior 
 to September, 1838, he had not fixed on any place of permanent resi- 
 dence, and had not finally made up his mind or formed any fixed 
 intention to settle in Scotland before he bought Enterkiue. There 
 is no statement that he had it in his mind to take up his residence 
 elsewhere than in Scotland." If, my Lords, I read these words cor- 
 rectly, Lord Cowan appears to have intimated that in his opinion it 
 would not bo enough to find that the appellant had not fixed on any
 
 SECT. I.] BELL V. KENNEDY. 33 
 
 place of permanent residence prior to September, 1838, and had not 
 decidedly made up bis mind or formed a fixed intention to settle in 
 Scotland, unless proof were also adduced that he had it in his mind 
 to take up his residence elsewhere than in Scotland. I venture to 
 think that would be an entirely fallacious mode of reasoning, and 
 would be entirely shifting the position of the proof v/hich has to be 
 brought forward. The question, as it seems to me, is not whether 
 he had made up his mind to take up his residence elsewhere than 
 in Scotland, but the question is, had he, prior to September, 1838, 
 finally made up his mind or formed a fixed intention to settle in 
 Scotland. Lord Cowan appears to admit that the parol evidence 
 itself would show that that had not been done, and that parol evi- 
 dence is, in my mind, fortified and made very much more emphatic 
 by the evidence of the correspondence to which I have referred. 
 
 I have humbly, therefore, to advise your Lordships to assoilzie the 
 defender from the conclusions of the summons, and to reverse the six- 
 teen interlocutors which have been pronounced by the couit below. 
 
 Lord Westbury. My Lords, I have very few words to add to 
 what has been already stated to your Lordships ; and, perhaps, even 
 those are not quite necessary. 
 
 What appears to me to be the erroneous conclusion at which the 
 Court of Session arrived is in great part due to the circumstance, 
 frequently lost sight of, that the domicile of origin adheres until a 
 new domicile is acquired. In the argument, and in the judgments, 
 we find constantly the phrase* used that he had abandoned his native 
 domicile. That domicile appears to have been regarded as if it had 
 been lost by the abandonment of his residence in Jamaica. Now, 
 residence and domicile are two perfectly distinct things. It is nec- 
 essary in the administration of the law that the idea of domicile 
 should exist, and that the fact of domicile should be as(?ertained, in 
 order to determine which of two municipal laws may be invoked for 
 the purpose of regulating the rights of parties. We know very well 
 that succession and distribution depend upon the law of the domi- 
 cile. Domicile, therefore, is an idea of law. It is the relation 
 which the law creates between an individual and a particular locality 
 or country. To every adult person the law ascribes a domicile, and 
 that_doaiicile remaiaiS-hia-fix£d.,iittr ibute u n t ij_n _npw f^nrl diffprPii t 
 attribute usurps its pla ce. Now this case was argued at the bar on 
 the footing, that as soon as Mr. Bell left Jamaica he had a settled 
 and fixed intention of taking up his residence in Scotland. And if, 
 indeed, that had been ascertained as a fact, then you would have had 
 the animus of the party clearly demonstrated, and the factum^ which 
 alone would remain to be proved, would in fact be proved, or, at 
 least, would result Immediately upon his arrival in Scotland. 
 
 The true inquiry, therefore, is. Had he this settled purpose, the 
 moment he left Jamaica, or in course of the voyage, of taking up a
 
 34 BEI.L V. KENNEDY. [CHAP. II. 
 
 fixed and settled abode in Scotland? Undoubtedly, part of the 
 evidence is the external act of the party ; but the only external act 
 we have here is the going down with his wife to Edinburgh, the 
 most natural thing in the world, to visit his wife's relations. We 
 find him residing in Scotland from that time; but with what animus 
 or intention his residence continued there we have yet to ascertain. 
 For although residence may be some small j^^^^f^ f^^cie proof of 
 domicile, i^ is by no means to be inferred from the fact of residence 
 that domicile results, even although you do not find that the party 
 had any other residence in existence or in contemplation. 
 
 I take it that Mr. Bell may be more properly described by words 
 which occur in the Digest; that when he left Jamaica he might be de- 
 scribed as qucerens, quo se conferat, ntque ttbi constituat domicilium. 
 Dio-. lib. 50 t. 1, 27. Where he was to fix his habitation was to him at 
 thai; time a thing perfectly unresolved; and, as appears from the letters 
 which your Lordships have heard, that irresolution, that want of settled 
 fixity of purpose, certainly continued down to the time when he actu- 
 ally became the purchaser of Enterkine. But the punctum tewporis 
 to which our inquiries are to be directed as to Mr. Bell's intention 
 is of an earlier date than that. The question is, had he any settled 
 fixed intention of being permanently resident in Scotland on the 28th 
 of Septem.ber, 1838? I quite agree with an observation which was 
 made in the Court of Session, that the letters are the best evidence 
 in the case. To those letters your Lordships' attention has been 
 directed, and whether you refer to the language of the wife's letters, 
 or look exclusively at the language of the husband's letters written 
 to his familiar friends or his relatives whom he had left in Jamaica, 
 it is impossible to predicate of him that he was a man who had a 
 fixedaud_3ttleiLi^'P0se to niake Scotland his futurej)lace^of^resi: 
 dence, to set up his tabernacle there, to m.ake it Tiis future home. 
 And unless you are able to show that with peTfecrcTearness and 
 satisfaction to yourselves, it follows that the domicile of origin con 
 tinues. And therefore I think we can have no hesitation in answer- 
 ing the question where he was settled on the 28th of September. It 
 must be answered in this way; he was resident in Scotland, but 
 without the animus manendi, and therefore he still retained his domi- 
 cile of origin. 
 
 I^Iy Lords, it is matter of deep regret, that although it might 
 have been easily seen from the commencement of this cause that it 
 turned entirely upon this particular question, yet we find that ten 
 years of litigation have taken place, with enormous expense, and an 
 enormous amount of attention to a variety of other matters, which 
 would have been wholly unnecessary if judicial attention had been 
 concentrated upon this question, which alone was sullicient for the 
 decision of the case. 
 
 Pollock, C. B., In Attorney-General v. Pottinger, 6 H. & N. 
 733, 744 (1861). The question is, whether Sir Henry Pottinger at the
 
 SECT. I.] PUTNAM V. JOHNSON. 35 
 
 time of his decease was domiciled in England or in India. . . . 
 The only doubt arises from this, that he continued in the service of 
 the East India Company, and might have been called upon at any 
 time to serve in India. In Hodgson v. De Beauchesne, 12 Moo. P. C. 
 285, which was cited to establish that because an Indian officer con- 
 tinued liable to be called upon to serve in India he could not acquire 
 an English domicile, the court decided that such circumstances con- 
 stituted a strong reason against such an officer acquiring a French 
 domicile. But the distinction between a foreign and an English domi- 
 cile is pointed out in the judgment, and Lord Cranworth in the course 
 of Dr. Phillimore's reply, said : '' If the deceased had gone to Scotland 
 on furlough, and resided there as long as he did in France, it would be 
 difficult to say that he had not acquired a Scotch domicile." Applying 
 that to this case, I think that, notwithstanding Sir Henry Pottinger 
 continued in the Indian army, his purchase of a dwelling-house in 
 Eaton Place, his continuing to hold it whilst absent from England, his 
 return to it as his place of residence and his home, and his reference 
 to it in his will as his residence, abundantly establishes his English 
 domicile.^ 
 
 PUTNAM V. JOHNSON. 
 Supreme Judicial Court of Massachusetts. 1813. 
 
 [Reported 10 Massachusetts, 488.] 
 
 Case against the selectmen of Andover for refusing to insert plain- 
 tiff's name on the voting-list of the town.^ At the trial of the action, 
 which was had upon the general issue before Sewall, J., at the Sit- 
 tings here after this term, a verdict was found for the plaintiff, sub- 
 ject to the opinion of the court upon certain facts agreed by the 
 parties, and certain evidence given at the trial, and reported by the 
 judge who presided thereat. 
 
 It was admitted that the plaintiff was born in Danvers, on the 24th 
 day of November, 1786; that he resided there, in his father's fam- 
 ily, until he entered Dartmouth College, in August, 1805; that he 
 was graduated at the said college in 1809; that he then went to 
 Salem, and resided there as a student at law until the 13th of April, 
 
 1812, when he went to Andover; that he resided in Andover during 
 the vacation of six weeks [in the theological seminary] in May and 
 June, 1812, and of the vacation of six weeks in the autumn of that 
 year he spent about half at his father's house in Danvers, and in 
 visits to different places; that he did, on the first Monday of April, 
 
 1813, request the defendants to insert his name upon the list of 
 
 1 Ace. Mooar v. Harvey, 128 Mass. 219. 
 
 In Hamilton v. Dallas, 1 Cli. D. 257 (1875), it was held that a British peer, though 
 a member of the House of Lords, may acquire a domicile in France — Ed. 
 
 * This short statement is substituted for the declaration, given by the Reporter. 
 — Ed.
 
 36 PUTNAM V. JOHNSON. [CHAP. II. 
 
 voters iu Andover, for senators; that they refused to insert it; that 
 at the said meeting he offered his vote for senators, and the defend- 
 ants refused to receive it; that he possessed sufficient personal estate; 
 and that he was taxed in Salem in the years 1810 and 1811, and paid 
 his taxes, and voted in said town after March, 1810, until he left 
 that place in April, 1812. 
 
 The judge also reported that Eleazar Putnam, the father of the 
 plaintiff, testified that his son, since he left college, had received no 
 support from him, or any assistance except in the way of credit to 
 him, and was not of the father's family, but separated, and, as the 
 father believed, was upon the charity foundation at Andover, and 
 that he owned some real estate. Mark Newman, Esquire, testified 
 that the plaintiff was upon the charity foundation in the theological 
 seminary at Andover; that students in divinity on that foundation 
 are restricted to a residence of three years before they are entitled to 
 a license to preach, and are permitted to continue their residence 
 there afterwards; that the residence of students is in chambers, as 
 at a college, with board in commons; that he had not known of any 
 students in the theological institution who had been admitted to vote, 
 and that they had not taken any concern in town affairs; that a Mr. 
 Scammon, in 1812, while a student, claimed a right to vote, and was 
 refused; and that theological students, when licensed to preach and 
 employed as candidates for the ministry, reside and make their home 
 at the institution, and in the vacations generally go from thence, but 
 sometimes continue there. ^ 
 
 Parker, J. The plaintiff, being a citizen of the commonwealth, 
 more than twenty-one years of age, and of competent property, is 
 without doubt entitled to vote somewhere wdthin the State for State 
 officers. 
 
 By the facts reported in this case, it is manifest that Andover or 
 Danvers is the place where the plaintiff has his home, within the true 
 intent of the constitution. Although he was born in Danvers, and 
 that is still the domicile of his father, yet he was of an age to eman- 
 cipate himself, and obtain a home in some other town. He went to 
 Andover, and had resided there a few days short of a year, previous 
 to the election in April, 1813. A year's residence was not necessary 
 to entitle him to vote in that town; it was sufficient that he made 
 that his home. He had left his father's family several years before, 
 and had become a resident in Salem, where he Avas taxed and per- 
 mitted to vote. His father had ceased to support him since the year 
 1809, before which time he was also of age; and he was at Salem, 
 preparing himself for an independent living, until the spring of 
 1812, wlien he removed to Andover, to pursue his theological studies 
 there, which, as he was on the charitable foundation, required a reei- 
 dence of three years. 
 
 ' Arguments of counsel are omitted. — Ed.
 
 SECT. I.] PUTNAM V. JOHNSON. 37 
 
 Was Andover, then, his dwelling-place or home? This is the 
 question now to be solved. It is manifest that Danvers was not; 
 for he had abandoned it, and did not keep up his connection with his 
 father's family, as was the case of Emmons in Granby v. Amherst, 
 7 Mass. 1, cited in the argument. He could not vote in Danvers, 
 for his home was not there. He must, then, have a right to vote in 
 Andover, or be subjected to a temporary disfranchisement, in conse- 
 quence of his having no home in any place. 
 
 The objection most insisted on by the counsel for the defendants 
 is, that the plaintiff did not go to Andover with an intention to 
 remain there; but merely for the purpose of instruction, and there- 
 fore that he could not exercise any of his civil privileges within that 
 town; although it was admitted that a mechanic or day-laborer, 
 otherwise qualified, making Andover his home, by residing and 
 dwelling there, would be a legal voter there. 
 
 A residence at a college or other seminary^, for the purpose of 
 instruction, would not confer a right to vote in the town where such 
 an institution exists, if the student had not severed himself from his 
 father's control, but resorted to his house as a home, and continued 
 under his direction and management. But such residence will give 
 a right to vote to a citizen not under pupilage, notwithstanding it 
 may not be his expectation to remain there forever. 
 
 The definition of domicile, as cited from Vattel by the counsel for 
 the defendants, is too strict, if taken literally, to govern in a ques- 
 tion of this sort; and, if adopted here, might deprive a large portion 
 of the citizens of their right of suffrage. He describes a person's 
 domicile as the habitation fixed in any place, with an intention of 
 always staying there. In this new and enterprising country, it is 
 doubtful whether one half of the young men, at the time of their 
 emancipation, fix themselves in any town with an intention of always 
 staying there. They settle in a place by way of experiment, to see 
 whether it will suit their views of business and advancement in life; 
 and with an intention of removing to some more advantageous posi- 
 tion if they should be disappointed. Nevertheless, they have their 
 home in their chosen abode while they remain. Probably the mean- 
 ing of Vattel is, that the habitation fixed in any place, without any 
 present intention of removing therefrom, is the domicile. At least, 
 this definition is better suited to the circumstances of this country. 
 
 But several cases have been cited from our own reports, which are 
 supposed to be analogous to the case at bar, in which the settlement 
 of paupers has been decided upon moi'e strict principles than are now 
 suggested. The case of Granby v. Amherst is the strongest; and it 
 is manifest that there is nothing, even in that case, which contradicts 
 the principles now advanced. The pauper there left Belchertown 
 and went to Dartmouth College, merely for the purpose of education. 
 He was under age while at college, until a few months before he was 
 graduated. He passed all his vacations in Belchertown, he had a
 
 38 ABINGTON V. NORTH BRIDGE WATER. [CHAP. H 
 
 freehold there, and he returned to that place as soon as he had taken 
 his degree. It was very properly held that, under these circum- 
 stances, he had not changed his domicile by going to Dartmouth 
 College, and remaining there four years. ^ 
 
 But the decisions of settlement cases cannot have much influence 
 on questions of political privileges. In the former cases, there is a 
 conflict between two corporations on a subject of property; and they 
 must be determined strictly according to the established rules of 
 property. The objects intended to be secured by the constitutional 
 limitation of the right of suffrage to the town in which the voter has 
 his home, were opportunity to ascertain the qualifications of the 
 voter, and the prevention of fraud upon the public by multiplying 
 the votes of the same person. The plaintiff had lived long enough 
 in Andover to give the selectmen the means of scrutinizing his 
 claims ; and there was no other place where he could have a pretence 
 for voting. 
 
 Further, a citizen may well have his home in one town, with all 
 the privileges of an inhabitant, and yet have his legal settlement in 
 another town. For instance, if he should reside four years in a 
 town, own and occupy real property there, gain a livelihood there for 
 himself and his family, without any intention of removing, he 
 migh^, notwithstanding, be removed to the place of his lawful settle- 
 ment, in case he should become chargeable. But it would be hard to 
 say he had no home there, that he did not dwell there, and therefore 
 that he should not be permitted to vote there. 
 
 We are all of opinion that the plaintiff's case is well made out, and 
 that judgment must be entered on the verdict.^ 
 
 ABINGTON V. NORTH BRIDGEWATER. 
 
 Supreme Judicial Coukt of Massachusetts. 1810. 
 
 [Reported 23 Pickerixg, 170.] 
 
 SiiAW, C. J., drew up the opinion of the court. ^ The question of 
 Ebenezer Hill's settlement depends upon tliis, whether he was an in- 
 habitant of Nortli Bridgewater before the 10th of April, 17G7. If 
 his house or place of residence was in that town, he acquired a set- 
 tlement there, and the defendants are liable, otherwise not. 
 
 In the several provincial statutes of 1G92, 1701, and 1767 upon this 
 subject, the terms "coming to sojourn or dwell," "being an inhab- 
 itant," "residing and continuing one's residence," "coming to reside 
 
 1 Ace. Vanderpoel v. D'Hanlon, 53 la. 246 ; Fr}-e'3 Election, 71 Pa. 302. — Ed. 
 » Ace. Sanders v. Getchell, 76 Me. 158 ; Hicks v. Skinner, 72 N. C. 1. 
 Residence for voting means actual domicile. Dennis v. S., 17 Fla. 389. — Ed. 
 • The opinion only is given : it sufficiently states the case. — lio.
 
 SECT. I.] ABINGTON V. NORTH BRIDGEWATER. ^9 
 
 and dwell," are frequently and variously used, and, we think, they are 
 used indiscriminately, and all mean the same thing, namely, to desig- 
 nate the place of a person's domicile. This is defined in the Consti- 
 tution, c. 1, § 1, for another purpose, to be the place "where one 
 dwelleth or hath his home." 
 
 The fact of domicile is often one of the highest importance to a 
 person; it determines his civil and political rights and privileges, 
 duties and obligations; it fixes his allegiance; it determines his bel- 
 ligerent and neutral character in time of war; it regulates his personal 
 and social relations whilst 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 difticulty, depending sometimes upon minute 
 shades of distinction, which can hardly be defined. It seems difficult 
 to form any exact definition of domicile, because it does not depend 
 upon any single fact, or precise combination of circumstances. If 
 we adopt the above definition from the Constitution, which seems 
 intended to explain the matter and put it beyond doubt, it will be 
 found, on examination, to be only an identical proposition, equivalent 
 to declai-ing, that a man shall be an inhabitant where he inhabits, or 
 be considered as dwelling or having his home where he dwells or has 
 his home. It must often depend upon the circumstances of each 
 case, the combinations of which are infinite. If it be said to be fixed 
 by the place of his dwelling-house, he may have dwelling houses in 
 different places; if it be where his family reside, his family with 
 himself may occupy them indiscriminately, and reside as much in 
 one as another; if it be where he lodges or sleeps (pernocfaf), he 
 may lodge as much at the one as the other; if it be his place of busi- 
 ness, he may have a warehouse, manufactory, wharf, or other place of 
 business, in connection with his dwelling-house in different towns. 
 See Lyman v. Fiske, 17 Pick. 231. But without pursuing this gen- 
 eral view further, to show that it is difficult, if not impossible, to lay 
 down any general rule, on account of the very diversified cases which 
 may be supposed, yet it will generally be found in practice, that 
 there is some one or a few decisive circumstances which will deter- 
 mine the question. 
 
 In coming to the inquiry in each case, two considerations must be 
 kept steadily in view, and these are, — 
 
 1. That every person must have a domicile somewhere; and 
 
 2. That a man can have only one domicile, for one purpose, at one 
 and the same time. 
 
 Every one has a domicile of origin, which he retains until he ac- 
 quires another; and the one thus acquired is in like manner retained. 
 
 The supposition, that a man can have two domiciles, would lead to 
 the absurdest consequences. If he had two domiciles within the 
 limits of distant sovereign States, in case of war, what would be an 
 act of imperative duty to one, would make him a traitor to the other. 
 As not only sovereigns, but all their subjects, collectively and indi-
 
 40 AEINGTON I'. KORTH BlilLiGEWxVTER. [CHAP. IL 
 
 vidually, are put into a state of hostility by war, be would become 
 an enemy to himself, and bound to commit hostilities and afford pro- 
 tection to the same persons and property at the same time. 
 
 But without such an extravagant supposition, suppose he were 
 domiciled within two military districts of the same State, he might 
 be bound to do personal service at two places, at the same time ; or 
 in two counties, he would be compellable, on peril of attachment, 
 to serve on juries at two remote shire towns; or in two towns, to do 
 watch and ward in two different places. Or, to apply an illustration 
 from the present case. By the provincial laws cited, a man was liable 
 to be removed by a warrant to the place of his settlement, habitancy, 
 or residence, for all these terms are used. If it were possible that 
 he could have a settlement or habitancy in two different towns at the 
 same time, it would follow that two sets of civil officers, each acting 
 under a legal warrant, would be bound to remove him by force, the 
 one to one town, and the other to another. These propositions, 
 therefore, that every person must have some domicile, and can have 
 but one at one time, for the same purpose, are rather to be regarded 
 as postulata than as propositions to be proved. Yet we think they 
 go far in furnishing a test by which the question may be tried in 
 each particular case. It depends not upon proving particular facts, 
 but whether all the facts and circumstances taken together, tending 
 to show that a man has his home or domicile in one place, over- 
 balance all the like proofs, tending to establish it in another; such 
 an inquiry, therefore, involves a comparison of proofs, and in mak- 
 ing that comparison, there are some facts which the law deems 
 decisive, unless controlled and counteracted by others still more 
 stringent. The place of a man's dwelling-house is first regarded, in 
 contradistinction to any place of business, trade, or occupation. If 
 he has more than one dwelling-house, that in which he sleeps or 
 passes his nights, if it can be distinguished, will govern. And we 
 think it settled by authority, that if the dwelling-house is partly in 
 one place and partly in another, the occupant must be deemed to dwell 
 in that town in which he habitually sleeps, if it can be ascertained. 
 
 Lord Coke, in 2 Inst. 120, comments upon the statute of Marl- 
 bridge respecting courts leet, in which it says, that none shall be 
 bound to appear, nisi in ha/ivis uhi fuerunt conversant I's ; which he 
 translates, "but in the bailiwicks, where they be dwelling." His 
 Lordship's comment is this: "If a man have a house within two leets, 
 he shall be taken to be conversant where his bed is, for in that part 
 of the house he is most conversant, and here conversant shall be 
 taken to be most conversant." This passage, at first blush, might 
 seem to imply that the entire house was within two leets. But no 
 man can be of two leets. 2 Doug. 588; 2 Hawk. P. C. c. 10, § 12. 
 Indeed, the whole passage, taken together, obviously means, a house 
 partly within one leet and partly within another; otherwise, the bed 
 would be within the two leets, as well as the house.
 
 SECT. I.] ABINGTON V. NORTH BRIDGEWATER. 41 
 
 It is then an authority directly in point to show, that if a man has 
 a dwelling-house, situated partly within one jurisdiction and partly 
 in another, to one of which the occupant owes personal service, as an 
 inhabitant, he shall be deemed an inhabitant within that jurisdiction 
 within the limits of which he usually sleeps. 
 
 The same principle seems to have been recognized in other cases, 
 mostly cases of settlement, depending on domicile. Rex v. St. 
 Olaves, 1 Str. 51; Colechurch v. Radcliffe, 1 Str. 60; Rex v. Brigh- 
 ton, 5 T. R. 188; Rex v. Ringwood, 1 Maule & Selw. 381. 
 
 I am aware that the same difficulty may arise as before suggested, 
 which is, that the occupant may not always, or principall}", sleep in 
 one part of his house, or if he sleeps in one room habitually, the 
 dividing line of the towns may pass through the room or even across 
 his bed. This, however, is a question of fact depending upon the 
 proofs. When such a case occurs, it may be attended by some other 
 circumstance decisive of the question. If the two principles stated 
 are well established, and we think they are, they are, in our opinion, 
 sufficient to determine the present case. It becomes, therefore, neces- 
 sary to see what were the facts of this case, and the instructions iu 
 point of law upon which it was left to the jury. 
 
 The plaintiffs contended that two monuments pointed out by them 
 were true and genuine monuments of the Colony line, and if so, a 
 straight line drawn from one to the other would leave the house 
 wholly in North Bridgewater, and the jury were instructed, if they 
 so found, to return a verdict for the plaintiffs. But the jury stated, 
 on their return, that on this point they did not agree, and therefore 
 that part of the instruction may be considered as out of the case. It 
 is therefore to be taken that, in point of fact, the line ran through 
 the house, leaving a small part in Randolph and a large part in North 
 Bridge-water. In reference to this, the jury were instructed, that 
 if that line would leave a habitable part of the house iu Randolph, 
 the verdict should be for the defendants; otherwise, for the plaintiffs. 
 The jury were also directed to find, specially, whether the beds of the 
 family in which they slept, and the chimney and fireplace, were or 
 •were not iu North Bridgewater. The jury found a verdict for the 
 plaintiffs, which in effect determined, in point of fact, that the line 
 did run through the house, leaving a small part in Randolph, that the 
 beds and fireplaces of the house were on the North Bridgewater side 
 of the line, and that there was not a habitable part of the house in 
 Randolph. 
 
 What was the legal effect of this instruction to the jury? To 
 understand it, we must consider what was the issue. The burden of 
 proof was upon the plaintiffs, to prove that Hill had his settlement 
 in North Bridgewater. But proving that he had a dwelling-house, 
 standing partly in North Bridgewater and partly in Randolph, would 
 leave it wholly doubtful whether he had his domicile in the one or 
 the other, provided that the line passed the house iu such a direction
 
 42 ABINGTON V. NORTH BRIDGEWATER. [CHAP. II. 
 
 as that either would have been sufficient for the purpose of a habita- 
 tion; because it would still be doubtful whether he dwelt upon one or 
 the other side of that line. But if the line ran in such a direction as to 
 leave so small a portion on one side that it could not constitute a 
 human habitation, then the position of the dwelling determined the 
 domicile. In any other sense, we see not how the correctness of the 
 instruction could be maintained. If the term "habitable part of 
 the house " was intended to mean a portion of the house capable of 
 being used with the other part for purposes of habitation, and the 
 whole constituting together a place of habitation, then every part of 
 the house capable of being used would be a habitable part. The 
 instruction was, that if a habitable part was in Randolph, the occu- 
 pant did not acquire a domicile in North Bridgewater; it would be 
 equally true in law, that if a habitable part was in North Bridge- 
 water, he did not acquire a domicile in Randolph. If the term 
 "habitable," then, were used in the restricted sense, capable of being 
 used as a part, and not as the whole of a human habitation, the in- 
 struction would amount to this, that living ten years in a dwelling- 
 house divided by an imaginary line into parts, both of which are 
 useful and capable of being used as parts of a dwelling-house, the 
 occupant would acquire no domicile. But this is utterly inconsistent 
 with the principles of domicile. By leaving his domicile in Abing- 
 ton, and living in the house in question, Hill necessarily lost his 
 domicile in Abington, and necessarily acquired one by living in that 
 house; and this must be in either Randolph or Bridgewater, and not 
 in both. It may be impossible, from lapse of time and want of 
 evidence, to prove in which, and therefore the plaintiffs, who«e case 
 depends on proving affirmatively that it was in North Bridgewater, 
 may fail; nevertheless it is equally true, in itself, that he did acquire 
 a domicile in one, and could not acquire one in both of those towns. 
 Suppose the proof were still more deficient; suppose it were proved 
 beyond doubt, that Hill lived in a house situated on a cleared lot 
 of one acre through which the town line were proved to run, but it 
 were left uncertain in the proof on which part of the lot the house 
 was situated. It would be true that he lost his domicile in Abing- 
 ton, and acquired one in Randolph or North Bridgewater; but it being 
 entirely uncertain which, the plaintiffs would fail of proving it in 
 North Bridgewater, and therefore could not sustain their action. 
 So if the line ran through a house in such a manner that either side 
 might afford a habitation, then dwelling in that house would not of 
 itself prove in which town he acquired his domicile, though he must 
 have acquired it in one or the other. In this sense we understand the 
 instruction to the jury, and in this sense we think it was strictly 
 correct. If they should find that the line so ran through the house as 
 to leave a part capable, of itself, of constituting a habitation, in 
 Randolph, then dwelling in that house, though partly in North Bridge- 
 water, did not necessarily prove a domicile in North Bridgewater.
 
 SECT. I.] HAGGART V. MORGAN. 43 
 
 Under this instruction the jury found a verdict for the plaintiffs, 
 and we think it is evident from this verdict, that they understood the 
 instruction as we understand it. The jury find that one corner of 
 the house, to the extent of two feet and one inch, was in Randolph, 
 but that no habitable part of the house was in Randolph; not, as we 
 think, no part capable of being used with the rest of the house for 
 the purpose of habitation, but no part capable, of itself, of constitut- 
 ing a habitation; from which they draw the proper inference, that 
 the habitation and domicile, and consequently the settlement, was in 
 North Bridgewater. 
 
 And if we look at the fact, specially found by the jury, we are 
 satisfied that they drew the right conclusion, and could come to no 
 other. If the line had divided the house more equally, we think, on 
 the authorities, that if it could be ascertained where the occupant 
 habitually slept, this would be a preponderating circumstance, and, 
 in the absence of other proof, decisive. Here it is found, that all 
 the beds, the chimney and fireplace, were within the North Bridge- 
 water side of the line, and that only a small portion of the house, and 
 that not a side but a corner, was within the Randolph side, and that 
 so small as to be obviously incapable of constituting a habitation by 
 itself. We think, therefore, that the instruction was right, and the 
 verdict conformable to the evidence. 
 
 Judgment on the verdict for the plaintiffs.^ 
 
 HAGGART v. MORGAN. 
 
 Court of Appeals, New York. 1851. 
 [Reported 5 New York, 422.] 
 
 Gardiner, J.^ The defendants at the trial offered to prove "that 
 at the time of taking out the attachment mentioned in the pleadings, 
 and at the time of the giving of the bond in suit, the debtor, Brau- 
 degee, was not a non-resident of the city of New York, but a resi- 
 dent. That he had been absent about three years, in attending a law- 
 suit at New Orleans, and returned in the spring of 1848." The 
 judge excluded the evidence on the grounds, — 1st, That the offer 
 itself showed the debtor to be a non-resident, at the time when the 
 attachment issued, within the spirit of the act; 2d, that the giving 
 of the bond to discharge the attachment prevented him from show- 
 ing such fact; and the defendant excepted. This exception presents 
 the only question in the cause worthy of serious consideration. 
 
 The ruling of the judge was probably correct for the reasons as- 
 signed by him. In the matter of Thompson, 1 Wend. 45, the distinc 
 
 1 Ace. Judkins v. Reed, 48 Me. 386. — Ed. 
 
 2 Part of the opinion only is given. — Ed.
 
 44 WILLIAMS V. ROXBURY. [CHAP. II. 
 
 tion was taken between the residence of the debtor and his domicile. 
 It was there held that his residence might be abroad, within the spirit 
 of the statute, which was intended to give a remedy to creditors whose 
 debtors could not be served with process, while his domicile continued 
 in this State. In Frost v. Brisbiu, 19 Wend. 14, it was said, in a 
 case like the present, that actual residence, without regard to the dom- 
 icile of the defendant, was within the contemplation of the statute. 
 It was part of the offer of the defendants to prove that the debtor 
 left this State in November, 1844, and returned in the spring of 
 1848, and that this absence of three years and a half was necessary 
 to accomplish the business in which he was engaged. He was there- 
 fore a non-resident when the attachment was issued, within these 
 decisions, although domiciled in New York.^ 
 
 WILLIAMS V. ROXBURY. 
 Supreme Judicial Court of Massachusetts. 1858. 
 
 [Reported 12 Grai/, 21.] 
 
 Action of contract to recover back the amount of a tax assessed on 
 the 1st of May, 1856, upon personal property held by the plaintiff as 
 trustee under the will of John D. Williams, for the benefit of Mrs. 
 Sarah A. AV. Bradlee, formerly Miss Merry, and paid under protest. 
 The parties agreed that if, in the opinion of the court, upon so much 
 of the following facts as would be admissible in evidence, Richards 
 Bradlee, her husband, was a resident of Brookline, judgment should 
 be rendered for the plaintiff; otherwise, for the defendants. 
 
 Richards Bradlee was born in Brattleboro, Vt., lived there until 
 the age of sixteen, then went to New York, and there remained until 
 after he became of age in the spring of 1855, when he returned to 
 Brattleboro for the purpose of finding some employment, but with a 
 view of going to the West, and, after passing the summer in Brattle- 
 boro, went to St. Louis in October in search of employment, and 
 entered a store as a clerk, but under no contract for any fixed length 
 of time ; and in the following winter at St. Louis met Miss Merry, 
 who resided in Roxbury, and became engaged to marry her. He 
 never had any intention of making Roxbury his residence. In 
 
 1 Ace. Krone v. Cooper, 43 Ark. 547 ; Ludlow ?;. Szold, 90 la. 175, 57 N. W. 
 676 (see, however, Cliuruh v. Grossman, 49 la. 444) ; Risewick v. Davis, 19 Md. 
 82 ; Alston v. Newcomer, 42 Miss. 186 ; Johnson v. Smith, 43 Mo. 499 ; Lon<? v. Ryan, 
 30 Grat. 718. Contra, Wood v. Roeder, 45 Neb. 311, G3 N. W. 853; Strattou v. 
 Bri^rham, 2 Sneed, 420. Audsee Ballinger v. Lautier, 15 Kan. 608; Clark v. Likens, 
 26 N. J. L. 207. 
 
 A similar rule prevails as to " settlement" or "residence " in poor-law eases. Jef- 
 ferson V. Washington, 19 Me. 293 ; North Yarmouth v. West Gardiner, 58 Me. 207. 
 — Ed.
 
 SECT. I.] OILMAN V. OILMAN. 45 
 
 March, 1856, he hired a house in Brookline, at a rent to begin on the 
 1st of April, for the residence of himself and his wife; visited it with 
 her several times to set up the furniture; put a housekeeper and 
 servants in charge of it, and removed into it his and Miss Merry's 
 movable property. They were married in Roxbury on the 9th of 
 April, and on the same day started on a wedding tour, with the inten- 
 tion of returning, not to Miss Merry's former residence in Roxbury, 
 but to the furnished house in Brookline, and on the 2d of May did 
 return to that house. 
 
 C. A. Welch, for the plaintiff. 
 
 W. Gast07i, for the defendants. 
 
 Shaw, C. J. The question of domicile is a question of fact. It 
 is a question of comparison of facts. Had Mr. Bradlee previously 
 had a clear, fixed, and decided domicile, the circumstances would 
 hardly be sufficient to show an acquisition of a domicile in Brookline. 
 But when we compare the facts, we are brought to the opposite result. 
 Brattleboro was his domicile of origin, but he scarcely ever visited 
 there, and soon after coming of age went to St. Louis, and was there 
 three or four months as a clerk, and there formed a marriage engage- 
 ment with Miss Merry. He then came to Massachusetts, without 
 an}^ intention to return to St. Louis with his wife. But he came to 
 Massachusetts to fulfil his engagement. He acquired no domicile at 
 Roxbur3\ He took a lease of a house in Brookline in March, the rent 
 to commence on the 1st of April; took possession; put in a house- 
 keeper; visited the house for the purpose of putting up furniture, 
 and removed all his own and his wife's property to it, before their 
 marriage. His subsequent absence was only temporary; he left on a 
 marriage tour, with the intention to return to live in Brookline, and 
 on his return he took actual possession of the house which he had 
 hired. Our conclusion is that upon a balance of all the facts the 
 domicile was in Brookline, and that 
 
 The plaintiff is entitled to judgment. * 
 
 OILMAN V. GILMAN. 
 Supreme Judicial Court of Maine. 1863. 
 
 [Reported 52 Maine, 165.] 
 
 Davis, J.^ This case comes before us upon an appeal from a 
 decree of the Probate Court, admitting to probate and allowing the 
 
 1 Ace. Mann v. Clark, 33 Vt. 55. 
 
 If the fact of residence and the intentio n to s tay indefinitely concur, a dom icile is 
 
 gained at once, for Jh owe ver shor t a time the residence o r the intent cmiti nue s. Par- 
 
 'sonTv. Bangor, 61 Me. 457 ; Stockton v. Staples, 66 Me. 197 ; Thorndike v. Boston, 
 
 1 Met. 242; McConnell v. Kelley, 13S Mass. 372 ; Home v. Home, 9 Ired. 99. — En 
 
 2 The opinion only is given ; it sufficiently states the case. — Ed.
 
 46 OILMAN V. GILMAN. [CHAP. H. 
 
 last will and testament of Nathaniel Oilman. It was proved by a 
 copy, the original being beyond the jurisdiction of the court. 
 
 The validity of the will is not questioned. But the testator left a 
 large amount of property in the city of New York as well as in this 
 State; and the will has been proved and allowed there, on proof of 
 its execution merely, without any inquiry in regard to domicile. The 
 Surrogate seems to have assumed that jurisdiction of the property 
 conferred original jurisdiction of the will, whether the testator's 
 domicile was there or elsewhere. Even if his decree were conclusive, 
 which cannot be admitted, no decree was made by him upon that 
 point, or that was intended to settle it, as a judgment binding upon 
 the courts of any other State. 
 
 If the domicile of the testator, at the time of his death, was in New 
 York, then his will should be allowed and recorded in this State as a 
 foreign will. R. S., c. 64, § 8. And, in that case, the movable, 
 property in this State would be disposed of, under the will, 
 according to the laws of the State of New York. Jarman on Wills, 
 2. But if his domicile was in this State, then the Probate Court here 
 has original jurisdiction, and our laws must govern the construction 
 of the will, and the disposal of the property. Harrison v. Nickerson, 
 9 Pet. 483; Story's Conflict of Laws, § 481; Bempde v. John- 
 stone, 3 Ves. 199. 
 
 It would be well, if possible, to have a distinct and clear idea of 
 what we mean by the term "domicile," before applying it to this 
 case. It is no easy matter, however, to find a definition that has 
 not been questioned. Vattel defines it as "the habitation fixed in 
 any place, with an intention of always staying there." This is 
 quoted with approbation by Savage, C. J., in Thompson's Case, 
 1 Wend. 43; and in the case of Roberts' Will, 8 Paige, 519, Chan- 
 cellor Walworth adopts it in substance. "Domicile is the actual 
 residence of an individual at a particular place, with the (uiimus 
 mafiendi, or a fixed and settled determination to remain there the 
 remainder of his life." This was slightly varied in Massachusetts, 
 by Wilde, .J., in Jennison v. Hapgood, 10 Pick. 77, where it is said 
 to be a residence at a place "accompanied with the intention to re- 
 main there permanently, or at least for an indefinite time." Vattel's 
 definition was questioned by Parker, J., in Putnam v. Johnson, 10 
 Mass. 488, in which "domicile" is said to bev'the habitation fixed in 
 any place, without any present intention of removing therefrom. "_^ 
 This form has been recognized in this State as more nearly correct 
 than any of the others. Warren v. Thomaston, 43 Maine, 406. 
 
 All definitions of this kind were criticised, with much force, by 
 Lord Cani])bell, C. J., in the case of Regina r. Stapleton, 18 P^ng. 
 Law and Kq. 301, in which he suggests that, if one should go to 
 Australia, with the intention of remaining there ten years, and then 
 returning, his domicile could hardly be said to continue in England. 
 If he should leave his family in England, as stated in the supposed
 
 SECT. I.] OILMAN V. GILMAN. 47 
 
 case, his domicile might properly be considered there. But, if a citi- 
 zen of Maine, with his family, or having no family, should go to 
 California, to engage in business there, with the intention of return- 
 ing at some future time, definite or indefinite, and should establish 
 himself there, in trade or agriculture, it is difficult to see upon what 
 principle his domicile could be said still to be here. His residence 
 there, with the intention of remaining there a term of years, might 
 so connect him with all the interests and institutions, social and 
 public, of the community around him, as to render it not only proper, 
 but important, for him to assume the responsibilities of citizenship, 
 with all its privileges and its burdens. Such residences are not 
 strictly within the terms of any definition that has been given; and 
 yet it can hardly be doubted that they would be held to establish 
 the domicile. 
 
 Other definitions have been given, which, though more general, are 
 better adapted to determine the case at bar. Thus Story, in his 
 Conflict of Laws, says that one's domicile is "his true, fixed, perma- 
 nent home, and principal establishment, to which, whenever he is 
 absent, he means to return." And, in Munroe v. IMunroe, 7 CI. &. 
 Fin. 877, Lord Cottenham says that, to effect the abandonment of 
 one's domicile, and to substitute another in its place, "is required the 
 choice of a place, actual residence in the place chosen, and that it 
 should be the principal and permanent residence." 
 
 That the testator's original residence was in Waterville is ad- 
 mitted. There he established himself in business, accumulated prop- 
 erty, was married, and owned a house, in which, either continuously or 
 at intervals, he resided, with his family, until he died there in 1859. 
 
 It nas been laid down as a maxim on this subject, that every person 
 must have a domicile somewhere. Abington v. North Bridgewater, 
 23 Pick. 170. This may be doubtful in its application to some ques- 
 tions. A life may be so vagrant that a person will have no home in 
 any city or town where he can claim any of the rights or privileges 
 appertaining to that relation. But, in regard to questions of citizen- 
 ship, and the disposition of property after death, every person must 
 have a domicile. 1 Amer. Lead. Cas. 725, note. For every one is 
 presumed to be a subject of some government while living; and the 
 law of some country must control the disposition of his property upon 
 his decease. It is therefore an established principle of jurisprudence, 
 in regard to the succession of property, thattp, domicile once acquired 
 continues until a new one is established^ Therefore the testator's 
 domicile must be considered in Waterville, for the purpose of settling 
 his estate, unless he had not only abandoned it, but had actually 
 acquired a new domicile in New York. 
 
 It appears in evidence that he commenced business in New York 
 about 1831, at first being there transiently; that in 1836 or 1837, 
 having been married a second time, he was in the habit of spending 
 considerable time there with his family at the Astor House, and othef
 
 48 OILMAN V. OILMAN. [CHAF. II. 
 
 hotels; that he hired a house there, in which he lived portions of the 
 year from 1841 to 1844; tiiat he bought a house in Brooklyn, which 
 he occupied at intervals from 1847 to 1852; that he bought a lot in 
 Greenwood Cemetery, on which he built an expensive tomb; that, 
 after 1836, his principal business was in New York, and that several 
 of his children were married and settled there in business. But he 
 never disposed of his house in Waterville; he always kept it fur- 
 nished, in repair, and supplied with fuel ; he kept a horse and car- 
 riage there; he generally spoke of Waterville as his home; and, with 
 the exception of one or two years (and during those years he did not 
 keep house anywhere else), he lived in his house there a portion of 
 the year with his family. 
 
 A person may have two places of residence, for purposes of busi- 
 ness or pleasure. Thorndike v. Boston, 1 Met. 242; Sears r. Boston, 
 1 Met. 250. But, in regard to the succession of his property, as he 
 must have a domicile somewhere, so he can have only one. Green v. 
 Green, 11 Pick. 410. It is not very uncommon for wealthy mer- 
 chants to have two dwelling-houses, one in the city and another in the 
 country, or in two different cities, residing in each a part of the year. 
 In such cases, looking at the domestic establishment merely, it might 
 be ditficult to determine whether the domicile was in one place or the 
 other. Bernal v. Bernal, 3 Mylne & Craig, 555, note. In the case 
 of Somerville v. Somerville, 5 Ves. 750, 788, it is stated as a general 
 rule, "tliat a merchant, whose business is in the metropolis, shall be 
 considered as having his domicile there, and not at his country resi- 
 dence." But no such rule can be admitted. The cases differ, and 
 are distinguished by other facts so important, that the domicile can- 
 not always be held to be in the city. It is frequently the case that 
 the only real home is in the country; so that, while some such mer- 
 chants talk of going into the country to spend the summer, others, 
 with equal propriety speak of going into the city to spend the 
 winter. 
 
 If any general rule can be applied to such cases, we think it is 
 this: that the domicile of origin, or the previous domicile, shall pre- 
 vail. This is in accordance with the general doctrine, that the forum 
 oriijhics remains until a new one is acquired. 3 Kent, 431; Kilburn 
 V. Bennett, 3 Met. 199; Moore v. Wilkins, 10 N. H. 455; Hood's 
 Case, 21 Penn. 106. And this would generally be in harmony with 
 the other circumstances of each case. If the merchant was originally 
 from the country, and he keeps up his household establishment there, 
 his residence in the city will be likely to have the characteristics of 
 a temporary abode. "While, if his original domicile was in the city, 
 and lie purchases or builds a country house for a place of summer 
 resort, he will not be likely to establish any permanent relations with 
 the people or the institutions of the town in which it is located. 
 
 If we apjily this rule to the case at bar, it will bring us to the 
 conclusion that the testator's domicile in Waterville remained un-
 
 SECT. I.] OILMAN V. GILMAN. 49 
 
 changed. Are there any facts that should make this case an excep- 
 tion to the rule? 
 
 The testator continued to vote in Waterville about one half of the 
 time. There is no evidence that he ever voted in New York. His 
 manner of life there, boarding generally at hotels, where he always 
 registered his name as from "Maine," renders it probable that he 
 never claimed or was admitted to be a voter in that city. 
 
 He paid a tax upon personal as well as real estate in Waterville, 
 a few of the years after he went into business in New York. He 
 does not appear ever to have paid any tax in the latter place but one 
 year. He evidently belonged to that class of men, fortunately small 
 in numbei, who have no stronger desire than to avoid the payment 
 of taxes anywhere. 
 
 These facts have little tendency to establish anything but the inten- 
 tion of the testator. Residence, being a visible fact, is not usually 
 in doubt. The intention to remain is not so easily proved. Both 
 must concur in order to establish a domicile. Harvard College v. 
 Gore, 5 Pick. 370. And, as both are known to be requisite in order 
 to subject one to taxation, or to give him the right of suffrage, any 
 resident who submits to the o*ie, or claims the other, may be pre- 
 sumed to have such intention. Both parties claim that the will itself 
 furnishes evidence of the testator's domicile. At most, it can be of 
 little weight, except on the question of his intention. Such inten- 
 tion must relate to the future and not to the past. A will made at or 
 near the close of life will not be likely to throw much light on that 
 question. It must be an intention to reside. An intention to dis- 
 pose of his property according to the laws of any place, does uot tend 
 to fix the testator's domicile there. So that, if the will is made in 
 conformity with our laws, and even if, as is contended, some of its 
 provisions would be void by the laws of New York, that cannot affect 
 the question of domicile. Hoskins v. Matthews, 35 Eng. Law and 
 Eq. 532; Anstruther v. Chalmer, 2 Simons, 1. Nor, on the other 
 hand, does the fact that he described himself, in the will, and in the 
 codicil, as "of the city and State of New York," make any material 
 difference. Whicker v. Hume, 5 Eng. Law and Eq. 52. 
 
 During the last twenty years of the testator's life, his ruling pur- 
 pose seems to have been to accumulate property abroad, and escape 
 taxation there and at home. This led him to sacrifice, to a large 
 extent, the enjoyments of domestic life, and to sever or neglect all 
 those social ties which might have given him position and influence 
 in the community. He pursued this process of isolation, because, 
 while it did not interfere with his gains, it diminished his expenses. 
 This was what rendered his domicile a question of doubt. This is 
 what gives to the testimony, as it gave to his life, an aspect of incon- 
 sistency and contradiction. But through it all there is apparent an 
 intention to retain his home in Waterville, as a place of retreat for 
 himself during life, and a place of residence for his family after his 
 
 4
 
 50 
 
 WILBRAHAM V. LUDLOW. [CHAP. U. 
 
 decease. He never had any such home elsewhere. And, upon the 
 whole evidence, we are satisfied that his domicile was never changed. 
 The decree of the Probate Court is aflBrmed, with costs for the 
 appellees.^ 
 
 WILBRAHAM y. LUDLOW. 
 
 Supreme Judicial Court of Massachusetts. 1868. 
 
 [Reported 99 Massachusetts, 587.] 
 
 Foster, J.^ The question in the present case was, whether the 
 pauper, whose settlement was once in the plaintiff town of Wilbraham, 
 had acquired a new settlement in Ludlow. The burden of proof to 
 establish this was on the plaintiffs. After the presiding judge had 
 announced the rule of law which he deemed to govern the case, and 
 the instructions which he proposed to give to the jury, the plaintiffs 
 declined to argue the case, submitted to a verdict for the defendants, 
 and alleged exceptions. Under these circumstances, the only question 
 open for revision is the correctness of the rulings. The evidence is 
 not for the court to pass upon, and is reported only to make the 
 instructions intelligible and enable us to judge better whether they 
 were pertinent and accurate. 
 
 The pauper leased his house in Ludlow in June, 1857, and never 
 lived in it again. He remained in that town, working as a laborer, 
 until August in that year. He then went to his brother's house in 
 Wilbraham, and afterwards worked about, as a day laborer, in the 
 towns of Wilbraham, Springfield, and Ludlow, till October, 1861, after 
 which he remained in Wilbraham in the family of Horace Clark, who 
 was about that time appointed his guardian, until he was committed as 
 an insane pauper to the hospital at Northampton. The proposition to 
 be maintained by the i)laiiitiir3 was, that after August, 1857, he con- 
 tinued to reside in Ludlow witliin the meaning of the pauper laws ; so 
 that a settlement in that town could be subsequently acquired. There 
 was certainly no actual continuance of his former home in that town ; 
 it was broken up and he had abandoned it, apparently without any 
 intention to return there to live. But the argument for the plaintiffs 
 is, that the pauper's domicile remained in Ludlow until he acquired a 
 new one in some other town, and that, while absent in fact, he con- 
 tinued to live there in conk'mplation of law, and by such constructive 
 residence the prescribed period for acquiring a settlement was com- 
 pie ted. 
 
 Assuming that this view of the law is correct, and that domicile and 
 residence are identical under tlie pauper laws, we are nevertheless of 
 opinion that the rule of law stat^pd to the jury was correct. If, from 
 
 1 Arc. Somcrville i-. .Soinerville, 5 Ves. 750 ; Harvard College v. Gore, 6 Pick. 370. 
 — Ed. 
 
 8 The opinion only is given : it sufficiently states the case. — Ed.
 
 SECT. I.] BANGS V. BREWSTER. 51 
 
 the time the pauper left Ludlow in August, 1857, he had " no opinions, 
 desires, or intentions in relation to residence, except to have a home 
 wherever he worked," then he did have in each successive town where 
 he lived as a laborer a home and domicile so long as he remained there. 
 It must be borne in mind that this was the case of one who had aban- 
 doned his former dwelling-place, either with no intention of return, or 
 at the most with such vague, indefinite, and remote purposes in this 
 respect that they would not prevent him from readil}' acquiring a new 
 domicile wherever he might go. The person was a day laborer without 
 family, separated by judicial decree from his wife. Such a man, so 
 situated, when he is laboring in one town with no other intention as to 
 residence except to have a home wherever he works, may well be deemed 
 to live there with the purpose of remaining for an indefinite period of 
 time, and thus to have there all the home he has anywhere, as much of 
 a domicile as such a wanderer can have. At least it was competent for 
 the jury to come to that conclusion ; and the instructions under which 
 they did so were unobjectionable. 
 
 It is unnecessary to attempt a precise definition of the term domicile, 
 as to which that eminent English judge, Dr. Lushington, has said that, 
 " although so many powerful minds have been applied to the question, 
 there is no universally agreed definition of the term, no agreed enumera- 
 tion of the ingredients which constitute domicile." Maltass v. Maltass, 
 1 Rob. Ecc. 74. Story Confl. Laws, c. 3. Our own adjudged cases 
 sufficiently establish the rule that one who is residing in a place with 
 the purpose of remaining there for an indefinite period of time, and 
 without retaining and keeping up any animus revertendi, or intention 
 to return, to tlie former home which he has abandoned, will have his 
 domicile in the place of his actual residence. Sleeper v. Paige. 15 Gray, 
 349 ; Whitney r. Sherborn, 12 Allen, 111. Where the question is one 
 of national domicile, this statement may not be correct ; for such a con- 
 dition of facts might not manifest an intention of expatriation. But 
 it is accurate enough for cases like the present, which relate to a change 
 of domicile from one place to another within the same Commonwealth. 
 
 Excei^tions overruled} 
 
 BANGS V. BREWSTER. 
 
 Supreme Jcdicial Court of Massachusetts. 1873. 
 
 [Reported 111 Massachusetts, 382.] 
 
 Morton, J.^ The question at the trial was whether the plaintiff had 
 
 on May 1, 1869, acquired a domicile in Orleans. There is no doubt as 
 
 1 " A sea captain, who has neither domicile nor residence abroad, whose domicile of 
 origin, being abandoned long ago, without intention of returning, should be considered / h' 
 as fost, and who has no residence except on the steamer which he commands, is in the p^ ^ 
 eye of the law, for the purpose of service of process on him, domiciled in the port where y 
 
 his vessel is moored at the time of service." — Court of Ghent (1891), 21 Clunet, 584 
 But see Boothbay v. Wiscasset, 3 Me. 354. — Ed. 
 
 2 Part of the opinion only is given. — Ed. 
 
 r^
 
 52 DUPUY V. WUETZ. [CHAP. IL 
 
 to the rule of law that the plaintiffs domicile of origin in Brewster ad- 
 hered to him until he had acquired a domicile somewhere else, and that 
 in order to effect a change of domicile he must not only have had the 
 intent to make his home in some other town, but he must in fact have 
 made liis home there. The intent and the act must concur, and until 
 the intent was consummated by an actual removal of his 4iome, no 
 change of domicile was effected. Wiiitney y. Sherborn, 12 Allen, 111. 
 Carnoe v. Freetown, 9 Gray, 357. 
 
 The question is as to the application of this rule to the facts of this 
 case. Tlie plaintiff was a shipmaster, most of whose time was spent 
 at sea. He went to sea in November, 1867, taking his wife with him, 
 and in December, 1868, he sent his wife to Orleans, and she arrived 
 there in February, 1869. He did not arrive at Orleans until July, 
 1869, so that he was not personally present in Orleans on May 1, 
 1869. The special findings of the jury settle conclusively that when 
 he went to sea in November, 1867, he had the definite intent to make 
 Orleans his home, and that in December, 1868, he sent his wife to 
 Orleans in pursuance of that intent. We think the jury were justified 
 in finding that his domicile was in Orleans on the first of May. 
 
 B}' sending his wife to Orleans with the intent to make it his home, 
 he thereb}' changed his domicile. The fact of removal and the intent 
 concurred. Although he was not personall}' present, he established his 
 home there from the time of his wife's arrival.^ 
 
 DUPUY V. WURTZ. 
 Court of Appeals, New York. 1873. 
 
 [Reported 53 New York, 556.] 
 
 Rapallo, J. 2 When Mrs. Wurtz went to Europe with her hus- 
 band, in 1859, she was domiciled in the city and State of New York. 
 She and her husband were natives of the United States. It does 
 not appear in the case that she ever had had any domicile except in 
 this State, and it seems to be conceded on both sides that this 
 was her domicile of origin. 
 
 1 Ace. Anderson v. Anderson, 42 Vt. 350. Contra, Hart v. Horn, 4 Kan. 232. 
 In Porterfield v. Augusta, 67 Me. 556 (1877), it was held that tlie liushand's domicile 
 couhl not thus be changed if the wife's removal was without his prior consent. See 
 further, Fayette v. Livermore, 62 Me. 229. If the wife removes, the husband remain- 
 ing at the old domicile, their domicile is of course not changed. Scholes v. Mun-ay Iron 
 Works Co., 44 la. 190. And the fact that a man's family is settled in a certain place 
 (though prima fuck evidence that he is domiciled there, Brewer v. Linnaeus, 36 Me. 428) 
 is consistent with his being domiciled elsewhere. Greene v. Windham, 13 Me. 225; 
 Cambridge v. Charlestown, 13 Mass. 501 ; Hairstou v. Hairston, 27 Miss. 704 ; Pearce 
 r. S., 1 Sneed. 63. —En. 
 
 * Only so much of the opinion as deals with the question of domicile is given. — En.
 
 SECT. I.] DUPUY V, WURTZ. 53 
 
 It is not pretended that she or her husband had abandoned their 
 domicile in New York up to the time of his death in Europe in 1861 ; 
 and from the evidence, which we have carefully examined, but do 
 not consider it necessary to recite in detail, we are clearly of opinion 
 that, up to the fall of 1868, she had not for a moment relinquished her 
 intention and expectation, often declared orally, and in her written 
 correspondence, of returning to her home in New York as soon as the 
 condition of her health should permit; that her sojourn in Europe was 
 compulsory, being caused by ill health and the advice of her physi- 
 cian that she was not physically able to bear the voyage and the ex- 
 citement which would await her on her return; that she had not 
 acquired any domicile abroad, and up to the time of the execution of 
 the will in question, November 21, 1868, she continued to be a citizen 
 of this State. 
 
 But it is claimed on the part of the contestants that although it 
 should be conceded that she was a citizen of New York at that time, 
 and then intended to return, she changed her intention, after execut- 
 ing the will, and acquired a domicile at Nice, and that this change 
 destroyed the validity of the will, it not having been executed accord- 
 ing to the laws of France. This is the only branch of the case which 
 presents questions of difficulty. 
 
 The counsel for the contestants is sustained by authority in the 
 position that the domicile of the testatrix at the time of her dea'th, 
 and not at the time of the execution of the will, is the material in- 
 quiry; and that as to personal property, the question of intestacy, or 
 of the valid execution of her will, depends upon the law of the place 
 where she was domiciled at the time of her death. This question was 
 decided after much discussion, and notwithstanding the dissents of 
 three eminent judges of this court, in the case of Moultrie v. Hunt, 
 23 N. Y. 394. 
 
 In England, the embarrassments likely to arise from such a rule are 
 now obviated, as to British subjects, by the Act of Parliament of 24 
 and 25 Victoria, chapter 114, 1861-2, which provides in substance, 
 as to wills made after the passage of the act, that wills of personal 
 estate made out of the United Kingdom by a British subject shall be 
 deemed well executed, whatever may be the domicile of the testator 
 at the time of making the will, or of his death, if made according to 
 the forms required by the law of the place where made, or of the 
 place of the domicile of the testator at the time of making the will, 
 or of the laws then in force in that part of Her Majesty's dominions 
 where he had his domicile of origin. Also, that no subsequent change 
 of domicile shall affect the validity or construction of the will. 
 This enactment substantially conforms the law of England to that 
 which generally prevails in continental Europe. We have no such 
 statute, and must therefore follow the rule laid down in Moultrie v. 
 Hunt, and hold that if at the time of her death, January 8, 1871, 
 Mrs. Wurtz had changed her domicile and ceased to be a citizen of
 
 54 DUPUY V. WUKTZ. [chap. II. 
 
 this State, her will is not valid here, unless it would be valid accord- 
 ing to the law of the place of her domicile at the time of her death. 
 (See also 1 Brad. 69; Story Couf. Laws, § 473.) The important ques- 
 tion, therefore, is whether the evidence establishes such a change of 
 the domicile of the testatrix as is alleged by the contestants. 
 
 A reference to some of the elementary principles governing ques- 
 tions of domicile will facilitate this inquiry. 
 
 One leading rule is that for the purposes of succession every person 
 must have a domicile somewhere, and can have but one domicile, and 
 that the domicile of origin is presumed to continue until a new one is 
 acquired. (Somerville v. Somerville, 5 Ves. 750, 786, 787 ; Story, 
 Conf. Laws, § 45; Abingtou v. N. Bridgewater, 23 Pick. 170; 
 Graham r. Pub. Admr., 4 Brad. 128; De Bouneval v. De Bonneval, 1 
 Curteis, 856 ; Attorney-General v. Countess of Wahlstatt, 3 Hurl. & 
 Colt. 374; Aikman v. Aikman, 3 McQueen, 855, 863, 877.) 
 
 The statute of New York of 1830, 2 Stat, at Large, p. 69, § 69a, 
 referred to by the learned counsel for the contestants, does not affect 
 this principle, nor does it aid in determining whether Mrs. Wurtz 
 had lost her domicile or citizenship in New York. 
 
 The object and effect of this act are fully explained in Matter of 
 Catharine Roberts' Will, 8 Paige, 525, 526; Isham v. Gibbons, 1 
 Bradf. 69; 4 Bradf. 128. 
 
 To effect a change of domicile for the purpose of succession there 
 must be not only a change of residence, but an intention to abandon 
 the former domicile, and acquire another as the sole domicile. There 
 must be both residence in the alleged adopted domicile and intention 
 to adopt such place of residence as the sole domicile. Residence 
 alone has no effect per se, though it may be most important, as a 
 ground from which to infer intention. Length of residence will not 
 alone effect the change. Intention alone will not do it, but the two 
 taken together do constitute a change of domicile. (Hodgson v. De 
 Beauchesue, 12 Moore P. C. Cases, 283, 328; Munro v. Munro, 7 CI. 
 & F. 877; Collier v. Rivaz, 2 Curteis, 857; Aikman v. Aikman, 3 
 McQueen, 855, 877.) This rule is laid down with great clearness in 
 the case of Moorhouse v. Lord, 10 H. L. 283, 292, as follows: 
 Change of residence alone, however long continued, does not effect a 
 change of domicile as regulating the testamentary acts of the indi- 
 vidual. It may be, and is, strong evidence of an intention to change 
 the domicile. But unless in addition to residence there is an inten- 
 tion to change the domicile, no change of domicile is made. And in 
 Whicker v. Hume, 7 H. L. 139, it is said the length of time is an 
 ingredient in domicile. It is of little value if not united to intention, 
 and is nothing if contradicted by intention. And in Aikman v. 
 Aikman, 3 McQueen, 877, Lord Cranworth says, with great concise- 
 ness, that the rule of law is perfectly settled that every man's domi- 
 cile of origin is presumed to continue until he has acquired another 
 sole domicile with the intention of abandoning his domicile of origin;
 
 SECT. 1.1 DUPUY V. WURTZ. 55 
 
 that this change must be animo et facto,, and the burden of proof 
 unquestionably lies upon the party who asserts the change. 
 
 The question what shall be considered the domicile of a party, is 
 in all cases rather a question of fact than of law. (Bruce v. Bruce, 
 6 Bro. Par. C. 5G6.) With respect to the evidence necessary to 
 establish the intention, it is impossible to lay down any positive 
 ritle. Courts of justice must necessarily draw their conclusions from 
 all the circumstances of each case, and each case must vary in its 
 circumstances; and moreover, in one a fact may be of the greatest 
 importance, but in another the same fact may be so qualified as to be 
 of little weight. (] 2 Moore Priv. C. C. 330.) 
 
 In passing upon such a question, in view of the important results 
 flowing from a change of domicile, the intention to make such a 
 change should be established by very clear proof (Donaldson v. Mc- 
 Clure, 20 Scotch Session Cases, 2d series, 321 ; S. C. afH'd, 3 Mc- 
 Queen, 852), especially when the change is to a foreign country. 
 (Moorhouse v. Lord, 10 H. L. 283.) 
 
 The intention may be gathered both from acts and declarations. 
 Acts are regarded as more important than declarations, and written 
 declarations are usually more reliable than oral ones. 
 
 The principal if not the only act done by Mrs. Wurtz, in 1868, bear- 
 ing upon the question of an intention to abandon her domicile in 
 New York, consisted in her letting her house in Fifth Avenue to 
 Mr. Gray in that year. This house she had kept unoccupied during 
 all her stay abroad up to that time, and it is to be observed that in 
 letting it to Mr. Gray, the testatrix reserved one room for the storage 
 of some of her effects. In all other respects she continued to live 
 after 1868, as she had done during the preceding nine years, dwelling 
 all the time in hotels, passing her winters at Nice, and during the 
 residue of the year travelling on the continent and in England. 
 Nice had for many years been her headquarters. She there retained 
 one room in the hotel for the storage of such personal effects as she 
 did not desire to take with her upon her travels. The same reasons 
 which had theretofore prevented her from returning to what she in- 
 variably called her home, still continued to exist. She had failed 
 to recover the health of which she was in pursuit, and her physicians 
 still continued to advise her that her health would not permit her to 
 make the voyage home. But up to the time of her death she retained 
 her property and investments in this State, made no investments 
 abroad, did not purchase or even hire a permanent place of residence, 
 and lived continually in hotels. 
 
 But after the execution of the will there was a change in the tenor 
 of her correspondence, and in some of her oral declarations on the 
 subject of returning to what she still continued to call her home, and 
 it is upon these declarations that the contestants' case principally 
 rests. In all her correspondence, up to the time of the making of 
 the will, whenever the subject was alluded to, she had clearly exhib-
 
 56 DUPUY V. WURTZ. [chap. II. 
 
 ited not only an intention, but a determination and expectation of 
 returning as soon as lier health should permit, and in many instances 
 she had mentioned a deflnite period for the continuance of her sojourn 
 abroad, and in others down to October, in 1868, she placed the con- 
 tinuance of her stay upon the ground that her physicians would not 
 permit her to return. 
 
 On the 20th of April, 1868, she wrote to Mr. Seymour: "Dr. 
 Pantaleone has told me very plainly that he cannot permit me to 
 cross the Atlantic ; that 1 have no strength to combat a voyage, and 
 all the trials that are to meet me on my arrival. So here I am." On 
 the 29th of September she again writes: "In fact with that and 
 other troubles I have been ill, and have been put back three years in 
 my convalescence. Now I never expect to be well." And on the 
 3d of October, 1868, she says to Mrs. Seymour: "But my nervous 
 system has been shattered, and after the experience of the past year 
 (in heavy trials) I see why my physicians have not wished me to go 
 home. ... Do you not think my articles ought to be in one place, 
 except the silver? " 
 
 The first letter of all the series in evidence, bearing upon the ques- 
 tion of an abandonment of the intention to return, was written on the 
 21st of November, 1868, the very day of the execution of the will. 
 It is addressed to Mrs. Seymour. In it the testatrix says: "I am 
 now in Dr. Pantaleone's care, and find all three physicians. Dr. 
 Vallery in Rome, Dr. Mannoir in Geneva, and Dr. Pantaleone, agree 
 that it is rest and tranquillity of mind is very important to me. 
 Many thanks for your kind wishes. But except to see a few friends 
 I have no inducement to return to America. My nerves would not 
 endure the shock, and it is plain that my life is more quiet here. But 
 I do not intend to expatriate myself, and hold firmly to my allegiance 
 to my beloved country." In her will, bearing date the same day, 
 she makes the following declaration: "As I have for several years 
 resided in Europe, sojourning now at one place, and now at another, 
 as my health and comfort have required, I deem it proper for me here 
 to say, that I consider my home and residence as still being in the 
 city of New York, in my beloved country, the United States of 
 America." August 5th, 1869, from Geneva she writes to Mrs. Sey- 
 mour as follows: "I think Charles is staying in Europe on my 
 account, and I never expect to return. But I feel badly at any sacri- 
 fice for me. But Dr. Pantaleone is correct. Any moral excitement 
 upsets me away from turbulent spirits, and there is much to worry 
 lue at home." And on the 13th of October, 1870, the last date of 
 the series of letters in evidence, she writes to Mrs. Courtney: "I 
 never can live in a cold climate again, and the few years I have to 
 live, I want to live in comfort and repose." 
 
 These are all the written declarations of the testatrix bearing upon 
 the (piestion. There was also evidence of oral declarations, but they 
 do not throw any additional light upon the intentions of the testatrix.
 
 SECT. I.] DUPUY V. WURTZ. 57 
 
 Mary Brown, a colored servant, who was in the service of the deceased 
 during all her stay in Europe, testified that she always said, of late 
 years, that she never would return to America. That the doctors 
 told her she was not able to come, and, finally, she gave it up, and 
 said she would not come. Mrs. Slemmer testified that, at Geneva, 
 in the summer of 1870, Mrs. Wurtz said to her, "I know when I am 
 well off, indeed I am not going back; I should never have any com- 
 fort if I did." She said she had no intention of returning, and had 
 let her house and disposed of her furniture. Mr. Sandford testified 
 that he had frequently spoken to her of her returning to America, and 
 her reply invariably was that she could not come, that her health 
 would not admit of it. Mr. Gray and Mr. Aldis testified substan- 
 tially to the same effect. 
 
 This is, in substance, all the evidence in the case tending to show 
 a change of domicile. The present is one of the exceptional cases 
 in which the duty devolves upon this court to pass upon the facts as 
 well as the law. (And we think that the conclusion of fact, fairly to 
 be drawn from all the evidence, is that the testatrix, after having long 
 and consistently entertained the intention of returning, had finally 
 become satisfied that the state of her health and nerves was such that 
 she would be unable to return to her home, and would, in all proba- 
 bility, die abroad. )( At the same time it establishes no intention to 
 adopt a foreign domicile, but that she desired and claimed to retain 
 her domicile of origin, and to have her estate administered according 
 to the laws of the State of New York. '^This, the learned counsel for 
 the contestants contends, the law would not permit her to do. That 
 her long-continued stay in Europe, in connection with her final aban- 
 donment of the idea of returning to New York; her dwelling, during 
 the winter of each year, at Nice, furnishing, in part, the rooms which 
 she occupied in the hotel; the removal to that place of a portion of 
 her personal effects, her hiring an apartment in the hotel by the year 
 for the storage of such articles as she did not carry with her on her 
 summer travels, and always returning to the same place, afforded such 
 clear evidence of the abandonment of her domicile in New York, and 
 adoption of a new domicile at Nice, that no claim on her part to 
 continue to be considered a citizen and resident of New York could 
 preserve her domicile of origin ; and he has cited numerous authori- 
 ties in support of these positions. 
 
 An examination of these authorities will show that they proceed 
 upon the ground that the person whose domicile was in question had 
 actually settled in a new residence, with the intention of making it a 
 permanent home; that this intention was manifested by unequivocal 
 acts which outweighed any declarations to the contrary, and the 
 intention was found as matter of fact. 
 
 The principal cases referred to in this connection are Stanley v. 
 Bernes, 3 Hagg. Ecc. R. 373; In re Steer, 3 H. & N. 594; Ander- 
 son V. Laneuville, 9 Moore Priv. C. Cases, 325; Hoskins v. Mat-
 
 58 DUPUY V. WURTZ. [chap. II. 
 
 thews, 35 Eng. L. & Eq. 540; Whicker v. Hume, 13 Beav. 384; 7 
 H. L. 124; Hegeman v. Fox, 31 Barb. 475; Ennis v. Smith, 14 
 How. U. S. 423. 
 
 In Stanley v. Bernes, the testator, a British subject, had been natu- 
 ralized in Portugal, and the point decided was that a British subject 
 might acquire a domicile abroad (a proposition which had been dis- 
 puted. Curling v. Thornton, 2 Addams' R. 19), and that his claim to 
 be considered a British subject did not destroy his foreign domicile. 
 In re Steer, the testator had resided many years in Hamburg, and 
 had been regularly constituted a burgher of that city to enable him to 
 trade there. In his will, made while on a visit to England, he recited 
 those facts, and his intention to return to Hamburg, and at the same 
 time declared that he did not mean to renounce his domicile of origin 
 as an Englishman. The court in that case conceded the principle of 
 law that the domicile of origin continued until the testator had mani- 
 fested an intention of abandoning it and acquiring another as his sole 
 domicile, but held that there was evidence of such an intention, and 
 decided, as matter of fact, that he had elected Hamburg as his domi- 
 cile; that he thereby necessarily gave up his English domicile, as he 
 could not retain both, and that the declaration in his will was unavail- 
 ing. In Anderson v. Laneuville the testator's domicile of origin 
 was in Ireland. He had incontestably changed his domicile to Eng- 
 land. He afterwards broke up his establishment in England and 
 moved to France, where he bought and furnished a house, in which he 
 resided permanently for thirteen years. The contest was between his 
 English and French domicile, and was decided as a question of fact. 
 In Hoskins v. Matthews, the decedent was held to have acquired a 
 domicile in Tuscany by residence, the purchase of a villa and the 
 establishment of his family there. Notwithstanding his continued 
 attnchment for his native country, and his often expressed desire to 
 return there, and the fact that he was obliged, by his health, to live 
 in a milder climate than that of his birth, the fact being established 
 that he had formed the intention of permanently changing his domi- 
 cile, the court held that the change was not the less effectual because 
 induced by motives of health; at the same time admitting that even 
 a permanent residence in a foreign country, occasioned by the state 
 of health, may not operate as a change of the domicile, and that every 
 case must stand upon its own circumstances. 
 
 In Whicker r. Hume, 13 Beav. 384, and 7 H. L. 124, the domicile 
 of origin of tlie testator was in Scotland. The evidence of an aban- 
 donment of that domicile, and the adoption of a domicile in England 
 was clear. Afterward he went to France, leaving some of his prop- 
 erty in England, which he desired a friend to keep for him until his 
 return. He died in Paris, having just made a will in the English 
 form, which was sustained. 
 
 The Scotch domicile was regarded as entirely out of the question, 
 and the contest was between the English and French domicile. (7 
 H L. 13^.)
 
 SECT. I.] DUPUY V. WURTZ. 59 
 
 In Hegeman v. Fox, much relied upon by the contestants, the 
 question was whether the testator was at the time of his death domi- 
 ciled in Florida. He was a native of Massachusetts, had been domi- 
 ciled in New York, afterward in Williamsburgh, and then removed to 
 Florida. There was no evidence of any intention to retain his domi- 
 cile in Williamsburgh, and the opinion of the court was that the 
 weight of the evidence established that he neither expected nor in- 
 tended to return to the Northern States. He purchased a plantation 
 in Florida, stocked it, and furnished his house, went to housekeeping, 
 entered into the business of planting, and made other family arrange- 
 ments looking to a permanent residence there. Upon these facts it 
 was held that the circumstances that this change of residence was 
 induced by considerations of climate and health, and that domestic 
 trjiibles intervening induced the expression of an intention to return 
 to New York, did not overcome the effect of his acts, which clearly 
 indicated an intention to make his permanent home in Florida. The 
 case is well reasoned in the opinion of the court, and does not conflict 
 in principle with the result at which we have arrived, but depends 
 upon its own peculiar circumstances. 
 
 In Ennis v. Smith the question was whether General Kosciusko had 
 acquired a domicile in France. He left Poland voluntarily, came to 
 this country, and afterward went voluntarily to France, where he 
 lived for fifteen years. He could have returned to Poland at any time. 
 He was made a French citizen by decree of the national assembly, of 
 which privilege he could not avail himself unless he became domiciled 
 in France. Residence was, iu that case, said to be ijriina facie evi- 
 dence of domicile, and the facts were held to establish a domicile in 
 France. 
 
 In all these cases it was upon the ground of a clearly proved volun- 
 tary and intentional acquisition of a foreign domicile that the courts 
 held the former domicile abandoned. 
 
 The late cases of Jopp v. Wood, [1864] 34 L. J. Eq. 212, and 
 Moorhouse v. Lord, 10 H. L. 284, proceed upon the ground that in 
 order to acquire a new domicile there must be an intention to aban- 
 don the existing domicile. All the authorities agree that to effect a 
 change of domicile there must be an intention to do both. Some of 
 them hold that the intention to do one implies an intention to do the 
 other. But in all the cases the question of intention is treated as 
 one of fact, to be determined according to the particular circumstances 
 of each case. (See also Douglas v. Douglas, Law Rep. 12 Eq. 
 617, 647; The Attorney-General v. The Countess de Wahlstatt, 3 
 Hurl. & Colt. 374; Udny v. Udny, L. R. l' Scotch App. 441, 1070; 
 White V. Brown, 1 Wallace, Jr. 217.) 
 
 In the present case we find no sufficient evidence of an intention to 
 adopt Nice or any other place as a permanent home or domicile. The 
 plans of the testatrix after November, 1868, so far as disclosed, had 
 reference to failing health and an apprehension that she might not
 
 60 DUPUY V. WURTZ. [CHAP. II. 
 
 long survive, rather than to adopting and settling in a new home. 
 If she chose to be a wanderer during the short period of life which 
 she supposed might still remain to her, she would not thereby, as re- 
 spects her succession, lose her domicile of origin. (Attorney-General 
 V. Countess of Wahlstatt, 3 H. & C. 374; White v. Brown, 1 Wall., 
 Jr. 217.) 
 
 Her long residence abroad, upon which the contestants rely, is not 
 very significant in this case, as during by far the greater part of that 
 time, in fact during all except about two and a quarter years before 
 her death, she was clearly shown to be a mere sojourner in Europe, 
 intending and fully expecting to return, and retaining her house in 
 New York; and all the acts relied upon to show the acquisition of a 
 domicile in Nice were done during that period, and while there can 
 be no doubt of her continuing to be a citizen of New York. Her 
 habit of spending her winters in Nice, her furnishing her rooms, 
 hiring a store-room at the hotel, the bringing out there of her nick- 
 nacks as they are called, were all before she had given any evidence 
 of the relinquishment of her plan of return, and while she still retained 
 her house in Fifth Avenue, New York. The only evidence of any 
 change consists in her declarations. These indicate no intention to 
 settle permanently in any particular place, and are clearly contradic- 
 tory of any intention to abandon her domicile in New York. A mere 
 declaration of intention not to return is not conclusive as to a change 
 of domicile. As well expressed by Lord Kingsdown in Moorhouse v. 
 Lord, 10 H. L. 293 : "1 can well imagine a case in which a man 
 leaves England with no intention whatever of returning, but with a 
 determination and certainty that he will not return." He then sup- 
 poses the case of one laboring under a mortal disease, whose physi- 
 cian advises him that his life may be prolonged or his sufferings 
 mitigated by a change to a warmer climate, and says that to hold 
 that he cannot do that without losing his right to the intervention of 
 the English laws as to the transmission of his property after his 
 death, would be revolting to common sense and the common feelings 
 of humanity. (See S. C. p. 283, per Lord Cranworth; Story Conf. 
 Laws, §§ 45, 46; Guthrie's Savigny, 62, 63; Munro i'. Munro, 7 CI. 
 & Fin. 842, 876; 1 Rob. Ecc. R. 606; 2 Hurl. & Colt. 982; 3 id. 
 374.) 
 
 Unless a new domicile was acquired, as has been already shown, 
 the domicile of origin continues, and must govern, else there would 
 be no law according to which the estate could be administered, espe- 
 cially in a case of intestacy.' 
 
 1 Ace. Moorhouse v. Lord, 10 H. L. C 272. See Johnstone v. Bonttie, 10 CI. & F. 
 42. So domirile is not necessarily changed by an ab.sence, however long continued, for 
 pleasure, travel, etc. : Culbertson ?;. Floyd County, 52 Ind..36l ; Sears r. Pxistoii, 1 Met. 
 250; Cadwalader v. Howell, 18 N. J. L. 138. Nor by absence merely for business: 
 Easterly v. Goodwin, 35 Conn. 279 ; Greene v. Greene, 11 Pick. 410 ; Ilallet v. Bassett, 
 100 Mass. 167 ; S. v. Dayton, 77 Mo. 678; see Jopp v. Wood, 34 Beav. 88. Nor by
 
 SECT. I.] HAERAL V. HARRAL. 61 
 
 HARRAL V. HARRAL. 
 
 Court of Errors and Appeals, New Jersey. 1884. 
 
 [Reported 39 New Jersey Equity, 279.] 
 
 Depue, J.^ The domicile of the testator's parents, at the time of his 
 birth, was in Bridgeport, Connecticut. That was his domicile of origin. 
 His father died in 18G2. In 1865 the family residence in Bridgeport was 
 sold, and in 1866 his mother removed to New York with all the family, 
 except one son, who was married, and had his household in Bridgeport. 
 The mother rented a house in New York as a residence for herself and 
 the family, which they occupied until her death in December, 1867. 
 After his mother's death, the testator resided in New York City with 
 his brother, until he was appointed house-surgeon in the New York 
 Hospital, and had his residence in the hospital until he went to Europe 
 in August, 1869. 
 
 The decedent went abroad for the purpose of acquiring the German 
 language and continuing his professional studies. In 1869 he was in 
 Paris temporarily, and in the fall of that year left Paris for Germany, 
 where he remained about two years. He then went to Paris again, 
 and resided there in No. 8 Rue de la Sorbonne, known as the 
 Latin Quarter. In 1872, he became acquainted with the complain- 
 ant, who lived with him as his mistress at No. 8 Rue de la Sorbonne 
 until they were married on the 20th of February, 1877. Imme- 
 diately after their marriage they began housekeeping in a house rented 
 by him at Suresnes, a village a short distance from Paris. He had a 
 lease of the house for two years, and he and his wife continued to occupy 
 it until his return to America, in May, 1878. He seems to have been 
 attached to his wife. In May, 1877, he wrote to Mr. Wallis, announc- 
 ing his marriage, and said he was "happy and contented." The facts 
 connected with the residence of the decedent at Suresnes are fully 
 stated in the opinion of the chancellor, and need not be repeated here. 
 The chancellor, from the testimony, concluded that the decedent had 
 settled himself in France to live there, and make it his home. The 
 circumstances under which he was brought to America are also detailed 
 in the chancellor's opinion. They show no intention on the part of the 
 decedent to make any change at that time in his domicile. The evi- 
 dence is quite to the contrary. 
 
 A person sui Juris may change his domicile as often as he pleases. 
 To effect such a change, naturalization in the country he adopts as his 
 
 absence as a volunteer soldier : S. v. Judge, 13 Ala. 805 ; Brewer v. Linnaeus, 36 Me. 
 428. Nor by absence to hold public office : Dennis v. S., 17 Fla. 389 ; Walden v. 
 Canfield, 2 Rob. (La.) 466 ; Venable v. Paulding, 19 Minn. 488 ; Hannon v. Griz- 
 zard, 89 N. C. 115. But in cases of this kind the domicile will of course be changed 
 if the requisite intent exists. Doucet v. Geoghegan, 9 Ch. Div. 441 ; Mooar v. Harvej-, 
 128 Mass. 219 ; "Wood v. Fitzgerald, 3 Or. 568. — Ed. 
 
 1 Only so much of the opinion as discusses the question of domicile is given. — Eb
 
 62 HAKKAL V. HAKKAL. [CHAP. II. 
 
 domicile is not essential. He need not do all that is necessary to divest 
 himself of his original nationality. There must be a voluntarj' change 
 of residence ; the residence at the place chosen for the domicile must 
 be actual ; to the factum of residence there must be added the animus 
 manoidi ; and that place is the domicile of a person in which he has 
 voluntarily fixed his habitation, not for a mere temporary or special 
 purpose, but with a present intention of making it his home, unless or 
 until something which is uncertain or unexpected shall happen to in- 
 duce him to adopt some other permanent home. Haldane v. Eckford, 
 L. R. 8 Eq. 631 ; King v. Foxwell, L. R. 3 Ch. D. 518 ; Lord v. Col- 
 vin, 5 Jur. (N. S.) 351 ; Aikman v. Aikman, 7 Id. 1017, 1019 ; Douglas 
 V. Douglas, L. R. 12 Eq. 617, 644 ; Udny v. Udny, L. R. 1 H. L. Sc. 
 441 ; Cadwalader v. Howell, 3 Harr. 144, 145. 
 
 We think the evidence proves that the testator's domicile, arising 
 from the factum of residence and the animus manendi, was, at the 
 time of his death, b}' the jus gentium, in France. 
 
 But it is contended that, inasmuch as the decedent never obtained an 
 authorization from the French government, he was incapable, by the 
 law of that countrj', of acquiring a domicile in France, and that there- 
 fore his domicile of origin, or his domicile before he took up his resi- 
 dence in France, either revived, or, by the French law, would govern, 
 in the disposition of his personal estate if it was administered upon in 
 France. Article XIII. of the Code Napoleon is relied on to sustain 
 this contention. That article is in these words: "The foreigner who 
 shall have been admitted by the government to establish his domicile in 
 France shall enjoy in that country all civil rights so long as he shall 
 continue to reside there." 
 
 It appears from the evidence that the authorization contemplated by 
 this article of the Code is obtained by an application to the head of the 
 government, and is attended with formalities almost as solemn as those 
 required for naturalization in France. 
 
 The construction of this article was before the English courts in 
 Bremer ?'. Freeman, 10 Moore P. C. 306, and Hamilton v. Dallas, 
 L. R. 1 Ch. D. 257, and was somewhat considered in the New York 
 Court of Appeals in Dupuy v. Wurtz, 53 N. Y. 556. In Bremer v. 
 Freeman it was held that, if by thejws gentium, the decedent, who was 
 an English woman by birth, was de facto domiciled in France, the 
 authorization of the French government was not necessary to confer 
 upon her the right of testacy, and that her will, not executed in con- 
 formity with the French law, was invalid. In Hamilton v. Dallas, Vice- 
 Chancellor Bacon held that a de facto domicile, governing the suc- 
 cession of the personal estate of a decedent, might be acquired b}' a 
 foreigner resident in that countr}- who had not obtained the govern- 
 ment autliorization required by Article XIII. of the French Code, as 
 the condition for the enjoyment by a foreigner resident in that country 
 of full civil rights. The learned judge who prepared the opinion in 
 Dupuy V. Wurtz expressed a contrary opinion, but the case did not call
 
 SECT. I.] BORLAND V. BOSTON. 63 
 
 for a decision on that point. The counsel of the defendants have pro- 
 duced several decisions of the French courts which hold that, in cases 
 of intestacy, the inheritance of a foreigner domiciled de facto in France 
 will not be distributed under the French law unless he shall have ob- 
 tained the authorization required b}' Article XIII. of the Code. Pepin's 
 Case, decided in 1868 ; Melizet's Case, decided January, 1869 ; Ott's 
 Case, decided January, 1869 ; Forgo's Case, decided in 1875 ; and 
 Cuirana's Case, decided in 1881, It will be observed that all these 
 cases relate to the transmission of property by inheritance, or by testa- 
 mentary disposition. They do not touch the question in controversy 
 in this case. The complainant does not claim the property in dispute 
 by any right of succession, nor does she dispute the validity of the tes- 
 tator's will, as not being executed according to the laws of France. 
 The claim she makes to the one half of the personal property of her 
 deceased husband she founds upon the marriage in France, and the 
 incidents of the married relation, in virtue of which she claims that, by 
 the French law, she became thereby ipso facto entitled to that share in 
 his movable propert3% 
 
 The French jurists recognize a distinction between such a legal domi- 
 cile as a foreigner can acquire by fulfilling the requirements of Article 
 XIII. of the Code, and will entitle him to all the civil rights of native- 
 born Frenchmen, and a domicile, in fact, which is acquired by a resi- 
 dence without compliance with any legal formalities. The right of a 
 foreigner to contract a lawful marriage is not made to depend on the 
 observance of such forms as are necessar}' to the acquisition of citizen- 
 ship ; it is given on the sole condition of six months' residence by 
 either of the parties. Article LXXIV. of the Code provides that " the 
 marriage shall be celebrated in the commune in which the one or the 
 other of the parties shall be domiciled," and declares that " this domi- 
 cile shall be established by six months' continued habitation within 
 the same commune." These conditions were fulfilled, and the marriage 
 was lawfully celebrated under the French law.^ 
 
 BORLAND V. BOSTON. 
 Supreme Judicial Court of Massachusetts. 1882. 
 
 [Reported 1.32 Massarhnsefts, 89.] 
 
 Lord, J.^ The evidence tended to show that the plaintiff was born in 
 Boston in 1824, and had lived there until June, 1876, Avhen he sailed for 
 Europe with his family. He testified that when he left Boston he had 
 definitely formed the intention of not returning to Boston as a resi- 
 dent; that in the fall of 1876 he had decided to make Waterford, 
 
 1 Jcc. Collier v. Rivaz, 2 Curt. Eccl. 855. — Ed. 
 
 2 Part of the opinion, dealing with a different question, is omitted. — Ed.
 
 64 BORLAND V. BOSTON. [CHAP. II. 
 
 Connecticut, bis residence, and tlien formed the intention of purchas- 
 ing land there, which he bought on May 28, 1877; and that he re- 
 mained in Europe until 1879, when he returned to this country, and 
 went to Waterford. On this evidence, the judge instructed the jury, 
 " that a citizen, by the laws of this Commonwealth, must have a 
 home or domicile somewhere on the first day of May for the purpose 
 of taxation; that in order to change such home or domicile, once 
 acquired, and acquire a new one, the intention to make the change 
 and the fact must concur; that if the plaintiff, with no definite plan 
 as to the length of time he should remain abroad, and no definite pur- 
 pose about a change of domicile, went to p:urope with his family, that 
 would not effect a change of his domicile from Boston, and he would 
 remain liable to taxation there; but that if he left Boston in 1876 
 with his family to reside in Europe for an indefinite length of time, 
 with the fixed purpose never to return to Boston again as a place of 
 residence, and with the fixed purpose of making some place other than 
 Boston his residence whenever he should return to the United States, 
 and had in his mind fixed upon such place of residence before May 
 1, 1877, and remained in Europe until after that time, he was not 
 liable to this tax as an inhabitant of Boston on the first of May of 
 that year ; that whether he had done enough to make Waterford his 
 home or not, was not essential in this case, — if he had lost his home 
 in or ceased to be an inhabitant of Boston at the time, he was not 
 taxable there." 
 
 Certainly, the latter part of this instruction would be understood to 
 be in conflict with the former; for, not referring now to the words 
 used by the judge, the obvious meaning of the whole sentence is, first, 
 to instruct the jury that a man once having a home here is taxable 
 here until both the purpose to change his home and the fact of chang- 
 ing his home concur; and afterwards to instruct them that, if his in- 
 tention to make another place his home is formed after he leaves this 
 country, and before the first of May, such intention removes his lia- 
 bility to taxation, even although the fact of change does not concur 
 with the intention. Although there is this obvious inconsistency, it 
 arises partly from inherent ditllculties in the case, partly from the im- 
 possibility of stating a fixed rule which shall be applicable to all 
 cases, under the infinite variety of circumstances attending them, and 
 the various adjudications which have been made upon the subject. 
 The source of the difficulty is in the use of words of exactly, w sub- 
 stantially, or partially, the same signification, but at different times 
 used with different significations. 
 
 There are certain words which have fixed and definite significa- 
 tions. "Domicile " is one such word; and for the ordinary purposes 
 of citizenship, there arc rules of general, if not universal acceptation, 
 applicable to it. "Citizenship," "habitancy," and "residence" are 
 severally words which may in the particular case mean precisely the 
 same as "domicile," but very frequently they may have other and
 
 SECT. I.] BOELAND V. BOSTON. 65 
 
 inconsistent meanings; and while in one use of language the expres- 
 sions a change of domicile, of citizenship, of habitancy, of residence, 
 are necessarily identical or synonj-mous, in a different use of lan- 
 guage they import different ideas. The statutes of this Common- 
 wealth render liable to taxation in a particular municipality those 
 who are inhabitants of that municipality on the first day of May of 
 the year Gen. Sts. c. 11, §§ 6, 12. It becomes important, there- 
 fore, to determine who are inhabitants, and what constitutes 
 habitancy. 
 
 The only case adjudged within this Commonwealth, in which the 
 word of the statute, "inhabitant," is construed to mean something 
 else than "being domiciled in," is Briggs v. Rochester, 16 Gray, 
 337, although that decision is subsequently recognized in Colton v. 
 Longmeadow, 12 Allen, 598. In Briggs v. Rochester, Mr. Justice 
 Metcalf, in speaking of the word "inhabitant," says that it has not 
 the meaning of the word "domicile" "in its strictly technical sense, 
 and with its legal incidents." He says also that the word "domicile " 
 is not in the Constitution nor in the statutes of the Commonwealth. 
 So far as the Constitution is concerned, this is correct, but he had 
 evidently overlooked a statute of ten years before, in which the word 
 "domicile " was used, and upon the very subject of taxation, in a pro- 
 viso in these words: "Provided that nothing herein contained shall 
 exempt said person from his liability to the payment of any tax 
 legally assessed upon him in the town of his legal domicile." St. 
 1850, c. 276. Gen. Sts. c 11, § 7. This language is a strong legis- 
 lative assertion that domicile is the test of liability to taxation; and 
 in an opinion given by the justices of this court to the House of 
 Representatives in 1843, in reference to a student's right to vote in 
 the municipality in which he is residing for the purposes of educa- 
 tion, it was said, "And as liability to taxation for personal property 
 depends on domicile." 5 Met. 587, 590. 
 
 Nor do we think that the opinion in Briggs i\ Rochester gives the 
 true force as used in the Constitution of the word "inhabitant; " for 
 we cannot doubt that for the purposes of taxation the word "inhabi- 
 tant " must be used in the saijie sense as when used in reference to 
 electing and being elected to office; especially as at that time the 
 payment of a tax duly assessed was one of the qualifications of an 
 elector; and more especially as the Constitution itself professes to 
 give its definition of "inhabitant" for the purpose of removing all 
 doubt as to its meaning. Its language is, "And to remove all doubts 
 concerning the meaning of the word ' inhabitant ' in this Constitu- 
 tion, every person shall be considered as an inhabitant, for the pur- 
 pose of electing and being elected into any office, or place within this 
 State, in that town, district, or plantation, where he dwelleth, or hath 
 his home." Const. Mass. c. 1, § 2, art. 2. 
 
 Nor do we see how the construction given to the statute is consist- 
 ent with the result at which the court arrived. The learned judge 
 
 5
 
 66 BOKLAND V. BOSTON. [CHAP. II. 
 
 Bays, "In the statute on which this case depends, we are of opinion 
 that the words ' where he shall be an inhabitant on 4he first day of 
 May,' mean where he shall have his home on that day." It is there- 
 fore clear that the learned judge does not give to the word "inhabi- 
 tant " the meaning which the construction of the statute before re- 
 ferred to authorizes him to give, but he does give the exact definition 
 of the Constitution, to wit, "where he dwelleth, or hath his home;" 
 for these words have not in the Constitution two meanings, but the 
 single signification given to them by the learned judge, "his home," 
 the exact, strict, technical definition of domicile. 
 
 We cannot construe the statute to mean anything else than "being 
 domiciled in." A man need not be a resident anywhere. He must 
 have a domicile. He cannot abandon, surrender, or lose his domicile, 
 until another is acquired. A cosmopolite, or a wanderer up and 
 down the earth, has no residence, though he must have a domicile. 
 It surely was not the purpose of the Legislature to allow a man to 
 abandon his home, go into another State, and then return to this 
 Commonwealth, reside in different towns, board in different houses, 
 public or private, with no intention of making any place a place of 
 residence or home, and thus avoid taxation. Such a construction of 
 the law would create at once a large migratory population. 
 
 Although we have said that the case of Briggs v. Rochester has 
 been recognized in Colton v. Longmeadow, 12 Allen, 598, yet we 
 ought to state that the decision in Colton v. Longmeadow was placed 
 upon entirely different grounds. It was there held that the plaintiff 
 had lost his domicile in Massachusetts because he had actually left 
 the Commonwealth, and was actually i?i itiuere to his new domicile, 
 which he had left this Commonwealth for the purpose of obtaining, 
 and which in fact he did obtain. If it should be deemed sound to 
 hold that a person, who, before the first of May, with an intention in 
 good faith to leave this State as a residence and to adopt as his home 
 or domicile another place, is in good faith and with reasonable dili- 
 gence pursuing his way to that place, is not taxable here upon the 
 first of May, the doctrine should be limited strictly to cases falling 
 within these facts. And both of the cases cited, Briggs v. Rochester 
 and Colton if. Longmeadow, would fall within the rule. In each of 
 those cases, the plaintiff had determined, before starting upon his 
 removal, not only upon his i*eraoval, but upon his exact destination, 
 and in fact established himself, according to his purpose, without 
 delay, and within a reasonable time. 
 
 We think, however, that the sounder and wiser rule is to make tax- 
 ation dependent upon domicile. Perhaps the most important reason 
 for this rule is, that it makes the standard certain. Another reason 
 is, that it is according to the general views and traditions of our 
 people. 
 
 One cannot but be impressed l)y certain peculiarities in Briggs v. 
 Rochester. The bill of exceptions in that case begins thus: "It
 
 SECT. I.] BORLAND V. BOSTON. 67 
 
 was admitted by both parties and so presented to the jury, that the 
 only question at issue was the domicile of the plaintiff on the first of 
 May, 1858 ; and that if he was then an inhabitant of the defendant 
 town, the tax was rightly imposed; but that if he was not on that day 
 an inhabitant of said town, he was not then rightly taxable and taxed 
 therein." Nothing can be more clear than that all parties understood, 
 and the case was tried upon the understanding, that domicile and in- 
 habitancy meant the same thing; otherwise, domicile, instead of 
 being "the only question at issue," would not have been in issue at 
 all. And the judge in giving his opinion says that, if domicile in its 
 strictly technical sense, and with its legal incidents, was the control- 
 ling fact, the plaintiff was rightly taxed in Rochester. 
 
 Another noticeable fact in Briggs v. Rochester is this, that if the 
 tax-payer in the pursuit of his purpose is beyond the line of the State 
 before the first of May, he is not liable to taxation in the State ; but 
 if by detention he does not cross the line of the State till the first of 
 May, he is taxable here. We cannot adopt a rule which shall make 
 liability to taxation depend upon proximity to a State line. 
 
 We have said that we prefer the test of domicile, because of its cer- 
 tainty and because of its conformity to the views and traditions of 
 our people, and, we may add, more in accordance with the various 
 adjudications upon the subject in this State, and more in accord with 
 the general legal and judicial current of thought. It is true, that, 
 as said by Mr. Justice Metcalf, "it has repeatedly been said by this 
 and other courts, that the terms 'domicile,' 'inhabitancy,' and 
 'residence 'have not precisely the same meaning." But it will be 
 found upon examination that these three words are often used as sub- 
 stantially signifying the same thing. 
 
 In one of the earliest cases, Harvard College v. Gore, 5 Pick. 370, 
 377, Chief Justice Parker, in defining the word "inhabitant" as 
 used in the laws, defined it as one which imported not only domicile, 
 but something more than domicile. "It imports citizenship and 
 municipal relations, whereas a man may have a domicile in a country 
 to which he is an alien, and where he has no political relations. • • • 
 An inhabitant, by our Constitution and laws, is one who being a 
 citizen dwells or has his home in some particular town, where he has 
 municipal rights and duties, and is subject to particular burdens; 
 and this habitancy may exist or continue notwithstanding an actual 
 residence in another town or another country." There are other 
 passages in the same opinion which, although used alio intuitu, yet 
 clearly indicate the current of judicial thought; for example, "The 
 term ' inhabitant ' imports many privileges and duties which aliens 
 cannot enjoy or be subject to," p. 373; "does not fix his domicile or 
 habitancy," p. 372; "a pretended change of domicile to avoid his 
 taxes," p. 378. There are other similar expressions running through 
 the whole opinion. 
 
 In Lyman v. Fiske, 17 Pick. 231, the views of Chief Justice Parker
 
 68 BOilLAND V. BOSTON. [CHAP. II. 
 
 in Harvard College v. Gore were considered by Chief Justice Shaw; 
 and although expressing no dissent from the views of Chief Justice 
 Parker, it is evident that in his apprehension the word "inhabitant" 
 as used in the Constitution imported one domiciled, and he did not 
 deem it important to consider whether it imported anything else in 
 relation to political rights, duties, and liabilities than the word "domi- 
 ciled" would import. But as the views of that magistrate are never 
 to be slightly regarded, and as he gave the opinion in both the cases 
 decided by this court, cited by Mr. Justice Metcalf as settling that 
 the words "domicile," "habitancy," and "residence" have not pre- 
 cisely the same meaning, we cite from his opinion to show what his 
 views were of "domicile" and "habitancy." "In some respects, per- 
 haps, there is a distinction between habitancy and domicile, as 
 pointed out in the case of Harvard College v. Gore, 5 Pick. 377, the 
 former being held to include citizenship anc^ municipal relations. 
 But this distinction is believed to be of no importance in the present 
 case; because all the facts and circumstances which would tend to 
 fix the domicile would alike tend to establish the habitancy. It is 
 ditBcult to give an exact definition of ' habitancy.' In general terms, 
 one may be designated as an inhabitant of that place which consti- 
 tutes the principal seat of his residence, of his business, pursuits, con- 
 nections, attachments, and of his political and municipal relations. 
 It is manifest, therefore, that it embraces the fact of residence at a 
 place, with the intent to regard it and make it his home. The act 
 and intent must concur, and the intent may be inferred from declar- 
 ations and conduct." 
 
 It is entirely clear that in his opinion, so far as relates to municipal 
 rights, privileges, and duties, there is substantially no distinction 
 between "domicile" and "habitancy." And, as further illustrating 
 the views of that magistrate and the general sentiment of our people 
 as to the use of such language in legislative enactments, we cite his 
 language in Abington v. North Bridgewater, 23 Pick. 170, 176: "In 
 the several provincial statutes of 1692, 1701, and 1767, upon this sub- 
 ject, the terms ' coming to sojourn or dwell,' ' being an inhabitant,' 
 'residing and continuing one's residence,' 'coming to reside and 
 dwell,' are frequently and variousl}' used, and, we think, they are 
 used indiscriminately, and all mean the same thing, namely, to desig- 
 nate the place of a person's domicile. This is defined in the Consti- 
 tution, c. 1, § 2, for another purpose, to be the place ' where one 
 dwelleth, or hath his home.' " 
 
 Authorities could be multiplied almost indefinitely in which it has 
 been held by this court that, so far as it relates to municipal rights, 
 privileges, powers or duties, the word " inhabitant" is, with the excep- 
 tions before referred to, universally used as signifying precisely the 
 same as one domiciled. See Thorndike v. Boston, 1 Met. 242, 245; 
 Sears v. Boston, 1 Met. 250, 252; Blanchard v. Stearns, 5 Met. 298, 
 304; Otis v. Boston, 12 Cush. 44, 49; Bulkley v. Williamstown, 3 
 Gray, 493, 494.
 
 SECT. I.J BOKLAND V. BOSTON. 69 
 
 As illustrative, however, of the fact that domicile and habitancy 
 are, for the ordinary purposes of citizenship, such as voting, liability 
 to taxation and the like, identical, and that when they are susceptible 
 of different meanings they are used alio intuitu, we cite the language 
 of Chief Justice Shaw in Otis v. Boston, 12 Cush. 44, 49: "Perhaps 
 this question has heretofore been somewhat complicated, by going 
 into the niceties and peculiarities of the law of domicile, taken in all 
 its aspects ; and there probably may be cases where the law of domi- 
 cile, connected with the subject of allegiance, and affecting one's 
 national charactei*, in regard to amity, hostility, and neutrality, is 
 not applicable to this subject. But as a man is properly said to be 
 an inhabitant where he dwelleth and hath his home, and is declared 
 to be so by the Constitution, for the purpose of voting and being 
 voted for; and as one dwelleth and hath his home, as the name im- 
 ports, where he has his domicile, most of the rules of the law of domi- 
 cile apply to the question, where one is an inhabitant." 
 
 A very strong case of retention of domicile, while in itinere to a 
 new one which is subsequently reached, is Shaw v. Shaw, 98 Mass. 
 158, in which the court say that the rule of Col ton v. Longmeadow, 
 which merely followed Briggs u. Rochester, "is such an exception to 
 the ordinary rule of construction as ought not to be extended." 
 
 Upon the whole, therefore, we can have no doubt that the word 
 "inhabitant" as used in our statutes when referring to liability to 
 taxation, by an overwhelming preponderance of authority, means 
 "one domiciled." While there must be inherent difficulties in the 
 decisiveness of proofs of domicile, the test itself is a certain one; 
 and inasmuch as every person by universal accord must have a domi- 
 cile, either of birth or acquired, and can have but one, in the present 
 state of society it would seem that not only would less wrong be 
 done, but less inconvenience would be experienced, by making domi- 
 cile the test of liability to taxation, than by the attempt to fix some 
 other necessarily mo!-e doubtful criterion. 
 
 Whether the cases of Briggs v. Rochester and Coltou v. Long- 
 meadow should be followed in cases presenting precisely similar 
 circumstances, the case at bar does not require us to decide ; and we 
 reserve further expression of opinion on that question until it shall 
 become necessary for actual adjudication. If they are to be deemed 
 authority, they should certainly be limited to the exact facts, where 
 a person before leaving this Commonwealth has fixed upon a place 
 certain as his future home, and has determined to abandon this Com- 
 monwealth for the purpose of settling in his new home, and is, upon 
 the first of May, without the Commonwealth, in good faith and with 
 reasonable despatch actually upon his way to his new home. The 
 plaintiff does not bring himself within this rule; for although he 
 might have left the Commonwealth with the fixed purpose to abandon 
 it as a residence, he did not leave it on his way to a place certain 
 which he had determined upon as his future residence, and was pro
 
 70 YOUNG V. POLLAK. [CHAP. II. 
 
 ceeding to with due despatch ; and, upon the general rule that, having 
 had a domicile in this Commonwealth, he remains an inhabitant for 
 the purpose of taxation until he has acquired a new domicile, the 
 intention and fact had not concurred at the time when this tax was 
 assessed. The instructions of the presiding judge, therefore, inas- 
 much as they were not based upon the rules here laid down, were not 
 accurately fitted to the facts of the case, and the 
 
 Exceptions must be sustained.'* 
 
 YOUNG V. POLLAK. 
 Supreme Court of Alabama. 1888. 
 
 [Reported 85 Alabama, 439.] 
 
 The plaintiffs were merchants in the city of Montgomery, suing on 
 common counts for goods sold and delivered to Mrs. Effie Young, the 
 defendant, who was a married woman. The defendant pleaded the 
 general issue, and a special plea averring her coverture ; the plaintiffs 
 replied, alleging that her husband had abandoned her, and had 
 removed from the State, and thereafter the defendant carried on 
 business on her own account and in her own name, as if sole and 
 unmarried.^ 
 
 Stone, C. J. The fourth charge given at the request of plain- 
 tiffs in each of these cases is in the following language: " If Vi^. L. 
 Young, husband of defendant, removed into the State of Alabama as 
 a place of refuge, or to escape arrest in the State of Georgia, and that 
 was his sole purpose, this would not give him a domicile in Alabama." 
 Change of domicile consists of an act done, with an intent. The act 
 is an actual change of residence. The intent, to effect the change, 
 must be to acquire a new domicile, either jiermanent in purpose, or of 
 indefinite duration. A temporary habitation, without intent to make 
 it a permanent home, or one of indefinite duration, is not a change of 
 domicile. Merrill v. Morrisset, 7G Ala. 433 ; 5 Amer. & Eng. Encyc. 
 of Law, 863. 
 
 The charge copied hinges the question of Young's change of domicile 
 on the purpose with which he moved from Georgia to Alabama. Men 
 change their domiciles with very varying purposes or motives. The 
 desire to live in a healthier region, to have better social or educa- 
 tional advantages, to enjoy better church privileges, tQ_Jb£ _ near one's 
 4;elatives, to live in a new and growing country', and sometimes to be 
 
 1 Ace. Pfoutz V. Coniford, 36 Pa. 420. N:/ change of domicile takes place while 
 one is in itincre to a new doniieile : Lamar v. Mahon y, Dudley, 92 ; Littletield v. Brooks, 
 50 Me. 47ri ; Bulkley t;. Willinmstown, 3 Gray, 493 ;'shaw v. Shaw, 98 Mass. 158. — Ed. 
 
 * This statement, containing all the facts necessary to understand tlie question of 
 domicile raised, is substituted for the statement of the reporter. Part of the opiuioa 
 is omitted. — En.
 
 SECT. L] DITSON V. DITSON. 71 
 
 relieved of disagreeable surroundings, — these and many more may be 
 classed among the purposes — sole purposes, if you please — with which 
 men change their residence. Yet, if the change be in fact made with 
 the intent to acquire a new residence, either permanent or of indefinite 
 duration, this is a change of domicile. The intent that the new hab- 
 itation shall, or shall not be, permanent, or of indefinite duration, and 
 not the purpose in making the change, is the pivot on which the inquiry 
 turns. The cit}' court erred in giving this charge. 
 
 The second charge at the instance of plaintiffs in each of these cases 
 needs modification. If Young, under the rules declared above, be- 
 came a resident of Alabama, then his return to Georgia under arrest, 
 or involuntary confinement there, are, of themselves, no evidence of a 
 change of domicile.^ 
 
 DITSON V. DITSON. 
 Supreme Court of Rhode Island. 1856. 
 
 [Reported 4 Rhode Island, 87 ] 
 
 Ames, C. J.^ Although, as a general doctrine, the domicile of the 
 husband is, by law, that of the wife, yet, when he commits an offence, 
 or is guilty of such dereliction of duty in the relation as entitles her to 
 have it either partially or totally dissolved, she not only ma}^, but must, 
 to avoid condonation, establish a separate domicile of her own. This 
 she may establish, nay, when deserted or compelled to leave her hus- 
 band, necessity frequently compels her to establish, in a different judi- 
 cial or State jurisdiction than that of her husband, according to the 
 residence of her family or friends. Under such circumstances she gains, 
 and is eniitled to gain, for the purposes of jurisdiction, a domicile of 
 her own ; and especially if a native of the State to which she flies for 
 refuge, is, upon familiar principles, readily redintegrated in her old 
 domicile. This is the well-settled doctrine of law upon the subject 
 (Bishop on Marriage and Divorce, §§ 728-730 inch and cases cited), 
 and has b}' no court been more ably vindicated than bj' the Supreme 
 Court of Massachusetts. Harteau v. Harteau, 14 Pick. 181, 186. 
 
 A more proper case for the application in favor of a petitioner for 
 divorce of the foregoing principles relating to the jurisdiction of the 
 
 ^ One confined in prison does not become domiciled in the prison. Grant v. Dalliber, 
 11 Conn. 234 ; Barton v. Barton, 74 Ga. 761. So one forcibly removed from his home 
 by military authorities does not lose his domicile. Hardy v. De Leon, 5 Tex. 211. 
 
 Paupers in a poorhouse do not acquire a domicile there. Clark v. Kobinson, 88 111. 
 498. Contra, Sturgeon v. Korte, 34 Ohio St. 525. 
 
 Political refugees do not ordinarily relinquish their domicile. De Bonneval v. 
 De Bonneval, 1 Curt. Eccl. 856 ; Ennis v. Smith, 14 How. 400 (scmhlc) ; but see S. v, 
 De Casinova, 1 Tex. 401. —Ed. 
 
 2 Part of the opinion only, involving the question of domicile, is given. — Ed,
 
 72 DITSON V. DITSON. [CHAP. IL 
 
 court over her case, and to the question of her domicile in this State, 
 can hardly be imagined, than the case at bar. The petitioner is the 
 daughter of a native of this State, who, though formerly resident in 
 Boston, has for many years past been domiciled in his native place. 
 Little Corapton. Whilst at school, the petitioner became acquainted 
 with an Englishman of the name of Ditson, and, in 1842, married him, 
 without the knowledge or consent of her parents, in New York. Im- 
 mediately after marriage the couple went to Europe, and from thence 
 to Cuba, where they lived together several years. Upon their return 
 to this country, she being in a feeble and emaciated condition, he de- 
 serted her for the first time in Boston, and was absent in Europe, with- 
 out leaving any provision for her, for about two years. Upon his 
 return, they appear to have lived together again ; he, however, giving 
 every indication of a morose as well as inattentive husband. After a 
 short time, he deserted her again in Boston, declaring, upon his leaving 
 it for Europe, that he cared nothing about it, or any person in it, point- 
 ing, as the testimony is put to us, to his unfortunate wife. He has 
 been absent from her now between three and four years, without com- 
 municating with her, or providing, though of sufficient ability, anything 
 for her support, nor does she know where he is, except that he has gone 
 to Europe. In the mean time, deserted as she was, she was obliged to 
 return to her father's house in Little Compton ; where, during this time, 
 supported by him or by her own exertions, she has resided, with the 
 excei)tion of about three months passed by her in Newport, Rhode 
 Island. For this desertion and neglect to provide for her, the proof, 
 ex parte it is true, but coming from respectable sources, finds no excuse 
 in her conduct, which, according to it, has always, so far as known, 
 been that of a dutiful and faithful wife. . . . Whatever was the former 
 domicile of the petitioner, we are satisfied that she is, and has, for up- 
 wards of the last three years, been a domiciled citizen of Rhode Island, 
 — her only home, in the house of her father.^ 
 
 1 "The law will recognize a wife, as having a separate existence, and separate inter- 
 ests, and separate rights, in those cases where the express object of all proceedings is to 
 show that the relation itself ought to be dissolved, or so modified as to establish sepa- 
 rate interests, and especially a separate domicile and home, bed and board being put, a 
 part for the whole, as expressive of the idea of koine. Otherwise, the parties in this 
 respect would stand upon very unequal grounds, it being in the power of the husband 
 to change his domicile at will, but not in that of the wife. The husband might deprive 
 the wife of the means of enforcing her rights, and in'etfect of the rights themselves, 
 and of the protection of the laws of the Commonwealth, at the same time that his own 
 misconduct gives her a right to be rescued from his power on account of his own mis- 
 conduct towards her." Shaw, C. J., in Plarteau v. Harteau, 14 Pick. 181. "She 
 may acfiuire a separate domicile whenever it is necessary or proper that she should do 
 so. The right springs from the necessity for its exercise, and endures as long as the 
 necessity continues." Swayne, J., in Cheever i;. Wilson, 9 Wall. 108. Jcc. Hanbury 
 V. Hanbury, 20 Ala. 629 ; Chapman v. Chapman, 129 111. 386 ; Hunt v. Hunt, 72 N. Y- 
 217. Contra, Yelverton v. Yelverton, 1 Sw. & Tr. 574 ; Maguire v. Maguire, 7 Dana, 
 181 ; and see Hinds v. Hinds, 1 la. 36. In some jurisdictions it is held that if a wife 
 is living apart from her husband for cause, she must, for purposes of divorce, have a
 
 SECT. I.J LAMAR V. MICOU. 73 
 
 LAMAR V. MICOU. 
 
 Supreme Court of the United States. 1884. 
 
 [Reported 112 United States, 452.] 
 
 This is an appeal by the executor of a guardian (Lamar) from a 
 decree of ttie Circuit Court of tlie United States for the Southern Dis- 
 trict of New York, in favor of the plaintiff, the administratrix of his 
 ward. The bill prayed for an account of the ward's estate. The 
 guardian alleged that the property had been lost through unfortunate 
 investments ; and the question was whether the law which governed 
 the duties of the guardian permitted such investments.^ 
 
 Gray, J. An infant cannot change his own domicile. As infants 
 have the domicile of their father, he may change their domicile by 
 changing his own ; and after his death the mother, while she remains a 
 widow, may likewise, by changing her domicile, change the domicile 
 of the infants ; the domicile of the children, in either case, following 
 the independent domicile of their parent. l\ennedy v. Ryall, 67 N. Y. 
 379 ; Potinger v. Wightman, 3 Meriv. 67 ; l3edham v. Natick, 16 Mass. 
 135 ; Dicey on Domicile, 97-99. But when the widow, by marrying 
 again, acquires the domicile of a second husband, she does not, by 
 taking her children by the first husband to live with her there, make 
 the domicile which she derives from her second husband their domicile ; 
 and they retain the domicile which they had, before her second mar- 
 riage, acquired from her or from their father. Cumner v. Milton, 3 
 Salk. 259 ; s. c. Holt, 578 ; Freetown v. Taunton, 16 Mass. 52 ; School 
 Directors v. James, 2 "Watts «St Sergeant, 568 ; Johnson v. Copeland, 
 35 Alabama, 521 ; Brown v. Lynch, 2 Bradford, 214 ; Mears v. Sinclair, 
 1 West Virginia, 185 ; Pothier's Introduction Generale aux Coutumes, 
 No. 19 ; 1 Burge Colonial and Foreign Law, 39 ; 4 Phillimore Inter- 
 national Law (2d ed.) § 97. 
 
 The preference due to the law of the ward's domicile, and the im- 
 portance of a uniform administration of his whole estate, require that, 
 as a general rule, the management and investment of his property 
 
 separate domicile, and cannot claim that of her husband. "White v. White, 18 R. I. 
 292, 27 Atl. 506 ; Dutcher v. Butcher, 39 Wis. 651. 
 
 For all purposes except that of bringing suit for divorce, the wife's domicile is that 
 of her husband, even if she is living apart from him. Warrender v. Warrender, 9 Bligh, 
 103 ; Dolphin v. Kobbins, 7 H. L. C. 390 ; Christie's Succession, 2t) La. Ann. 383 ; 
 Greene v. Windham, 13 Me. 225 ; Greene v. Greene, 11 Pick. 410 ; Hackettstown Bank 
 V. Mitchell, 28 N. J. L. 516. Contra, Shute v. Sargent, 67 N. H. 305, infra, p. 211. 
 If divorced from bed and board, however, the wife may and must have a separate domi- 
 cile. Williams v. Dormer, 16 Jur. 366 ; Barbour v. Barbour, 21 How. 582. — Ed. 
 
 1 This short statement of facts, presenting such facts as (in addition to those stated 
 in the extract printed) are necessary for understanding so much of the case as is 
 printed, is substituted for the statement by Mr, Justice Gray. Part of the opinion is 
 omitted. — Ed-
 
 74 LAMAR V. MICOD. [CHAP. II 
 
 should be governed by the law of the State of his domicile, especially 
 when he actually resides there, rather than by the law of any State in 
 which a guardian may have been appointed or may have received some 
 [iroperty of the ward. If the duties of the guardian were to be exclu- 
 hivelv regulated by the law of the State of his appointment, it would 
 follow that in any case in which the temporary residence of the ward 
 was changed from State to State, from considerations of health, educa- 
 tion, pleasure, or convenience, and guardians were appointed in each 
 State, the guardians appointed in the different States, even if the 
 same persons, might be held to diverse rules of accounting for different 
 parts of the ward's property. The form of accounting, so far as con- 
 cerns 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 investment of the ward's 
 property is the law of the place of the domicile of the ward. Bar, In- 
 ternational Law, § 106 (Gillespie's translation), 438 ; Wharton, Con- 
 flict of Laws, § 259. 
 
 It may be suggested that this would enable the guardian, by chang- 
 ing the domicile of his wai^, to choose for hiinself the law by which he 
 should account. Not so. VThe father, and after his death the widowed 
 mother, being the natural guardian, and the person from whom the 
 ward derives his domicile, may change that domicile. ' But the ward 
 does not derive a domicile from any other than a natural guardian.^ A 
 testamentary guardian nominated by the father may have the same 
 control of the ward's domicile that the father had. Wood v. Wood, 5 
 Paige, 596, 605. And any guardian, appointed in the State of the 
 domicile of the ward, has been generally held to have the power of 
 changing the ward's domicile from one county to another within the 
 same State and under the same law. Cutts v. Haskins, 9 Mass. 543 ; 
 Ilolyoke v. Haskins, 5 Pick. 20 ; Kirkland y. Whately, 4 Allen, 462 ; 
 Anderson v. Anderson, 42 Vermont, 350 ; Ex parte Bartlett, 4 Brad- 
 ford, 221 ; The Queen v. Whitby, L. R. 5 Q. B. 325, 331. tBut it is 
 ver}' doubtful, to sa}^ the least, whether even a guardian appointed in 
 the State of the domicile of the ward (not being the natural guardian 
 or a testaraentar}' guardian) can remove the ward's domicile be3-ond 
 the limits of the State in which the guardian is appointed and to which 
 his legal authority is confined. \ Douglas v. Douglas, L. R. 12 Eq. 617, 
 625 ; Daniel v. Hill, 52 Alabama, 430 ; Story, Conflict of Laws, § 506, 
 note ; Dicey on Domicile, 100, 132. And it is quite clear that a guard- 
 ian appointed in a State in which the ward is temporarily residing can- 
 not change the ward's permanent domicile from one State to another. 
 
 The case of such a guardian diff'ers from that of an executor of, or 
 a trustee 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 property 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 domicile of the testator ; the guardian is most fitly
 
 SECT. I.] LAMAR V. MICOU. 75 
 
 appointed at the domicile of the ward, and may be appointed in any 
 State in which the person or any property' 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 domicile of the testator ; in the other 
 case, it is the law of the domicile of the ward. 
 
 As the law of the domicile of the ward has no extraterritorial effect, 
 except by the comity of the State where the property is situated, or 
 where the guardian is appointed, it cannot of course prevail against a 
 statute of the State in which the question is presented for adjudication, 
 expressly applicable to the estate of a ward domiciled elsewhere. 
 Hoyt V. Sprague, 103 U. S. 613. Cases ma}' also arise with facts so 
 peculiar or so complicated as to modify the degree of influence that the 
 court in which the guardian is called to account ma}" allow to the law 
 of the domicile of the ward, consistently with doing justice to the par- 
 ties before it. And a guardian, who had in good faith conformed to 
 the law of the State in which he was appointed, might perhaps be ex- 
 cused for not having complied with stricter rules prevaiUng at the 
 domicile of the ward. But in a case in which the domicile of the ward 
 has always been in a State whose law leaves much to the discretion of 
 the guardian in the matter of investments, and he has faithfully and 
 prudently exercised that discretion with a view to the pecuniary inter- 
 ests of the ward, it would be inconsistent with the principles of equity 
 to charge him with the amount of the moneys invested, merely because 
 he has not complied with the more rigid rules adopted by the courts of 
 the State in which he was appointed. 
 
 The domicile of William W. Sims during his life and at the time of 
 his death in 1850 was in Georgia. This domicile continued to be the 
 domicile of his widow and of their infant children until they acquired 
 new ones. In 1853, the widow, by marrying the Rev. Mr. Abercrom- 
 bie, acquired his domicile. But she did not, by taking the infants to 
 the home, at first in New York and afterwards in Connecticut, of her 
 new husband, who was of no kin to the children, was under no legal 
 obligation to support them, and was in fact paid for their board out of 
 their property, make his domicile, or the domicile derived by her from 
 him, the domicile of the children of the first husband. Immediately 
 upon her death in Connecticut, in 1859, these children, both under ten 
 years of age, were taken back to Georgia to the house of their father's 
 mother and unmarried sister, their own nearest surviving relatives; 
 and they continued to live with their grandmother and aunt in Georgia 
 until the marriage of the aunt in January, 1860, to Mr. Micou, a cit- 
 izen of Alabama, after which the grandmother and the children resided 
 with Mr. and Mrs. Micou at their domicile in that State. 
 
 Upon these facts, the domicile of the children was always in Georgia 
 from their birth until Januar}', 1860, and thenceforth was either in 
 Georgia or in Alabama. As the rules of investment prevailing before 
 1863 in Georgia and in Alabama did not substantially differ, the ques- 
 tion in which of those two States their domicile was is immaterial to
 
 76 LAMAR V. MICOU. [CHAP. II. 
 
 the decision of this case ; and it is therefore unnecessary to consider 
 whether their grandmother was their natural guardian, and as such 
 had the power to change their domicile from one State to another. 
 See Hargrave's note 66 to Co. Lit. 88 b ; Reeve, Domestic Relations, 
 315; 2 Kent, Com. 219; Code of Georgia of 1861, §§ 1754, 2452; 
 Darden v. Wyatt, 15 Georgia, 414. 
 
 Whether the domicile of Lamar in December, 1855, when he was 
 appointed in New York guardian of the infants, was in New York or 
 in Georgia, does not distinctly appear, and is not material ; because, 
 for the reasons already stated, wherever his domicile was^Jiis duties as 
 guardian in the management and investment of the property of his 
 wards were to be regulated by the law of their domicile. \ 
 
 On petition for re-hearing. Gray, J., said (114 U. S. 218) : If the 
 domicile of the father was in Florida at the time of his death in 1850, 
 then, according to the principles stated in the former opinion, the dom- 
 icile of his children continued to be in that State until the death of 
 their mother in Connecticut in 1859. In that view of the case, the 
 question would be whether the}' afterwards acquired a domicile in 
 Georgia by taking up their residence there with their paternal grand- 
 mother. Altliough some books speak only of the father, or, in the 
 case of his death, the mother, as guardian by nature (1 Bl. Com. 461 ; 
 2 Kent, Com. 219), it is clear that the grandfather or grandmother, when 
 the next of kin, is such a guardian. ■ Hargrave, note 66, to Co. Lit. 
 88 b ; Reeve, Dom. Rel. 315. See also, Darden v. Wyatt, 15 Ga. 414. 
 In the present case, the infants, when their mother died and thev went 
 to the home of their paternal grandmother, were under ten years of 
 age ; the grandmother, who appears to have been their only surviving 
 grandparent and tlieir next of kin, and whose only living child, an un- 
 married daughter, resided with her, was the head of the famih" ; and 
 upon the facts agreed it is evident that the removal of the infants after 
 the death of both parents to the home of their grandmother in Georgia 
 was with Lamar's consent. Under these circumstances, there can be 
 no doubt that by taking up their residence with her, the}' acquired her 
 domicile in that State in 1859, if their domicile was not already there.^ 
 
 ^ The domicile of an infant follows tliat of his father: Metcalf v. Lowther, 56 Ala. 
 312 ; Kennedy v. Ryall, 67 N. Y. 379 ; and so long as the infant is not emancipated 
 ho can obtain no other domicile, though living away from his father's home : Wheeler 
 I'. Burrow, 18 Ind. 14 ; even if he has run away from home : Bangor v. Readfield, 32 
 Me. 60 ; or has been bound out to service by the public authorities : Oldtown v. Fal- 
 mouth, 40 Me. 106. 
 
 Upon the death of the fatlier, the mother's domicile ordinarily becomes that of the 
 minor, and if she buingsujjuns changes her domicile that of the child follows ; subject 
 perhaps to the condition that the change be made bona Jide, and not for the purpose of 
 securing an advantage at the expense of the child or the child's estate. Potinger v. 
 Wiglitman, 3 Mer. 67; Brown v. Lynch, 2 Bradf. 214 ; School Directors v. James, 2 
 W. & S. 568. A posthumous child, therefore, takes the domicile of the mother at its 
 birth : Watson v. Bondurant, 30 La. Ann. 1303 {semhle). I-f, however, the mother 
 marries again, since she is no longer sui juris, she cannot affect the domicile of the 
 minor : School Directors v. James, 2 W. & S. 568 ; Allen v. Thomason, 11 Humph.
 
 SECT. I.] SHUTE V. SAEGENT. 77 
 
 SHUTE V. SARGENT. 
 Supreme Court of New Hampshire. 1892. 
 
 [Reported 67 New Havipshire, 305.] 
 
 Blodgett, J.^ The maxim that the domicile of the wife follows that 
 of her husband " results from the general principle that a person who is 
 under the power and authority of another possesses no right to choose 
 a domicile.'" Story, Confl. Laws, s. 46. ''By marriage, husband and 
 wife become one person in law, — that is, the very being or legal exist- 
 ence of the wife is suspended during the marriage, or at least is incor- 
 porated and consolidated into that of the husband, under whose wing, 
 protection, and cover she performs everything." 1 Bl. Com. 442. Such 
 being the common-law status of the wife, her domicile necessarily fol- 
 
 536 {contra, Succession of Lewis, 10 La. Ann. 789 ; and see Wheeler v. Hollis, 19 Tex. 
 522) ; and therefore if the mother remarries before the birth of the posthumous child, 
 the child takes the domicile of its mother before the second marriage : Oxford v. 
 Bethany, 19 Conn. 229. 
 
 An infant does not get the domicile of an appointed guardian ex officio if the infant 
 actually lives elsewhere. Louisville v. Sherley, 80 Ky. 71 ; School Directors v. James, 
 2 W. & S. 568 ; Petigrn v. Ferguson, 6 Rich. Eq. 378. The guardian may, however, 
 change the infant's domicile by changing the actual home of the infant within the 
 State. Kirkland v. Whately, 4 All. 462 ; contra, Marheineke v. Grothaus, 72 Mo. 
 204. He cannot, however, change the ward's domicile outside the State, since his 
 authority over the ward's person ceases at the State line. Douglas v. Douglas, L. R. 
 12 Eq. 617, 625 ; Robins v. Weeks, 5 Mart. N. s. 379 ; Traramell v. Trammell, 20 Tex. 
 406 ; but see Wood v. Wood, 5 Paige, 596, 605; Wheeler v. Hollis, 19 Tex. 522. A 
 fortiori such a change cannot be made without the guardian's consent. Hiestand v. 
 Kuns, 8 Blackf. 345 ; Munday v. Baldwin, 79 Ky. 121. 
 
 An emancipated minor may acquire a new domicile by his own will : Lubec v. East- 
 port, 3 Me. 220 ; and such minor no longer shares a new domicile acquired by the 
 father : Lowell v. Newport, 66 Me. 78 ; or by the mother, after the father's death : 
 Dennysville v. Trescott, 30 Me. 470 ; Charlestown v. Boston, 13 Mass. 469. After 
 emancipation the father cannot change the child's domicile. In re Yance, 92 Cal. 195, 
 28 Pac. 229. 
 
 In Georgia, where a guardian has no right to restrain the person of a ward twenty 
 years old, such a ward may acquire a domicile by his own choice. Roberts v. Walker, 
 
 18 Ga. 5. 
 
 An apprentice takes the domicile of his master. Maddox v. S., 32 Ind. 111. 
 
 An insane person, though under guardianship, may yet change his domicile if he in 
 fact retains sufficient power of will. Culver's Appeal, 48 Conn. 165; Concord v. 
 Rumney, 45 N. H. 423; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13. A person non 
 compos from birth, continuing to live in his father's family after reaching his major- 
 ity, follows his father's domicile. Sharpe v. Crispin, L. R. 1 P. & D. 611 ; Monroe i;. 
 Jackson, 55 Me. 55 ; Upton v. Northbridge, 15 Mass. 237. If such a jierson has an 
 appointed guardian, the latter may change the domicile of the ward into his own fam- 
 ily by making him an inmate of it : Holyoke v. Haskins, 5 Pick. 20 ; Jackson v. Polk, 
 
 19 Ohio S. 28 : or even, it has been held, to a new independent home : Anderson v 
 Anderson, 42 Vt. 350. It has been held that if one non compos becomes emancipated 
 by the death of his parents and the failure of appointment of a guardian, he may gain 
 a residence where he actually lives. Gardiner v. Farmington, 45 Me. 537. — Ed. 
 
 1 The opinion onlv is given : it sufficiently states the case. — Ed.
 
 78 SHUTE V. SARGENT. [CHAP. IL 
 
 lowed her husband's, and the maxim applied without limitation or 
 qualification. 
 
 But the common-law theory of marriage has largely ceased to obtain 
 everywhere, and especially in this State, where the law has long recog- 
 nized the wife as having a separate existence, separate rights, and 
 separate interests. In respect to the duties and obligations which arise 
 from the contract of marriage and constitute its object, husband and 
 wife are still, and must continue to be, a legal unit ; but so completely 
 has the ancient unity become dissevered, and the theory of the wife's 
 servitude superseded by the theory of equality which has been estab- 
 lished by the legislation and adjudications of the last half century, that 
 she now stands, almost without an exception, upon an equality with 
 the husband as to property, torts, contracts, and civil rights. Pub. Sts., 
 c. 176 ; ib., c. 90, s. 9 ; Seaver v. Adams, 66 N. H. 142, 143, and au- 
 thorities cited. And since the law puts her upon an equality, so that 
 he now has no more power and authority over her than she has over 
 him, no reason would seem to remain why she may not acquire a sepa- 
 rate domicile for every purpose known to the law. (if, however, there 
 are exceptional cases when for certain purposes it might properly be 
 held otherwise, there can be in this jurisdiction no reason for hglding 
 that when the husband has forfeited his marital rights by his misbe- 
 havior, the wife may not acquire a separate domicile, and exercise the 
 appertaining rights and duties of citizenship with which married women 
 have become invested. ^ To hold otherwise would not only break the 
 line of consistency and progress which has been steadily advanced until 
 the ancient legal distinctions between the sexes, which were adapted to 
 a condition that has ceased to exist and can never return, have been 
 largely swept away, but it would also be subversive of the statutory 
 right of voting and being elected to office in educational matters which 
 wives now possess (Pub. Sts., c. 90, ss. 9, 14), inasmuch as it would 
 compel the innocent wife to reside and make her home in whatever 
 voting precinct the offending husband might choose to fix his domicile, 
 or to suffer the deprivation of the elective franchise ; and if he should 
 remove his domicile to another State, and she should remain here, the 
 exercise of all her rights dependent upon domicile would be similarly 
 affected. 
 
 Tiiis cannot be the law. On the contrary, the good sense of the 
 thing is, that a wife cannot be divested of the right of suffrage, or be 
 deprived of any civil or legal right, by the act of her husband ; and so 
 we take the law to be. Whenever it is necessary or proper for her to 
 acquire a separate domicile, she may do so. This is the rule for the 
 purposes of divorce (Payson v. Payson, 34 N. H. 518; Cheever v. 
 Wilson, 9 Wall. 108, 124; Ditson v. Ditson, 4 R.I. 87, 107; Harding 
 V. Alden, 9 Greenl. 140), and it is the true rule for all purposes. 
 
 Upon these views, the testatrix was domiciled in this State at the 
 time of her decease, and, as the consequence, distribution of her estate 
 ie to be made accordingly. Goodall v. Marshall, 11 N. H. 88; Vande-
 
 SECT. I.] BERGXER & ENGEL BREWING CO. V. DREYFUS. T9 
 
 walker v. Rollins, 63 N. II. 460, 463, 464. The rights of her husband 
 therein are not affected by his written assent to the will. The Massa- 
 chusetts statute, making such assent binding, has no extraterritorial 
 force, and there is no principle upon which it can be given effect in this 
 jurisdiction without violating the positive enactments of our statute 
 relative to the husband's distributive share in his deceased wife's estate. 
 Pub. Sts., c. 195, ss. 12, 13. This cannot be done. If the result shall 
 be to give to this husband a benefit which the testatrix did not intend 
 he should receive, and which in justice he ought not to have, it is to be 
 regretted ; but hard cases cannot be permitted to make bad equity any 
 more than bad law. Case discharged^ 
 
 BERGNER & ENGEL BREWING CO. v. DREYFUS. 
 
 Supreme Judicial Court of Massachusetts. 1898. 
 
 [Reported 172 Massachusetts, 154.] 
 
 Holmes- J.- This is a suit b}- a Penns^'lvania corporation to recover 
 a debt for goods sold and delivered Here. The only defence is a dis- 
 charge in insolvency under our statutes, which of course commonly is 
 no defence at all. This was reaffirmed unanimously in 1890, after full 
 consideration of the objections now urged ; and it was decided also, 
 not for the first time, that the general language of the insolvent law 
 was not intended to affect access to Massachusetts courts by a local 
 rule of procedure unless the substantive right was barred by the dis- 
 charge. Phoenix National Bank v. Batcheller, 151 Mass. 589. The 
 grounds urged for an exception in the present case are : that the plain- 
 tiff, although its brewery and main offices are in Pennsylvania, has an 
 office in Boston, and maintains here a complete outfit fqr the distribu- 
 tion of its products ; that it has a license of the fourth class under Pub. 
 Sts. c. 100, § 10; and that it has complied with the laws regulating 
 foreign corporations doing business here, including, we assume, that 
 which requires the appointment of the commissioner of corporations its 
 " attorney upon whom all lawful processes in any action or proceed- 
 ing against it may be served." St. 1884, c. 330, § 1. See St. 1895, 
 c. 157. . . . The independent ground on which it is urged that the 
 plaintiff is subject to the insolvent law in the present case is that the 
 plaintiff is domesticated in this State, as shown by the facts above 
 recited, of which the appointment of an attorney is only one. The 
 word " domesticated," which was used in the argument for the defend- 
 ant, presents no definite legal conception which has any bearing upon 
 the case. We presume that it was intended to convey in a conciliatory 
 form the notion that the plaintiff was domiciled here, — " resident," in 
 
 1 Ace. In re Florance, 54 Hun, 328. — Ed. 
 
 2 The statement of facts and part of the opinion are omitted. — Ed.
 
 80 BERGNER & ENGEL BREWING CO. V. DREYFUS. [CHAP. II. 
 
 the language of Pub. Sts. c. 157, § 81, — and therefore barred by the 
 language and legal operation of the act. It could not be contended 
 that the corporation was a citizen of Massachusetts. In such sense as 
 it is a citizen of any State, it is a citizen of the State which creates 
 it and of no otlier. But there are even greater objections to a double 
 domicile than there are to double citizenship. Under the law as it has 
 been, a man might find himself owing a double allegiance without any 
 choice of his own. But domicile, at least for any given purpose, is 
 single by its essence. Dicey, Confl. of Laws, 95. A corporation does 
 not differ from a natural person in this respect. If any person, natural 
 or artificial, as a result of choice or on technical grounds of birth or 
 creation, has a domicile in one place, it cannot have one elsewhere, be- 
 cause what the law means by domicile i^the one technically pre-eminent 
 headquarters, which, as a result either of fact or of fiction, every person 
 is compelled to have in order that by aid of it certain rights and duties 
 which have been attached to it by the law may be determined.^)lt is 
 settled that a corporation has its domicile in the jurisdiction of the 
 State which created it, and as a consequence that it has not a domicile 
 anywhere else. >Boston Investment Co. v. Boston, 158 Mass. 461, 462, 
 463 ; Shaw v. Qnincy Mining Co., 145 U. S. 444, 450; Martine v. In- 
 ternational Ins. Co., 53 N. Y. 339, 346. The so-called modifications 
 of this rule by statutes like the act of 1884 do not modify it, because 
 jurisdiction of the ordinary personal actions does not depend upon 
 domicile, but only upon such presence within the jurisdiction as to make 
 service possible. See In re Hohorst, 150 U. S. 653. But the operation 
 of our insolvent law by its very terms may, and in this case does, de- 
 pend upon the domicile of the creditor, and as there can be no doubt 
 either in fact or in law that the plaintiff was domiciled m Pennsylvania 
 in such a sense that a statute like Pub. Sts. c. 157, § 1, would hit it 
 there, it cannot have been domiciled here for the same purpose at the 
 same time. 
 
 Judgment for the jylaintiff affirmed} 
 Field, C. J., dissenting. 
 
 1 Ace. G(;rmaiiia F. I. Co. v. Francis, 11 Wall. 210 ; Cook v. Hagpr, 3 Col. 386 ; 
 Chafee v. Fourth Nat. Bank, 71 Me. 514 ; B. & 0. R. R. v. Glenn, 28 Md. 287- 
 
 Dkia in the P^nglish cases are, however, contra. Newby v. Van Oppen, L. R. 
 7 Q. B. 293 ; Russell v. Cambefort, 23 Q. B. D. 526. "I think that this company 
 jnay projx'rly be deemed both Scotch and English. It may, for purposes of juris' 
 diction, be deemed to have two domiciles. Its business is necessarily carried on by ( 
 agents, and I do not know why its domicile should be considered to be confined to the 
 place where the goods are manufactured. The business transacted in Engbind is very 
 extensive. The ])laces of lousiness may, for the purposes of jurisdiction, properly be 
 deemed the domicile." — Lord St. Leonards in Carron Iron Co. v. Maclaren, 5 H. L. C. 
 416, 449. — Ei). 
 
 In Martine v. International L. Ins. Soc, 53 N. Y. 339, an English company with a 
 permanent general agency in New York was held, as to l)usiness done through such 
 agency, to have, in time of war, a comiuercial (though not an ordinary civil) domicile 
 ill New York.
 
 SECT. II.] HAYS V. PACIFIC MAIL STEAMSHIP CO, 
 
 SECTION IL 
 
 TAXATION. 
 
 HAYS V. PACIFIC MAIL STEAMSHIP CO. 
 
 Supreme Court of the United States. 1855. 
 [Reported 17 Howard, 596.1 
 
 Nelson, J. This is a writ of error to tlie District Court for the 
 Northern District of California. 
 
 The suit was brought in the District Court by the company, to 
 recover back a sum of money which they were compelled to pay to the 
 defendant, as taxes assessed in the State of California, upon twelve 
 steamships belonging to them, which were temporarily within the juris- 
 diction of the State. 
 
 The complaint sets forth that the plaintiffs are an incorporated com- 
 pany by the laws of New York ; that all the stockholders are residents 
 and citizens of that State ; that the principal office for transacting the 
 business of the company is located in the city of New York, but, for 
 the better transaction of their business, they have agencies in the city 
 of Panama, New Grenada, and in the city of San Francisco, Califor- 
 nia ; that they have, also, a naval dock and shipyard at the port of 
 Benicia, of that State, for furnishing and repairing their steamers ; 
 that, on the arrival at the port of San Francisco, they remain no longer 
 than is necessary to land their passengers, mails, and freight, usually 
 done in a day ; they then proceed to Benicia, and remain for repairs 
 and refitting until the commencement of the next voyage, usually some 
 ten or twelve days ; that the business in which they are engaged is in 
 the transportation of passengers, merchandise, treasure, and the 
 United States mails, between the city of New York and the city 
 of San Francisco, by way of Panama, and between San Francisco 
 and diff'erent ports in the Territory of Oregon ; that the company are 
 sole owners of the several vessels, and no poi'tion of the interest is 
 owned by citizens of the State of California ; that the vessels are all 
 ocean steamships, employed exclusively in navigating the waters of the 
 ocean ; that all of them are duly registered at the custom-house in New 
 York, where the owners reside ; that taxes have been assessed upon all 
 the capital of the plaintiffs represented by the steamers in the State of 
 New York, under the laws of that State, ever since they have been 
 employed in the navigation, down to the present time; that the said 
 steamships have been assessed in the State of CaUfornia and county of 
 San Francisco, for the year beginning 1st July, 1851, and ending 30th 
 June, 1852, claiming tlie assessment as annually due, under an act of
 
 82 HAYS V. PACIFIC MAIL STEAMSHIP CO. [CHAP. H. 
 
 the legislature of the State ; that the taxes assessed amount to 
 $11,962.50, and were paid under protest, after one of the vessels was 
 advertised for sale b}- the defendant, in order to prevent a sale of it. 
 
 To this complaint the defendant demurred, and the court below gave 
 judgment for the plaintiffs. 
 
 By the 3d section of the Act of Congress of 31st December, 1792, it 
 is provided that ever}^ ship or vessel, except as thereafter provided, 
 shall be registered by the collector of the district, in which shall be 
 comprehended the port to which the ship or vessel shall belong at the 
 time of her registry, and which port shall be deemed to be that at or 
 nearest to which the owner, if there be but one, or, if more than one, 
 nearest to the place where the husband, or acting and managing owner, 
 usually resides ; and the name of the ship, and of the port to which 
 she shall so belong, shall be painted on her stern, on a black ground, 
 in white letters of not less than three inches in length ; and if any ship 
 or vessel of the United States shall be found without having her name, 
 and the name of the port to which she belongs, painted in the manner 
 mentioned, the owner or owners shall forfeit fifty dollars. 
 
 And by the Act of 29th July, 1850 (9 Stats, at Large, 440), it is 
 provided that no bill of sale, mortgage, or conveyance of any vessel 
 shall be valid against anj' person other than the grantor, etc., and per- 
 sons having actual notice, unless such bill of sale, mortgage, or convey- 
 ance be recorded in the office of the collector of the customs where 
 such vessel is registered or enrolled. 
 
 These provisions, and others that might be referred to, very clearly 
 indicate that the domicile of a vessel that requires to be registered, if 
 we mav so speak, or home port, is the port at which she is registered, 
 and which must be the nearest to the place where the owner or owners 
 reside. In this case, therefore, the home port of the vessels of the 
 plaintiffs was the port of New York, where they were duly registered, 
 and where all the individual owners are resident, and where is also the 
 princii)al place of business of the company ; and where, it is admitted, 
 the capital invested is subject to State, county, and other local taxes. 
 
 These ships are engaged in the transportation of passengers, mer- 
 chandise, etc., between the city of New York and San Francisco, by 
 tlie way of Panama, and between San Francisco and different ports in 
 the territory of Oregon. They are thus engaged in the business and 
 commerce of the country, upon the highway of nations, touching at 
 such ports and places as these great interests demand, and which hold 
 out to the owners sufficient inducements by the profits realized or ex- 
 pected to be realized. And so far as respects the ports and harbors 
 within the United States, they are entered and cargoes discharged or 
 laden on board, independently of any control over them, except as it 
 respects such municipal and sanitary regulations of the local authorities 
 as are not inconsistent with the constitution and laws of the general 
 government, to which belongs the regulation of commerce with foreign 
 nations and between the States.
 
 SECT. II.] HAYS V. PACIFIC MAIL STEAMSHIP CO. 83 
 
 Now, it is quite apparent tliat if the State of California possessed 
 the authority to impose the tax in question, any other State in the 
 Union, into the ports of which the vessels entered in the prosecution of 
 their trade and business, might also impose a like tax. It may be 
 that the course of trade or other circumstances might not occasion as 
 great a delay in other ports on the Pacific as at the port of San Francisco. 
 But this is a matter accidental, depending upon the amount of business 
 to be transacted at the particular port, the nature of it, necessary 
 repairs, etc., which in no respect can affect the question as to the situs 
 of the property, in view of the right of taxation by the State. 
 
 Besides, whether the vessel, leaving her home port for trade and 
 commerce, visits, in the course of her voyage or business, several ports, 
 or confines her operations in the carrying trade to one, are questions 
 that will depend upon the profitable returns of the business, and will 
 furnish no more evidence that she has become a part of the personal 
 property within the State, and liable to taxation at one port than at the 
 others. She is within the jurisdiction of all or any one of them tempo- 
 rarily, and for a purpose wholly excluding the idea of permanently abid- 
 ing in the State, or changing her home port. Our merchant vessels 
 are not unfrequently absent for years, in the foreign carrying trade, 
 seeking cargo, carrying and unlading it from port to port, during all 
 the time absent ; but they neither lose their national character nor their 
 home port, as insci'ibed upon their stern. 
 
 The distinction between a vessel in her home port and when lying 
 at a foreign one, or in the port of another State, is familiar in the 
 admiralty law, and she is subjected, in many cases, to the application 
 of a different set of principles. 7 Pet. 324 ; 4 Wheat. 438. 
 
 We are satisfied that the State of California had no jurisdiction over 
 these vessels for the purpose of taxation ; they were not, properly, 
 abiding within its limits, so as to become incorporated with the other 
 personal property of the State ; they were there but temporarily, en- 
 gaged in lawful trade and commerce, with their situs at the home port, 
 wliere the vessels belonged, and where the owners were liable to be 
 taxed for the capital invested, and where the taxes had been paid. 
 
 An objection is taken to the recovery against the collector, on the 
 ground, mainly, that the assessment under the law of California, by 
 the assessors, was a judicial act, and that the part}' should have pur- 
 sued his remedy to set it aside according to the provisions of that law. 
 
 We do not think so. The assessment was not a judicial, but a 
 ministerial act, and as the assessors exceeded their powers in making 
 it, the officer is not protected. 
 
 The payment of the tax was not voluntary, but compulsory, to pre- 
 vent the sale of one of the ships. 
 
 Our conclusion is, that the judgment of the court below is right, 
 and should be aflSrmed.
 
 84 STATE TAX ON FOKEIGN-HELD BONDS. [CHAP. II. 
 
 STATE TAX ON FOREIGN-HELD BONDS. 
 
 Supreme Court of the United States. 1873. 
 [Reported 15 Wallace, 300.] 
 
 Field, J. The question presented in this case for our determination 
 is whether the eleventh section of the Act of Pennsylvania of Ma}^, 1868, 
 so far as it applies to the interest on bonds of the railroad company, 
 made and payable^out of the State, issued to and held by non-residents 
 of the State, citizens of other States, is a valid and constitutional exer- 
 cise of the taxing power of the State, or whether it is an interference, 
 under the name of a tax, with the obligation of the contracts between 
 the non-resident bondholders and the corporation. If it be the former, 
 this court cannot arrest the judgment of the State court ; if it be the 
 latter, the alleged tax is illegal, and its enforcement can be restrained. 
 
 The case before us is similar in its essential particulars to that of The 
 Railroad Company v. Jackson, reported in 7 Wallace. There, as here, 
 the company was incorporated by the legislatures of two States, Penn- 
 S3'lvania and Maryland, under the same name, and its road extended in 
 a continuous line from Baltimore in one State to Sunburj' in the other. 
 And the company had issued bonds for a large amount, drawing inter- 
 est, and executed a mortgage for their security upon its entire road, its 
 franchises and fixtures, including the portion lying in both States. 
 Coupons for the different instalments of interest were attached to each 
 bond. There was no apportionment of the bonds to any part of the 
 road lying in either State. The whole road was bound for each bond. 
 The law of Pennsylvania, as it then existed, imposed a tax on monej^ 
 owing b}' solvent debtors of three mills on the dollar of the principal, 
 payable out of the interest. An alien resident in Ireland was the holder 
 of some of the bonds of the railroad company, and when he presented 
 his coupons for the interest due thereon, the company claimed the right 
 to deduct the tax imposed by the law of Pennsylvania, and also an al- 
 leged tax to the United States. The non-resident refused to accept the 
 interest with tiiesc deductions, and brought suit for the whole amount 
 in the Circuit Court of the United States for the District of Maryland. 
 That court, the chief justice presiding, instructed the jury that if the
 
 SECT. II.] STATE TAX ON FOREIGN-HELD BONDS. 85 
 
 plaintiff, when he purchased the bonds, was a British subject, resident 
 in Ireland, and still resided there, he was entitled to recover the amount 
 of the coupons without deduction. The verdict and judgment were in 
 accordance with this instruction, and the case was brought here for 
 review. 
 
 This court held that the tax under the law of Pennsylvania could not 
 be sustained, as to permit its deduction from the coupons held by the 
 plaintiff would be giving effect to the acts of her legislature upon prop- 
 erty and effects lying beyond her jurisdiction. The reasoning by which 
 the learned justice, who delivered the opinion of the court, reached this 
 conclusion, ma}' be open, perhaps, to some criticism. It is not per- 
 ceived how the fact that the mortgage given for the security of the bonds 
 in that case covered that portion of the road which extended into Mary- 
 land could affect the liability of the bonds to taxation. If the entire 
 road upon which the mortgage was given had been in another State, and 
 the bonds had been held b}' a resident of Penns3'lvania, they would have 
 been taxable under her laws in that State. It was the fact that the bonds 
 were held by a non-resident which justified the language used, that to 
 permit a deduction of the tax from the interest would be giving effect 
 to the laws of Pennsylvania upon propert}' bej'ond her jurisdiction, and 
 not the fact assigned In- the learned justice. The decision is, neverthe- 
 less, authority for the doctrine that property lying beyond the jurisdic- 
 tion of the State is not a subject upon which her taxing power can be 
 legitimately exercised. Indeed, it would seem that no adjudication 
 should be necessary to establish so obvious a proposition. 
 
 The power of taxation, however vast in its character and searching in 
 its extent, is necessaril}' limited to subjects within the jurisdiction of the 
 State. These sul)jects are persons, property, and business. Whatever 
 form taxation may assume, whether as duties, imposts, excises, or li- 
 censes, it must relate to one of these subjects. It is not possible to 
 conceive of any other, though as applied to them, the taxation may be 
 exercised in a great variety of vrays. It may touch property in every 
 shape, in its natural condition, in its manufactured form, and in its va- 
 rious transmutations. And the amount of the taxation may be deter- 
 mined b}- the value of the pi'operty, or its use, or its capacit}', or its 
 productiveness. It ma}' touch business in the almost infinite forms in 
 which it is conducted, in professions, in commerce, in manufactures, 
 and in transportation. Unless restrained b}' provisions of the Federal 
 Constitution, the power of the State as to the mode, form, and extent 
 of taxation is unlimited, where the subjects to which it applies a^e within 
 her jurisdiction. 
 
 Corporations may be taxed, like natural persons, upon their property 
 and business. But debts owing by corporations, like debts owing by 
 individuals, are not propertv of the debtors, in any sense ; they are 
 obligations of the debtors, and only possess value in the hands of the 
 creditors. With them they are propei'ty, and in their hands they may 
 be taxed. To call debts property of the debtors is simply to misuse
 
 86 STATE TAX ON FOREIGN-HELD BONDS. [CHAP. IL 
 
 terms. All the property there can be in the nature of things in debts 
 of corporations, belongs to the creditors, to whom the}' are payable, and 
 follows their domicile, wherever that may be. Their debts can have no 
 locality separate from the parties to whom they are due. This principle 
 might be stated in many different ways, and supported by citations from 
 numerous adjudications, but no number of authorities, and no forms of 
 expression could add anything to its obvious truth, whicli is recognized 
 upon its simple statement. 
 
 The bonds issued by the railroad company in this case are undoubt- 
 edly property, but property in the hands of the holders, not property of 
 the obligors. So far as they are held by non-residents of the State, 
 they are property beyond the jurisdiction of the State. The law which 
 requires the treasurer of the company to retain five per cent of the inter- 
 est due to the non-resident bondliolder is not, therefore, a legitimate 
 exercise of the taxing power. It is a law which interferes between the 
 company and the bondholder, and under the pretence of levying a tax 
 commands the compan}' to withhold a portion of the stipulated interest 
 and pay it over to the State. It is a law which thus impairs the obli- 
 gation of the contract between the parties. The obligation of a contract 
 depends upon its terms and the means which the law in existence at the 
 time affords for its enforcement. A law which alters the terms of a con- 
 tract by imposing new conditions, or dispensing with those expressed, 
 is a law which impairs its obligation, for, as stated on another occasion, 
 such a law relieves the parties from the moral duty of performing the 
 original stipulations of the contract, and it prevents their legal enforce- 
 ment. The Act of Pennsylvania of May 1, 1868, falls within this de- 
 scription. It directs the treasurer of every incorporated company to 
 retain from the interest stipulated to its bondholders five per cent 
 upon every dollar, and pa}' it into the treasury of the Commonwealth. 
 It thus sanctions and commands a disregard of the express provisions 
 of the contracts between the company and its creditors. It is onl}' 
 one of many cases where, under the name of taxation, an oppressive 
 exaction is made without constitutional warrant, amounting to little 
 less than an arbitrary seizure of private property. It is, in fact, a 
 forced contribution levied upon property held in other States, where it 
 is subjected, or ma}' be subjected, to taxation upon an estimate of its 
 full value. 
 
 The case of Maltby v. The Reading and Columbia Railroad Com- 
 pany, decided by the Supreme Court of Pennsylvania in 186G, was 
 referred to by the Common Pleas in support of its ruling, and is 
 relied upon by counsel in support of the tax in question. The decision 
 in that case does go to the full extent claimed, and holds that bonds of 
 corporations held by non-residents are taxable in that State. But it is 
 evident from a perusal of the opinion of the court that the decision 
 proceeded upon tlie idea that tlie bond of the non-resident was itself 
 property in the .State because secured by a mortgage on property there. 
 "It is undoubtedly true," said the court? " that the Legislature of
 
 SECT. II.] STATE TAX ON FOKEIGN-HELD BONDS. 87 
 
 Penns^'lvania cannot impose a personal tax upon the citizen of another 
 State, but the constant practice is to tax propert}- within our jurisdic- 
 tion which belongs to non-residents." And again: "There must be 
 jurisdiction over either the property or the person of the owner, else 
 the power cannot be exercised ; but when .the property is within our 
 jurisdiction, and enjoj's the protection of our State government, it is 
 justly taxable, and it is of no moment that the owner, who is required 
 to pay the tax, resides elsewhere." There is no doubt of the correct- 
 ness of these views. But the court then proceeds to state that the 
 principle of taxation as the correlative of protection is as applicable 
 to a non-resident as to a resident ; that the loan to the non-resident is 
 made valuable by the franchises which the companj- derived from the 
 Commonwealth, and as an investment rests upon State authority, and, 
 therefore, ought to contribute to the support of the State government. 
 It also adds that, though the loan is for some purposes subject to the 
 law of the domicile of the holder, "• yet, in a very high sense," it is 
 also property in Pennsylvania, observing, in support of this position, 
 that the holder of a bond of the company could not enforce it except 
 in that State, and that the mortgage given for its security was upon 
 property and franchises within her jurisdiction. The amount of all 
 which is this : that the State which creates and protects a corporation 
 ought to have the right to tax the loans negotiated by it, though taken 
 and held by non-residents, a proposition which it is unnecessary to con- 
 trovert. The legality of a tax of that kind would not be questioned if 
 in the charter of the company the imposition of the tax were author- 
 ized, and in the bonds of the company, or its certificates of loan, the 
 liability of the loan to taxation were stated. The tax in that case 
 would be in the nature of a license tax for negotiating the loan, for in 
 whatever manner made payable it would ultimately fall on the company 
 as a condition of effecting the loan, and parties contracting with the 
 companv would provide for it by proper stipulations. But there is 
 nothing in the observations of the court, nor is there anything in the 
 opinion, which shows that the bond of the non-resident was property 
 in the State, or that the non-resident had any property in the State 
 which was subject to taxation within the principles laid down by the 
 court itself, which we have cited. 
 
 The property mortgaged belonged entirely to the company, and so 
 far as it was situated in Pennsylvania was taxable there. If taxation 
 is the correlative of protection, the taxes which it there paid were the 
 correlative for the protection which it there received. And neither the 
 taxation of the property, nor its protection, was augmented or dimin- 
 ished by the fact that the corporation was in debt or free from debt. 
 The property in no sense belonged to the non-resident bondholder or 
 to the mortgagee of the company. The mortgage transferred no title ; 
 it created only a lien upon the property. Though in form a convey- 
 ance, it was both at law and in equity a mere security for the debt. 
 That such is the nature of a mortgage in Pennsylvania has been ir&
 
 88 STATE TAX ON FOKEICxN-HELD BONDS. [CHAP. IL 
 
 quently ruled by her highest court. In "Witmer's Appeal, 45 Penn. S. 
 463, the court said: " The mortgagee has no estate in the land, any 
 more than the judgment creditor. Both have liens upon it, and no 
 more than liens." And in that State all possible interests in lands, 
 whether vested or contingent, are subject to levy and sale on execution, 
 yet it has been held, on the ground that a mortgagee has no estate in the 
 lands, that the mortgaged premises cannot be taken in execution for 
 his debt. In Rickert u. Madeira, 1 Rawle, 329, the court said: "A 
 mortgage must be considered either as a chose in action or as giving 
 title to the land and vesting a real interest in the mortgagee. In the 
 latter case it would be liable to execution ; in the former it would not, 
 as it would fall within the same reason as a judgment bond or simple 
 contract. If we should consider the interest of the mortgagee as a 
 real interest, we must carry the principle out and subject it to a dower 
 and to the lien of a judgment ; and that it is but a chose in action, a 
 mere evidence of debt, is apparent from the whole current of decisions." 
 Wilson V. Shoenberger's Executors, 31 Penn. S. 295. 
 
 Such being the character of a mortgage in Pennsylvania, it cannot 
 be said, as was justh* observed b}' counsel, that the non-resident holder 
 and owner of a bond secured by a mortgage in that State owns an}' 
 real estate there. A mortgage being there a mere chose in action, it 
 onh' confers upon the holder, or the party for whose benefit the mort- 
 gage is given, a right to proceed against the property mortgaged, upon 
 a given contingenc}', to enforce, by its sale, the payment of his de- 
 mand. This right has no localit}' independent of the party in whom it 
 resides. It may undoubtedly be taxed b}- the State when held by a 
 resident therein, but when held by a non-resident it is as much be3'ond 
 the jurisdiction of the State as the person of the owner. 
 
 It is undoubtedU' true that the actual .situs of personal property 
 which has a visible and tangible existence, and not the domicile of its 
 owner, will, in many cases, determine the State in which it maj' be 
 taxed. The same thing is true of public securities consisting of State 
 bonds and bonds of municipal bodies, and circulating notes of bank- 
 ing institutions ; the former, by general usage, have acquired the char- 
 acter of, and are treated as, property in the place where they are found, 
 though removed from the domicile of the owner ; the latter are treated 
 and pass as money wherever they are. But other personal property, 
 consisting of bonds, mortgages, and debts generally, has no situs 
 independent of the domicile of the owner, and certainlv can have none 
 where the instruments, as in the present case, constituting the evi- 
 dences of debt, are not separated from the possession of the owners. 
 
 Cases were cited b}- counsel on the argument from the decisions of 
 the highest courts of several States, which accord with the views we 
 have expressed. In Davenport v. The Mississippi and Missouri Rail- 
 road Company, 12 Iowa, 539, the question arose before the Supreme 
 Court of Iowa whetlier mortgages on property in that State held by 
 non-residents could be taxed under a law which provided that all prop*
 
 SECT. II.] STATE TAX ON FOEEIGN-HELD BONDS. 89 
 
 ert}', real and personal, within the State, with certain exceptions nol 
 material to the present case, should be subject to taxation, and the 
 court said : — 
 
 " Both in law and equity the mortgagee has only a chattel interest. 
 It is true that the situs of the property- mortgaged is within the juris- 
 diction of the State, but, the mortgage itself being personal propert}', 
 a chose in action attaches to the person of the owner. It is agreed by 
 the parties that the owners and holders of the mortgages are non- 
 residents of the State. If so, and the propertj- of the mortgage 
 attaches to the person of the owner, it follows that these mortgages 
 are not property within the State, and if not they are not the subject 
 of taxation." 
 
 In People v. Eastman, 25 Cal. 603, the question arose before the Su- 
 preme Court of Caiiforiiia whether a judgment of record in Mariposa 
 Count}' upon the foreclosure of a mortgage upon property situated in 
 that county could be taxed there, the owner of the judgment being a 
 resident of San Francisco, and the law of California requiring all prop- 
 erty to be taxed in the county where situated ; and it was held that it 
 was not taxable there. "The mortgage," said the court, "has no 
 existence independent of the thing secured by it ; a payment of the 
 debt discharges the mortgage. The thing secured is intangible, and 
 has no situs distinct and apart from the residence of the holder. It 
 pertains to and follows the person. The same debt may, at the same 
 time, be secured by a mortgage upon land in every county in the State ; 
 and if the mere fact that the mortgage exists in a particular count}' gives 
 the property in the mortgage a situs subjecting it to taxation in that 
 count}', a party, without further legislation, might be called upon to 
 pay the tax several times, for the lien for taxes attaches at the 
 same time in every county in the State, and the mortgage in one 
 county may be a different one from that in another although the debt 
 secured is the same." 
 
 Some adjudications in the Supreme Court of Pennsylvania were also 
 cited on the argument, which appear to recognize doctrines inconsistent 
 with that announced in Maltby v. Reading and Columbia Railroad 
 Company, particularly the case of McKeen v. The County of North- 
 ampton, 49 Penn. S. 519, and the case of Short's Estate, 16 Id. 63, 
 but we do not deem it necessary to pursue the matter further. We 
 are clear that the tax cannot be sustained ; that the bonds, being held 
 by non-residents of the State, are only property in their hands, and 
 that they are thus beyond the jurisdiction of the taxing power of the 
 State. Even where the bonds are held by residents of the State, the 
 retention by the company of a portion of the stipulated interest can 
 only be sustained as a mode of collecting a tax upon that species of 
 property in the State. When the property is out of the State there 
 can then be no tax upon it for which the interest can be retained. 
 The tax laws of Pennsylvania can have no extraterritorial operation ; 
 nor can any law of that State, inconsistent with the terms of a con-
 
 90 PULLMAN'S PALACE-CAR CO. *. PENNSYLVANIA. [CIIAP. IL 
 
 tract, made with or payable to parties out of the State, have any effect 
 upon the contract whilst it is in the hands of such parties or other non- 
 residents. The extraterritorial invalidity of State laws discharging a 
 debtor from his contracts with citizens of other States, even though 
 made and payable in the State after the passage of such laws, has been 
 judicially determined by this court. Ogden u. Saunders, 12 Wheaton, 
 214 ; Baldwin v. Hale, 1 Wallace, 223. A like invalidity must, on 
 similar grounds, attend State legislation which seeks to change the 
 obligation of such contracts in any particular, and on stronger grounds 
 where the contracts are made and payable out of the State. 
 
 Judgment reversed, and the cause remanded for further 'proceed' 
 iyigs, in couformity tcith this opinion.} 
 Davis, Clifford, Millek, and Hunt, JJ., dissenting. 
 
 PULLMAN'S PALACE-CAR CO. v. PENNSYLVANIA. 
 
 Supreme Court of the United States. 1891. 
 [Reported 141 United States, 18.] 
 
 Gray, J.^ Upon this writ of error, whether this tax was in accord- 
 ance with the law of Pennsylvania, is a question on which the decision 
 of the highest court of the State is conclusive. The only question of 
 which this court has jurisdiction is whether the tax was in violation of 
 the clause of the Constitution of the United States granting to Congress 
 the power to regulate commerce among the several States. The plain- 
 tiff in error contends that Its ears could be taxed onlj' in the State of 
 Illinois, in which it was incorporated and had its principal place of 
 business. 
 
 No general principles of law are better settled, or more fundamental, 
 than that the legislative power of every State extends to all propert}' 
 within its borders, and that only so far as tlie comity of that State 
 allows can such property be affected by the law of an}' other State. 
 The old rule, expressed in the maxim mobilia sequu)itur 2)ersonam, by 
 which personal property* was regarded as subject to the law of the own- 
 er's domicile, grew up in the ISIiddle Ages, when movable property con- 
 sisted chiefly of gold and jewels, which could be easily carried by the 
 owner from place to place, or secreted in spots known only to himself. 
 In modern times, since the great increase in amount and variety of per- 
 sonal property not immediately connected with the person of the owner, 
 that rule has yielded more and more to the lex situs, the law of the 
 place where the property is kept and used. Green v. Van Buskirk, 5 
 
 1 See Tappan v. Merchants' Nat. Baiik, 19 Wall. 490 ; Detroit v. Board of Assea- 
 Bors, 91 Mich. 78. — P'd. 
 
 2 Part of the opinion of the court and part of the dissenting opinion are omitted.— 
 Ed.
 
 SECT. II.] PULLMAN'S PAL.A.CE-CAK CO. V. PENNSYLVANIA- 91 
 
 Wall. 307, and 7 Wall. 139 ; Herve}- v. Rhode Island Locomotive Works, 
 93 U. S. 664 ; Harkness v. Russell, 118 U. S. 663, 679 ; AValworth v. 
 Harris, 129 U. S. 355 ; Story on Conflict of Laws, § 550 ; "Wharton on 
 Conflict of Laws, §§ 297-311. As observed by Mr. Justice Story, in 
 his commentaries just cited, •• Although movables are for many purposes 
 to be deemed to have no situs, except that of the domicile of the owner, 
 yet this being but a legal fiction, it yields, whenever it is necessary for 
 the purpose of justice that the actual situs of the thing should be ex- 
 amined. A nation within whose territory any personal property is 
 aetuall}- situate has an entire dominion over it while therein, in point 
 of sovereignty and jurisdiction, as it has over immovable property 
 situate there." 
 
 For the purposes of taxation, as has been repeatedlj- affirmed by this 
 court, personal propertj- may be separated from its owner ; and he may 
 be taxed, on its account, at the place where it is, although not the 
 place of his own domicile, and even if he is not a citizen or a resident 
 of the State which imposes the tax. Lane County v. Oregon, 7 Wall. 
 71, 77; Railroad Co. v. Pennsylvania, 15 Wall. 300, 323, 324, 328; 
 Railroad Co. v. Peniston, 18 Wall. 5, 29 ; Tappau v. Merchants' Bank, 
 19 Wall. 490, 499 ; State Railroad Tax Cases, 92 U. S. 575, 607, 608 ; 
 Brown v. Houston, 114 U. S. 622; Coe v. Errol, 116 U. S. 517, 524; 
 Marye v. Baltimore & Ohio Railroad, 127 U. S. 117, 123. 
 
 It is equally well settled that there is nothing in the Constitution or 
 laws of the United States which prevents a State from taxing personal 
 property, employed in interstate or foreign commerce, like other per- 
 sonal property within its jurisdiction. . . . 
 
 The cars of this company within the State of Pennsylvania are 
 employed in interstate commerce ; but their being so employed does 
 not exempt them from taxation by the State ; and the State has not 
 taxed them because of their being so employed, but because of their 
 being within its territory and jurisdiction. The cars were continuously 
 and permanently employed in going to and fro upon certain routes of 
 travel. If they had never passed be3'ond the limits of Pennsylvania, it 
 could not be doubted that the State could tax them, like other property, 
 within its borders, notwithstanding they were emplo3-ed in interstate 
 commerce. The fact that, instead of stopping at the State boundary, 
 thev cross that boundary in going out and coming back, cannot affect 
 the power of the State to levy a tax upon them. The State, having 
 the right, for the purposes of taxation, to tax any personal property 
 found within its jurisdiction, without regard to the place of the owner's 
 domicile, could tax the specific cars which at a given moment were 
 within its borders. The route over which the cars travel extending 
 be^-ond the limits of the State, particular cars may not remain within 
 the State ; but the company' has at all times substantially the same 
 number of cars within the State, and continuously and constantly uses 
 there a portion of its property ; and it is distinctly found, as matter of 
 fact, that the company continuously, throughout the periods for which
 
 92 PULLMAN'S PALACE-CAK CO. V. PENNSYLVANIA. [.CHAP. II. 
 
 these taxes were levied, carried on business in Pennsylvania, and had 
 about one hundred ears within the State. 
 
 The mode which the State of Pennsylvania adopted, to ascertain the 
 proportion of the company's property upon which it should be taxed in 
 that State, was by taking as a basis of assessment such proportion of 
 the capital stock of the company as the number of miles over which it 
 ran cars within the State bore to the whole number of miles, in that 
 and other States, over which its cars were run. This was a just and 
 equitable method of assessment ; and, if it were adopted by all the 
 States through which these cars ran, the company would be assessed 
 upon the whole value of its capital stock, and no more. 
 
 The validity of this mode of apportioning such a tax is sustained by 
 several decisions of this court, in cases which came up from the Circuit 
 Courts of the United States, and in which, therefore, the jurisdiction 
 of this court extended to the determination of the whole case, and was 
 not limited, as upon writs of error to the State courts, to questions 
 under the Constitution and laws of the United States. 
 
 In the State Railroad Tax Cases, 92 U. S. 575, it was adjudged that 
 a statute of Illinois, by which a tax on the entire taxable property' of a 
 railroad corporation, including its rolling stock, capital, and franchise, 
 was assessed by the State Board of Equalization, and was collected in 
 each municipalit}' in proportion to the length of the road within it, was 
 lawful, and not in conflict with the Constitution of the State ; and Mr. 
 Justice Miller, delivering judgment, said : — 
 
 "Another objection to the sj'stem of taxation by the State is, that 
 the rolling stock, capital stock, and franchise are personal property-, 
 and that this, with all other personal property, has a local situs at the 
 principal place of business of the corporation, and can be taxed by 
 no other county, cit}", or town, but the one where it is so situated. 
 This objection is based upon the general rule of law that personal 
 property, as to its siiits, follows the domicile of its owner. It ma}' be 
 doubted very reasonably whether such a rule can be applied to a rail- 
 road corporation as between the different localities embraced by its 
 line of road. But, after all, the rule is merely the law of the State 
 which recognizes it ; and when it is called into operation as to prop- 
 erty located in one State, and owned by a resident of another, it is 
 a rule of comity in the former State rather than an absolute principle 
 in all cases. Green r. Van Buskirk, 5 Wall. :)12. Like all other laws 
 of a State, it is, therefore, sul)ject to legislative repeal, modification, or 
 limitation ; and when the legislature of Illinois declared that it should 
 not prevail in assessing personal property of railroad companies for 
 taxation, it simply exercised an ordinary function of legislation." 92 
 U. S. 607, 608. 
 
 " It is further objected that the railroad track, capital stock, and 
 franchise is not assessed in each county where it lies, according to its 
 vahie there, but according to an aggregate value of the whole, on 
 which each county, city, and town collects taxes according to the lengtb
 
 SECT. II.] PULLMAN'S PALACE-CAR CO. V. PENNSYLVANIA. 
 
 93 
 
 of the track within its limits." "It may well be doubted whether 
 any better mode of determining the value of that portion of the 
 track within any one county has been devised, than to ascertain the 
 value of the v/hole road, and apportion the value within the county by 
 its relative length to the whole." " This court has expressl}- held iu 
 two cases, where the road of a corporation ran througli different States, 
 that a tax upon the income or franchise of the road was properly ap- 
 portioned by taking the whole income or value of the franchise, and 
 the length of the road within each State, as the basis of taxation. 
 Delaware Railroad Tax, 18 Wall. 206; Erie Railroad v. Pennsyl- 
 vania, 21 Wall. 492." 92 U. S. 608, 611. 
 
 So in Western Union Telegraph Co. v. Attorney-General of Massa- 
 chusetts, 125 U. S. 530, this court upheld the validity of a tax im- 
 posed by the State of Massachusetts upon the capital stock of a 
 telegraph company, on account of property owned and used by it 
 within the State, taking as the basis of assessment such proportion 
 of the value of its capital stock as the length of its lines within the 
 State bore to their entire length throughout the country. 
 
 Even more in point is the case of Marye v. Baltimore & Ohio 
 Railroad, 127 U. S. 117, in which the question was whether a rail- 
 road company incorporated by the State of Maryland, and no part of 
 whose own railroad was within the State of Virginia, was taxable 
 under general laws of Virginia upon rolling stock owned by the 
 company, and employed upon connecting railroads leased by it in 
 that State, yet not assigned permanently to those roads, but used 
 interchangeably upon them and upon roads in other States, as the 
 company's necessities required. It was held not to be so taxable, 
 solely because the tax laws of Virginia appeared upon their face to 
 be limited to railroad corporations of that State; and Mr. Justice 
 Matthews, delivering the unanimous judgment of the court, said : — 
 
 " It is not denied, as it cannot be, that the State of Virginia has 
 rightful power to levy and collect a tax upon such property used and 
 found within its territorial limits, as this property was used and 
 found, if and whenever it may choose, by apt legislation, to exert its 
 authority over the subject. It is quite true, as the situs of the Balti- 
 more and Ohio Railroad Company is in the State of Maryland, that 
 also, upon general principles, is the situs of all its personal property; 
 but for purposes of taxation, as well as for other purposes, that situs 
 may be fixed in whatever locality the property may be brought and 
 used by its owner by the law of the place where it is found. If the 
 Baltimore and Ohio Railroad Company is permitted by the State of 
 Virginia to bring into its territory, and there habitually to use and 
 employ a portion of its movable personal property, and the railroad 
 company chooses so to do, it would certainly be competent and legiti- 
 mate for the State to impose upon such property, thus used and 
 employed, its fair share of the burdens of taxation imposed upon 
 similar property used in the like way by its own citizens. And such
 
 94 PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA. [CHAP. IL 
 
 a tax might be properly assessed and collected in cases like the 
 present, where the speeitic and individual items of property so used 
 and emplo^'ed were not continuously the same, but were constantly 
 changing, according to the exigencies of the business. In such 
 cases, the tax might be fixed by an appraisement and valuation of 
 the average amount of the property thus habitually used, and col- 
 lected by distraint upon any portion that might at any time be 
 found. Of course, the lawlessness of a tax upon vehicles of trans- 
 portation used by common carriers might have to be considered in 
 particular instances with reference to its operation as a regulation 
 of commerce among the States, but the mere fact that they were 
 employed as vehicles of transportation in the interchange of inter- 
 state commerce would not render their taxation invalid." 127 U. S. 
 123, 124. 
 
 For these reasons, and upon these authorities, the court is of opin- 
 ion that the tax in question is constitutional and valid. The result 
 of holding otherwise would be that, if all the States should concur in 
 abandoning the legal fiction that personal property has its situs at 
 the owner's domicile, and in adopting the system of taxing it at the 
 place at which it is used and by whose laws it is protected, property 
 employed in any business requiring continuous and constant move- 
 ment from one State to another would escape taxation altogether. 
 
 Judgment affirmed. 
 
 Mr. Justice Bradley, with whom concurred Mr. Justice Field and 
 Mk. Justice Harlan, dissenting. 
 
 I dissent from the judgment of the court in this case, and will state 
 briefl}' m}- reasons. I concede that all propertv, personal as well as 
 real, within a State, and belonging there, ma}- be taxed by the State. 
 Of that there can be no doubt. But where propert}- does not belong in 
 the State another question arises. It is the question of the jurisdiction 
 of the State over the property. It is stated in the opinion of the court 
 as a fundamental proposition on which the opinion really turns that all 
 personal as well as real property within a State is subject to the laws 
 thereof. I conceive that that proposition is not maintainable as a gen- 
 eral and absolute proposition. Amongst independent nations, it is 
 true, persons and propertj' within the territory' of a nation are subject 
 to its laws, and it is responsible to other nations for anj- injustice it 
 may do to the persons or property of such other nations. This is a 
 rule of international law. But the States of this government are not 
 in(le[)endent nations. There is such a thing as a Constitution of the 
 United States, and there is such a thing as a government of the United 
 States, and there are many things, and many persons, and many articles 
 of property that a State cannot lay the weight of its finger upon, because 
 it would be contrarj' to the Constitution of the United States. Cer- 
 tainl}', property merely carried through a State cannot be taxed by the 
 State. Such a tax would be a duty — which a State cannot impose 
 
 i
 
 SECT. II.] PULLMAN'S PALACE-CAR CO. V. PENNSYLVANIA. 95 
 
 If a drove of cattle is driven through Pennsjivauia from Illinois to 
 New York, for the purpose of being sold in New York, whilst in 
 Pennsj'lvania it ma}' be subject to the police regulations of the State, 
 but it is not subject to taxation there. It is not generall}- subject to the 
 laws of the State as other property is. So if a train of cars starts at Cin- 
 cinnati for New York and passes through Pennsylvania, it may be subject 
 to the police regulations of that State whilst within it, but it would be 
 repugnant to the Constitution of the United States to tax it. We have 
 decided this very question in the case of State Freight Tax, 15 Wall. 
 232. The point was directly raised and decided that property on its 
 passage through a State in the course of interstate commerce cannot be 
 taxed by the State, because taxation is incidentally regulation, and a 
 State cannot regulate interstate commerce. The same doctrine was 
 recognized in Coe v. Errol, 116 U. S. 517. 
 
 And surel}' a State cannot interfere with the officers of the United 
 States, in the performance of their duties, whether acting under the 
 Judicial, Military, Postal, or Revenue Departments. They are entirely 
 free from State control. So a citizen of the United States, or any other 
 person, in the performance of an}- duty, or in the exercise of any privi- 
 lege, under the Constitution or laws of the United States, is absolutely 
 free from State control in relation to such matters. So that the general 
 proposition, that all persons and personal property within a State is 
 subject to the laws of the State, unless materially modified, cannot 
 be true. 
 
 But, when personal property is permanently- located within a State 
 for the purpose of ordinary use or sale, then, indeed, it is subject to the 
 laws of the State and to the burdens of taxation ; as well when owned 
 b}- persons residing out of the State, as when owned by persons resid- 
 ing in the State. It has then acquired a situs in th6 State where it is 
 found. 
 
 A man residing in New York may own a store, a factor}', or a mine 
 in Alabama, stocked with goods, utensils, or materials for sale or use 
 in that State. There is no question that the situs of personal property 
 so situated is in the State where it is found, and that it may be sub- 
 jected to double taxation, — in the State of the owner's residence, as a 
 part of the general mass of his estate ; and in the State of its situs. 
 Although this is a consequence which often bears hardl}' on the owner, 
 yet it is too firmly sanctioned by the law to be disturbed, and no remedy 
 seems to exist but a sense of equity and justice in the legislatures of the 
 several States. The rule would undoubtedly be more just if it made the 
 property taxable, like lands and real estate, only in the place where it 
 is permanently situated. 
 
 Personal as well as real propert}^ ma}' have a situs of its own, inde- 
 pendent of the owner's residence, even wlien employed in interstate or 
 foreign commerce. An office or warehouse, connected with a steamship 
 line, or with a continental railway, may be provided with furniture and 
 all the apparatus and appliances usual in such establishments. Such
 
 96 PULLMAN'S PALACE-CAR CO. V. PENNSYLVANIA. [CHAP. IL 
 
 propert}' would be subject to the lex rei sitce and to local taxation, 
 though solely devoted to the purposes of the business of those lines. 
 But the ships that traverse the sea, and the cars that traverse the land, 
 in those lines, being tlie vehicles of commerce, interstate or foreign, and 
 intended for its movement from one State or country to another, and 
 having no fixed or permanent situs or home, except at the residence of 
 the owner, cannot, without an invasion of the powers and duties of the 
 federal government, be subjected to the burdens of taxation in the 
 places where they only go or come in the transaction of their business, 
 except where they belong. Haj's v. Pacific Mail Steamship Co., 17 
 How. 596 ; Morgan v. Parham, 16 Wall. 471 ; Transportation Co. v. 
 Wheeling, 99 U. S. 273. To contend that there is any difference be- 
 tween cars or trains of cars and ocean steamships in this regard, is to 
 lose sight of the essential qualities of things. This is a matter that 
 does not depend upon the affirmative action of Congress. The regula- 
 tion of ships and vessels, by act of Congress, does not make them the 
 instruments of commerce. They would be equally so if no such affirma- 
 tive regulations existed. For the States to interfere with them in either 
 case would be to interfere with, and to assume the exercise of, that 
 power which, by the Constitution, has been surrendered by the States 
 to the government of the United States, namely, the power to regulate 
 commerce. 
 
 Reference is made in the opinion of the court to the case of Railroad 
 Company' v. Maryland, 21 Wall. 456, in which it was said that commerce 
 on land between the different States is strikingly dissimilar in many re- 
 spects from commerce on water ; but that was said in reference to the 
 highwa3's of transportation in the two cases, and the difference of control 
 which the State has in one case from that which it can possibly have in 
 the other. A railroad is laid on the soil of the State, by virtue of au- 
 thority granted In- the State, and is constantly subject to the police juris- 
 diction of the State ; whilst the sea and navigable rivers are high- 
 ways created by nature, and are not subject to State control. The 
 question in that case related to the power of the State over its own 
 corporation, in reference to its rate of fares and the remuneration it 
 was required to pay to the State for its franchises, — an entirely diflfer- 
 ent question from that which arises in the present case. 
 
 Reference is also made to expressions used in the opinion in Glouces- 
 ter Ferry Co. v. Pennsylvania, 114 U. S. 196, which, standing alone, 
 would seem to concede the right of a State to tax foreign corporations 
 engaged in foreign or interstate commerce, if such propert}' is within 
 the jurisdiction of the State. But the whole scope of that opinion is to 
 show that neither the vehicles of commerce coming within the State, 
 nor the capital of such corporations, is taxable there ; but only the 
 proi)crty having a sit//s there, as the wharf used for landing passengers 
 and freight. The entire series of decisions to that effect are cited and 
 relied on. 
 
 Of course I do not mean to say that either railroad cars or ships are
 
 SECT. II.] PULLMAN'S PALACE-CAR CO. V. PENNSYLVANIA 97 
 
 to be free from taxation, but I do say that the}- are not taxable by those 
 States in which the}- are onl}' transiently present in the transaction of 
 their commercial operations. A British ship coming to the harbor of 
 New York fi-om Liverpool ever so regularly and spending half its time 
 (when not on the ocean) in that harbor, cannot be taxed by the State 
 of New York (harbor, pilotage, and quarantine dues not being taxes). 
 So New Y^ork ships plying regularly to the port of New Orleans, so 
 that one of the line may be always lying at the latter port, cannot be 
 taxed by the State of Louisiana. (See cases above cited). No more 
 can a train of cars belonging in Pennsylvania, and running regularly 
 from Philadelphia to New Y'ork, or to Chicago, be taxed by the State 
 of New York, in the one case, or by Illinois, in the other. If it may 
 lawfully be taxed b}' these States, it may lawfully be taxed by all the 
 intermediate States, New Jersey, Ohio, and Indiana. And then we 
 should have back again all the confusion and competition and State 
 jealousies which existed before the adoption of the Constitution, and 
 for putting an end to which the Constitution was adopted. 
 
 In the opinion of the court it is suggested that if all the States should 
 adopt as equitable a rule of proportioning the taxes on the Pullman 
 Company as that adopted by Pennsylvania, a just system of taxation 
 of the whole capital stock of the company would be the result. Y"es, 
 if — ! But Illinois ma}' tax the company on its whole capital stock. 
 Where would be the equity then? This, however, is a consideration 
 that cannot be compared with the question as to the power to tax at 
 all, — as to the relative power of the State and general governments 
 over the regulation of internal commerce, — as to the right of the States 
 to resume those powers which have been vested in the government of 
 the United States. 
 
 It seems to me that the real question in the present case is as to the 
 situs of the cars in question. They are used in interstate commerce, 
 between Pennsylvania, New York, and the Western States. Their legal 
 sitics no more depends on the States or places where they are carried in 
 the course of their operations than would that of any steamboats em- 
 ployed by the Pennsylvania Railroad Company to carry passengers on 
 the Ohio or Mississippi. If such steamboats belonged to a company 
 located at Chicago, and were changed from time to time as their condi- 
 tion as to repairs and the convenience of the owners might render 
 necessary, is it possible that the States in which they were running and 
 landing in the exercise of interstate commerce could subject them to 
 taxation? No one, I think, would contend this. It seems to me that 
 the cars in question belonging to the Pullman Car Company are in pre- 
 cisely the same category.
 
 BLACKSTONE V. MILLER. [CHAP. IL 
 
 BLACKSTONE v. MILLER. 
 
 Supreme Court of the United States. 1903. 
 
 {Reported 188 U. S. 189.] 
 
 Holmes, J. This is a writ of error to the Surrogate's Court of the 
 county of New York. It is brought to review a decree of the court, 
 sustained b^' the Appellate Division of the Supreme Court, 69 App. 
 Div. 127, and b}- the Court of Appeals, 171 N. Y. G82, levying a tax 
 on the transfer b}' will of certain property of Timothy B. Blackstone, 
 the testator, who died domiciled in Illinois. The property consisted of 
 a debt of $10,692.24, due to the deceased by a firm, and of the net sum 
 of §4,843,456.72, held on a deposit account by the United States Trust 
 Company of New York. The objection was taken seasonably upon the 
 record tliat the transfer of this property could not be taxed in New York 
 consistent!}' with the Constitution of the United States. 
 
 The deposit in question represented the proceeds of railroad stock 
 sold to a syndicate and handed to the Trust Company, which, by arrange- 
 ment with the testator, held the proceeds subject to his order, paying 
 interest in the meantime. Five days' notice of withdrawal was required, 
 and if a draft was made upon the company, it gave its check upon one 
 of its banks of deposit. The fund had been held in this way from 
 March 31, 1899, until the testator's death on May 26, 1900. It is 
 probable, of course, that he did not intend to leave the fund there 
 forever and that be was looking out for investments, but he had not 
 found them when he died. The tax is levied under a statute impos- 
 ing a tax "upon the transfer of any propertv, real or personal. . . . 
 2. When the transfer is by will or intestate law, of property within the 
 State, and the decedent was a non-resident of the State at the time of 
 his death." Laws of 1896, c. 908, § 220, amended, Laws of 1897, 
 c. 284; 3 Birdseye's Stat. 3d ed. 1901, p. 3592- The whole succession 
 has been taxed in Illinois, the New York deposit being included in the 
 appraisal of the estate. It is objected to tlie New York tax that the 
 property was not within the State, and that the courts of New York 
 had no jurisdiction ; that if the property was within the State it was 
 only transitorily there, Hays v. Pacific Mail Steamship Co., 17 How. 
 596, 599, 600, that the tax impairs the obligation of contracts, that it 
 denies full faith and credit to the judgment taxing the inheritance in 
 Illinois, that it deprives the executrix and legatees of privileges and 
 iiiiuninities of citizens of the State of New York, and that it is contrary 
 to the Fourteenth Amendment. 
 
 In view of the State decisions it must be assumed that the New York 
 statute is intended to reach the transfer of this property if it can be 
 reached. New Orleans v. Stempel, 175 U.S. 309, 316; Morley r. 
 Lake Shore &, Michigan Southern Railway Co., 146 U. S. 162, 166. 
 Wc also must take it to have been found that the property was not in
 
 SECT. IL] BLACKSTONE V. MILLER. 99 
 
 transitu in such a sense as to withdraw it from the power of the State, 
 if otherwise the right to tax the transrer belonged to the State. The 
 propert}' was dela3'ed within the jurisdiction of New York an indefinite 
 time, which had lasted for more than a year, so tliat this finding at least 
 was justified. Kelley v. Ehoads, 188 U. S. 1, and Diamond Match Co. 
 V. Village of Ontonagon, 188 U. S. 84, present term. Both parties agree 
 with the plain words of the law that the tax is a tax upon the transfer, 
 not upon the deposit, and we need spend no time upon that. Therefore 
 the naked question is whether the State has a right to tax the transfer 
 b\' will of such deposit. 
 
 The answer is somewhat obscured by the superficial fact that New 
 York, like most other States, i-ecognizes the law of the domicil as the 
 law determining the right of universal succession. The domicil, natu- 
 rally, must control a succession of that kind. Universal succession is 
 the artificial continuance of the person of a deceased by an executor, 
 heir, or the like, so far as succession to rights and obligations is con- 
 cerned. It is a fiction, the historical origin of which is familiar to 
 scholars, and it is this fiction that gives whatever meaning it has to the 
 saying mobilia sequimtur persoiiam. But being a fiction it is not al- 
 lowed to obscure the facts, when the facts become important. To a 
 considerable, although more or less varying, extent, the succession de- 
 termined b}' the law of the domicil is recognized in other jurisdictions. 
 But it hardl}' needs illustration to show that the recognition is limited 
 b}' the polic}' of the local law. Ancillary administrators pay the local 
 debts before turning over the residue to be distributed, or distributing 
 it themselves, according to the rules of the domicil. The title of the 
 principal administrator, or of a foreign assignee in bankruptcy, another 
 tj'pe of universal succession, is admitted in but a limited way or not at 
 all. See Crapo v. Kelly, 16 Wall. 610; Chipman v. Manufacturers' 
 National Bank, 156 Mass. 147, 148, 149. 
 
 To come closer to the point, no one doubts that succession to a tan- 
 gible chattel may be taxed wherever the propert}' is found, and none 
 the less that the law of the situs accepts its rules of succession from the 
 law of the domicil, or that by the law of the domicil the chattel is pavc 
 of a universitas and is taken into account again in the succession tax 
 there. Eidman v. Martinez, 184 U. S. 578, 586, 587, 592. See Mager 
 V. Grima, 8 How. 490, 493 ; Coe v. Errol, 116 U. S. 517, 524 ; Pullman's 
 Palace Car Co. v. Pennsylvania, 141 U. S. 18, 22 ; Magoun v. Illinois 
 Trust & Savings Bank, 170 U. S. 283; New Orleans t'. Stempel, 175 
 U. S. 309 ; Bristol r. Washington County, 177 U. S. 133; and for state 
 decisions Matter of Estate of Romaine, 127 N. Y. 80 ; Callahan r. 
 Woodbridge. 171 Mass. 593; Greves t?. Shaw, 173 Mass. 205; Allen 
 V. National State Bank, 92 Md. 509. 
 
 No doubt this power on the part of two States to tax on different and 
 more or less inconsistent principles, leads to some hardship. It may 
 be regretted, also, that one and the same State should be seen taxing 
 on the one hand according to the fact of power, and on the other, at
 
 100 BJ.ACKSTONE V. MILLER. [CHAP, II, 
 
 the same time, according to the fiction that, in successions after death, 
 mobilia sequuntur jpersonani and domicil governs the whole. But 
 these inconsistencies infringe no rule of constitutional law. Coe i/- 
 Errol, 116 U. S. 517, 524; Knowlton v. Moore, 178 U. S. 41. 
 
 The question, then, is narrowed to whether a distinction is to be taken 
 between tangible chattels and the deposit in this case. There is no 
 doubt that courts in New York and elsewhere have been loath to recog- 
 nize a distinction for taxing purposes between what commonly is called 
 monej' in the bank and actual coin in the pocket. The practical simi- 
 larit}- more or less has obliterated the legal difference. Matter of 
 Houdayer, 150 N. Y. 37 ; New Orleans v. Stempel, 175 U. S. 309, 316 ; 
 City National Bank v. Charles Baker Co., 180 Mass. 40, 42. In view 
 of these cases, and the decision in the present case, which followed 
 them, a not ver}" successful attempt was made to show that by reason 
 of the facts which we have mentioned, and others, the deposit here was 
 unlike an oidinary deposit in a bank. We shall not stop to discuss 
 this aspect of the case, because we prefer to decide it upon a broader 
 view. 
 
 If the transfer of the deposit necessaril}' depends upon and involves 
 the law of New Y''ork for its exercise, or, in other words, if the transfer 
 is subject to the power of the State of New York, then New York may 
 subject the transfer to a tax. United States r. Perkins, 163 U. S. 625, 
 628, 629 ; McCulloch v. Maryland, 4 Wheat. 316, 429. But it is plain 
 that the transfer does depend upon the law of New York, not because 
 of any theoretical speculation concerning the whereabouts of the debt, 
 but because of the practical fact of its power over the person of the 
 debtor. The principle has been recognized b}' this court with I'egard 
 to garnishments of a domestic debtor of an abs(Mit defendant. Chicago, 
 Rock Island & Pacific Ry. Co. v. Sturm, 174 U. S. 710. See Wj^man v. 
 Ilalstead, 109 U. S. 654. What gives the debt validity? Nothing but 
 the fact that the law of the place whore the debtor is will make him pay. 
 It does not matter that the law would not need to be invoked in the 
 particular case. Most of us do not commit crimes, yet we nevertheless 
 are subject to the criminal law, and it affords one of the motives for our 
 conduct. So again, what enables any other than the ver}' creditor in 
 proper person to collect the debt? The law of the same place. To test 
 it, suppose that New York should turn back the current of legislation 
 and extend to debts the rule still applied to slander that actio 2)ersonalis 
 moritur cum persona, and should provide that all debts hereafter con- 
 tracted in New York and payable there sliould be extinguished bj- the 
 death of either party. Leaving constitutional considerations on one 
 side, it is plain tliat the right of the foreign creditor would be gone. 
 
 Power over the person of the debtor confers jurisdiction, we repeat. 
 And this being so we perceive no better reason for denying the right of 
 New York to impose a succession tax on debts owed by its citizens than 
 upon tangible chattels found within the State at the time of the death. 
 The maxim inohiUa sequuntur jjersofiam has no more truth in the one
 
 SECT. II.] BLACKSTONE V. MILLER. 101 
 
 case than in the other. When logic and the policy of a State conflict 
 with a fiction due to historical tradition, the fiction must give way. 
 
 There is no conflict between our views and the point decided in the 
 case reported under the name of State Tax on Foreign Held Bonds, 
 15 Wall. 300. The taxation in that case was on the interest on bonds 
 held out of the State. Bonds and negotiable instruments are more than 
 merel}- evidences of debt. The debt is inseparable from the paper which 
 declares and constitutes it, b}' a tradition which comes down from more 
 archaic conditions. Bacon y. Hooker, 177 Mass. 335,337. Therefore, 
 considering only the place of the property, it was held that bonds held 
 out of the State could not be reached. The decision has been cut down 
 to its precise point by later cases. Savings &> Loan Society v. Multno- 
 mah County, 169 U. S. 421, 428; New Orleans v. Stempel, 175 U. S. 
 309, 319, 320. 
 
 In the case at bar the law imposing the tax was in force before the 
 deposit was made, and did not impair the obligation of the contract, if 
 a tax otherwise lawful ever can be said to have that effect. Pinne}" v. 
 Nelson, 183 U. S. 144, 147. The fact that two States, dealing each with 
 its own law of succession, both of which the plaintiff in error has to in- 
 voke for her rights, have taxed the right which the}- respectivel}' confer, 
 gives no cause for complaint on constitutional grounds. Coe v. Errol, 
 116 U. S. 517, 524 ; Knowlton v. Moore, 178 U. S. 53. The universal 
 succession is taxed in one State, the singular succession is taxed in 
 another. The plaintiff has to make out her right under both in order 
 to get the mone}-. See Adams r. Batchelder, 173 Mass. 258. The 
 same considerations answer the argument that due faith and credit 
 are not given to the judgment in Illinois. The tax does not deprive 
 the plaintiff in error of any of the privileges and immunities of the 
 citizens of New York. It is no such deprivation that if she had 
 Uved in New York the tax on the transfer of the deposit would have 
 been part of the tax on the inheritance as a whole. See Mager v. Grima, 
 8 How. 490 ; Brown v. Houston, 114 U. S. 622, 635 ; Wallace v. Myers, 
 38 Fed. Rep. 184. It does not violate the Fourteenth Amendment. 
 See Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283. Matters 
 of state procedure and the correctness of the New York decree or judg- 
 ment, apart from specific constitutional objections, are not open here. 
 As we have said, the question whether the property was to be regarded 
 as in transitu, if material, must be regarded as found against the plain- 
 tiff in error. 
 
 Decree affirmed. 
 
 Mr. Justice White dissents.
 
 102 UNION TKANSIT CO. V. KENTUCKY. [CHAP. II. 
 
 UNION TRANSIT CO. v. KENTUCKY. 
 
 Supreme Court of the United States. 1905. 
 
 [Reported 199 U. S. 194.] 
 
 Brown, J. In this case the question is directlj- presented whether 
 a corporation organized under the laws of Kentucky is subject to taxa- 
 tion upon its tangible personal property-, permanently located in other 
 States, and employed there in the prosecution of its business. Such 
 taxation is charged to be a violation of the due process of law clause of 
 the Fourteenth Amendment. 
 
 Section 4020 of the Kentucky statutes, under which this assessment 
 was made, provides that ' ' All real and personal estate within this 
 State, and all personal estate of persons residing in this State, and of all 
 corporations organized under the laws of this State, whether the prop- 
 erty be in or out of this State, . . . shall be subject to taxation, unless 
 the same be exempt from taxation by the Constitution, and shall be 
 assessed at its fair cash value, estimated at the price it would bring at 
 a fair voluntary sale." 
 
 That the property taxed is within this description is beyond contro- 
 versy. The constitutionality of the section was attacked not only upon 
 the ground that it denied to the Transit Company due process of law, 
 but also the equal protection of the laws, in the fact that railroad com- 
 panies were only taxed upon the value of their rolling stock used within 
 the State which was determined by tlie proportion which the number of 
 miles of the railroad in the State bears to the whole number of miles 
 operated by the company. 
 
 The power of taxation, indispensable to the existence of every civil- 
 ized government, is exercised upon the assumption of an equivalent 
 rendered to tlie taxpayer in the protection of his person and property, in 
 adding to the value of such property, or in the creation and maintenance 
 of i)ublic conveniences in which he shares, such, for instance, as roads, 
 bridges, sidewalks, pavements, and schools for the education of his chil- 
 dren. If the taxing power be in no position to render these services, or 
 otherwise to benefit tlie person or property taxed, and such property be 
 wholly within the taxing power of another State, to which it may be said 
 to owe an allegiance and to wiiich it looks for protection, the taxation 
 of such pro[)erty witliin the doniicil of the owner partakes rather of the 
 nature of an extortion than a tax, and has lieen re[)oatedly held b}' this 
 court to be beyond the i)o\verof the legislature and a taking of property 
 without due process of law. Railroad Company r. Jackson, 7 Wall. 
 2G2 ; State Tax on Foreign-held lionds, 15 Wall. 300 ; Tap[)an v. 
 Merchants' National Bank, 11) Wall. 490, 499; Delaware &c. R. R. 
 Co. r. Pennsylvania, I'JH U. S. 341, 3.58. In Chicago \c. R. R. Co. r. 
 Chicago, 166 U. S. 226, it was held, after full consideration, that the 
 taking of private property without compensation was a denial of due
 
 SECT. II.] UNION TRANSIT CO. V. KENTUCKY. 103 
 
 process within the Fourteenth Amendment. See also Davidson v. New 
 Orleans, 96 U. S. 97, 102 ; Missouri Pacific Railway v. Nebraska, 164 
 U. S. 403, 417 ; Mount Hope Cemetery v. Boston, 158 Mass. 509, 519. 
 
 Most modern legislation upon this subject has been directed (1) to 
 the requirement that every citizen shall disclose the amount of his prop- 
 erty subject to taxation and shall contribute in proportion to such 
 amount ; and (2) to the voidance of double taxation. As said by Adam 
 Smith in his " Wealth of Nations," Book V., Ch. 2, Pt. 2, " the sub- 
 jects of ever}- State ought to contribute towards the support of the gov- 
 ernment as nearly as possible in proportion to their respective abilities ; 
 that is, in proportion to the revenue which the}- respectively enjoy 
 under the protection of the State. The expense of government to the 
 individuals of a great nation is like the expense of management to the 
 joint tenants of a great estate, who are all obliged to contribute in pro- 
 portion to their respective interest in the estate. In the observation 
 or neglect of this maxim consists what is called equality or inequality 
 of taxation." 
 
 But notwithstanding the rule of uniformity lying at the basis of 
 every just system of taxation, there are doubtless many individual 
 oases where the weight of a tax falls unequally upon the owners of 
 the property taxed. This is almost unavoidable under ever}- system 
 of direct taxation. But the tax is not rendered illegal b}- silch discrim- 
 ination. Thus every citizen is bound to pa}' his proportion of a 
 school tax, though he have no children ; of a police tax, though he have 
 no buildings or personal property to be guarded ; or of a road tax, 
 though he never use the road. In other words a general tax cannot be 
 dissected to show that, as to certain constituent parts, the taxpayer re- 
 ceives no benefit. Even in case of special assessments imposed for the 
 improvement of property within certain limits, the fact that it is ex- 
 tremelv doubtful whether a particular lot can receive any benefit from 
 the improvement does not invalidate the tax with respect to such lot. 
 Kelly V. Pittsburgh 104 U. S. 78 ; Amesbury Nail Factory Co. v. 
 Weed, 17 Mass. 53; Thomas v. Gay, 169 U. S. 264; Louisville &c. 
 R. R. Co. V. Barber Asphalt Co. 197 U. S. 430. Subject to these in- 
 dividual exceptions, the rule is that in classifying property for taxation 
 some benefit to the property taxed is a controlling consideration, and a 
 plain abuse of this power will sometimes justify a judicial interference. 
 Norwood V. Baker, 172 U. S. 269. It is often said protection and 
 payment of taxes are correlative obligations. 
 
 It is also essential to the validity of a tax that the property shall be 
 within the territorial jurisdiction of the taxing power. Not only is 
 the operation of State laws limited to persons and property within the 
 boundaries of the State, but property which is wholly and exclusively 
 within the jurisdiction of another State, receives none of the protec- 
 tion for which the tax is supposed to be the compensation. This rule 
 receives its most familiar illustration in the cases of land which, to 
 be taxable, must be within the limits of the State. Indeed, we know
 
 104 UNIOx\ TRANSIT CO. V. KENTUCKY. [CHAP. II. 
 
 of no case where a legislature has assumed to impose a tax upon land 
 within the jurisdiction of another State, much less where such action 
 has been defended by any court. It is said by this court in the 
 Foreign-held Bond Case, 15 Wall. 300, 319, that no adjudication 
 should be necessary to establish so obvious a proposition as that 
 property lying beyond the jurisdiction of a State is not a subject 
 upon which her taxing power can be legitimately exercised. 
 
 The argument against the taxability of land within the jurisdiction 
 of another State applies with equal cogency to tangible personal prop- 
 erty beyond the jurisdiction. It is not only beyond the sovereignty of 
 the taxing State, but does not and cannot receive protection under its 
 laws. True, a resident owner may receive an income from such 
 property, but the same may be said of real estate within a foreign 
 jurisdiction. Whatever be the rights of the State with respect 
 to the taxation of such income, it is clearly beyond its power to tax 
 the land from which the income is derived. As we said in Louisville 
 &c. Ferry Co. v. Kentucky, 188 U. S., 385, 396: "While the mode, 
 form, and extent of taxation are, speaking generally, Umited only by 
 the wisdom of the legislature, that power is limited by principle in- 
 hering in the very nature of constitutional government, namely, that 
 the taxation imposed must have relation to a subject within the jurisdic- 
 tion of the taxing government." See also McCulloch r. Maryland, 4 
 Wheat. 31.6, 429; Hays v. Pacific Mail S. S. Co., 17 How. 596, 599 ; 
 St. Louis r. Ferry Co., 11 Wall. 423, 429,431; Morgan y. Parhain, 
 16 Wall. 471, 476. 
 
 Respecting this, there is an obvious distinction between the tangible 
 and intangible property, in the fact that the latter is held secretly ; 
 that there is no method by which its existence or ownership can be 
 ascertained in the State of its situs, except perhaps in the case of 
 mortgages or shares of stock. So if the owner be discovered, there is 
 no way by which he can be reached by process in a State other than 
 that of his domicil, or the collection of tlie tax otherwise enforced. 
 In this class of cases the tendency of modern authorities is to apply the 
 maxim mohilia sequiintur personam, and to hold that the property may 
 be taxed at the domicil of the owner as the real situs of the debt, and 
 also, more particularly in the case of mortgages, in the State where 
 the property is retained. Such has been the repeated rulings of this 
 court. Tappan v. Merchants' National Bank, 19 AVall. 490; Kirtlaud 
 V. Hotchkiss, 100 U. S. 491 ; Bonaparte v. Tax Court, 104 U. S. 592; 
 Sturgis V. Carter, 114 U. S. 511; Kidd v. Alabama, 188 U. S. 730; 
 Blackstone /•. IMillcr, 188 U. S. 189. 
 
 If tills occasionally results in double taxation, it much oftener happens 
 that this class of property escapes altogether. In the case of intangible 
 property, the law does not look for absolute equality, but to the much 
 more practical consideration of collecting the tax upon such property, 
 either in the State of the domicil or the situs. Of course, we do not 
 enter into a consideration of the question, so much discussed by polit-
 
 SECT. II.J UNION TRANSIT CO. V. KENTUCKY. 105 
 
 ical economists, of the double taxation involved in taxing the piopert}' 
 from which these securities arise, and also the burdens upon such prop- 
 erty, such as mortgages, shares of stock and the like — the securities 
 themselves. 
 
 The arguments in favor of the taxation of intangible property at the 
 domicil of the owner have no application to tangible property. The 
 fact that such property is visible, easily found and difficult to conceal, 
 and the tax readily collectible, is so cogent an argument for its taxa- 
 tion at its situs, that of late there is a general consensus of opinion 
 that it is taxable in the State where it is permanently located and em- 
 ployed, and wliere it receives its entire protection, irrespective of the 
 domicil of the owner. We have, ourselves, held in a number of cases 
 that such property permanently located in a State other than that of 
 its owner is taxable there. Brown v. Houston, 114 U. S. 622 ; Coe v. 
 Errol, 116 U. S. 517 ; Pullman's Car Co. v. Pennsylvania, 141 U. S. 18 ; 
 Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530 ; Rail- 
 road Company r. Peniston, 18 Wall. 5 ; American Refrigerator Transit 
 Company r. Hall, 174 U. S. 70; Pittsburgh Coal Company r. Bates, 
 156 U. S. 577; Old Dominion Steamship Company v. Virginia, 198 
 U. S. 299. We have also held that, if a corporation be engaged in 
 running railroad cars into, through, and out of the State^ and having at 
 all times a large number of cars within the State, it ma}- be taxed by 
 taking as the basis of assessment such proportion of its capital stock as 
 the number of miles of railroad over which its cars are run within the 
 State bears to the whole number of miles in all the States over which 
 its cars are run. Pullman's Car Co. v. Pennsylvania, 141 U. S. 18. 
 
 There are doubtless cases in the State reports announcing the prin- 
 ciple that the ancient maxim of niobilia se'juuntur j^&'n'soyiam still 
 applies to personal property, and that it may be taxed at the domicil 
 of the owner, but upon examination they all or nearly all relate to 
 intangible propertj-, such as stocks, bonds, notes, and other choses in 
 action. We are cited to none applying this rule to tangible propert}-, 
 and after a careful examination have not been able to find an}' wherein 
 the question is squarely presented, unless it be that of Wheaton v. 
 Mickel, 63 N. J. Law, 525, where a resident of New Jersey was taxed 
 for certain coastwise and seagoing vessels located in Pennsylvania. It 
 did not appear, however, that they were permanently located there. 
 The case turned upon the construction of a State statute, and the ques- 
 tion of constitutionality was not raised. If there are any other cases 
 holding that the maxim applies to tangible personal property, they are 
 wholly exceptional, and were decided at a time when personal property 
 was comparatively of small amount, and consisted principally of stocks 
 in trade, horses, cattle, vehicles, and vessels engaged in navigation. 
 But in view of the enormous increase of such property since the in- 
 troduction of railways and the growth of manufactures, the tendency 
 has been in recent years to treat it as having a situs of its own for 
 the purpose of taxation, and correlatively to exempt at the domicil of
 
 106 UNION TRANSIT CO. V. KENTUCKY. [CHAP. II. 
 
 its owner. The eases in the State reports upon this subject usually 
 turn upon the construction of local statutes granting or withholding the 
 right to tax extra-territorial property, and do not involve the constitu- 
 tional principle here invoked. Many of them, such, for instance, as 
 Blood V. Sayre, 17 Vt. 609; Preston v. Boston, 12 Pickering, 7; 
 Pease y. Whitney, 8 Mass. 93; Gray v. Kettel, 12 Mass. 161, turn 
 upon the taxability of property where the owner is located in one, 
 and the property in another, of two jurisdictions within the same State, 
 sometimes even involving double taxation, and are not in point here. 
 
 One of the most valuable of the State cases is that of Hoyt v. 
 Commissioners of Taxes, 23 N. Y. 224, where, under the New York 
 statute, it was held that the tangible property of a resident actually 
 situated in another State or countr}" was not to be included in the as- 
 sessment against him. The statute declared that "all lands and all 
 personal estate within this State " were liable for taxation, and it was 
 said in a most instructive opinion b}" Chief Justice Comstock that the 
 language could not be obscured by the introduction of a legal fiction 
 about the situs of personal estate. It was said that this fiction involved 
 the necessary consequence that " goods and chattels actually within 
 this State are not here in any legal sense, or for an}' legal purpose, if 
 the owner resides abroad ; " and that the maxim mobilia sequuntur 
 personam ma}" onl}" be resorted to when convenience and justice so re- 
 quire. The proper use of legal fiction is to prevent injustice, accord- 
 ing to the maxim '■'•in fictiono, juris semper wquitas existat." See 
 Eidman v. Martinez, 184 U. S. 578 ; Blackstone r. Miller, 188 U. S. 
 189, 206. " No fiction," says Blackstone, "shall extend to work an 
 injury; its proper operation being to prevent a mischief or remedy an 
 inconvenience, which might result from a general rule of law." The 
 opinion argues with great force against the injustice of taxing extra- 
 territorial property, when it is also taxable in the State where it is lo- 
 cated. Similar cases to the same effect are People v. Smith, 88 N. Y. 
 576 ; City of New Alban}' lu Meekin, 3 Indiana, 481 ; Wilkey v. Cit}' of 
 Pekin, 19 Illinois, 160; Johnson r. Lexington, 14 B. Monroe, 521; 
 CatHn r. Hull, 21 Vermont, 152 ; Nashua Bank v. Nashua, 46 N. H. 
 380. 
 
 In Weaver's Estate v. State, 110 Iowa, 328, it was held by the Su- 
 preme Court of Iowa that a herd of cattle within the State of Mis- 
 souri belonging to a resident of Iowa, was not subject to an 
 inlioritanco tax upon his decease. In Commonwealth r. American 
 Dredging Comi)any, 122 Penna. St. 386, it was held that a Penn- 
 sylvania corporation was taxable in respect to certain dredges 
 and other similar vessels which were built, but not permanently 
 retained outside of the state. It was said that the non-taxabilitj' of 
 tangible personal property located permanently outside of the State 
 was not "because of the technical principle that the situs of personal 
 proport}' is where the domicil of the owner is found. This rule is 
 doubtless true as to intangible property, such as bonds, mortgages, and
 
 SECT. II.] UNION TRANSIT CO. V. KENTUCKY. 107 
 
 other evidences of debt. But the better opinion seeras to be that it 
 does not liold in the case of visible tangible personal propert}' perma- 
 nently located in another State. In such cases it is taxable within 
 the jurisdiction where found, and is exempt at the domicil of the 
 owner." The property in that case, however, was held not to be per- 
 manently outside of the State, and therefore not exempt from taxation. 
 The rule, however, seems to be well settled in Pennsylvania that so 
 much of the tangible propert}' of a corporation as is situated in 
 another State, and there employed in its corporate business, is not 
 taxable in Pennsylvania. Commonwealth v. Montgomer}" &c. Mining 
 Co., 5 Pa. County Courts Rep. 89; Commonwealth v. Railroad Co., 
 145 Pa. St. 96; Commonwealth v. Westinghouse Mfg. Co., 151 Pa. St. 
 265 ; Commonwealth v. Standard Oil Co., 101 Pa. St. 119. The rule is 
 the same in New York. Pacific Steamship Company v. Commissioners, 
 46 How. Pr. 315. 
 
 But there are two recent cases in this court which we think com- 
 pletely cover the question under consideration and require the reversal 
 of the judgment of the State court. The first of these is that of the 
 Louisville &c. Ferry Co. v. Kentucky, 188 U. S. 385. That was an 
 action to recover certain taxes imposed upon the corporate franchise 
 of the defendant compan}', which was organized to establish and main- 
 tain a ferry between Kentucky and Indiana. The defendant was also 
 licensed by the State of Indiana. We held that the fact that such 
 franchise had been granted b}' the Commonwealth of Kentucky did 
 not bring within the jurisdiction of Kentucky for the purpose of tax- 
 ation the franchise granted to the same company by Indiana, and 
 which we held to be an incorporeal hereditament derived from and 
 having its legal situs in that State. It was adjudged that such taxa- 
 tion amounted to a deprivation of property without due process of law, 
 in violation of the Fourteenth Amendment, as much so as if the State 
 taxed the land owned b^' that company ; and that the officers of the 
 State had exceeded their power in taxing the whole franchise without 
 making a deduction for that obtained from Indiana, the two being 
 distinct, "although the enjoyment of both are essential to a complete 
 ferry right for the transportation of persons and property across the 
 river both ways." 
 
 The other and more recent case is that of the Delaware &c. Rail- 
 road Co. V. Pennsylvania, 198 U. S. 341. That was an assessment 
 upon the capital stock of the railroad compan}-, wherein it was con- 
 tended that the assessor should have deducted from the value of such 
 stock certain coal mined in Pennsylvania and owned by it, but stored 
 in New York, there awaiting sale, and beyond the jurisdiction of the 
 commonwealth at the time appraisement was made. This coal was 
 taxable, and in fact was taxed in the State where it rested for the pur- 
 poses of sale at the time when the appraisement in question was made. 
 Both this court and the Supreme Court of Pennsylvania had held that 
 a tax on the corporate stock is a tax on the assets of the corporation
 
 108 UNION TRANSIT CO, V. KENTUCKY. [CHAP. II. 
 
 issuing sucli stock. The two courts agreed in the general proposition 
 that tangible property- permanently outside of the State, and having no 
 situs within the State, could not be taxed. But they differed upon the 
 question whether the coal involved was permanently outside of the 
 State. In delivering the opinion it was said: " However temporary 
 the stay of the coal might be in the particular foreign States where it 
 was resting at the time of the appraisement, it was definitely and for- 
 ever bej'ond the jurisdiction of Pennsylvania. And it was within the 
 jurisdiction of the foreign States for purposes of taxation, and in truth 
 it was there taxed. We regard this tax as in substance and in fact, 
 though not in form, a tax specificalh' levied upon the property of the 
 corporation, and part of that property is outside and beyond the juris- 
 diction of the State which thus assumes to tax it." The decision in that 
 case was really broader than the exigencies of the case under consider- 
 ation required, as the tax was not upon the personal property itself, 
 but upon the capital stock of a Penns3lvania corporation, a part of 
 which stock was represented by the coal, the value of which was held 
 should have been deducted. 
 
 The adoption of a general rule that tangible personal property in 
 other States may be taxed at the domicil of the owner involves possi- 
 bilities of an extreme!}' serious character. Not only would it author- 
 ize the taxation of furniture and other property kept at country houses 
 in other States or even in foreign countries, of stocks of goods and mer- 
 chandise kept at branch establishments when already taxed at the State 
 of their situs, but of that enormous mass of personal property belong- 
 ing to railways and other corporations which might be taxed in the 
 state where the}' are incorporated, thougli their charters contemplated 
 tlie construction and operation of roads wholly outside the State, and 
 sometimes across the continent, and when in no other particular the}' 
 are subject to its laws and entitled to its protection. The propriety 
 of such incorporations, where no business is done witliin the State, is 
 open to a grave doubt, but it is possible that legislation alone can 
 furnish a remedy. 
 
 Our conclusion upon this branch of the case renders it unnecessary 
 to decide the second question, viz : Whether the Transit Company was 
 denied the equal protection of the laws. 
 
 It is unnecessary to say that this case does not involve the question 
 of the taxation of intangible personal property, or of inheritance or 
 succession taxes, or of questions arising between different municipali- 
 ties or taxing districts within the same State, which are controlled by 
 different considerations. 
 
 We are of opinion tliat the cars in question, so far as they were 
 located and cm[)loyed in other States tlian Kentucky, were not subject 
 to tlie taxing power of that commonwealth, and that the judgment of 
 the Court of Appeals must be reversed, and the case remanded to that 
 court for further proceedings not inconsistent with this opinion. 
 
 Mk. Justick Wiuxe concurred in the result.
 
 SECT. II,] NEW YORK CENTRAL RAILROAD V. MILLER. 109 
 
 Mr. Justice Holmes : It seems to me that the result reached by the 
 court probably is a desirable oue, but I hardly understand how it can 
 be deduced from the Fourteenth Amendment, and as the Chief Justice 
 feels the same difficulty, I think it proper to say that my doubt has 
 not been removed. 
 
 NEW YORK CENTRAL RAILROAD v. MILLER. 
 
 Supreme Court of the United States. 1906. 
 
 [Reported 202 U. S. 584.] 
 
 Holmes, J. These cases arise upon writs of certiorari, issued under 
 the State law and addressed to the State comptroller for the time being, 
 to revise taxes imposed upon the relator for the years 1900, 1901, 1902, 
 1903 and 1904 respectively. The tax was levied under New York Laws 
 of 1896, c. 908, § 182, which, so far as material, is as follows : " Franchise 
 Tax on Corporations. — Every corporation . . . incorporated . . . under 
 . . . law in this State, shall pa}' to the State treasurer annually, an annual 
 tax to be computed upon the basis of the amount of its capital stock 
 employed within this State and upon each dollar of such amount," at 
 a certain rate, if the dividends amount to six per cent or more upon the 
 par value of such capital stock. " If such dividend or dividends amount 
 to less than six per centum on the par value of the capital stock [as vi-as 
 the case with the relator], the tax shall be at the rate of one and one-half 
 mills upon such portion of the capital stock at par as the amount of cap- 
 ital emplo3'ed within this State bears to the entire capital of the cor[)o- 
 ration." It is provided further by the same section that every foreign 
 corporation, etc., "shall paj' a like tax for the privilege of exercising 
 its corporate franchises or carrying on its business in such corporate 
 or organized capacit}- in this State, to be computed upon the basis of 
 the capital employed by it within this State." 
 
 The relator is a New York corporation owning or hiring lines without 
 as well as within the State, having arrangements with other carriers for 
 through transportation, routing and rating, and sending its cars to points 
 without as well as within the State, and over other lines as well as its 
 own. The cars often are out of the relator's possession for some time, 
 and may be transferred to man}' roads successively, and even may be 
 used b}' other roads for their own independent business, before the}' 
 retui'n to the relator or the State. In short, by the familiar course of 
 railroad business a considerable proportion of the relator's cars con- 
 stantly is out of the State, and on this ground the relator contended 
 that that proportion should be deducted from its entire capital, in order 
 to find the capital stock employed within the State. This contention 
 the comptroller disallowed. 
 
 The writ of certiorari in the earliest case, No. 81, with the return set- 
 ting forth the proceedings of the comptroller. Knight, and the evidence
 
 110 NEW YORK CENTRAL RAILROAD V. MILLER. [CHAP. II. 
 
 given before him, was heard by the Appellate Division of the Supreme 
 Court, and a reduction of the amount of the tax was ordered. 75 App. 
 Div. 169. On appeal the Court of Appeals ordered the proceedings to 
 be remitted to the comptroller, to the end that further evidence might 
 be taken upon the question whether any of the relator's rolling stock 
 was used exclusively outside of the State, with directions that if it should 
 be found that such was the fact the amount of the rolling stock so used 
 should be deducted. 173 N. Y. 255. On rehearing of No. 81 and with 
 it No. 82, before the comptroller, now Miller, no evidence was offered 
 to prove that any of the relator's ears or engines were used continuously 
 and exclusively outside of the State during the whole tax 3'ear. In the 
 later cases it was admitted tliat no substantial amount of the equipment 
 was so used during the similar period. But in all of them evidence was 
 offered of the movements of particular cars, to illustrate the transfers 
 which they went through before they returned, as has been stated, evi- 
 dence of the relator's road mileage outside and inside of the State, and 
 also evidence of the car mileage outside and inside of the State, in order 
 to show, on one footing or the other, that a certain proportion of cars, 
 although not the same cars, was continuous!}' witliout the State during 
 the whole tax 3'ear. The comptroller refused to make an}- reduction 
 of the tax, and the case being taken up again, his refusal was affirmed 
 by the Appellate Division of the Supreme Court and by the Court of 
 Appeals on the authority of the former decision. 89 App. Div. 127 ; 
 177 N. Y. 584. The later cases took substantially the same course. 
 The relator saved the questions whether the statute as construed was 
 not contrary to Article 1, § 8, of the Constitution of the United States, 
 as to commerce among the States; Article 1, § 10, against impairing 
 the obligation of contracts; Article 4, § 1, as to giving full faith and 
 credit to the public acts of other States ; and the Fourteenth Amend- 
 ment. It took out writs of error and brought the cases here. 
 
 The argument for the relator had woven through it suggestions which 
 only tended to show that the construction of the New York statute b}' 
 the Court of Appeals was wrong. Of course if the statute as construed 
 is valid under the Constitution, we are bound by the construction given 
 to it by the State court. In this case we are to assume that the statute 
 purports and intends to allow no deduction from the capital stock taken 
 as the basis of the tax, unless some specific portion of the corporate 
 property is outside of the State during the whole tax year. We nuist 
 assume, further, that no part of the corporate property in question 
 was outside of the State during the whole tax year. The proposition 
 reall}' was conceded, as we have said, and the evidence that was 
 offered had no tendency to prove the contrary. If we are to suppose 
 tliat the reports offered in evidence were accepted as competent to 
 establish the facts which they set forth, still it would be going a very 
 great way to infer from car mileage the average number or proportion 
 of cars absent from the State. For, as was said by a witness, the reports 
 show only that the cars made so many miles, but it might be ten or it
 
 SECT. II.] NEW YORK CENTRAL RAILKOAD V. MILLEK. Ill 
 
 might be fifty cars that made thein. Cerlainh- no inference whatever 
 could be drawn tiiat the same cars were absent from the I^tate all the 
 time. 
 
 In view of what we have said it is questionable whether the relator 
 has offered evidence enough to open the constitutional ol)jections urged 
 against the tax. But as it cannot be doubted, in view of the well-known 
 course of railroad business, that some considerable proportion of the 
 relator's cars always is absent from the State, it would be unsatisfactory 
 to turn the case off with a merelj- technical answer, and we proceed. 
 The most salient points of the relator's argument are as follows : This 
 tax is not a tax on the franchise to be a corporation, but a tax on the 
 use and exercise of the franchise of transportation. The use of this or 
 an}' other franchise outside the State cannot be taxed by New York. 
 The car mileage within the State and that upon other lines without the 
 State afford a basis of apportionment of the average total of cars contin- 
 uously employed by other corporations without the State, and the relator's 
 road mileage within and without the State affords a basis of apportion- 
 ment of its average total equipment continuous!}- employed by it re- 
 spectively within and without the State. To tax on the total value within 
 and without is beyond the jurisdiction of the State, a taking of property 
 without due process of law, and an unconstitutional interference with 
 commerce among the States. 
 
 A part of this argument we have answered already. But we must go 
 further. We are not curious to inquire exactlywhat kind of a tax this 
 is to be called. If it can be sustained by the name given to it by the 
 local courts it mast be sustained by us. It is called a franchise tax in 
 the act, but it is a franchise tax measured by property. A tax very 
 like the present was treated as a tax on the property of the corporation 
 in Delaware, Lackawanna & Western R. R. v. Pennsylvania, 198 U. S. 
 341, 353. This seems to be regarded as such a tax by the Court of 
 Appeals in this case. See People v. Morgan, 178 N. Y. 433, 439. If 
 it is a tax on any franchise which the State of New York gave, and the 
 same State could take away, it stands at least no worse. The relator's 
 argument assumes that it must be regarded as a tax of a particular kind, 
 in order to invalidate it, although it might be valid if regarded as the 
 State court regards it. 
 
 Suppose, then, that the State of New York had taxed the property 
 directly, there was nothing to hinder its taxing the whole of it. It is 
 true that it has been decided that property, even of a domestic corpora- 
 tion, cannot be taxed if it is permanently out of the State. Union Re- 
 frigerator Transit Co. v. Kentucky, 199 U. S. 194, 201, 211 ; Delaware, 
 Lackawanna & Western R. R. v. Pennsylvania, 198 U. S. 341 ; Louisville 
 & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385. But it has not 
 been decided, and it could not be decided, that a State may not tax its 
 own corporations for all their property within the State during the tax 
 year, even if every item of that property should be taken successively 
 into another State for a day, a week, or six months, and then brought
 
 112 METROPOLITAN LIFE INS. CO. V. NEW ORLEANS. [CHAP. XL 
 
 back. Using the language of doraieil, which now so frequentl}^ is ap- 
 plied to inanimate things, the State of origin remains the permanent 
 situs of the property, notwithstanding its occasional excursions to 
 foreign parts. Ayer & Lord Tie Co. v. Kentucky, May 21, 1906, 
 202 U. S. 409. See also Union Refrigerator Transit Co. v. Kentucky 
 199 U. S. 194, 208, 209. 
 
 It was suggested that this case is but the complement of Pullman's 
 Palace Car Co. v. Pennsylvania, 141 U. S. 18, and that as there a tax 
 upon a foreign corporation was sustained, levied on such proportion of 
 its capital stock as the miles of track over which its cars were run within 
 the State bore to the whole number of miles over which its cars were 
 run, so here in the domicil of such a corporation there sliould be an ex- 
 emption corresponding to the tax held to be lawfully levied elsewhere. 
 But in that case it was found that the " cars used in this State have, 
 during all the time for which tax is charged, been running into, through 
 and out of the State." The same cars were continuouslj' receiving the 
 protection of the State and, therefore, it was just that the State should 
 tax a proportion of them. Whether if the same amount of protection 
 had been received in respect of constantly changing cars the same prin- 
 ciple would have applied was not decided, and it is not necessary' to 
 decide now. In the present case, however, it does not appear that any 
 specific cars or any average of cars was so continuously' in an}' other 
 state as to be taxable there. The absences relied on were not in the 
 course of travel upon fixed routes, but random excursions of casually 
 chosen cars, determined b}' tlie varying orders of particular shippers 
 and the arbitrary convenience of other roads. Therefore we need not 
 consider either whether there is any necessary parallelism between 
 liability elsewhere and immunity at home. 
 
 Judgments affirmed. 
 
 METROPOLITAN LIFE INSURANCE COMPANY v. 
 NEW ORLEANS. 
 
 Supreme Coukt of the United States. 1907. 
 
 [Reported 205 U. S. 395.] 
 
 Moody, J. This is a writ of error to review the judgment of the 
 Supreme Court of Louisiana, which sustained a tax on the " credits, 
 money loaned, bills receivable,"' etc., of the plaintift' in error, a life 
 insurance company incorporated under the laws of New York, where 
 it liad its home oftice and principal place of business. It issued poli- 
 cies of life insurance in the State of I^ouisiana and, for the purpose of 
 doing that and otiier business, liad a resident agent, called a superin- 
 tendent, whose duty it was to superintend the company's business gen- 
 erally in the S*:ate. The agent had a local office in New Orleans. The 
 company was engaged in tlie business of lending money to the holders
 
 SECT. II.] METROPOLITAN LIFE INS. CO. V. NEW ORLEANS. 113 
 
 of its policies, wliicli, wlien tliey had reached a certain point of maturit}', 
 were regarded as furnishing adequate security for loans. The monej' 
 lending was conducted in the following manner : The policy holders 
 desiring to obtain loans on their policies applied to the company's agent 
 in New Orleans. If the agent thought a loan a desirable one he ad- 
 vised the company of the application by communicating with the home 
 oflSce in New York, and requested that the loan be granted. If the 
 home office approved the loan the company forwarded to the agent a 
 check for the amount, with a note to be signed by the borrower. The 
 agent procured the note to be signed, attached the policy to it, and for- 
 warded both note and policy to the home office in New Yoik. He then 
 delivered to the borrower the amount of the loan. When interest was 
 due upon the notes it was paid to the agent and by him transmitted to 
 the home office. It does not appear whether or not the notes were re- 
 turned to New Orleans for the endorsement of the payments of interest. 
 When the notes were paid it was to the agent, to whom they were sent 
 to be delivered back to the makers. At all other times the notes and 
 policies securing them were kept at the home office in New York. The 
 disputed tax was not eo nomine on these notes, but was expressed to 
 be on "credits, money loaned, bills receivable," etc., and its amount 
 was ascertained by computing the sura of the face value of all the notes 
 held by the company at the time of the assessment. The tax was 
 assessed under a law. Act 170 of 1898, which provided for a levy of 
 annual taxes on the assessed value of all property situated within the 
 State of Louisiana, and in Section 7 provided as follows : 
 
 " That it is the duty of the tax assessors throughout the State to place 
 upon the assessment list all property subject to taxation, including mer- 
 chandise or stock in trade on hand at the date of listing within their 
 respective districts or parishes. . . . And jyrovided further, In assess- 
 ing mercantile firms the true intent and purpose of this act shall be held 
 to mean the placing of such value upon stock in trade, all cash, whether 
 borrowed or not, money at interest, open accounts, credits, &c., as will 
 represent in their aggregate a fair average on the capital, both cash and 
 credits, employed in the business of the party or parties to be assessed. 
 And this shall apply with equal force to any person or persons repre- 
 senting in this State business interests that may claim domicile else- 
 where, the intent and purpose being that no non-resident, either by 
 himself or through any agent, shall transact business here without 
 paying to the State a corresponding tax with that exacted of its own 
 citizens ; and all bills receivable, obligations or credits arising from the 
 business done in this State are hereby declared as assessable within 
 this State and at the business domicile of said non-resident, his agent 
 or representative." 
 
 The evident purpose of this law is to lay the burden of taxation 
 equally upon those who do business within the State. It requires that 
 in the valuation for the purposes of taxation of the property of mercan- 
 tile firms the stock, goods, and credits shall be taken into account, to 
 
 8
 
 114 METROPOLITAN LIFE INS. CO. V. NEW ORLEANS. [CIIAP. IL 
 
 the end that the average capital employed in the business shall be taxed. 
 This method of assessment is applied impartially to the citizens of the 
 State and to the citizens of other States or countries doing business, 
 personally or through agents, within the State of Louisiana. To accom- 
 plish this result, the law expressly provides that " all bills receivable, 
 obligations or credits arising from the business done in this State shall 
 be assessable at the business domicile of the resident." Thus it is clear 
 that the measure of the taxation designed by the law is the fair average 
 of the cai)ital employed in the business. Cash and credits and bills 
 receivable are to be taken into account merely because they represent 
 the capital and are not to be omitted because their owner happens to 
 have a domicile in another State. The law was so construed by the 
 Supreme Court of Louisiana, where, in sustaining the assessment, it 
 was said : 
 
 "There can be no doubt that the seventh section of the act of 1898, 
 quoted in the judgment of the District Court, announced the policy of 
 the State touching the taxation of credits and bills of exchange repre- 
 senting an amount of the property of non-residents equivalent or corre- 
 sponding to said bills or credits which was utilized by them in the 
 prosecution of their business in the State of Louisiana. The evident 
 object of the statute was to do away with discrimination theretofore ex- 
 isting in favor of non-residents as against residents, and place them on 
 an equal footing. The statute was not arbitrary, but a legitimate exer- 
 cise of legislative power and discretion." 
 
 The tax was levied in obedience to the law of the State, and the only 
 question here is whether there is anything in the Constitution of the 
 United States which forbids it. The answer to that question depends 
 upon whether the property taxed was within tlie territorial jurisdiction 
 of the State. Property situated without that jurisdiction is beyond the 
 State's taxing power, and the exaction of a tax upon it is in violation 
 of the Fourteenth Amendment to the Constitution. Louisville Ferry 
 Co. V. Kentucky, 188 U. S. 385 ; Delaware, &c., Railroad Co. v. Penn- 
 sylvania, 198 U. S. 341 ; Union Refrigerator Transit Co. c Kentucky, 
 199 U. S. 194. But personal property may be taxed in its permanent 
 abiding place, although the domicile of the owner is elsewhere. It is 
 usually easy to determine the taxable situs of tangible personal property. 
 But where personal property is intangible, and consists, as in this case, 
 of credits reduced to the concrete form of promissory notes, the inquiry 
 IS complicated, not only by the fiction that the domicile of personal 
 property follows that of its owner, but also by the doctrine, based upon 
 historical reasons, that where debts have assumed the form of bonds or 
 other specialties, they are regarded for some purposes as being the 
 l)ro[)erty itself, and not the mere representative of it, and may have a 
 taxal)le situs of their own. How far promissory notes are assimilated 
 to specialties in respect of this doctrine, need not now be considered. 
 
 The question in this case is controlled by the authority of the pre- 
 vious decisions of this court. Taxes under this law of Louisiana have
 
 SECT. II.] METROPOLITAls" LIFE INS. CO. V. NEW ORLEANS. 115 
 
 been twice considered liere, and assessments npon credits arising out of 
 investments in tlie State have been sustained. A tax on credits evi- 
 denced by notes secured by mortgages was sustained where the owner, 
 a non-resident who had inherited them, left them in Louisiana in the 
 possession of an agent, who collected the principal and interest as they 
 became due. New Orleans v. Stempel, 175 U. S. 309. Again, it was 
 held that where a foreign banking company did business in New Orleans, 
 and through an agent lent mone}' which was evidenced bv checks drawn 
 upon the agent, treated as overdrafts and secured by collateral, the 
 checks and collateral remaining in the hands of the agent until the trans- 
 actions were closed, the credits thus evidenced were taxable in Loui- 
 siana. Board of Assessors r. Comptoir National, 191 U. S. 388. In 
 both of tliese cases the written evidences of the credits were continuously 
 present in the State, and their presence was clearly the dominant factor 
 in the decisions. Here the notes, though present in the State at all 
 times when they were needed, were not continuously present, and during 
 the greater part of their lifetime were absent and at their owner's dom- 
 icile. Between these two decisions came the case of Bristol v. Wash- 
 ington County, 177 U. S. 133. It appeared in that case that a resident 
 of New York was engaged through an agent in the business of lending 
 money in Minnesota, secured by mortgages on real propert}'. The 
 notes were made to the order of the non-resident, though payable in 
 Minnesota, and the mortgages ran to her. The agent made the loans, 
 took and kept the notes and securities, collected tlie interest and re- 
 ceived payment. The property' thus invested continued to be taxed 
 without protest in Minnesota, until finally the course of business was 
 changed by sending the notes to the domicile of the owner in New York, 
 where the}' were kept by her. The mortgages were, however, retained 
 by the agent in Minnesota, though his power to discharge them was 
 revoked. The interest was paid to the agent and the notes forwarded 
 to him for collection when due. Taxes levied after this change in the 
 business were in (|ispute in the case. In delivering the opinion of the 
 court, Mr. Chief Justice Fuller said : " Nevertheless, the business of 
 loaning money through the agency in Minnesota was continued during 
 all these years, just as it had been carried on before, and we agree with 
 the Circuit Court that the fact that the notes were sent to Mrs. Bristol 
 in New Yoi'k, and the fact of the revocation of the power of attorney, 
 did not exempt these investments from taxation under the statutes as 
 expounded in the decisions to which we have referred. ..." 
 
 Referring to the case of New Orleans v. Stempel, the Chief Justice 
 said : 
 
 " There the moneys, notes, and other evidences of credits were in fact 
 In Louisiana, though their owners resided elsewhere. Still, under the 
 circumstances of the case before us, we think, as we have said, that the 
 mere sending of tlie notes to New York and the revocation of the power 
 of attorne}' did not take these investments out of the rule. 
 
 " Persons are not permitted to avail themselves, for their own benefit,
 
 116 METROPOLITAN LIFE INS. CO. V. NEW ORLEANS. [CHAP. XL 
 
 of the laws of a State in the conduct of business within its limits, and 
 then to escape their due contribution to the public need, through action 
 of this sort, whether taken for convenience or by design." 
 
 Accordingly it was held that the tax was not forbidden by the Fed- 
 eral Constitution. 
 
 In this case, the controlling consideration was the presence in the 
 State of the capital employed in the business of lending money, and 
 the fact that the notes were not continuously present was regarded as 
 immaterial. It is impossible to distinguish the case now before us from 
 the Bristol case. Here the loans were negotiated, the notes signed, the 
 security taken, the interest collected, and the debts paid within the State. 
 The notes and securities were in Louisiana whenever the business exi- 
 gencies required them to be there. Their removal with the intent that 
 the}' shall return whenever needed, their long continued though not per- 
 manent absence, cannot have the effect of releasing them as the repre- 
 sentatives of investments in business in the State from its taxing power. 
 The law may well regard the place of their origin, to which they intend 
 to return, as their true home, and leave out of account temporary ab- 
 sences, however long continued. Moreover, neither the fiction that 
 personal property follows the domicile of its owner, nor the doctrine 
 that credits evidenced b}' bonds or notes ma}' have the situs of the lat- 
 ter, can be allowed to obscure the truth. Blackstone v. Miller, 188 
 U. S. 189. We are not dealing here merely with a single credit or a 
 series of separate credits, but with a business. The insurance company 
 chose to enter into the business of lending money within the State of 
 Louisiana, and employed a local agent to conduct that business. It 
 was conducted under the laws of the State. The State undertook to tax 
 the capital employed in the business precisely as it taxed the capital of 
 its own citizens in like situation. For the purpose of arriving at the 
 amount of capital actuall}' employed, it caused the credits arising out of 
 the business to be assessed. We think the State had the power to do 
 this, and that the foreigner doing business cannot escape taxation upon 
 his capital by removing temporarily from the State evidences of credits 
 in the form of notes. Under such circumstances, they have a taxable 
 situs in the State of their origin. 
 
 The judgment of the Supreme Court of Louisiana is 
 
 Affirmed.
 
 SECT. II.] IN RE ESTATE OF SWIFT. 117 
 
 In re estate OF SWIFT. 
 Court of Appeals of New York. 1893. 
 
 [Reported 137 New York, 77.] 
 
 Grat, J. James T. Swift died in July, 1890, being a resident of 
 this State and leaving a will, by which he made a disposition of all his 
 property among relatives. After many legacies of money and of 
 various articles of personal property*, he directed a division of his 
 residuar}' estate into four portions, and he devised and bequeathed one 
 portion to each of four persons named. The executors were given a 
 power of sale for the purpose of pa3-ing the legacies and of making the 
 distribution of the estate. At the time of his death, the testator's 
 estate included certain real estate and tangible personal property in 
 chattels, situated within the State of New Jersey, which were realized 
 upon by the executors and converted into moneys in hand. When, 
 upon their application, an appraisement was had of the estate, in order 
 to fix its value under the requirements of the law taxing gifts, legacies, 
 and inheritances, the surrogate of the count}' of New York, before 
 whom the matter came, held, with respect to the appraisement, that 
 the real and personal property situated without the State of New Y''ork 
 were not subject to appraisal and tax under the law, and the excep- 
 tions taken by the comptroller of the city of New Y'ork to that deter- 
 mination raise the first and the principal question which we shall 
 consider. 
 
 Surrogate Ransom's opinion, which is before us in the record, con- 
 tains a careful review of the legal principles which limit the right to 
 impose the tax, and his conclusions are as satisfactory to my mind, as 
 they evidently were to the minds of the learned justices of the General 
 Term of the Supreme Court, who agreed in aflSrming the surrogate's 
 decree upon his opinion. 
 
 The Attorney-General has argued that this law, commonly called the 
 collateral inheritance tax law, imposes not a property tax but a charge 
 for the privilege of acquiring property, and, as I apprehend it, the 
 point of his argument is that, as there is no absolute right to succeed 
 to property, the State has a right to annex a condition to the permis- 
 sion to take by will, or by the intestate laws, in the form of a tax, to 
 be paid by the persons for whose benefit the remedial legislation has 
 been enacted. That is, substantiall}', the way in which he puts the 
 proposition, and if the premise be true that the tax imposed is upon 
 the privilege to acquire, and, as he says in his brief, is like "a dut}^ 
 imposed, payable by the beneficiar}-," possibly enough, we should have 
 to agree with him. We might think, in that view of the act, that the 
 situs of property in a foreign jurisdiction was not a controlling circum- 
 stance. But if we take up the provisions of the law by which the tax 
 is imposed, and if we consider them as they are framed and the prin*
 
 118 IN RE ESTATE OF SWIFT. [CHAP. II. 
 
 ciple which then seems to underlie the peculiar system of taxation 
 created, I do not think that his essential proposition finds adequate 
 support. The law in force at the time of the decease of the testator is 
 contained in chapter 713 of the Laws of 1887, amending chapter 483 
 of the Laws of 1885, and is entitled " An act to tax gifts, legacies, and 
 collateral inheritances in certain cases." 
 
 By the first section it is provided that " all property which shall pass 
 by will . . . from any person who maj" die seized or possessed of the 
 same, while a resident of this vState, or, if such decedent was not a 
 resident of this State at the time of his death, which property or any 
 part thereof shall be within this State, . . . shall be and is subject to 
 a tax ... to be paid ... for the use of the State," etc. 
 
 In the fourth section it is provided that " all taxes imposed by this 
 act, unless otherwise herein provided for, shall be due and payable at 
 the death of the decedent," etc. 
 
 By the sixth section, it is provided that the executor shall " deduct 
 the tax from the legac}- or property, subject to said tax, or if the 
 legacy or property be not mone}', he shall collect the tax thereon upon 
 the appraised value thereof from the legatee, or person entitled to such 
 propert}', and he shall not deliver, or be compelled to deliver, any spe- 
 cific legacy or property subject to tax to any person until he shall have 
 collected the tax thereon," etc. The language of the act has been 
 jnstl}' condemned, for being involved and difficult to read clearly; but 
 considering the language employed in these and in other sections of the 
 law, in its ordinary' sense, I think we would at once say that if the 
 legislature had not actually' imposed a tax upon the property itself, 
 upon the death of its owner, it had certainl}' intended to impose a tax 
 upon its succession, which was to be a charge upon the propert}', and 
 which operated, in effect, to diminish pro tanto its value, or the capi- 
 tal, coming to the new owner under a will, or by the intestate laws. 
 Could any one sa}', after reading the provisions of this law, that it was 
 the legatee, or person entitled, who was taxed? I doubt it. Propert}', 
 which was the decedent's at the time of his death, is subjected to the 
 payment of a tax. The tax is to be deducted from the legac}' ; or, 
 when deduction is not possible from the legac}' not being in money, 
 and a collection from the legatee or the person entitled to the property 
 is authorized to be made, the tax so to be collected is described as 
 " the tax thereon," tliat is, on the property. 
 
 If it should be said that such an interpretation of the law is in con- 
 flict with a doctrine wliich some judges have asserted, respecting the 
 nature of this tax, I think it might be sufficient to sa}' that the phrase- 
 ology of the New York law differs, more or less, from that of other 
 States, and seems peculiarly to charge the subject of the succession 
 with the payment of the tax. But I do not think it at all important 
 to our decision here that we should hold it to be a tax upon property 
 precisely. 
 
 A precise definition of the nature of this tax is not essential, if it is 
 
 1
 
 SECT. II.] IN RE ESTATE OF SWIFT. 119 
 
 susceptible of exact definition. Thus far, in this court, we have not 
 thought it uecessar}', in the cases coming before us, to determine 
 whether the object of taxation is the property which passes, or not ; 
 though, in some, expressions may be found which seem to regard the 
 tax in that light. Matter of McPherson, 104 N. Y. 30G ; IMatter of 
 Enston, 113 id. 174; Matter of Sherwell, 125 id. 379; Matter of Ro- 
 maine, 127 id. 80; and Matter of Stewart, 131 id. 274. The idea of 
 this succession tax, as we maj' conveniently term it, is more or less 
 compound ; the principal idea being the subjection of property, owner- 
 ship of which has ceased by reason of the death of its owner, to a 
 diminution, b}' the State reserving to itself a portion of its amount, if 
 in money, or of its appraised value, if in other forms of property. The 
 accompanying, or the correlative idea should necessarily be that the 
 property, over which such dominion is thus exercised, shall be within 
 the territorial limits of the State at its owner's death, and, therefore, 
 subject to the operation and the regulation of its laws. The State, in 
 exercising its power to subject realty, or tangible propertj-, to the 
 operation of a tax, must, by every rule, be limited to property within 
 its territorial confines. 
 
 The question here does not relate to the power of the State to tax 
 its residents with respect to the ownership of property situated else- 
 where. That question is not involved. The question is whether the 
 legislature of the State, in creating this system of taxation of inlierit- 
 ances, or testamentar}' gifts, has not fixed as the standard of right the 
 property' passing by will, or b}' the intestate laws. 
 
 What has the vState done, in effect, by the enactment of this tax law? 
 It reaches out and appropriates for its use a portion of the property' at 
 the moment of its ownei''s decease , allowing only the balance to pass 
 in the wa}' directed by testator, or permitted by its intestate law, and 
 while, in so doing, it is exercising an inherent and sovereign right, it 
 seems very clear to mj' mind that it affects only property which lies 
 within it, and, consequently, is subject to its right of eminent domain. 
 The theory of sovereignty, which invests the State with the right and 
 the power to permit and to regulate the succession to property upon 
 its owner's decease, rests upon the fact of an actual dominion over 
 that propert}'. In exercising such a power of taxation, as is here in 
 question, the principle, obviously, is that all property- in the State is 
 tributary for such a purpose and the sovereign power takes a portion, 
 or percentage of the propert}', not because the legatee is subject to 
 its laws and to the tax, but because the State has a superior right, or 
 ownership, by force of which it can intercept the propert}', upon its 
 owner's death, in its passage into an ownership regulated by the en- 
 abling legislation of the State. 
 
 The rules of taxation have become pretty well settled, and it is fun- 
 damental among them that there shall be jurisdiction over the subject 
 taxed; or, as it has been sometimes expressed, the taxing power of 
 the State is coextensive with its sovereignty. It has not the power to
 
 120 IN RE ESTATE OF SWIFT. [CHAP. II. 
 
 tax directly either lands or tangible personal property situated in an- 
 other State or country. As to the latter description of property no 
 fiction transmuting its situs to the domicile of the owner is available, 
 when the question is one of taxation. In this connection the observa- 
 tions of Chief Judge Comstock, in Hoyt v. Commissioners of Taxes, 
 23 N. Y. 224, and of some text-writers, are not inappropriately referred 
 to. He had said that lands and personal property having an actual 
 situation within the State are taxable, and, by a necessary implication, 
 that no other propert}' can be taxed. He says, further, " If we say that 
 taxation is on the person in respect to the property, we are still without 
 a reason for assessing the owner resident here in respect to one part 
 of his estate situated elsewhere and not in respect to another part. 
 Both are the subjects of taxation in the foreign jurisdiction." 
 
 In Judge Cooley's work on Taxation it is remarked (p. 159) that 
 " a State can no more subject to its power a single person, or a single 
 article of property, whose residence or situs is in another State, than 
 it can subject all the citizens, or all the property' of such other State to 
 its power." 
 
 Judge Cooley had reference in his remarks to the case of bonds of a 
 railroad; for he cites the case of "the State Tax on Foreign-Held 
 Bonds" in the United States Supreme Court (15 Wallace, 300), where 
 Mr. Justice Field delivered the opinion, and, in the course of it, observed 
 that " the power of taxation, however vast in its character and search- 
 ing in its extent, is necessarily limited to subjects within the jurisdic- 
 tion of the State." 
 
 Judge Story, in his work on the Conflict of Laws, speaking of the 
 subject of jurisdiction in regard to property, said (section 550) that 
 the legal fiction as to the situs of movables yields when it is necessary 
 for the purpose of justice, and, further, " a nation within whose terri- 
 tory any personal property is actually situated has an entire dominion 
 over it while therein, in point of sovereignty and jurisdiction, as it has 
 over immovable propert}' situated there." 
 
 The proposition which suggests itself from reasoning, as from author- 
 it}-, is that the basis of the power to tax is the fact of an actual domin- 
 ion over the subject of taxation at the time the tax is to be imposed. 
 
 The effect of this special tax is to take from the i)roperty a i)ortion, 
 or a percentage of it, for the use of the State, and I think it quite 
 immaterial whether the tax can be precisely classified with a taxation 
 of property or not. It is not a tax upon persons. If it is called a tax 
 upon the succession to the ownership of property, still it relates to 
 and subjects the property itself, and when that is without tlie jurisdic- 
 tion of the State, inasmuch as the succession is not of property within 
 the dominion of the State, succession to it cannot be said to occur b\' 
 permission of the State. As to lands this is clearly the case, and 
 rights in or power over them are derived from or through the laws of 
 the foreign State or country. As to goods and chattels it is true ; for 
 their transmission abroad is subject to the permission of and regulated
 
 SECT. II.] IN EE ESTATE OF SWIFT. 121 
 
 by the laws of the State or country where actually situated. Jurisdic- 
 tion over them belongs to the courts of that State or country for all 
 purposes of policy, or of administration in the interests of its citzens, 
 or of those having enforceable riglits, and their surrender, or transmis- 
 sion, is upon priucii)les of comity. 
 
 When succession to the ownership of property is by the permission 
 of the State, then the permission can relate only to property over which 
 the State has dominion and as to which it grants the privileo"e or 
 permission. 
 
 Nor is the argument available that, by the power of sale conferred 
 upon the executors, there was an equitable conversion worked of the 
 lands in New Jersey, as of the time of the testator's death, and, hence, 
 that the property sought to be reached by the tax, in the eye of the 
 law, existed as cash in this State in the executor's hands, at the 
 moment of the testator's death. There might be some doubt whether 
 the main proposition in the argument is quite correct, and wlietlier the 
 land did not vest in the residuar\- legatees, subject to the execution of 
 the power of sale. But it is not necessary to decide that question. 
 Neither the doctrine of equitable conversion of lands, nor anv fiction 
 of situs of movables, can have any bearing upon the question under 
 advisement. The question of the jurisdiction of the State to tax is one 
 of fact and cannot turn upon theories or fictions ; which, as it has been 
 observed, have no place in a well adjusted system of taxation. 
 
 We can arrive at no other conclusion, in m}- opinion, than that 
 the tax provided for in this law is onl}' enforceable as to property 
 which, at the time of its owner's death, was within the territorial limits 
 of this State. As a law imposing a special tax, it is to be strictly 
 construed against the State and a case must be clearly made out for its 
 application. We should incline against a construction which might 
 lead to double taxation ; a result possible and probable under a dif- 
 ferent view of this law. If the property in the foreign jurisdiction was 
 in land, or in goods and chattels, when, upon the testator's death, a 
 new title, or ownership, attached to it, the bringing into this State of 
 its cash proceeds, subsequently, no matter by what authority of will, 
 or of statute, did not subject it to the tax. A different view would be 
 against every sound consideration of what constitutes the basis for 
 such taxation, and would not accord with an understanding of the 
 intention of the legislature, as more or less plainly expressed in these 
 acts. 
 
 Another question, which I shall merely advert to in conclusion, 
 arises upon a ruling of the surrogate with respect to appraisement, in 
 connection with a clause of the will directing that the amount of the 
 tax upon the legacies and devises should be paid as an expense of 
 administration. The appraiser, in ascertaining the value of the residu- 
 ary estate for the purpose of taxation, deducted the amount of the tax 
 to be assessed on prior legacies. The surrogate overruled him in this, 
 and held that there should be no deduction from the value of the resid-
 
 122 IN RE ESTATE OF SWIFT. [CHAP. II. 
 
 uar}' estate of the amount of the tax to be assessed, either upon prior 
 legacies, or upon its vahie. He held that the legacies taxable should 
 be reported, irrespective of the provision of the will ; and that a mode 
 of payment of the succession tax prescribed b}' will is something with 
 which the statute is not concerned. I am satisfied with his reasoning 
 and can add nothing to its force. Manifestly, under the law that 
 which is to be reported by the appraiser for the purpose of the tax is 
 the value of the interest passing to the legatee under the will, without 
 any deduction for an}' purpose, or under an}^ testamentar}' direction. 
 
 A question is raised as to the effect upon the law, as contained in 
 the acts of 1885 and 1887, of the passage of chapter 215 of the Laws 
 of 1891 ; but as that has been the subject of another appeal, and is 
 fully discussed in the opinion in the Matter of the Estate of Prime, 136 
 N. Y. 347, reference will be made to it here. 
 
 My brethren are of the opinion that the tax imposed under the act is 
 a tax on the riglit of succession, under a will, or by devolution in case 
 of intestacy ; a view of the law which m}- consideration of the question 
 precludes m}" assenting to. 
 
 They concur in ni}' opinion so far as it relates to the imposition of a 
 tax upon real estate situated out of this State, although owned by a 
 decedent, residing here at the time of his decease; holding with me 
 that taxation of such was not intended, and that the doctrine of equi- 
 table conversion is not applicable to subject it to taxation. But as to 
 the personal property of a resident decedent, wheresoever situated, 
 whether within or without the State, they are of the opinion that it is 
 subject to the tax imposed by the act. 
 
 The judgment below, therefore, should be so modified as to exclude 
 from its operation the personal property in New Jersey', and, as so 
 modified, it should be affirmed, without costs to either party as against 
 the other. 
 
 I
 
 SECT. II.] MATTER OF COOLEY. 123 
 
 MATTER OF COOLEY. 
 
 Court of Appeals, New York. 1906. 
 [Reported 186 N. Y. 220.] 
 
 HiscoCK, J. The appellants complain because in fixing the transfer 
 tax upon certain shares of the capital stock of the Boston and Albany 
 Railroad Company which belonged to the estate and passed under the 
 will of the deceased who was a non-resident, said stock has been ap- 
 praised at its full market value as representing an interest in the prop- 
 erty of said corporation situate both in the State of New York and 
 elsewhere. It is insisted by them that under the peculiar facts of this 
 case the valuation placed for such purpose upon the stock should not 
 have been predicated upon the idea that the latter represented an in- 
 tei'est in all of the property of said corporation, but should have been 
 fixed upon the theory that it represented an interest in only a portion 
 of said property. 
 
 I think that their complaint is well founded and that the order 
 appealed from should be reversed and the assessment corrected 
 accordingl}'. 
 
 The Boston and Albany Railroad Compan}' is a consolidation formed 
 b}" the merger of one or more New York corporations and one Massa-' 
 chusetts corporation. The merger was authorized and the said consoli- 
 dated corporation duly and separatel}' created and organized under the 
 laws of each state. It was, so to speak, incorporated in duplicji,te. 
 There is but a single issue of capital stock representing all the prop- 
 erty of the consolidated and dual organization. Of the track mileage 
 about five-sixths is in Massachusetts and one-sixth in New York. The 
 principal offices, including the stock transfer office, are situated in 
 Boston, and there also are regularl}' held the meetings of its stock- 
 holders and directors. The deceased was a resident of the State of 
 Connecticut, and owned four hundred and twenty-six shares of the 
 capital stock, the value of which for the purposes of the transfer tax 
 was fixed at the full market value of $252.50 per share of the par value 
 of $100. 
 
 The provisions of the statute (L. 1896, ch. 908, § 220, as amd. L. 
 1897, ch. 284, § 2), authorizing the imposition of this tax are familiar, 
 and read in part as follows : 
 
 " A tax shall be and is hereby imposed upon the transfer of any 
 property, real or personal, of the value of five hundred dollars or over, 
 or of any interest therein ... in the following cases : . . . 
 
 " 2. When the transfer is by will or intestate law, of property within 
 the State, and the decedent was a non-resident of the State at the time 
 of his death." 
 
 The present assessment is under the last clause, and as alread}' inti'
 
 124 MATTER OF COOLEY. [CHAP. IL 
 
 mated, the sole question, stated in practical form, is whether the 
 authorities of this State ought to levy a tax upon the full value of de- 
 cedeirt's holdings, recognizing simply the New York corporation and 
 regarding it as the sole owner of all of the property' of the doubh' in- 
 corporated New York-Massachusetts corporation, or whether they 
 should limit the tax to a portion of the total value, upon the theory that 
 the company holds its property in Massachusetts at least under, its 
 incorporation in that State. 
 
 By seeking the aid of our laws and becoming incorporated under 
 them, the consolidated Boston and Albany Railroad Companj' became 
 a domestic corporation. (Matter of Sage, 70 N. Y. 220.) 
 
 The decedent, therefore, as the owner of Boston and Albany stock, 
 ma}' be regarded as holding stock in a domestic corporation, and it is so 
 clearly settled that we need only state the proposition that capital stock 
 in a domestic corporation, although held b}' a non-resident, will be re- 
 garded as having its situs where the corporation is organized, and is, 
 therefore, taxable in this State. (Matter of Bronson, 150 N. Y. 1.) 
 
 There is, therefore, no question but that the decedent, holding stock 
 in the Boston and Albany road, which was incorporated under the laws 
 of this State, left " property within the State " which is taxable here. 
 There is no doubt about the meaning of " property within the State," 
 as applied to this situation, or that it justifies a taxation b}' our au- 
 thorities of decedent's interest as a shareholder in the corporation 
 created under the laws of this State. The only doubt is as to the 
 extent and value of that interest for the purposes of this proceeding. 
 For, although the tax is upon the transfer and not upon the property 
 itself, still its amount is necessarily measured by the value of the 
 property transferred, and, therefore, we come to consider briefly the 
 nature of the stock here assessed as property and the theorj- upon 
 which its value should be computed. 
 
 The general nature of a shareholder's interest in the capital stock of 
 a corporation is easily understood and defined. In Plympton v. Bige- 
 low (93 N, Y. 592y it is said that " The right which a shareholder in a 
 corporation has b}' reason of his ownership of shares is a right to par- 
 ticipate according to the amount of his stock in the surplus profits of 
 the corporation on a division, and ultimately on its dissolution, in the 
 assets remaining after payment of its debts." 
 
 In Jermain y. L. S. & M. S. Ry. Co. (91 N. Y. 483, 491) it was 
 said : " A share of stock represents the interest which the shareholder 
 has in the capital and net earnings of the corporation." 
 
 Therefore, since the shares of capital stock under discussion repre- 
 sented a certain interest in the surplus of assets over liabilities of the 
 Boston and Albany Railroad Company, the value of that stock is to be 
 decided by reference to the amount of property which said railroad com- 
 pany as incorporated in this State is to be regarded as owning for 
 the purposes of this proceeding.
 
 SECT. II.] MATTER OF COOLEY. 125 
 
 In the majorit}' of cases at least a corporation has but a single 
 corporate creation and existence under the laws of one State, and by 
 virtue of such single existence owns all of its corporate property. 
 There is no difficulty in determining in such a case that a shareholder 
 under such an incorporation has an interest in all of the corporate 
 property wherever and in how man}- different States situated. I shall 
 have occasion to refer to that principle hereafter in another connection. 
 Even in the case of a corporation incorporated and having a separate 
 existence under the laws of more than one State, the stockholder would 
 for some purposes be regarded as having an interest in all the cor- 
 porate property' independent of the different incorporations. In tlie 
 present case the decedent, by virtue of his stock as between him 
 and the corporation, would be regarded as having an interest in all of 
 its property and entitled to the earnings thereon when distributed as 
 dividends and to his share of the surplus upon dissolution and liquida- 
 tion proceedings independent of the fact that there were two separate 
 incorporations. 
 
 But, as it seems to me, different considerations and principles apply 
 to this proceeding now before us for review. Our jurisdiction to assess 
 decedent's stock is based solely and exclusively upon the theory that 
 it is held in the Boston and Albany Railroad Compan\' as a New York 
 corporation. The authorities are asserting jurisdiction of and assessing 
 his stock only because it is held in the New York corporation of the 
 Boston and Albany Railroad Companj'. But we know that said com- 
 pany is also incorporated as a Massachusetts corporation, and presura- 
 abl}^ by virtue of such latter incorporation it has the same powers of 
 owning and managing corporate property which it possesses as a New 
 York corporation. In fact the location of physical property and the 
 exercise of various corporate functions give greater importance to the 
 Massachusetts than to the New York corporation, and the problem is 
 whether for the purpose of levj'ing a tax upon decedent's stock upon 
 the theory that it is held in and under the New York corporation we 
 ought to say that such latter corporation owns and holds all of the 
 property of the consolidated corporation wherever situated, thus entirely 
 ignoring the existence of and the ownership of property b\- the Massa- 
 chusetts corporation. It needs no particular illumination to demon- 
 strate that if we take such a view it will clearly pave the way to a 
 corresponding view by the authorities and courts of Massachusetts 
 that the corporation in that State owns all of the corporate property 
 wherever situated, and we shall then further and directly be led to the 
 unreasonable and illogical result that one set of property' is at the same 
 time solely and exclusivel}' owned by two different corporations, and 
 that a person holding stock should be assessed upon the full value of 
 his stock in each jurisdiction. Whether we regard such a tax as is 
 here being imposed, a recompense to the State for protection afforded 
 during the life of the decedent or as a condition imposed for creating
 
 126 MATTER OF COOLEY. [CHAP. II. 
 
 and allowing certain rights of transfer or of succession to property upon 
 death, we shall have each State exacting full compensation upon one 
 succession and a clear case of double taxation. And if the corporation 
 had been compelled for sufficient reasons to take out incorporation in 
 six or twenty other States each one of them might take the same view 
 and insist upon the same exaction until the value of the property was 
 in whole or large proportion exhausted in paying for the privilege 
 of succession to it. While undoubtedly the legislative authority is 
 potent enough to prescribe and enforce double taxation, it is plain that, 
 measured by ordinary principles of justice, the result suggested would 
 be inequitable and might be seriously burdensome. 
 
 Double taxation is one which the courts should avoid whenever it is 
 possible within reason to do so. (Matter of James, 144 N. Y. G, 11.) 
 It is never to be presumed. Sometimes tax laws have that effect, 
 but if they do it is because the legislature has unmistakably so enacted. 
 All presumptions are against such an imposition. (Tennessee v. Whit- 
 worth, 117 U. S. 129.) 
 
 The law of taxation is to be construed strictl}' against the State in 
 favor of the taxpayer, as represented by the executor of the estate. 
 (Matter of Fayerweather, 143 N. Y. 114.) 
 
 It seems pretty clear that within the principles of the foregoing and 
 many other cases which might be cited, we ought not to sanction a 
 course which will lead to a tax, measured b}' the full value of the dece- 
 dent's stock in each State upon the conflicting theories that the corpo- 
 ration in that State owns all of the property of the consolidated 
 compan}', unless there is something in the statute, or decisions under 
 the statute, which compels us so to do. I do not think there is in 
 either place such compelling authority. 
 
 No doubt is involved, as it seems to me, about the meaning and ap- 
 plication of the statute. The decedent's stock was "property within 
 the State," which had its situshere as being held in the New York cor- 
 poration, and the transfer of it was taxable here. There can be no 
 dispute about that. The question is simply over the extent and value 
 of his interest as such stockholder, in view of the other incorporation 
 in Massachusetts-. I see nothing in the statute which prevents us from 
 paying decent regard to the principles of interstate comity, and from 
 adopting a policN' which will enable each State fairly to enforce its own 
 laws without oppression to the subject. This result will be attained by 
 regarding the New York corporation as owning the propert}' situate in 
 New York and the Massachusetts corporation as owning that situate in 
 Massachusetts, and each as owning a sliare of any propoity situate out- 
 side of either State or moving to and fro between the two States, and 
 assessing decedent's stock upon that theor}'. That is the obvious basis 
 for a valuation if we are to leave any room for the Massachusetts 
 corporation and for a taxation by that State similar in principle to our 
 own without double taxation.
 
 SECT. II.] MATTEE OF COOLEY. 127 
 
 Some illustrations may be referred to which by analog}' sustain the 
 general principles involved. 
 
 "Where a tax is levied in this State upon the capital or franchises of 
 a corporation organized as this railroad was, the tax is levied upon an 
 equitable basis. Thus by the provisions of section 6 of chapter 19 of 
 the Laws of 1869, under which the Boston and Albany railroad was 
 organized, the assessment and taxation of its capital stock in this State 
 is to be in the proportion " that the number of miles of its railroad 
 situated in this State bears to the number of miles of its railroad 
 situated in the other State," and under section 182 of the General Tax 
 Law of the State of New York the franchise tax of a corporation is 
 based upon the amount of capital within the State. 
 
 Again, assume that for purposes of dissolution or otherwise, re- 
 ceivers were to be appointed of the Boston and Albany railroad, there 
 can be no doubt that the receivers of it as a New York corporation 
 would be appointed b}' the courts of that State, and the receivers of it 
 as a Massachusetts corporation would be appointed b}' the courts of 
 that State, and that the courts would hold that in the discharge of their 
 duties the New York receivers should take possession of and admin- 
 ister upon the property of the New York corporation within the limits 
 of that State, and would not permit the Massachusetts receivers to 
 come within its confines and interfere with such ownership, and the 
 Massachusetts courts would follow a similar policy. Why should not 
 the State authorities for purposes of this species of taxation and valua- 
 tion, involved therein, adopt a similar theory of division of property ? 
 
 We are not apprehensive lest, as suggested. New York corpora- 
 tions may take out incorporation in other States for the purpose of ex- 
 empting transfers of their capital stock from taxation under the 
 principles of this decision. We do not regard our decision as giving 
 encouragement to any such course. It is based upon and limited by 
 the facts as they are here presented, and there is no question whatever 
 but that the Boston and Albany railroad, in good faith and for legitimate 
 reasons, was equally and contemporaneously created both as a New 
 York and a Massachusetts corporation. It can no more be said that 
 being originally and properly a New York corporation it subsequentl}- 
 and incidentally became a Massachusetts one than could be maintained 
 the reverse of such proposition. If in the future a corporation created 
 and organized under the laws of this State, or properly and really to 
 be regarded as a New York corporation, shall see fit either for the pur- 
 pose suggested, or for an}- other reason subsequently and incidentally 
 and for ancillai'y reasons, to take out incorporation in another State, a 
 case would arise not falling within this decision. 
 
 But it is said that this court lias already made decisions which pre- 
 vent it from adopting such a construction as I have outlined, and 
 reference is made to Matter of Bronson (150 N. Y. 1) and Matter of 
 Palmer (183 N. Y. 238).
 
 128 MATTER OF COOLEY. [CHAP. II. 
 
 I do not find anything in those decisions which, interpreted as a 
 whole, with reference to the facts there being discussed, conflicts with 
 the views which I have advanced. 
 
 In the first case tlie question arose whether a tax might be imposed 
 upon a transfer of a non-resident decedent's residuary estate wliich 
 " consisted in shares of the capital stock and in the bonds of corpora- 
 tions incorporated under the laws of this State." So far as the discus- 
 sion relates to the question of taxing the bonds, it is immaterial. It 
 was held that the shares of capital stock were property which was taxa- 
 ble, it beino- said : " The shareholders are persons who are interested in 
 the operation of the corporate property and franchises, and their shares 
 actually represent undivided interests in the corporate enterprise. The 
 corporation has the legal title to all the properties acquired and appurte- 
 nant, but it holds them for the pecuniary benefit of those persons who 
 hold the capital stock. . . . Each share represents a distinct interest 
 in the whole of the corporate property." In other words. Judge Gray, 
 in writing the majority opinion, was discussing the situation of a share- 
 holder in a domestic corporation which, so far as appears, was not 
 incorporated under the laws of another State. Under such circum- 
 stances, of course, the New York corporation would be the owner of 
 all the property there was, and the shareholder's interest in such corpo- 
 ration would represent his interest in all of said property and be fairly 
 and justly taxable upon its full amount and value. No such situation was 
 presented as here arises. There was no second or third corporation 
 under the laws of another State, which corporation might just as fairly 
 be said to be the owner of all the property as the New York corpora- 
 tion, thus raising the question here presented whether each corporation 
 should be regarded as owning and holding all of the property there 
 was for the purpose of laying the basis for taxation, or whether we 
 should adopt an equitable and reasonable view, giving credit to each 
 corporation for the purpose of taxation of owning some certain portion 
 of the entire property. 
 
 In the Palmer case again the question arose over taxing shares of 
 stock held by a non-resident decedent in a domestic corporation which 
 was not proved or considered to have been incorporated under the 
 laws of another State. It was insisted that the amount of the tax 
 should be reduced by the proportion of property owned by the corpo- 
 ration and located in other States, and tliis contention was overruled, 
 and, as it seems to me, for a perfectly good reason upon the facts in 
 that case and which is not ai)plicable to the facts here. As stated, 
 there was a single incorporation under the laws of tliis State, and that 
 domestic corporation owned all of the property in wliatever State situ- 
 ated. Its corporate origin was under the laws of this State, and there 
 its corporate existence was centred. It just as fully and completely 
 owned and managed property situated in the State of Ohio as if it was 
 situated in the State of New York, and if the property in the foreign
 
 SECT. II,] MATTER OF COOLEY. 129 
 
 State was reduced to money, such money would be turned into its 
 treasury In the State of New York. Under such circumstances there 
 was nothing else that could reasonably be held than that the corpora- 
 tion owned all property wherever situated, and that the sharehold- 
 er's interest in such corporation represented and was based upon such 
 ownership of all the property. There was no double incorporation and 
 no chance for conflict between an incorporation under the laws of this 
 State and a second one existing under the laws of another State, which 
 must either be reconciled by a just regard for the rights of both States 
 and the rights of the incorporation under each, or else double taxation 
 imposed upon a shareholder. 
 
 It is also argued that the courts of Massachusetts have passed upon 
 the very contention here being made by appellants, and in the case of 
 Moody V. Shaw (178 Mass. 375) have rejected the claim that the valu- 
 ation of stock in this same corporation for the purposes of transfer 
 taxation in Massachusetts should be based upon any apportionment of 
 property between the Massachusetts and New York corporations. 
 The opinion in that case does not seem to warrant any such con- 
 struction. Apparently the only question under discussion was whether 
 the transfer of stock in such corporation was taxable at all in Massa- 
 chusetts, and the question of any apportionment was not passed upon. 
 Such expressions as are found in the opinion touching that point cer- 
 tainly do not indicate to my mind that if involved and passed upon it 
 would have been decided adversel}- to the views here expressed. 
 
 Lastly, it is urged that there will be great practical difficulty in 
 making an apportionment of property for the purposes of valuation and 
 taxation upon the lines suggested, and the learned counsel for the re- 
 spondent has suggested many difficulties and absurdities claimed to be 
 incidental to such course of procedure. Most of them certainly will 
 not arise in this case and they probably never will in any other. Of 
 course an appraisal based upon an apportionment of the entire prop- 
 erty of the consolidated company between the New York and Massachu- 
 setts corporations may be made a source of much labor and expense if 
 tlie parties so desire. Possibly it might be carried to the extent of a de- 
 tailed inventory and valuation of innumerable pieces of propert\'. Upon 
 the other hand, an apportionment based upon trackage or figures drawn 
 from the books or balance sheets of the company may doubtless be 
 easily reached which will be substantially correct, and an_y inaccuracies 
 of which when reflected in a tax of one per cent upon 426 shares of 
 stock will be inconsequential. 
 
 The order of the Appellate Division and of the Surrogate's Court of 
 the county of New York should be reversed, with costs, and the pro- 
 ceedings remitted to said Surrogate's Court for a reappraisal of the 
 stock in question in accordance with the views herein expressed. 
 
 CuLLEN, Ch. J., Gray, O'Briex, and Edward T. Bartlett, JJ., 
 concur ; "Werner and Chase, JJ., dissent. 
 
 Order reversed, etc. 
 
 9
 
 130 THE BELGENLAND. [CHAP. HI. 
 
 CHAPTER III. 
 JURISDICTION OF COURTS. 
 
 SECTION I. 
 
 JURISDICTION IX REM. 
 
 THE BELGENLAND. 
 
 Supreme Court of the United States. 1885. 
 
 [Reported 1 14 United States, 355.] 
 
 Bradley, J.^ This case grew out of a collision which took place on 
 the high seas between the Norwegian barque " Luna " and the Belgian 
 steamship " Belgenland," by which the former was run down and sunk. 
 Part of the crew of the " Luna," including the master, were rescued by 
 the '' Belgenland " and brought to Pliiladelphia. The master immedi- 
 ately libelled tlie steamship on behalf of the owners of the " Luna" and 
 her cargo, and her surviving crew, in a cause civil and maritime. . . . 
 The District Court decided in favor of the libellant, and rendered a 
 decree for the various parties interested to the aggregate amount of 
 $50,278.23. An appeal was taken to the Circuit Court. . . . 
 
 A decree was thereupon entered, affirming the decree of the District 
 Court. ... A reargument was had on the question of jurisdiction, and the 
 court held and decided that the Admiralty Courts of the United States 
 have jurisdiction of collisions occurring on the high seas between vessels 
 owned by foreigners of different nationalities ; and overruled the plea 
 to the jurisdiction. 9 Fed. Rep. 576. The case was brought before this 
 court on appeal from the decree of the Circuit Court. See also 108 
 U. S. 153. 
 
 The first question to be considered is that of the jurisdiction of the 
 District Court to hear and determine the cause. 
 
 It is unneces.sary here, and would be out of place, to examine the 
 question wliich has so often engaged the attention of the common law 
 courts, whether, and in what cases, the courts of one country should 
 take cognizance of controversies arising in a foreign countr}', or in 
 places outside of the jurisdiction of any country. It is verj' fully dis' 
 
 ^ Only so much of the opinion as discusses the question of jurisdiction is given. 
 — Ed.
 
 SECT. 1.] THE BELGENLAND. 131 
 
 cussed in Mostyn v. Fabrigas, Cowp. 161, and the notes thereto in 1 
 Smith's Leading Cases, 340 ; and an instructive analysis of the law 
 will be found in the elaborate arguments of counsel in the case of 
 the San Francisco Vigilant Committee, Malony v. Dows, 8 Abbott Pr. 
 316, argued before Judge Daly in New York, 1859. We shall content 
 ourselves with inquiring what rule is followed by Courts of Admiralty 
 in dealing with maritime causes arising between foreigners and others 
 on the high seas. 
 
 This question is not a new one in these courts. Sir William Scott 
 had occasion to pass upon it in 1799. An American ship was taken by 
 the French on a voyage from Philadelphia to London, and afterwards 
 rescued by her crew, carried to England, and libelled for salvage ; and 
 the court entertained jurisdiction. The crew, however, though engaged 
 in the American ship, were British born subjects, and weight was given 
 to this circumstance in the disposition of the case. The judge, however, 
 made the following remarks : " But it is asked, if they were American 
 seamen would this court hold plea of their demands? It may be time 
 enough to answer this question whenever the fact occurs. In the mean- 
 time, I will sa}' without scruple that I can see no inconvenience that 
 would arise if a British court of justice was to hold plea in such a case ; 
 or conversely, if American courts were to hold pleas of this nature re- 
 specting the merits of British seamen on such occasions. For salvage 
 is a question of jus gentium, and materially different from the question 
 of a mariner's contract, which is a creature of the particular institutions 
 of the country', to be applied and construed and explained by its own 
 particular rules. There might be good reason, therefore, for this court 
 to decline to interfere in such cases, and to remit them to their own do- 
 mestic forum ; but this is a general claim, upon the general ground of 
 quantwn meruit^ to be governed b}- a sound discretion, acting on gen- 
 eral principles ; and I can see no reason why one country' should be 
 afraid to trust to the equity of the courts of another on such a question, 
 of such a nature, so to be determined." The Two Friends, 1 Ch. Rob. 
 271, 278. 
 
 The law has become settled very much in accord with these views. 
 That was a case of salvage ; but the same principles would seem to ap- 
 ph' to the case of destro3'ing or injuring a ship, as to that of saving it. 
 Both, when acted on the high seas, between persons of different nation- 
 alities, come within the domain of the general law of nations, or com- 
 munis juris, and are prima facie proper subjects of inquirj' in any 
 Court of Admiralty which first obtains jurisdiction of the rescued or 
 offending ship at the solicitation in justice of the meritorious, or injured, 
 parties. 
 
 The same question of jurisdiction arose in another salvage case which 
 came before this court in 1804, Mason v. The Blaireau, 2 Cranch, 
 240. There a French ship was saved by a British ship, and brought 
 into a port of the United States ; and the question of jurisdiction was 
 raised by Mr. Martin, of Maryland, who, however, did not press the
 
 ]^32 THE BELGENLAND. [CHAP. III. 
 
 point, and referred to the observations of Sir William Scolt in The 
 Two Friends. Chief Justice Marshall, speaking for the court, disposed 
 of the question as follows: "A doubt has been suggested," said he, 
 "respecting the jurisdiction of the court, and upon a reference to the 
 authorities, the point does not appear to have been ever settled. These 
 doubts seem rather founded on the idea that upon principles of general 
 polic}', this court ought not to take cognizance of a case entirely be- 
 tween foreigners, than from any positive incapacity to do so. On 
 weighing the considerations drawn from pubUc convenience, those in 
 favor of the jurisdiction appear much to overbalance those against it, 
 and it is the opinion of this court, that, whatever doubts may exist in a 
 case where the jurisdiction may be objected to, there ought to be none 
 where the parties assent to it." In that case, the objection had not 
 been taken in the first instance, as it was in the present. But we do 
 not see how that circumstance can affect the jurisdiction of the court, 
 however much it ma}' influence its discretion in taking jurisdiction. 
 
 For circumstances often exist which render it inexpedient for the 
 court to take jurisdiction of controversies between foreigners in cases 
 not arising in the country of the forum ; as, where they are governed 
 b}' the laws of the country to which the parties belong, and there is 
 no difficult}' in a resort to its courts ; or where they have agreed to 
 resort to no other tribunals. The cases of foreign seamen suing for 
 wages, or because of ill treatment, are often in this category ; and the 
 consent of their consul, or minister, is frequently required before the 
 court will proceed to entertain jurisdiction ; not on the ground that it 
 has not jurisdiction, but that, from motives of convenience or interna- 
 tional comity, it will use its discretion whether to exercise jurisdiction 
 or not ; and where the voyage is ended, or the seamen liave been dis- 
 missed or treated with great cruelty, it will entertain jurisdiction even 
 against the protest of the consul. This branch of the subject will be 
 found discussed in the following cases: The Catherina, 1 Pet. Adm. 
 104 ; The Forsoket, 1 Pet. Adm. 197; The St. Oloff, 2 Pet. Adm. 428; 
 The Golubchick. 1 W. Rob. 143; The Nina, L. R. 2 Adm. and Eccl. 44 ; 
 s. c. on appeal, L. R. 2 Priv. Co. 38; The Leon XIII., 8 Prob. Div. 121 ; 
 The Havana, 1 Sprague, 402 ; The Becherdass Ambaidass, 1 Lowell, 
 569 ; The Pawasliick, 2 Lowell. 142. 
 
 Of course, if any treaty stipulations exist between the United States 
 and the country to which a foreign ship l)elongs, with regard to the 
 right of the consul of that country to adjudge controversies arising be-> 
 tween the master and crew, or other matters occurring on the ship 
 exclusively subject to the foreign law, such stipulations should be fairly 
 and faitlifully observed. Tlie Elwiu Krcplin, 9 lllatchford, 438, revers- 
 ing s. c. 4 r>en. 413 ; see s. c. on application for mandamus, Tlx parte 
 Newman, 14 Wall. 152. ^lany public engagements of this kind have 
 been entered into between our government and foreigh States. See 
 Treaties and Conventions, Rev. ed., 1873, Index, 1238. 
 
 In the alisence of such treat}' stipulations, however, the case of for-
 
 SECT. I.] THE BELGENLAND. 133 
 
 eign seamen is undoubtedl}' a special one, when the}' sue for wages 
 under a contract which is generall}- strict in its character, and framed 
 according to the laws of the country to which the ship belongs ; framed 
 also with a view to secure, in accordance with those laws, the rights and 
 interests of the ship-owners as well as those of master and crew, as well 
 when the ship is abroad as when she is at home. Nor is this special 
 character of the case entirely absent when foreign seamen sue the mas- 
 ter of their ship for ill-treatment. On general principles of comity, 
 Admiralty Courts of other countries will not interfere between the par- 
 ties in such cases unless there is special reason for doing so, and will 
 require the foreign consul to be notified, and, though not absolutely 
 bound by, will always pay due respect to, his wishes as to taking 
 jurisdiction. 
 
 Not alone, however, in cases of complaints made by foreign seamen, but 
 in other cases also, where the subjects of a particular nation invoke the 
 aid of our tribunals to adjudicate between them and their fellow subjects, 
 as to matters of contract or tort solely affecting themselves and deter- 
 minable by their own laws, such tribunals will exercise their discretion 
 whether to take cognizance of such matters or not. A salvage case of 
 this kind came before the United States District Court of New York in 
 1848. The master and crew of a British ship found another British ship 
 near the English coast apparently abandoned (though another vessel 
 was in sight), and took off a portion of her cargo, brought it to New 
 York, and libelled it for salvage. The British consul and some owners 
 of the cargo intervened and protested against the jurisdiction, and Judge 
 Betts discharged the case, delivered the property to the owners upon 
 security given, and left the salvors to pursue their remedy in the Eng- 
 lish courts. One Hundred and Ninety-four Shawls, 1 Abbott Adm. 317. 
 
 So in a question of ownership of a foreign vessel, agitated between 
 the subjects of the nation to which the vessel belonged, the English 
 Admiralty, upon objection being made to its jurisdiction, refused to 
 interfere, the consul of such foreign nation having declined to give his 
 consent to the proceedings. The Agincourt, 2 Prob. Div. 239. But in 
 another case, where there had been an adjudication of the ownership 
 under a mortgage in the foreign country, and the consul of that country 
 requested the English court to take jurisdiction of the case upon a libel 
 filed by the mortgagee, whom the owners had dispossessed, the court took 
 jurisdiction accordingly. The Evangelistria. 2 Prob. Div. 241, note. 
 
 But, although the courts will use a discretion about assuming juris- 
 diction of controversies between foreigners in cases arising beyond the 
 territorial jurisdiction of the country to which the courts belong, yet 
 where such controversies are communis juris, that is, where they arise 
 under the common law of nations, special grounds should appear to 
 induce the court to deny its aid to a foreign suitor when it has jurisdic- 
 tion of the ship or party charged. The existence of jurisdiction in all 
 such cases is beyond dispute ; the only question will be, whether it is 
 expedient to exercise it. See 2 Parsons Ship, and Adm. 226, and cases
 
 ;[34 THE BELGENLAND. [CHAP. IIL 
 
 cited in notes. In the case of The Jerusalem, 2 Gall. 191, decided by- 
 Mr. Justice Story, jurisdiction was exercised in the case of a bottomry 
 bond, although the contract was made between subjects of the Sublime 
 Porte, and it did not appear tliat it was intended that the vessel should 
 come to the United States. In this case Justice Story examined the 
 subject very fully, and came to the conclusion that, wherever there is a 
 maritime lien on the ship, an Admiralty Court can take jurisdiction on 
 the principle of the civil law, that in proceedings in rem the proper 
 forum is the locus rei sitCB. He added : " Wilh reference, therefore, 
 to what may be deemed the public law of Europe, a proceeding iii rem 
 may well be maintained in our courts where the property of a foreigner 
 is within our jurisdiction. Nor am I able to perceive how the exercise 
 of such judicial authority clashes with any principles of pubHc policy." 
 That, as we have seen, was a case of bottomry, and Justice Story, in 
 answer to the objection that tlie contract might have been entered into 
 in reference to the foreign law, after showing that such law might be 
 proven here, said : ''In respect to maritime contracts, there is still less 
 reason to decline the jurisdiction, for in almost all civilized countries 
 these are in general substantially governed by the same rules." 
 
 Justice Story's decision in this case was referred to by Dr. Lushing- 
 ton with strong approbation in the case of The Golubchick, 1 W. Rob. 
 143, decided in 1840, and was adopted as authority for his taking juris- 
 diction in that case. 
 
 In 1839, a case of collision on the high seas between two foreign ships 
 of different countries (the very case now under consideration) came be- 
 fore the English Admiralty.' The Johann Friederich, 1 W. Rob. 35. A 
 Danish ship was sunk by a Bremen ship, and on the latter being libelled, 
 the respondents entered a protest against tlie jurisdiction of the court. 
 But jurisdiction was retained liy Dr. Lushington, who, amongst other 
 things, remarked: "An alien friend is entitled to sue [in our courts] 
 on the same footing as a British born subject, and if the foreigner in 
 this case had been resident here, and the cause of action had originated 
 infra corpus comitcdns, no objection could have been taken." Refer- 
 ence being made to the observations of Lord Stowell in cases of sea- 
 men's wages, the judge said: "All questions of collision are questions 
 communis juris ^ but in case of mariners' wages, whoever engages vol- 
 untarily to serve on board a foreign ship, necessarily undertakes to be 
 bound by the law of tlie country to which such ship belongs, and the 
 legality of his claim must be tried by such law. One of the most im- 
 portant distinctions, therefore, respecting cases where both parties are 
 foreigners is, whether the case be communis juris or not. ... If these 
 parties must wait until the vessel that has done the injury returned to 
 its own country, their remedy might be altogether lost, for she might 
 never return, and, if she did, there is no part of the world to which they 
 might not be sent for their redress." 
 
 In the subsequent case of The Griefswald, 1 Swabey, 430, decided 
 by the same judge in 1859, which arose out of a collision between a
 
 SECT. I.] THE BELGENLAND. 135 
 
 British barque and a Persian ship in the Dardanelles, Dr. Lushington 
 said: '"In eases of collision, it has been the practice of this country, 
 and, so far as I know, of the European States and of the United States 
 of America, to allow a party alleging grievance by a collision to proceed 
 in rem against the ship wherever found, and this practice, it is manifest, 
 is most conducive to justice, because in very many cases a remedy m 
 personam would be impracticable." 
 
 The subject has frequently been before our own Admiralty Courts of 
 original jurisdiction, and there has been but one opinion expressed, 
 namely, that they have jurisdiction in such cases, and that they will 
 exercise it unless special circumstances exist to show that justice would 
 be better subserved by declining it. It was exercised in two cases of 
 collision coming before Mr. Justice Blatchford, while district judge of 
 the Southern District of New York, The Jupiter, 1 Ben. 536, and The 
 Steamship Russia, 3 Ben. 471. In the former case the law was taken 
 very much for granted ; in the latter it was tersely and accurately ex- 
 pounded, with a reference to the principal authorities. Other cases 
 might be referred to, but it is unnecessary to cite them. The general 
 doctrine on the suliject is recognized in the case of The Maggie Ham- 
 mond, 9 Wall. 435, 457, and is accurately stated by Chief Justice Taney 
 in his dissenting opinion in Taylor v. Carryl, 20 How. 583, Gil. 
 
 As the assumption of jurisdiction in such cases depends so largely on 
 the discretion of the court of first instance, it is necessary to inquire 
 how far an appellate court should undertake to review its action. We 
 are not without authority of a very higli character on this point. In a 
 quite recent case in England, that of The Leon XIII., 8 Prob. Div. 121, 
 the subject was discussed in the Court of Appeal. That was the case 
 of a Spanish vessel libelled for the wages of certain British seamen who 
 had shipped on board of her, and the Spanish consul at Liverpool pro- 
 tested against the jurisdiction of the Admiralty Court on the ground 
 that the shipping articles were a Spanish contract, to be governed by 
 Spanish law, and any controversy arising thereon could only be settled 
 before a Spanish court, or consul. Sir Robert Phillimore held that the 
 seamen were to be regarded for that case as Spanish subjects, and, 
 under the circumstances, he considered the protest a proper one and 
 dismissed the suit. The Court of Appeal held that the judge below was 
 right in regarding the libellants as Spanish subjects ; and on the ques- 
 tion of reviewing his exercise of discretion in refusing to take jurisdiction 
 of the case, Brett, M. R., said : "It is then said that the learned judge 
 has exercised his discretion wrongly. What then is the rule as regards 
 this point in the Court of Appeal ? The plaintiffs must show that the 
 judge has exercised his discretion on wrong principles, or that he 
 has acted so absolutely differently from the view which the Court of 
 Appeal holds, that they are justified in saying he has exercised it 
 wrongly. I cannot see that any wrong principle has been acted on by 
 the learned judge, or anything done in the exercise of his discretion so 
 unjust or unfair as to entitle us to overrule his discretion."
 
 236 AENDT V. GRIGGS. [CHaP. III. 
 
 This seems to us to be a very sound view of the subject ; and acting 
 on this principle, we certainly see nothing in the course taken by the 
 District Court in assuming jurisdiction of the present case, which calls 
 for animadversion. Indeed, where the parties are not only foreigners, 
 but belong to different nations, and the injury or salvage service takes 
 place on the higli seas, there seems to be no good reason why the party 
 injured, or doing the service, should ever be denied justice in our courts. 
 Neither party has any peculiar claim to be judged by the municipal law 
 of his own country, since the case is pre-eminently one communis Juris, 
 and can generally be more impartially and satisfactorily adjudicated by 
 the court of a third nation having jurisdiction of the res or parties, than 
 it could be by the courts of either of the nations to which the litigants 
 belong. As Judge Deady very justly said, in a case before him in the 
 district of Oregon : "The parties cannot be remitted to a home forum, 
 for, being subjects of different governments, there is no such tribunal. 
 The forum whicli is common to them both by the Ji/s gentium is any 
 court of admiralty within the reach of whose process they may both be 
 found." Bernhard v. Greene, 3 Sawyer, 230, 235. 
 
 ARNDT V. GRIGGS. 
 Supreme Court of the United States. 1890. 
 
 [Reported 134 United States, 316.] 
 
 Brewer, J. The statutes of Nebraska contain these sections : Sec. 57, 
 chap. 73, Compiled Statutes 1885. p. 483 : '' An action maybe brought 
 and prosecuted to final decree, judgment, or order, by any person or per- 
 sons, whether in actual possession or not, claiming title to real estate, 
 against any person or persons, who claim an adverse estate or interest 
 therein, for the purpose of determining such estate or interest, and 
 quieting the title to said real estate.'* Sec. 58: " All such pleadings 
 and proofs and subsequent proceedings shall be had in such action now 
 pending or hereafter brought, as may be necessary to fully settle or 
 determine the question of title between the parties to said real estate, 
 and to decree the title to the same, or any part thereof, to the party 
 entitled thereto ; and the court may issue the appropriate order to 
 carry such decree, judgment, or order into effect." Sec. 77, Code of 
 Civil Procedure, Compiled Statutes 1885, p. G37 : " Service may be 
 made by publication in either of the following cases : " Fourth. In 
 actions which relate to, or the subject of which is, real or personal 
 property in this State, where any <lefendant has or claims a lien or 
 interest, actual or contingent, therein, or tlie relief demanded consists 
 wholly or partially in excluding him from any interest therein, and 
 such defendant is a non-resident of the State or a foreign corporation." 
 Sec. 78 of the Code: "Before service can be made by publication,
 
 SECT. I.] AKNDT V. GRIGGS. 137 
 
 an affidavit must be filed that service of a summons cannot be made 
 within this State, on the defendant or defendants, to be served by pub- 
 lication, and that the case is one of those mentioned in the preceding 
 section. When such affidavit is filed the party may proceed to make 
 service by publication." Sec. 82 of the Code : " A party against whom 
 a judgment or decree has been rendered without other service than by 
 publication in a newspaper, may, at any time within five years after 
 the date of the judgment or order, have the same opened and be let in 
 to defend ; ... but the title to any property, the subject of the judg- 
 ment or order sought to be opened, which by it, or in consequence of 
 it, shall have passed to a purchaser in good faith, shall not be afl'ected 
 by any proceedings under this section, nor shall they affect the title to 
 any property sold before judgment under an attachment." Sec. 429 b. 
 of the Code : '' When any judgment or decree shall be rendered for a 
 conveyance, release, or acquittance, in any court of this State, and the 
 party or parties against whom the judgment or decree shall be rendered 
 do not comply therewith within the time mentioned in said judgment 
 or decree, such judgment or decree shall have the same operation and 
 effect, and be as available, as if the conveyance, release, or acquittance 
 had been executed conformable to such judgment or decree." 
 
 Under these sections, in March, 1882, Charles L. FUnt filed his peti- 
 tion in the proper court against Michael Hurley and another, alleging 
 that he was the owner and in possession of the tracts of land in con- 
 troversy in this suit ; that he held title thereto by virtue of certain tax 
 deeds, which were described; that the defendants claimed to have 
 some title, estate, interest in, or claim upon the lands by patent from 
 the United States, or deed from the patentee, but that whatever title, 
 estate, or claim they had, or pretended to have, was divested by the 
 said tax deeds, and was unjust, inequitable, and a cloud upon plain- 
 tiff's title ; and that this suit was brought for the purpose of quieting 
 his title. The defendants were brought in by publication, a decree was 
 entered in favor of Flint quieting his title, and it is conceded that all 
 the proceedings were in full conformity with the statutory provisions 
 above quoted. 
 
 The present suit is one in ejectment, between grantees of the respec- 
 tive parties to the foregoing proceedings to quiet title ; and the ques- 
 tion before us, arising upon a certificate of division of opinion between 
 the trial judges, is whether the decree in such proceedings to quiet title, 
 rendered in accordance with the provisions of the Nebraska statute, 
 upon service duly authorized by them, was valid and operated to quiet 
 the title in the plaintiff therein. In other words, has a State the 
 power to provide by statute that the title to real estate within its limits 
 shall be settled and determined by a suit in which the defendant, being 
 a non-resident, is brought into court only by publication? The Supreme 
 Court of Nebraska has answered this question in the affirmative. 
 Watson V. Ulbrich, 18 Neb. 189 — in which the court says: "The 
 principal question to be determined is whether or not the decree in
 
 238 AENDT V. GRIGGS. [CHAP. III. 
 
 favor of Gra}', rendered upon constructive service, is valid until set 
 aside. No objection is made to the service, or an}' proceedings con- 
 nected with it. The real estate in controversy was within the jurisdic- 
 tion of the District Court, and that court had authority, in a proper 
 case, to render the decree confirming the title of Gra}'. In Castriquc 
 V. Imrie, L. R. 4 H. L. -414, 429, Mr. Justice Blackburn says: ' We 
 think the inquirj- is, first, whether the subject-matter was so situated 
 as to be within the lawful control of the State under the authority of 
 which the court sits ; and, secondly, whether the sovereign authority of 
 that State has conferred on the court jurisdiction to decide as to the 
 disposition of the thing, and the court has acted within its jurisdiction. 
 If these conditions are fulfilled, the adjudication is conclusive against 
 all the world.' The court, therefore, in this case, having authority to 
 render the decree, and jurisdiction of the subject-matter, its decree is 
 conclusive upon the property- until vacated under the statutes or set 
 aside." 
 
 Section 57, enlarging as it does the class of cases in which relief was 
 formerly afforded by a court of equit}' in quieting the title to real 
 propert}', has been sustained by this court, and held applicable to suits 
 in the Federal court. Holland v. Challen, 110 U. S. 15. But it is ear- 
 nesth- contended that no decree in such a case, rendered on service b}' 
 publication onl}-, is valid or can be recognized in the Federal courts. 
 And Hart v. Sansom, 110 U. S. 151, is relied on as authority for this 
 proposition. The propositions are, that an action to quiet title is a 
 suit in equity ; that equity acts upon the person ; and that the person 
 is not brought into court by service b}- publication alone. 
 
 "While these propositions are doubtless correct as statements of the 
 general rules respecting bills to quiet title, and proceedings in courts of 
 equity, they are not applicable or controlling here. The question is 
 not what a court of equity, In- virtue of its general powers and in the 
 absence of a statute, might do, but it is, wliat jurisdiction has a State 
 over titles to real estate within its limits, and what jurisdiction may it 
 give by statute to its own courts, to determine the validit}' and extent 
 of the claims of non-residents to such real estate? If a State has no 
 power to bring a non-resident into its courts for an}' purposes b}' pub- 
 lication, it is impotent to perfect the titles of real estate within its limits 
 held by its own citizens ; and a cloud cast upon such title by a claim of 
 a non-resident will remain for all time a cloud, unless such non-resident 
 shall voluntarily come into its courts for the purpose of having it adju- 
 dicated. lUit no such imperfections attend the sovcreignt}' of the State. 
 It has control over property within its limits ; and the condition of 
 ownership of real estate therein, whether the owner be stranger or citi- 
 zen, is subjection to its rules concerning the holding, the transfer, lia- 
 bility to obligations, private or public, and the modes of establisiiing 
 titles thereto. It cannot bring the person of a non-resident within its 
 limits — its process goes not out beyond its borders — but it mav deter- 
 mine the extent of his title to real estate within its limits ; and for the
 
 SECT. I.] ARNDT V. GRIGGS. 139 
 
 purpose of such determination may provide anj- reasonable methods of 
 imparting notice. The well-being of ever}' community requires that the 
 title of real estate therein shall be secure, and that there be convenient 
 and certain methods of determining an}' unsettled questions respecting it. 
 The duty of accomplishing this is local in its nature ; it is not a matter of 
 national concern or vested in the general government ; it remains with 
 the State ; and as this duty is one of the State, the manner of discharg- 
 ing it must be determined by the State, and no proceeding which it 
 provides can be declared invalid, unless in conflict with some special 
 inhibitions of the Constitution, or against natural justice. So it has 
 been held repeatedly that the procedure established b}' the State, in 
 this respect, is binding upon the Federal courts. In United States v. 
 Fox, 94 U. S. 315, 320, it was said : " The power of the State to regu- 
 late the tenure of real property within her limits, and the modes of its 
 acquisition and transfer, and the rules of its descent, and the extent to 
 which a testamentary disposition of it may be exercised b}- its owners 
 is undoubted. It is an established principle of law, everj'where recog- 
 nized, arising from the necessity of the case, that the disposition of 
 immovable propert}', whether b}' deed, descent, or any other mode, is 
 exclusively subject to the government within whose jurisdiction the 
 property is situated." See also McCormick v. SuUivant, 10 "Wheat. 
 192, 202 ; Beauregard v. New Orleans, 18 How. 497; Suydam v. Wil- 
 Uarason, 24 How. 427 ; Christian Union v. Yount, 101 U. S. 352 ; 
 Lathrop v. Bank, 8 Dana, 114. 
 
 Passing to an examination of the decisions on the precise question it 
 may safely be affirmed that the general, if not the uniform, ruling of 
 State courts has been in favor of the power of the State to thus quiet 
 the title to real estate within its limits. In addition to the case from 
 Nebraska, heretofore cited, and which onl}' followed prior rulings in 
 that State, — Scudder v. Sargent, 15 Neb. 102; Keene v. Sallen- 
 bach. 15 Neb. 200 — reference may be had to a few cases. In 
 Cloyd V. Trotter, 118 111. 391, the Supreme Court of Illinois held that 
 under the statutes of that State the court could acquire jurisdiction 
 to quiet title by constructive service against non-resident defendants. 
 A similar ruling as to jurisdiction acquired in a suit to set aside a con- 
 veyance as fraudulent as to creditors was affirmed in Adams v. Cowles, 
 95 Mo. 501. In Wunstel v. Landry, 39 La. Ann. 312, it was held 
 that a non-resident part}' could be brought into an action of partition 
 by constructive service. In Essig v. Lower, 21 Northeastern Rep. 
 1090, the Supreme Court of Indiana thus expressed its views on the 
 question: "It is also argued that the decree in the action to quiet 
 title, set forth in the special finding, is in personam and not in rem, 
 and that the court had no power to render such decree on publication. 
 While it may be true that such decree is not in rem, strictly speaking, 
 yet it must be conceded that it fixed and settled the title to the land 
 then in controversy, and to that extent partakes of the nature of a judg- 
 ment in rem. But we do not deem it necessary to a decision of this case
 
 240 AliNDT V. GRIGGS. [CHAP. HL 
 
 to determine whether the decree is vi personam or in rem. The action 
 was to quiet the title to the land then involved, and to remove there- 
 from certain apparent liens. Section 318, Rev. Stat. 1881, expressly 
 authorizes the rendition of such a decree on publication." This was 
 since the decision in Hart v. Sansom, as was also the case of Dillen v. 
 Heller, 39 Kansas, 599, in which Mr. Justice Valentine, for the court, 
 says : ' ' For the present we shall assume that the statutes authorizing 
 service of summons by publication were strictly complied with in the 
 present case, and then the only question to be considered is whether 
 the statutes themselves are valid. Or, in other words, we think the 
 question is this : Has the State any power, through the legislature and 
 the courts, or b}- any other means or instrumentalities, to dispose of or 
 control property in the State belonging to non-resident owners out of 
 the State, where such non-resident owners will not voluntarily sur- 
 render jurisdiction of their persons to the State or to the courts of the 
 State, and where the most urgent public policy and justice require that 
 the State and its courts should assume jurisdiction over such property? 
 Power of this kind has already been exercised, not onl}' in Kansas, but 
 in all the other States. Lands of non-resident owners, as well as of 
 resident owners, are taxed and sold for taxes; and the owners thereby 
 may totall}' be deprived of such lands, although no notice is ever given 
 to such owners, except a notice by publication, or some other notice of 
 no greater value, force, or efficacy. Beebe v. Doster, 36 Kansas, 666, 
 675, 677 ; s. c. 14 Pac. Rep. 150. Mortgage liens, mechanics' liens, 
 material-men's liens, and other liens are foreclosed against non-resi- 
 dent defendants upon service by publication only. Lands of non-resi- 
 dent defendants are attached and sold to pa}' their debts ; and, indeed, 
 almost any kind of action ma}' be instituted and maintained against 
 non-residents to the extent of any interest in property the}' may have 
 in Kansas, and the jurisdiction to hear and determine in this kind of 
 cases may be obtained wholly and entirely by publication. Gillespie 
 V. Thomas, 23 Kansas, 138 ; Walkeuhorst v. Lewis, 24 Kansas, 420 ; 
 Rowe V. Palmer, 29 Kansas, 337 ; Venablc v. Dutch, 37 Kansas, 515, 
 519. All the States by proper statutes authorize actions against non- 
 residents, and service of summons therein by publication only, or ser- 
 vice in some other form no better; and, in the nature of things, such 
 must be done in every jurisdiction, in order that full and complete 
 justice may be done where some of the parties are non-residents. We 
 think a sovereign State has the power to do just such a thing. All 
 things within the territorial boundaries of a sovereignty are within its 
 jurisdiction ; and, generally, within its own boundaries a sovereignty is 
 supreme. Kansas is supreme, except so far as its power and author- 
 ity are limited by the Constitution and laws of the United States ; and 
 within the Constitution and laws of the United States the courts of 
 Kansas may have all the jurisdiction over all persons and things within 
 the State which the constitution and laws of Kansas may give to them ; 
 and the mode of obtaining this jurisdiction may be prescribed wholly,
 
 SECT. I.] AENDT V. GRIGGS. 
 
 141 
 
 entire!}-, and exclusively b}- the statutes of Kansas. To obtain juris- 
 diction of everything within the State of Kansas, the statutes of Kan- 
 sas may make service by publication as good as any other kind of 
 service." , 
 
 Turning now to the decisions of this court : In Boswell's Lessee v. 
 Otis, 9 How. 336, 348, was presented a case of a bill for a specific 
 performance and an accounting, and in which was a decree for specific 
 performance and accounting ; and an adjudication that the amount due 
 on such accounting should operate as a judgment at law. Service was 
 had by publication, the defendants being non-residents. The validity 
 of a sale under such judgment was in question; the court held that 
 portion of the decree, and the sale made under it, void ; but with refer- 
 ence to jurisdiction in a case for specific performance alone, made these 
 observations : " Jurisdiction is acquired in one of two modes : first, as 
 against the person of the defendant, by the service of process ; or, 
 secondly, by a procedure against the property of the defendant within 
 the jurisdiction of the court. In the latter case the defendant is not 
 personally bound by the judgment, beyond the property in question. 
 And it is immaterial whether the proceeding against the property be 
 by an attachment or bill in chancery. It must be substantiallv a pro- 
 ceeding in rem. A bill for the specific execution of a contract to con- 
 vey real estate is not strictly a proceeding in rem., in ordinary' cases ; 
 but where such a procedure is authorized by statute, on publication, 
 without personal service or process, it is substantially of that character." 
 
 In the case of Parker v. Overman, IS How. 137, 140, the question was 
 presented under an Arkansas statute, a statute authorizing service bj- 
 publication. While the decision on the merits was adverse, the court thus 
 states the statute, the case and the law applicable to the proceedino-s un- 
 der it : "It had its origin in the State court of Dallas County, Arkansas, 
 sitting in chancer}-. It is a proceeding under a statute of Arkansas, pre- 
 scribing a special remedy for the confirmation of sales of land by a sheriff 
 or other public officer. Its object is to quiet the title. The purchaser 
 at such sales is authorized to institute proceedings by a public notice in 
 some newspaper, describing the land, stating the authoritv under which 
 it was sold, and ' calling on all persons who can set up anv right to the 
 lands so purchased, in consequence of any informality, or an}'^ irregu- 
 larit}- or illegalit}' connected with the sale, to show cause why the sale 
 so made should not be confirmed.' In case no one appears to contest 
 the regularity of the sale, the court is required to confirm it, on finding 
 certain facts to exist. But if opposition be made, and it should ap- 
 pear that the sale was made ' contrar}' to law,' it became the dutv of 
 the court to annul it. The judgment or decree, in favor of the grantee 
 in the deed, operates ' as a complete bar against an}- and all persons 
 who may thereafter claim such land, in consequence of any informality 
 or illegality in the proceedings.' It is a very great evil in any com- 
 munity to have titles to land insecure and uncertain ; and especially 
 in new States, where its result is to retard the settlement and improve-
 
 142 
 
 ARNDT V. GRIGGS. [CHAP. III. 
 
 ment of their vacant lands. Where such lands have been sold for 
 taxes there is a cloud on the title of both claimants, which deters the 
 settler from purchasing from either. A prudent man will not purclmse 
 a lawsuit, or risly the loss of his mone}- and labor upon a litigious title. 
 The act now under consideration was intended to remed}' this evil. It 
 is in substance a bill of peace. The jurisdiction of the court over the 
 controvers}- is founded on the presence of the property- ; and, like a 
 proceeding i?i rem, it becomes conclusive against the absent claimant, 
 as well as the present contestant. As was said by the court in Clark 
 V. Smith, 13 Pet. 195, 203, with regard to a similar law of Kentucky: 
 ' A State has an undoubted power to regulate and protect individual 
 rights to her soil, and declare what shall form a cloud over titles ; and, 
 having so declared, the courts of the United States, by removing such 
 clouds, are onlj- applying an old practice to a new equity created b}' the 
 legislature, having its origin in the peculiar condition of the country. 
 The State legislatures have no authority to prescribe forms and modes 
 of proceeding to the courts of the United States ; yet having created a 
 right, and at the same time prescribed the remedy to enforce it, if the 
 remed}' prescribed be substantialh* consistent with the ordinary modes 
 of proceeding on the chancery side of the Federal courts, no reason 
 exists why it should not be pursued in the same form as in the State 
 court.' In the case before us the proceeding, though special in its 
 form, is in its nature but the application of a well known chancer}' 
 remed}' ; it acts upon the land, and may be conclusive as to the title of 
 a citizen of another State." 
 
 In the case of Pennoyer v. Neff, 95 U. S. 714, 727, 734, in which 
 the question of jurisdiction in cases of service b}' publication was con- 
 sidered at length, the court, by Mr. Justice Field, thus stated the law : 
 "Such service may also be sufficient in cases where the object of the 
 action is to reach and dispose of propert}' in the State, or of some inter- 
 est therein, by enforcing a contract or lien respecting the same, or to 
 partition it among ditfei'ent owners, or, when the [)ublic is a party, to 
 condemn and appro[)riate it for a public purpose. In other words, 
 such service may answer in all actions wliich are substantially' proceed- 
 ings in re)//. ... It is true that, in a strict sense, a proceeding hi rem 
 is one taken directly; against property, and has for its object the dis- 
 position of the property, without reference to the title of individual 
 claimants; but, in a larger and more general sense, the terms are 
 api)lied to actions between parties, where the direct object is to rcacli 
 and dispose of property owned by them, or of some interest therein. 
 Such are cases commenced b^' attachment against the property of 
 debtors, or instituted to pai'tition real estate, foreclose a mortgage, or 
 enforce a lien. So far as they affect property in the State, they are 
 substantially proceedings hi rem in the broader sense which we have 
 mentioned." These cases were all l)efore the decision of Ihut o. 
 Sansom. 
 
 Passing to a case later than that, Iluling lk Kaw Valley Railway,
 
 SECT. I.] AKNDT V. GRIGGS. 143 
 
 130 U. S. 559, 563, it was held that, in proceedings commenced under 
 a statute for the condemnation of lands for raih'oad purposes, publica- 
 tion was sufficient notice to a non-resident. In tiie opinion, Mr. Jus- 
 tice Miller, speaking for the court, says : "Of course, the statute goes 
 upon the presumption that, since all the parties cannot be served per- 
 sonally with such notice, the publication, which is designed to meet the 
 eyes of everybody, is to stand for sucli notice. The publication itself 
 is sufficient if it had been in the form of a personal service upon the 
 party himself within the county. Nor have we any doubt that this form 
 of warning owners of property to appear and defend their interests, 
 where it is subject to demands for public use when authorized b}^ statute, 
 is sufficient to subject the property to the action of the tribunals ap- 
 pointed by proper authority to determine those matters. The owner of 
 real estate, who is a non-resident of the State within which the property 
 lies, cannot evade the duties and obligations, which the law imposes 
 upon him in regard to such property, by his absence from the State. Be- 
 cause he cannot be reached by some process of the courts of the State, 
 which, of course, have no efficacy beyond their own borders, he cannot, 
 therefore, hold his property exempt from the liabilities, duties, and obli- 
 gations which the State has a right to impose upon such property ; and 
 in such cases, some substituted form of notice has always been held to 
 be a sufficient warning to the owner, of the proceedings which are 
 being taken under the authority of the State to subject his property to 
 those demands and obligations. Otherwise the burdens of taxation and 
 the liability of such property to be taken under the power of eminent 
 domain, would be useless in regard to a very large amount of property 
 in every State of the Union." In this connection, it is well to bear in 
 mind, that by the statutes of the United States, in proceedings to 
 enforce any legal or equitable lien, or to remove a cloud upon the title 
 of real estate, non-resident holders of real estate may be brought in by 
 publication, 18 Stat. 472 ; and the validity of this statute, and the 
 jurisdiction conferred by publication, has been sustained by this court. 
 Mellen v. Moline Iron Works, 131 U. S. 352. 
 
 These various decisions of this court establish that, in its judgment, 
 a State has power by statute to provide for the adjudication of titles to 
 real estate within its limits as against non-residents who are brought 
 into court only by publication ; and that is all that is necessary to sus- 
 tain the validity of the decree in question in this case. 
 
 Nothing inconsistent with this doctrine was decided in Hart v. San- 
 som, supra. The question there was as to the effect of a judgment. 
 That judgment was rendered upon a petition in ejectment against one 
 Wilkerson. Besides the allegations in the petition to sustain the eject- 
 ment against Wilkerson, were allegations that other defendants named 
 had executed deeds, which were described, which were clouds upon 
 plaintiffs' title ; and in addition an allegation that the defendant Hart 
 set up some pretended claim of title to the land. This was the only 
 averment connecting him with the controver.sy. Publication was made
 
 144 
 
 AKNDT V. GRIGGS. [CIIAP. III. 
 
 against some of the defendants, Hart being among the number. There 
 was no appearance, but judgment upon default. That judgment was, 
 that the plaintiffs recover of the defendants the premises described ; 
 " that the several deeds in plaintiffs' petition mentioned be, and the 
 same are, hereby annulled and cancelled, and for naught held, and that 
 the cloud be thereby removed ; " and for costs, and that execution 
 issue therefor. This was the whole extent of the judgment and decree. 
 Obviously in all this there was no adjudication affecting Hart. As 
 there was no allegation that he was in possession, the judgment for 
 possession did not disturb him ; and the decree for cancellation of the 
 deeds referred specifically to the deeds mentioned in the petition, and 
 there was no allegation in the petition tliat Hart had anything to do 
 with those deeds. There was no general language in the decree quieting 
 the title as against all the defendants ; so there was nothing which. could 
 be construed as working any adjudication against Hart as to his claim 
 and title to the land. He might apparently be affected by the judg- 
 ment for costs, but they had no effect upon the title. So the court 
 held, for it said : " It is difficult to see how any part of that judgment 
 (except for costs) is applicable to Hart ; for that part which is for 
 recovery of possession certainly cannot apply to Hart, who was not in 
 possession; and that part which removes the cloud upon the plaintiffs' 
 title appears to be limited to the cloud created by the deeds mentioned 
 in the petition, and the petition does not allege, and the verdict nega- 
 tives, that Hart held any deed." 
 
 An additional ground assigned foi the decision was that if there was 
 any judgment (except for costs) against Hart, it was, upon the most 
 liberal construction, only a decree removing the cloud created by his 
 pretended claim of title, and therefore, according to the ordinary and 
 undisputed rule in equity, was not a judgment in rem, establishing 
 against him a title in the land. But the power of the State, by appro- 
 priate legislation, to give a greater effect to such a decree was dis- 
 tinctly recognized, both by the insertion of the words '' unless otherwise 
 expressly provided by statute," and by adding: " It would doubtless 
 be within the power of the State in which the land lies to provide by 
 statute that if the defendant is not found within the jurisdiction, or 
 refuses to make or to cancel a deed, this should be done in his behalf 
 by a trustee appointed by the court for that purpose." And of course it 
 follows that if a State has power to bring in a non-resident by publica- 
 tion for the purpose of appointing a trustee, it can, in like manner, 
 bring him in and subject him to a direct decree. There was presented 
 no statute of the State of Texas providing directly for quieting the title 
 of lands within the State, as against non-residents, brought in only by 
 service by publication, such as we have in the case at bar, and the 
 only statute cited by counsel or referred to in the opinion was a mere 
 general provision for bringing in non-resident defendants in any case 
 by pul)lication ; and it was not tiie intention of tlie court to overthrow 
 that scries of earlier authorities heretofore referred to, which affirm the
 
 SECT. II.] BUCHANAN V. EUCKEK. 145 
 
 power of the State, hy suitable statutory proceedings, to determine the 
 titles to real estate within its limits, as against a non-resident defend- 
 ant, notified onl}- by publication. 
 
 It follows, from these considerations, that the first question presented 
 in the certificate of division, the one heretofore stated, and which is 
 decisive of this case, must be answered in the affirmative. 
 
 SECTION II. 
 
 PERSONAL JURISDICTION. 
 
 BUCHANAN v. RUCKER. 
 
 King's Bench. 1808. 
 
 [Reported 9 East, 192.] 
 
 The plaintiff declared in assumpsit for £2,000 on a foreign judgment 
 of the Island Court in Tobago ; and at the trial ( Yicle 1 Campbell's 
 Ni. Pri. Cas. 63) before Lord Ellenborough, C. J., at Guildhall, pro- 
 duced a copy of the proceedings and judgment, certified under the 
 handwriting of the Chief Justice and the seal of the island, which 
 were proved ; which, after containing an entr}' of the declaration, set 
 out a summons to the defendant, therein described as " former!}- of 
 the city of Dunkirk, and now of the city of London, merchant," to 
 appear at the ensuing court to answer the plaintiff's action ; which 
 summons was returned "served, etc., by nailing up a copy of the 
 declaration at the court-house door," etc., on which judgment was 
 afterwards given by default. Whereupon it was objected, that the 
 judgment was obtained against the defendant, who never appeared to 
 have been within the limits of the island, nor to have had any attorney 
 there ; nor to have been in any other way subject to the jurisdiction of 
 
 10
 
 146 BUCHANAN V. RUCKER. [CHAP. III. 
 
 the court at the time ; and was therefore a nullity. And of this opinion 
 was Lord EUenborough ; though it was alleged (of which however there 
 was no other than parol proofj that this mode of summoning absentees 
 was warranted by a law of the island, and was commonly practised 
 there ; and the plaintiff was thereupon nonsuited. And now 
 
 Taddy moved to set aside the nonsuit, and for a new trial, on an 
 affidavit verifying the island law upon this suVyect, which stated, 
 " That ever}- defendant against whom any action shall be entered, 
 shall be served with a summons and an office copy of the dechiration, 
 with a cop}- of the account annexed, if any, at the same time, b}- the 
 Provost Marshal, etc., six days before the sitting of the next court, 
 etc, ; and the Provost Marshal is required to serve the same on each 
 defendant in person. But if such defendant cannot be found, and is 
 not absent from the island ; then it shall be deemed good service by 
 leaving the summons, etc., at his most usual place of abode. And if 
 the defendant be absent from the island, and hath a power of attorney 
 recorded in the secretary's or registrar's office of Tobago, and the 
 attorney be resident in the island, or any manager or overseer on his 
 plantation in the island, the service shall be either upon such attorney 
 personally, or by leaving it at his last place of abode, or upon such 
 overseer or manager personall}-, or by leaving it at the house upon the 
 defendant's plantation where the overseer or manager usually resides. 
 But if no such attorne}', overseer, or manager, then the nailing up a 
 copy of the declaration and summons at the entrance of the court- 
 house shall be held good service." 
 
 Lord Ellenborough, C. J. There is no foundation for this motion 
 even upon the terras of the law disclosed in the affidavit. By persons 
 absent from the island must necessarily be understood persons who 
 have been present and within the jurisdiction, so as to have been 
 subject to the process of the court ; but it can never be applied to a 
 person who for aught appears never was present within or subject to 
 the jurisdiction. Supposing, however, that the act had said in terms, 
 that though a person sued in the island had never been present wilhin 
 the jurisdiction, yet that it should bind him upon proof of nailing up 
 the summons at the court door : how could that be obligatory upon the 
 subjects of other countries? Can the island of Tobago pass a law to 
 bind the rights of the whole world? Would the world submit to such 
 an assumed jurisdiction? The law itself, however, fairly construed, 
 does not warrant such an inference: for "absent from the island" 
 must be taken only to apply to persons who had been present there, 
 and were subject to the jurisdiction of the court out of which the 
 process issued ; and as nothing of that sort was in proof here to show 
 that the defendant was subject to the jurisdiction at the time of com- 
 mencing the suit, there is no foundation for raising an assumpsit in law 
 upon the judgment so obtained. Per Curiam. Rule refused} 
 
 1 Ace. Wood V. Watkinson, 17 Conn. 500 ; Howell v. Gordon, 40 Ga. 302 ; Beard 
 «. Beard, 21 Ind. 321 ; Rand v. Hanson, 154 Mass. 87 ; Cocke v. Brewer, 68 Miss.
 
 SECT. II.] DOUGLAS V. FORREST. 147 
 
 DOUGLAS V. FORREST. 
 
 Court of Common Pleas. 1828. 
 [Reported 4 Bingham, 6S6.] 
 
 Best, C. J.^ This was an action brought by the assignees of Stein 
 and Co., bankrupts, against the executor of the will of John Hunter. 
 
 On the 31st Ma}', 1799, the testator acknowledged himself to be 
 indebted to Stein and Co. in the sum of £447 6s. Zd. ; and on the 
 11th June, in the same year, he acknowledged that he owed £75 to 
 Robert Smith, one of the bankrupts, and one of the firm of Stein and 
 Co. These debts were contracted in Scotland, of which country the 
 deceased was a native, and in which he had a heritable property. 
 Shortly after the year 1799, the deceased went to India. He died in 
 India in 1817, having never revisited Scotland. 
 
 On the 25th Februar}-, 1802, two decrees were pronounced in the 
 Court of Session in Scotland against the deceased, one at the instance 
 of Stein and Co., and the other at the instance of Robert Smith. In 
 the first of these the deceased was ordered to pay to Stein and Co. 
 £447 6s. Zd., with interest, from the day of besides expenses 
 
 of process, etc. In the second decree the deceased was ordered to pay 
 Robert Smith the sum of £75, with interest, from the of , 
 
 besides expenses of process, etc. It appeared, from these decrees, 
 that the deceased was out of Scotland at the time the proceedings 
 were instituted in these causes. He never had any notice of those 
 proceedings. The decrees stated, that the deceased had been (accord- 
 ing to the law of Scotland) summoned at the market cross of Edinburgh, 
 and at the pier and shore of Leith. A Scotch advocate proved, that, 
 by the law of Scotland, the Court of Session might pronounce judgment 
 against a native Scotchman who had heritable property in that country, 
 for a debt contracted in Scotland, although the debtor had no notice of 
 any of the proceedings, and was out of Scotland at the time. After 
 such proclamations as were mentioned in these decrees had been made, 
 the same witness proved, that a person against whom such a decree was 
 pronounced might, at any time within forty years, dispute the merits 
 of such decree ; but that after the expiration of forty years, it was 
 conclusive against him, and all who claimed under him. 
 
 By a decree of the Court of Session, of the date of the 5th July, 1804, 
 that court adjudged that certain property which the deceased possessed 
 in Scotland should belong to Robert Smith and his heirs, in payment 
 and satisfaction of the sura of £75, with interest, from the 11th June, 
 1799. By another decree of the same date, the Court of Sessions 
 
 775. 9 So. 823 ; Whittier v. Wendell, 7 N. H. 257 ; Schwinger v. Hickok, 53 N. Y. 
 280 ; Price v. Schaeffer, 161 Pa. 530, 29 Atl. 279. — Ed. 
 1 Part of the opinion is omitted. — Ed.
 
 14S > DOUGLAS V. FORREST. [CHAP. III. 
 
 adjudged, that certain other propertj' of the deceased in Scotland 
 should belong to Stein and Co. and their heirs, in payment and satis- 
 faction of the sum of £447 6s. 3cZ., with interest, from the 11th of 
 June, 1799. The two last decrees fill up the blanks left in the first 
 decrees, b}' giving the time from which interest was to be paid on the 
 debts, namel}', from the 11th June, 1799; and if the plaintifll's can 
 maintain their action, entitles them to a verdict for the sum of £862. 
 The terms in which the two last decrees are expressed, seem to import 
 that the lands adjudged to Stein and Co. and Smith were given to and 
 accepted by them, in satisfaction of these debts ; but this cannot be 
 the true construction of these decrees, because none of the decrees are 
 conclusive against the deceased and those who claim under him, until 
 the expiration of forty j-ears from the time of pronouncing the two first 
 decrees. The advocate who was examined in the cause proved, that 
 b}' the law of Scotland, these decrees would not operate as satisfaction 
 of the debts, during the period that the debtor had a right to dispute 
 the validity of the first judgments. A Scotch statute, which we have 
 looked into, shows the accuracy of the opinion given to us on the 
 Scotch laws by the learned advocate ; and I feel it due to him to say, 
 that, from the manner in which he gave his evidence, the clearness and 
 precision with which he explained the grounds of his opinion, I have 
 no doubt that he is extremely well acquainted with the Scotch law, and 
 that we may safely rely on ever}' part of his evidence. 
 
 The two last decrees, proving that interest was to run from 1799, 
 and the testimony of the learned advocate, who proved, that when 
 decrees adjudged that interest should be paid, but did not show the 
 time from which it was to run, interest was payable from the time of 
 the citation, — disposes of the objection that no interest could be 
 , recovered upon these decrees. 
 
 The plaintiffs rested their claim on these decrees. The defendant 
 [insisted that these decrees would not support an action in our courts, 
 'because they were repugnant to the principles of justice, having been 
 pronounced whilst the deceased was at a great distance from Scotland, 
 and without any notice given to him tliat any proceedings were insti- 
 tuted against him. This defence was made on the general issue. The 
 defendant also pleaded, that the plaintiff's oause of action did not 
 accrue within six years before the commencement of the suit. To this 
 there was a replication, that the deceased, at tlie time when tlie cause 
 of action accrued, was beyond seas, and remained beyond the seas 
 until the year 1817, when he died; and that the plaintiffs sued out 
 tlieir writ against the defendant within six years after lie first took on 
 himself the burthen and execution of the will of the deceased in 
 Great Britain, and that he had no other executor in Great I>ritain. 
 This reidication was fully proved, and, therefore, the issue taken on it 
 was proper]}' found for tlie i)laiiitifrs. 
 
 The questions to be decided are, first, whether an action can bo 
 maintained in England on these judgments of the Court of Session in
 
 SECT. II.] DOUGLAS V. FORREST. 149 
 
 Scotland ; secondly, whether the replication is an answer to the pleas 
 of the statute of limitations. 
 
 On the first question we agree with the defendant's counsel, that if 
 these decrees are repugnant to the principles of universal justice, this 
 court ought not to give effect to them ; but we think that these decrees 
 are perfectly consistent with the principles of justice. If we held that 
 they were not consistent with the principles of justice, we should con- 
 demn the proceedings of some of our own courts. If a debt be 
 contracted within the city of London, and the creditor issues a sum- 
 mons against the debtor to which a return is made, that the debtor hath 
 nothing within the city by which he may be summoned, or, in plainer 
 words, hath nothing by the seizure of which his appearance may be en- 
 forced, goods belonging to the debtor in the hands of a third person, 
 or money due from a third person to the debtor, may be attached ; and 
 unless the debtor appears within a year and a day, and disputes his 
 debt, he is forever deprived of his property or the debts due to him. 
 
 In such cases the defendant may be in the East Indies whilst the 
 proceedings are going on against him in a court in London, and may 
 not know that any such proceedings are instituted. Instead of the 
 forty years given by the Scotch law, he has only one year given to him 
 to appear and prevent a decision that finally transfers from him his 
 property. Lord Chief Justice De Grey thought this custom of foreign 
 attachment was an unreasonable one, but it has existed from the earliest 
 times in London, and in other towns in England, and in many of our 
 colonies from their first establishment. Lord Chief Justice De Grey and 
 the Court of Common Pleas, after much consideration, decided against the 
 validit}- of the attachment, according to the report of Fisher v. Lane in 
 3 Wilson, 297, because the part}- objecting to it had never been sum- 
 moned or had notice. The report of the same case in 2 Blackstone, 
 834, shows that the court did not think a personal summons necessary, 
 or any summons that could convey any information to the person sum- 
 moned, but a summons with a return of nihil; that is, such a summons 
 as I have mentioned, namely, one that shows that the debtor is not 
 within the cit}-, and has nothing there, by the seizing of which he may 
 be compelled to appear. ^ The 54 G. III. c. 137 not only recognizes the 
 practices on which these fiecrees are founded, as being according to the 
 law of Scotland, but enacts, that on notices being given at the market 
 cross at Edinburgh, and on the pier and shore of Leith, to debtors out 
 of the kingdom, in default of their appearance the creditors may issue 
 a sequestration against their effects!^ Can we say that a practice which 
 the legislature of the United Kingdom has recognized and extended to 
 other cases is contrary to the principles of justice? 
 
 A natural-born subject of anj- country, quitting that countr}', but 
 leaving property' under the protection of its law, even during his 
 absence, owes obedience to those laws, particularly when those laws 
 enforce a moral obligation. 
 
 The deceased, before he left his native countrv, acknowledged, under
 
 150 SCHIBSBY V. WESTENHOLZ [CHAP. III. 
 
 his hand, that he owed the debts ; he was under a moral obligation to 
 discharge those debts as soon as he could. It must be taken for 
 granted, from there being no plea of pletie admmistravit, that the 
 deceased had the means of paying what was due to the bankrupts. 
 The law of Scotland has only enforced the performance of a moral 
 obligation, by making his executor pay what he admitted was due, 
 with interest during the time that he deprived his creditors of their just 
 debts. 
 
 The reasoning of Lord Eilenborough, in the case of Buchanan v. 
 Rucker (1 Campb. 63, and 9 East, 192), is in favor of these decrees. 
 Speaking of a case decided by Lord Kenyon, his Lordship says, in 
 that case the defendant had property in the island, and might be con- 
 sidered as virtually present. The court decided against the validity 
 of the attachment, because it did not appear that the party attaclied 
 ever was in the island, or had any property in it. In both these 
 respects that case is unlike the present, in the case of Cavan v. 
 Stewart, Lord Eilenborough says, you must prove him summoned, 
 or, at least, that he was once in the island of Jamaica, when the 
 attachment issued. 
 
 To be sure if attachments issued against persons who never were 
 within the jurisdiction of the court issuing them could be supported 
 and enforced in the country in wliich the person attached resided, the 
 legislature of any country might authorize their courts to decide on the 
 rights of parties who owed no allegiance to the government of such 
 country, and were under no obligation to attend its courts, or obey its 
 laws. We confine our judgment to a case where the party owed alle- 
 giance to the country in which the judgment was so given against him, 
 from being born in it,. and by the laws of which country his property 
 was, at the time those judgments were given, protected. The debts 
 were contracted in the country in which the judgments were given, 
 whilst the debtor resided in it. 
 
 SCHIBSBY V. WESTENHOLZ. 
 
 Queen's BEXcn. 1870. 
 
 [Reported Law Reports, 6 Queen's Bench, 155.] 
 
 Blackburn, J. This was an action on a judgment of a French tribu- 
 nal given against the defendants for default of appearance. 
 
 The pleas to the action were, amongst others, a plea of never in- 
 debted, and, tliirdly, a special plea asserting tliat the defendants were 
 not resident or domiciled in France, or in any way subject to the juris- 
 diction of the French court, nor did they appear ; and that they were 
 not summoned, nor had any notice or knowledge of the pending of the 
 proceedings, or any oi)portunity of defending themselves therefrom. 
 On these pleas issue was joined.
 
 SECT. II.] SCHIBSBY V. WESTENHOLZ. 151 
 
 On the trial before me the evidence of a French avocat was given, 
 by which it appeared that by the law of France a French subject may 
 sue a foreigner, though not resident in France, and that fQj:_tlus-ptrr- 
 pose an alien, if resident in t^-«"^-Q| ■"^■^'^ considered by the French law 
 ara FTenclTsubject.^ The mode of citation in such a case, according 
 to the French law, is b}' serving the summons on the Procureur Im- 
 perial. If the foreign defendant thus cited does not within one month 
 appear, judgment may be given against him, but he may still, at any 
 time within two months after judgment, appear and be heard on the 
 merits. After that lapse of time the judgment is final and conclusive. 
 The practice of the imperial government is, in such a case, to forward 
 the summons thus served to the consulate of the countr}' wliere the de- 
 fendant is resident, with directions to intimate the summons, if prac- 
 ticable, to the defendant ; but this, as was explained by the avocat, is 
 not required by the French law, but is simply done by the imperial 
 government voluntarily from a regard to fair dealing. 
 
 It appeared by other evidence that the plaintiff in this case was a 
 Dane resident in France. The defendants were also Danes, resident 
 in London and carrying on business there. A written contract had 
 been made between the plaintiff and defendants, which was in English, 
 and dated in London, but no distinct evidence was given as to where 
 it was signed. We thinlv, however, that, if that was material, the fair 
 intendment from the evidence was that it was made in London. By 
 this contract the defendants were to ship in Sweden a cargo of Swedish 
 oats free on board a French or Swedish vessel for Caen, in France, at 
 a certain rate for all oats delivered at Caen. Payment was to be made 
 on receipt of the shipping documents, but subject to correction for 
 excess or deficiency according to what might turn out to be the delivery 
 at Caen. From the correspondence it appeared that the plaintiff" as- 
 serted, and the defendants denied, that the delivery at Caen was short 
 of the quantity for which the plaintiff had paid, and that the plaintiff 
 made some other complaints as to the condition of the cargo, which 
 were denied by the defendants. The plaintiff very plainly told the de- 
 fendants that if they would not settle the claim he would sue them in 
 the French courts. He did issue process in the manner described, and 
 the French consulate in London served on the defendants a copy of the 
 citation. 
 
 The following admissions were then made, namely: that the judg- 
 ment was regular according to French law; that it was given in favor 
 of the plaintiff, a foreigner domiciled in France, against the defendants, 
 
 1 See Article 14 of the Code Civil: "L'etranger meme non residaut en France 
 I)onrra etre cite devant les tribunaux fran(;ais, pour I'execution des obligations par lui 
 contractees en France avec nn fran^ais ; il jjourra etre traduit devant les tribunaux de 
 France pour les obligations par lui contractees en pays etranger en vers des fran9ais." 
 
 Codes Annotes de Sirey : Code Civil, Art. U, Note 42: " Un etranger qui a une 
 maison de commerce etablie et patente en France, pent, aussi bien qu'un frangais. 
 assit'ner uu autre etranger devant un tribunal frangais."
 
 152 SCHIBSBY V. WESTENHOLZ. [CHAP. III. 
 
 domiciled in England, and iu no sense French subjects, and having no 
 propert}- in France. 
 
 I then ruled that I could not enter into the question whether the 
 French judgment was according to the merits, no fraud being alleged 
 or shown. 
 
 I expressed an opinion (which I have since changed) that, subject 
 to the third plea, the plaintiff was entitled to the verdict, but reserved 
 the point. 
 
 The jur}- found that the defendants had notice and knowledge of the 
 summons and the pendency of the proceedings in time to have appeared 
 and defended the action in the French court. I then directed the ver- 
 dict for the plaintiff, but reserved leave to enter the verdict for the 
 defendants on these facts and this finding. 
 
 No question was raised at the trial as to the sufficiency of the pleas 
 to raise the defence. If there had been, I should have made any 
 amendment necessary, but, in fact, we are of opinion that none was 
 required. 
 
 A rule was accordingly obtained by Sir George Honyman, against 
 which cause was shown in the last term and in the sittings after it be- 
 fore my Brothers Mellor, Lush, Hannen, and myself. During the 
 interval between the obtaining of the rule and the showing cause, the 
 case of Godard v. Gray, L. R. 6 Q. B. 139, on which we have just 
 given judgment, was argued before my Brothers Mellor, Hannen, and 
 myself, and we had consequent!}- occasion to consider the whole subject 
 of the law of England as to enforcing foreign judgments. 
 
 My Brother Lush, who was not a party to the discussions in Godard 
 V. Gray, L. R. 6 Q. B. 139, 147, has, since the argument in the present 
 case, perused the judgment prepared by the majority in Godard v. 
 Gra}-, and approves of it ; and, after hearing the argument in the 
 present case, we are all of opinion that the rule should be made 
 absolute. 
 
 It is unnecessary to repeat again what we have already said in 
 Godard v. Gray. 
 
 We think that, for the reasons there given, the true principle on 
 which the judgments of foreign tribunals are enforced in England is 
 that stated by Parke, B., in Russell v. Smyth, 9 M. & W. 819, and 
 again repeated by him in Williams v. Jones, 13 M. & W. 633, that the 
 judgment of a court of competent jurisdiction over the defendant im- 
 poses a duty or obligation on the defendant to pay the sum for which 
 judgment is given, which the courts in this country are bound to en- 
 force ; and consequently that anything wliich negatives that duty, or 
 forms a legal excuse for not performing it, is a defence to the action. 
 
 We were much pressed on the argument with the fact that the British 
 legislature has, by the Common Law Procedure Act, 1852 (15 & 16 
 Vict. c. 76), ss. 18 & 19, conferred on our courts a power of summon- 
 ing foreigners, under certain circumstanecs, to appear, and in case they 
 do not, giving judgment against them by default. It was this consid-
 
 SECT. II.] SCHIBSBY V. "WESTENHOLZ. 153 
 
 eration principally which induced me at the trial to entertain the opinion 
 which I then expressed and have since changed. And we think that if 
 the principle on which foreign judgments were enforced was that which 
 is loosely called " corait}-," we could hardly decline to enforce a foreign 
 judgment given in France against a resident in Great Britain under 
 circumstances hardly, if at all, distinguishable from those under which 
 we, tnutatis mutandis^ might give judgment against a resident in 
 France ; but it is quite different if the principle be that which we have 
 just laid down. 
 
 Should a foreigner be sued under the provisions of the statute re- 
 ferred to, and then come to the courts of this country and desire to l>e 
 discharged, the only question which our courts could entertain would 
 be whether the acts of the British legislature, rightly construed, gave 
 us jurisdiction over this foreigner, for we must obej' them. But if, 
 judgment being given against him in our courts, an action were brought 
 upon it in the courts of the United States (where the law as to the 
 enforcing foreign judgments is the same as our own), a further question 
 would be open, viz.. not only whether the British legislature had given 
 the English courts jurisdiction over the defendant, but whether he was 
 under an\- obligation which the American courts could recognize to 
 submit to the jurisdiction' thus created. This is precisely the question 
 which we have now to determine with regard to a jurisdiction assumed 
 by the French jurisprudence over foreigners. 
 
 Again, it was argued before us that foreign judgments obtained by 
 default, where the citation was (as in the present case) by an artificial 
 mode prescribed b}- the laws of the country' in which the judgment was 
 given, were not enforceable in this countrv because such a mode of 
 citation was contrary to natural justice, and if this were so, doubtless 
 the finding of the jury in the present case would remove that ol3Jection. 
 But though it appears by the report of Buchanan v. Rucker, 1 Camp. 
 G3, that Lord EUenborough in the hurr}' of ^isi Prius at first used ex- 
 pressions to this effect, j'et when the case came before him in banco in 
 Buchanan v. Rucker, 9 East, 192, he entirely abandoned what (with 
 all deference to so great an authority) we cannot regard as more than 
 declamation, and rested his judgment on the ground that laws passed 
 by our country were not obligatory on foreigners not subject to their 
 jurisdiction. '* Can," he said, " the Island of Tobago pass a law to 
 bind the rights of the whole world ? " 
 
 The question we have now to answer is. Can the empire of France 
 pass a law to bind the whole woi-ld? We admit, with perfect can- 
 dor, that in the supposed case of a judgment, obtained in this country' 
 against a foreigner under the provisions of the Common Law Pro- 
 cedure Act, being sued on in a court of the United States, the question 
 for the court of the United States would be, Can the Island of Great 
 Britain pass a law to bind the whole world ? We think in each case 
 the answer should be, No, but every country can pass laws to bind a 
 great many persons ; and therefore the further question has to be de-
 
 154 SCHIBSBY V. WESTENHOLZ. [cHAP. III. 
 
 termined, whether the defendant in the particular suit was such a per- 
 son as to be bound by the judgment which it is sought to enforce. 
 
 Now on this we think some things are quite clear on principle. If the 
 defendants had been at the time of the judgment subjects of the coun- 
 try whose judgment is sought to be enforced against them, we thhik 
 that its laws would have bound them. Again, if the defendants had 
 been at the time when the suit was commenced resident in the country, 
 so as to have the benefit of its laws protecting them, or, as it is some- 
 times expressed, owing temporary allegiance to that country, we think 
 that its laws would have bound them. 
 
 f If at the time when the obligation was contracted the defendants 
 were within the foreign country, but left it before the suit was insti- 
 tuted, we should be inclined to think the laws of that country bound 
 them ; ^though before finallj- deciding this we should like to hear the 
 question argued. But every one of those suppositions is negatived in 
 the present case. 
 
 Again, we think it clear, upon principle, that if a person selected, 
 as plaintiff, the tribunal of a foreign country as the one in which he 
 would sue, he could not afterwards say that the judgment of that 
 tribunal was not binding upon him. 
 
 In the case of General Steam Navigation Compau}- v. Guillou, 11 
 M. & W. 877, 894, on a demurrer to a plea, Parke, B., in delivering 
 the considered judgment of the Court of Exchequer, then consisting of 
 Lord Abiuger, C.B., Parke, Alderson, and (4urney, BB., thus expresses 
 himself: "The substance of the plea is that the cause of action has 
 been already adjudicated upon, in a competent court, against the plain- 
 tiffs, and that the decision is binding upon them, and that they ought 
 not to be permitted again to litigate the same question. Such a plea 
 ought to have had a proper commencement and conclusion. It be- 
 comes, therefore, unnecessary to give any opinion whether the pleas 
 are bad in substance ; but it is not to be understood that we feel much 
 doubt on that question. Tliey do not state that the plaintiffs were 
 French subjects, or resident, or even present in France when the suit 
 began, so as to be bound by reason of allegiance or temporary pres- 
 ence by the decision of a French court, and they did not select the 
 tribunal and sue as plaintiffs, in any of which cases the determination 
 might luive possibl}' bound them. They were mere strangers, who put 
 forward the negligence of the defendant as an answer, in an adverse 
 suit in a foreign country, whose laws they were under no obligation 
 to obey."' 
 
 It will be seen from this that those very learned judges, besides ex- 
 pressing an opinion conformable to ours, also expressed one to the 
 effect that the plaintiffs in that suit did not put tliemselvcs under an 
 obligation to obey the foreign judgment, merely by appearing to defend 
 themselves against it. On the other hand, in Simpson v. Fogo, 1 John. 
 & II. 18, 20 L. J. (Ch.) G57, 1 Hem. & M. 195, 32 L. J. (Ch.) 219, 
 where the mortgagees of an English ship had come into the courts of
 
 SECT. II.] SCHIBSBY V. WESTENHOLZ. 355 
 
 Louisiana, to endeavor to prevent the sale of their ship seized under 
 an execution against the mortgagors, and the courts of Louisiana de- 
 cided against them, the Vice-Chancellor and the very learned counsel 
 who argued in the case seem all to have taken it for granted that the 
 decision of the court in Louisiana would have bound the mortgagees 
 had it not been in contemptuous disregard of English law. The oase 
 of General Steam Navigation Company v. Guillou, 11 M. & W. 877, 
 was not referred to, and therefore cannot be considered as dissented 
 from ; but it seems clear that they did not agree in the latter part of 
 the opinion there expressed. 
 
 We think it better to leave this question open, and to express no 
 opinion as to the effect of the appearance of a defendant, where it i3 
 so far not voluntary that he only comes in to try to save some prop- 
 erty in the hands of the foreign tribunal. But we must observe that 
 the decision in De Cosse Brissac v. Eathbone, 6 H. & X. 301, 30 L. J. 
 (Ex.) 238, is an authority that where the defendant voluntarily appears 
 and takes the chance of a judgment in his favor he is bound. 
 
 In Douglas r. Forrest, 4 Bing. 703, the court, deciding in favor of 
 the party suing on a Scotch judgment, say : ' ' We confine our judg- 
 ment to a case where the party owed allegiance to the country in which 
 the judgment was so given against him, from being born in it, and b}- 
 the laws of which country his property was, at the time those judgments 
 were given, protected. The debts were contracted in the country 
 in which the judgments were given, whilst the debtor resided in it." 
 Those circumstances are all negatived here. We should, however, 
 point out that, whilst we think that there may be other grounds for 
 holding a person bound by the judgment of the tribunal of a foreign 
 country than those enumerated in Douglas v. Forrest, we doubt very 
 muchCwhetlier the possession of property, locally situated in that 
 country and protected by its laws^/does afford such a ground. It 
 should rather seem that, whilst every tribunal may very properly exe- 
 cute process against the property within its jurisdiction, the existence 
 of such property, which may be very small, affords no sufficient ground 
 for imposing on the foreign owner of that property a duty or obligation 
 to fulfil the judgment. But it is unnecessary to decide this, as the de- 
 fendants had in this case no property in France. As to this, see Lon- 
 don and North Western Railway Company v. Lindsay, 3 Macq. 99. 
 
 We think, and this is all that we need decide, that there existed 
 nothing in the present case imposing on the defendants any duty to 
 obey the judgment of a French tribunal. 
 
 We think, therefore, that the rule must be made absolute. 
 
 Rule absolute} 
 
 1 Ace. McEweni;. Ziramer, 38 Mich. 765 ; Scott v. Noble, 72 Pa. 115 ; Tillinghast 
 V. Boston, &c., Co., 39 S. C. 484, 18 S. E. 120. See Comber v. Leyland, [1898] A. C. 
 524. — Ed.
 
 156 SIRDAK GURDYAL SINGH V. RAJAH OF FARIDKOTE. [CHAP. IH. 
 
 SIRDAR GURDYAL SINGH v. THE RAJAH OF FARIDKOTE. 
 
 Judicial Committee of the Privy Council. 1894. 
 
 [Reported [1894] Appeal Cases, 670.] 
 
 The judgment of their lordships was delivered by the 
 
 Earl of Selborne. The respondent, the Rajah of Faridkote, ob- 
 tained in the civil court of that native state, ia 1879 and 1880, two 
 ex parte judgments, in two suits instituted by him against the appel- 
 lant, for sums amounting together to Rs. 76,474 11a. 3p., and costs. 
 For all the purposes of the question to be now decided, those two suits 
 may be treated as one ; the appeals to Her Majesty in council having 
 been consolidated. Two actions, founded on these judgments, were 
 brought by the rajah against the appellant in the court of the assistant 
 commissioner of Lahore, and were dismissed by that court, on the 
 ground that the judgments were pronounced by the Faridkote court, 
 without jurisdiction as against the appellant. On appeal to the addi- 
 tional commissioner of Lahore, the judgments of the first court were 
 upheld. The rajah then appealed to the chief court of the Punjaub, 
 which differed from both those tribunals, and upheld the jurisdiction of 
 the Faridkote court. 
 
 Faridkote is a native state, the rajah of which has been recognized 
 by Her Majesty as having an independent civil, criminal, and fiscal 
 jurisdiction. The judgments of its courts are, and ought to be, regarded 
 in Her Majesty's courts of British India as foreign judgments. The 
 additional commissioner of Lahore thought that no action could be 
 brought in Her Majesty's courts upon a judgment of a native state; 
 but in this opinion their lordsliips do not concur. 
 
 The appellant was for five years, beginning in 1869, in the service of 
 the late Rajah of Faridkote as his treasurer ; and the causes of action, 
 on whicli the suits in the Faridkote court were brought, arose within 
 that state, and out of that employment of the appellant by the late 
 rajah. The claim made in each of the suits was merely personal, for 
 money alleged to be due, or recoverable in the nature of damages, from 
 the appellant. It is immaterial, in their lordships' view, to the question 
 of jurisdiction (which is tiie only question to be now decided) whether 
 the case, as stated, ought to be regarded as one of contract or of tort. 
 
 The appellant left the late rajah's service, and ceased to reside within 
 his territorial jurisdiction, in 1874. He was from that time generally 
 resident in another independent native state, that of Jhind, of which he 
 was a native subject and in which he was domiciled ; and he never re- 
 turned to Faridkote after he left it in 1874. He was in Jhind when he 
 was served witii certain processes of the Faridkote court, as to which 
 it is unnecessary for their lordships to determine what the effect would 
 have been if there hud been jurisdiction. He disregarded ihera. and 
 never appeared in either of the suits instituted by the rajah, or other-
 
 SECT. II.] SIRDAR GURDYAL SINGH V. RAJAH OF FARIDKOTE. 157 
 
 wise submitted himself to that jurisdiction. He was under no obliga- 
 tion to do so, by reason of the notice of the suits which he thus received 
 or otherwise, unless that court had lawful jurisdiction over him. 
 
 Under these circumstances there was, in their lordships' opinion, 
 nothing to take this case out of the general rule, that the plaintiff must 
 sue in the court to which the defendant is subject at the time of suit 
 (actor sequitur forxim rei), which is rightly stated by Sir Robert Phil- 
 limore (International Law, vol. iv., s. 891) to "lie at the root of 
 all international, and of most domestic, jurisprudence on this matter." 
 All jurisdiction is properly territorial, and extra territorium jus dicenti, 
 impune non paretur. Territorial jurisdiction attaches (with special 
 exceptions) upon all persons either permanently or temporaril}' resident 
 within the territory while they are within it ; but it does not follow 
 them after they have withdrawn from it, and when they are living in 
 another independent country. It exists alwa3-s as to land within the 
 territory, and it may be exercised over movables within the territory ; 
 and, in questions of status or succession governed by domicile, it may 
 exist as to persons domiciled, or who when living were domiciled, 
 within the territory. As between different provinces under one sover- 
 eignty (e. 0; under the Roman Empire) the legislation of the sovereign 
 may distribute and regulate jurisdiction ; but no territorial legislation 
 can give jurisdiction which any foreign court ought to recognize against 
 foreigners, who owe no allegiance or obedience to the power which so 
 legislates. 
 
 In a personal action, to which none of these causes of jurisdiction 
 apply, a decree pronounced in absentem hy a foreign court, to the juris- 
 diction of which the defendant has not in any way submitted himself, 
 is by international law an absolute nullity. He is under no obligation 
 of any kind to obey it; and it must be regarded as a mere nullity by 
 the courts of every nation except (when authorized by special local 
 legislation) in the country of the forum by which it was pronounced. 
 
 These are doctrines laid down by all the leading authorities on inter- 
 national law ; among others, by Story (Conflict of Laws, 2d ed., sects. 
 546, 549, 553, 554, 556, 586), and by Chancellor Kent (Commentaries, 
 vol. i., p. 284, note c, 10th ed.), and no exception is made to them, in 
 favor of the exercise of jurisdiction against a defendant not otherwise 
 subject to it, by the courts of the country in which the cause of action 
 arose, or (in cases of contract) by the courts of the locus solutionis. 
 In those cases, as well as all others, when the action is personal, the 
 courts of the country in which a defendant resides have power, and 
 they ought to be resorted to, to do justice. 
 
 The conclusion of the learned judges in the chief court of the Pun- 
 jaub is expressed in the following sentence of the judgment delivered 
 by Sir Meredyth Plowden in the first of the two actions : — 
 
 " On the whole, I think it may be said, that a State assuming to exer- 
 cise jurisdiction over an absent foreigner, in respect of an obligation 
 arising out of a contract made by the foreigner while resident in the
 
 158 SIKDAR GURDYAL SINGH V. RAJAH OF FARIDKOTE. [CHAP. III. 
 
 state and to be fulfilled there, is not acting in contravention of the 
 general practice or the principles of international law, so that its judg- 
 ment should not be binding merely on the ground of the absence of the 
 defendant." 
 
 If this doctrine were accepted, its operation, in the enlargement of 
 territorial jurisdiction, would be very important. No authority, of any 
 relevancy, was cited at their lordships' bar to supi)ort it, except Becquet 
 V. ]\[acarthy, 2 B. cSc Ad. 951, and a passage from the judgment deliv- 
 ered by Blackburn, J., in Schibsby v. Westenholz. 
 
 Of Becquet v. Macarthy, it was said by great authorit}- in Don v. 
 Lippman, 5 CI. & F. 1, that it '* had been supposed to go to the verge 
 of the law ; " and it was explained (as their lordships think, cor- 
 rectly) on the ground that " the defendant held a public office in the 
 verj' colon}' in which he was originally sued." He still held that office 
 at the time when he was sued ; the cause of action arose out of, or was 
 connected with it ; and, though he was in fact temporarily absent, he 
 might, as the holder of such an office, be regarded as constructive!}' 
 present in the place where his duties required his presence, and there- 
 fore amenable to the colonial jurisdiction. If the case could not be 
 distinguished on that ground from that of an}' absent foreigner who, at 
 some previous time, might have been in the employment of a colonial 
 government, it would, in their lordships' opinion, have been wrongl}^ 
 decided; and it is evident that Fr}', L. J. , in Rousillon v. Rousillon, 
 14 Ch. D. 351, toek that view. 
 
 The words of Blackburn, J.'s, judgment, in Schibsby v. Westenholz, 
 which were relied upon, are these : — 
 
 'ilf,-at the time when the oW4gation_vEas-XiQntract64,-tbe-d£f end ants 
 were within the fQxeign--eo«iituy^ut4eft it i>efoi:e_the suit_jEas insti- 
 tuted, we should be inclined to tliink-tlie law^-of that co untr y bound 
 J,bem P"thougTi7T)efor5~~fiTiatiy^decidIng Ihis, we should Jlke to hear the 
 question argued^ 
 
 Upon this sentence it is to be observed, that beyond doubt in such 
 a case the laws of the countr}' in which an obligation was contracted 
 might bind the parties, so far as the interpretation and effect of the 
 obligation was concerned, in whatever forum the remedy might be 
 sought. The learned judge had not to consider whether it was a legiti- 
 mate consequence from this, that they would be bound to submit, on 
 the footing of contract or otherwise, to an}- assumption of jurisdiction 
 over them in respect of such a contract, bv the tribunals of the country 
 in which the contract was made, at any subsequent time, although they 
 might be foreigners resident abroad. That question was not argued, 
 and did not arise, in the case then before the court ; and, if this was 
 what Blackl)urn, J., meant, their lordsiiips could not regard any mere 
 inclination of opinion, on a question of such large and general impor- 
 tance, on which the judges themselves would have desired to hear argu- 
 ment if it had required decision, as entitled to the same weight whicli 
 might be due to a considered judgment of the same authorit}'. Upon
 
 SECT. 11.] HENDERSON V. STANIFOKD. 150 
 
 the question itself, which was determined in Schibsb}' v. Westenholz, 
 Blackburn, J., had at the trial formed a different opinion from that at 
 which he ultimately arrived ; and their lordships do not doubt that, if 
 he had hteard argument upon the question, whether an obligation to 
 accept the foi'um loci contractus, as having, by reason of the contract, 
 a conventional jurisdiction against the parties in a suit founded upon 
 that contract for all future time, wherever they might, be domiciled or 
 resident, was generally to be implied, he would have come (as their 
 lordships do) to the conclusion, that such obligation, unless expressed, 
 could not be implied. 
 
 Their lordships will therefore humbly advise Her Majesty to reverse 
 the decrees of the chief court of the Punjaub, and to restore those of 
 the additional commissioner of Lahore. The respondent will pay the 
 costs of the appeals to the courts below and of these appeals. 
 
 HENDERSON v. STANIFORD. 
 Supreme Judicial Court of Massachusetts. 1870. 
 
 [Reported 105 Massachusetts, 504.] 
 
 Contract on a promissory note dated October 20, 1864, made by 
 the defendant payable in one month to the order of the plaintiff, who 
 was described in the writ (which was dated January 20, 1869), as of 
 Crescent City in the county of Del Norte and State of California. The 
 answer put the plaintiff to his proof concerning the making of the note, 
 and set up "that if the plaintiff shall show that the defendant made 
 the note, then the defendant answers that there is a judgment upon 
 said note in the county of Del Norte and State of California, against 
 the defendant and in favor of the plaintiff, and the same has never 
 been reversed, reviewed, or annulled, but is still in force against the 
 defendant in said State, where said contract was made, and where said 
 defendant for a long time, to wit, from the year 1849 until some time 
 in the year 1867, had his residence, — that he came to the State of 
 Massachusetts some time in the j'car 1867, but with the intention in a 
 short time of returning to the State of California." 
 
 The parties stated the case, referring to the pleadings, admitting the 
 making of the note by the defendant, and continuing as follows : "In 
 the year 1849 the defendant went from Massachusetts to California, 
 and voted and was taxed there until he returned to Massachusetts in 
 the year 1867. When he came to Massachusetts it was his intention 
 to return to California, but in consequence of domestic affliction he 
 has remained here. While in California he had his residence in the 
 township of Crescent, otherwise known as Crescent City. In June, 
 1868, the plaintiff commenced an action before a justice's court, against
 
 t60 DARKAH V. WATSON. [CHAP. III. 
 
 this defendant, in Crescent townsliip and count}- of Del Norte, wliere 
 said defendant had resided, upon the note in this suit, notice of the 
 pendency of said action being duly given by publication ; and the same 
 was prosecuted to final judgment upon default, the defendant not 
 appearing personally or by counsel. Said judgment has never been 
 arrested, reversed, reviewed, or annulled, but is now a valid and 
 unsatisfied judgment in full force in the State of California. Upon 
 the above facts it is agreed that the court may render such judgment 
 as is warranted by the pleadings." The superior court gave judgment 
 for the defendant, and the plaintiff appealed. 
 
 Wells, J. The defendant was not in California when the .action 
 was commenced against him there ; nor at any time during its pend- 
 ency. No service of process or notice was ever made upon him 
 personally. He did not appear by counsel, or otherwise, nor assent 
 to the judgment, which was rendered upon his default of appearance. 
 But he had been, for a long time before that, a citizen of California ; 
 the contract was made there ; and that continued to be his legal 
 domicile when the judgment was rendered. He was, therefore, upon 
 principles of international right, subject to the laws, and to the juris- 
 diction of the courts of that State. Story Confl. Laws, §§ 546, 548; 
 Hall V. Williams, 6 Pick. 232, 240 ; Gillespie r. Commercial Insurance 
 Co., 12 Gray, 201. In Massachusetts, jurisdiction is assumed to be 
 exercised in suits against parties who have been inhabitants of the 
 State, although not so at the time of action brought. Gen. Sts. c. 126, 
 § 1 ; Morrison v. Underwood, 5 Cush. 52 ; Orcutt v. Ranney, 10 Cush. 
 183. We must presume that the exercise of jurisdiction, in the suit 
 in question, was in accordance with the laws of California. The agreed 
 facts state that the judgment '' is now a valid and unsatisfied judgment, 
 in full force in the State of California." ^ 
 
 DARRAH V. WATSON. 
 
 SuPREMK Court of Iowa. 1873. 
 
 [Reportcii 36 Iowa, 116.] 
 
 Miller, J.^ The judgment record, on which this action is brought, 
 shows that the action was commenced in the county court of Monon- 
 galia County, Virginia (now West Virginia), by the issuance of a sum- 
 mons, returnable on the first Monday of June, 1859. The sheriffs 
 return on the summons shows a a personal service thereof on the 6th 
 day of June, 1859. . . . 
 
 1 The remainder of the opinion, in which the effect of the judgment is discussed, 
 is here omitted. 
 
 Ace. Hunt V. Hunt, 72 N. Y. 217 ; Frothingham v. Barnes, 9 R. I. 474 (scmhle).^ 
 Ed. 
 
 ' Part of the opinion is omitted. — Ed.
 
 SECT. II.] DARRAH V. WATSON. 161 
 
 On the trial the defendant Watson was sworn as a witness, and tes- 
 tified that during the year 1859, he resided in Greene Count}-, Penns}-!- 
 vania, and had so resided there for about three or four years prior to 
 June, 1859, and never afterward resided, in the State of Virginia ; that 
 during the month of June, 1859, he went from his residence in Penn- 
 sylvania into Monongalia Count}-, Virginia, temporarily and on business ; 
 was there only two or three hours and returned again to Greene County, 
 Pennsylvania, which latter county adjoins Monongalia County, Vir- 
 ginia ; that while thus in the latter county he was served with some 
 kind of paper or process, which was the only paper or process ever 
 served on him in said county ; that he paid no attention to the matter, 
 never appeared in the action, made no defence and authorized no one 
 to appear for him. "Whereupon defendant's counsel asked the court to 
 instruct the jury in substance, that if they found that the defendant, 
 at the time of the rendition of the judgment in Virginia, was not a 
 resident of or domiciled in said State, but was a resident of and domi- 
 ciled in the State of Pennsylvania ; that defendant, when the summons 
 or original process was served upon him, was in the State of Virginia 
 only for a few hours temporarily and on business ; that defendant never 
 afterward resided in said State; that defendant did not appear to the 
 action or authorize any one to appear for him, then the county court 
 of Monongalia County, Virginia, did not, by virtue of such service or 
 by any proceedings in said action, acquire jurisdiction of the person of 
 defendant to render a personal judgment as would be binding against 
 him in this State. 
 
 This instruction was refused, and this ruling is assigned as error. 
 
 We have before said that the insufficiency of the service of the sum- 
 mons would not have the effect to render the judgment void as for 
 want of jurisdiction. But it is insisted by appellant's counsel that 
 " even admitting that the summons had been served in time and per- 
 sonally on defendant in Virginia," the court did not acquire juris- 
 diction of the defendant who was a resident of another State, and 
 never afterward was a resident of Virginia, but was merely temporarily 
 therein when he was served with original process in the action. Tlie 
 position assumed by counsel is, that the courts of Virginia could not 
 acquire jurisdiction of the person of a citizen and resident of Pennsyl- 
 vania by the service of original process upon him while temporarily in 
 the former State on business. 
 
 The doctrine is well settled that no State can by its judgments ren- 
 dered in its courts bind personally a defendant who is not within its 
 jurisdiction, and on whom no notice has been served. Melhop & 
 Kingman ?'. Doane & Co., 31 Iowa, 397, and cases cited. And that 
 to entitle a judgment rendered in one State to the full faith and credit 
 mentioned in the Constitution and laws of the United States the court 
 must have had jurisdiction not only of the subject-matter, but of the 
 person of the defendant. Ibid. But is it true that the courts of one 
 State cannot acquire jurisdiction of the person of a citizen and resi- 
 
 11
 
 162 ST. CLAIR V. COX. [chap. III. 
 
 dent of a sister State by the service of original process upon such 
 citizen within the jurisdiction of the former State? We think it is not. 
 In the only case cited by appellant's counsel, Bissell v. Briggs, 9 Mass. 
 462, Chief Justice Parsons, on page 470, says : " Now, an inhabitant 
 of one State may, without changing his domicile, go into another ; he 
 may there contract a debt or commit a tort, and while there he owes a 
 temporary allegiance to that State, is bound by its laws, and is amen- 
 able to its courts." We have found no case holding a contrary doctrine 
 to this. 
 
 Applying this doctrine to the case before us, we hold that the county 
 court of Virginia did acquire jurisdiction of the person of the defend- 
 ant by the service of the summons upon him while temporarily within 
 its local jurisdiction, and that its judgment is entitled to the same faith 
 and credit in this State as it was entitled by the laws of the State where 
 rendered. The court below did not err, therefore, in refusing the in- 
 struction asked, and its judgment is Affirmed.^ 
 
 ST. CLAIR V. COX. 
 
 Supreme Court of the United States. 1882. 
 
 [Reported 106 United States, 3.50.] 
 
 Field, J. This action was brought by the plaintiff in the conrt 
 below, to recover the amount due on two promissory notes of the 
 defendants, each for the sum of S2,500, bearing date on the 2d of 
 August, 1.S77, and payable five months after date, to the order of the 
 Winthrop Mining Company, at the German National Bank, in Chi- 
 cago, with interest at the rate of seven per cent per annum. 
 
 To the action the defendants set up various defences, and, among 
 others, substantially these: That the consideration of the notes had 
 failed; that they were given, with two others of like tenor and 
 amount, to the Winthrop Mining Company, a corporation created 
 under .the laws of Illinois, in part payment for ore and other prop- 
 erty sold to the defendants upon a representation as to its quantity, 
 which proved to be incorrect; that only a portion of the quantity 
 sold was ever delivered, and that the value of the deficiency exceeded 
 the amount of the notes in suit; that at the commencement of the 
 action, and before the transfer of the notes to the plaintiff, the 
 Winthrop IMining Company was indebted to the defendants in a 
 iargc sum, viz. 810,000, upon a judgment recovered by them in the 
 Circuit Court of Manjuette County, in the State of Michigan, and 
 that the notes were transferred to him after their maturity and 
 dishonor, and after he had notice of the defences to them. 
 
 1 .Ice. Alloy V. Ciispari, 80 Me. 234, 14 All. 12; Tlioinpsoii v. Cowell, 148 Mass. 
 562. — Ed.
 
 SECT. II.] ST. CLAIU V. COX. 163 
 
 On the trial, evidence was given by the defendants tending to 
 show that the plaintiff was not a bona fide holder of the notes for 
 value. A certified copy of that judgment was also produced by them 
 and offered in evidence; but on his objection that it had not been 
 shown that the court had obtained jurisdiction of the parties, it was 
 excluded, and to the exclusion an exception was taken. The jury 
 found for him for the full amount claimed; and judgment having 
 been entered thereon, the defendants brought the case here for review. 
 The ruling of the court below in excluding the record constitutes the 
 only error assigned. 
 
 The judgment of the Circuit Court in Michigan was rendered in 
 an action commenced by attachment. If the plaintiffs in that action 
 were, at its commencement, residents of the State, of which some 
 doubt is expressed by counsel, the jurisdiction of the court, under 
 the writ, to dispose of the property attached, cannot be doubted, so 
 far as was necessary to satisfy their demand. No question was 
 raised as to the validity of the judgment to that extent. The objec- 
 tion to it was as evidence that the amount rendered was an existing 
 obligation or debt against the company. If the court had not ac- 
 quired jurisdiction over the company, the judgment established noth- 
 ing as to its liability beyond the amount which the proceeds of the 
 property discharged. There was no appearance of the company in 
 the action, and judgment against it was rendered for $6,450 by 
 default. The officer, to whom the writ of attachment was issued, 
 returned that, by virtue of it, he had seized and attached certain 
 specified personal property of the defendant, and had also served 
 a copy of the writ, with a copy of the inventory of the property 
 attached, on the defendant, "by delivering the same to Henry J. 
 Colwell, Esq., agent of the said Winthrop Mining Company, person- 
 ally, in said county." 
 
 The laws of Michigan provide for attaching property of abscond- 
 ing, fraudulent, and non-resident debtors and of foreign corpora- 
 tions. They require that the writ issued to the sheriff, or other 
 oflScer by whom it is to be served, shall direct him to attach the 
 property of the defendant, and to summon him if he be found within 
 the county, and also to serve on him a copy of the attachment and 
 of the inventory of the property attached. They also declare that 
 where a copy of the writ of attachment has been personallv served 
 on the defendant, the same proceedings may be had thereon in the 
 suit in all respects as upon the return of an original writ of sum- 
 mons personally served where suit is commenced by such summons. 
 2 Comp. Laws, 1871, sects. 6397 and 6413. 
 
 They also provide, in the chapter regulating proceedings by and 
 against corporations, that "suits against corporations may be com- 
 menced by original writ of summons, or by declaration, in the same 
 manner that personal actions may be commenced against individuals, 
 and such writ, or a copy of such declaration, in any suit against a
 
 164- ST. CLAIR V. COX. [chap. III. 
 
 corporation, may be served on the presiding officer, the cashier, the 
 secretary, or the treasurer thereof ; or, if there be no such officer, or 
 none can be found, such service may be made on such other officer 
 or member of such corporation, or in such other manner as the court 
 in which such suit is brought may direct; " and that "in suits com- 
 menced by attachment in favor of a resident of this State against 
 any corporation created by or under the laws of any other State, 
 government, or country, if a copy of such attachment and of the 
 inventory of property attached shall have been personally served on 
 any officer, member, clerk, or agent of such corporation within this 
 State, the same proceedings shall be thereupon had, and with like 
 effect, as in case of an attachment against a natural person, which 
 shall have been returned served in like manner upon the defendant." 
 2 Comp. Laws, 1871, sects. 6544 and 6550. 
 
 The courts of the United States only regard judgments of the 
 State courts establishing personal demands as having validity or as 
 importing verity where they have been rendered upon personal cita- 
 tion of the party, or, what is the same thing, of those empowered to 
 receive process for him, or upon his voluntary appearance. 
 
 In Pennoyer v. Neff we had occasion to consider at length the 
 manner in which State courts can acquire jurisdiction to render a 
 personal judgment against non-residents which would be received 
 as evidence in the Federal courts; and we held^that personal service 
 of citation on the party or his voluntary appearance was, with some 
 exceptions, essential to the jurisdiction of the court.) The excep- 
 tions related to those cases where proceedings are taken in a State to 
 determine the status of one of its citizens towards a non-resident, or 
 where a party has agreed to accept a notification to others or service 
 on them as citation to himself. 95 U. S. 714. 
 
 The doctrine of that case applies, in all its force, to personal judg- 
 ments of State courts against foreign corporations. The courts 
 rendering them must have acquired jurisdiction over the party by 
 personal service or voluntary appearance, whether the party be a 
 corporation or a natural person. There is only this difference: a 
 corporation being an artificial being, can act only through agentb,, 
 and only through them can be reached, and process must, therefore, 
 be served upon them. In the State where a corporation is formed 
 it is not difficult to ascertain who are authorized to represent and 
 act for it. Its charter or the statutes of the State will indicate in 
 whose hands the control and management of its affairs are placed. 
 Directors are readily found, as also the officers appointed by them 
 to manage its business. But the moment the boundary of the State 
 is passed difficulties arise; it is not so easy to determine who repre^ 
 sent the corporation there, and under what circumstances service on 
 them will bind it. 
 
 Formerly it was held that a foreign corporation could not be sued 
 in an action for the recovery of a personal demand outside of the
 
 SECT. II.] ST. CLAIR V. COX. 165 
 
 State by which it was chartered. The principle that a corporation 
 must dwell in the place of its creation, and cannot, as said by Mr. 
 Chief Justice Taney, migrate to another sovereignty, coupled with 
 the doctrine that an officer of the corporation does not carry his func- 
 tions with him when he leaves his State, prevented the maintenance 
 of personal actions against it. There was no mode of compelling 
 its appearance in the foreign jurisdiction. Legal proceedings there 
 against it were, therefore, necessarily confined to the disposition of 
 such property belonging to it as could be there found ; and to author- 
 ize them legislation was necessary. 
 
 In McQueen v. Middleton Manufacturing Co., decided in 1819, the 
 Supreme Court of New York, in considering the question whether 
 the law of that State authorized an attachment against the property 
 of a foreign corporation, expressed the opinion that a foreign cor- 
 poration could not be sued in the State, and gave as a reason that 
 the process must be served on the head or principal officer within 
 the jurisdiction of the sovereignty where the artificial body existed; 
 observing that if the president of a bank went to New York from 
 another State he would not represent the corporation there ;( and that 
 "his functions and his character would not accompany him when he 
 moved beyond the jurisdiction of the government under whose laws 
 he derived this character." 1 16 Johns. (N. Y.) 5. The opinion thus 
 expressed was not, perhaps, necessary to the decision of the case, 
 but nevertheless it has been accepted as correctly stating the law. 
 It was cited with approval by the Supreme Court of Massachusetts, 
 in 1834, in Peckham v. North Parish in Haverhill, the court adding 
 that all foreign corporations were without the jurisdiction of the 
 process of the courts of the Commonwealth. 16 Pick. (Mass.) 274. 
 Similar expressions of opinion are found in numerous decisions, 
 accompanied sometimes with suggestions that the doctrine might be 
 otherwise if the foreign corporation sent its officer to reside in the 
 State and transact business there on its account. Libbey v, Hodg- 
 don, 9 N. H. 394; Moulin v. Trenton Insurance Co., 24 N. J. L. 
 222. 
 
 This doctrine of the exemption of a corporation from suit in a 
 State other than that of its creation was the cause of much incon- 
 venience, and often of manifest injustice. The great increase in the 
 number of corporations of late years, and the immense extent of 
 their business, only made this inconvenience and injustice more fre- 
 quent and marked. Corporations now enter into all the industries 
 of the country. The business of banking, mining, manufacturing, 
 transportation, and insurance is almost entirely carried on by them, 
 and a large portion of the wealth of the country is in their hands. 
 Incorporated under the laws of one State, they carry on the most 
 extensive operations in other States. To meet and obviate this 
 inconvenience and injustice, the legislatures of several States inter- 
 posed, and provided for service of process on officers and agents of
 
 166 ST. CLAIR V. COX. [chap. III. 
 
 foreign corporations doing business therein. Whilst the theoretical 
 and legal view, that the domicile of a corporation is only in the 
 State where it is created, was admitted, it was perceived that when 
 a foreign corporation sent its officers and agents into other States 
 and opened offices, and carried on its business there, it was, in 
 effect, as much represented by them there as in the State of its crea- 
 tion. As it was protected by the laws of those States, allowed to 
 carry on its business within their borders, and to sue in their courts, 
 it seemed only right that it should be held responsible in those courts 
 to obligations and liabilities there incurred. 
 
 All that there is in the legal residence of a corporation in the State 
 of its creation consists in the fact that by its laws the corporators 
 are associated together and allowed to exercise as a body certain 
 functions, with a right of succession in its members. Its officers 
 and agents constitute all that is visible of its existence; and they 
 mav be authorized to act for it without as well as within the State. 
 There would seem, therefore, to be no sound reason why, to the 
 extent of their agency, they should not be equally deemed to repre- 
 sent it in the States for which they are respectively appointed when 
 it is called to legal responsibility for their transactions. 
 
 The case is unlike that of suits against individuals. They can 
 act by themselves, and upon them process can be directly served, 
 but a corporation can only act and be reached through agents. Serv-j 
 
 ling process on its agents in other States, for matters within the! 
 sphere of their agency, is, in effect, serving process on it as muctJ 
 
 Iso as if such agents resided in the State where it was created. 
 
 1 A corporation of one State cannot do business in another State 
 without the latter's consent, express or implied, and that consent 
 may be accompanied with such conditions as it may think proper to 
 impose. As said by this court in Lafayette Insurance Co. v. French: 
 "These conditions must be deemed valid and effectual by other 
 States and by this court, provided they are not repugnant to the 
 Constitution or laws of the United States, or inconsistent with those 
 rules of public law which secure the jurisdiction and authority of 
 each State from encroachment by all others, or that principle of 
 natural justice which forbids condemnation without opportunity for 
 defence." 18 How. 404, 407; Paul v. Virginia, 8 Wall. 1G8. 
 
 The State may, therefore, impose as a condition upon which a 
 foreign corporation shall be permitted to do business within her 
 limits, that it shall stipulate that in any litigation arising out of its 
 transactions in the State, it will accept as sufficient the service of 
 process on its agents or persons specially designated; and the condi- 
 tion would be eminently fit and just. And such condition and stipu- 
 lation may be implied as well as expressed. If a State permits a 
 foreign corporation to do ])usiue8S within her limits, and at the same 
 time provides that in suits against it for business there done, proc- 
 ess shall be served upon its agents, the provision is to be deemed a
 
 SECT. II.] ST. CLAIR V. COX. 167 
 
 condition of the permission; and corporations that subsequently do 
 business in the State are to be deemed to assent to such condition as 
 fully as though they had specially authorized their agents to receive 
 service of the process. Such condition must not, however, encroach 
 upon that principle of natural justice which requires notice of a suit 
 to a party before he can be bound by it. ^^It must be reasonable, and 
 the service provided for should be only upon such agents as may be 
 properly deemed representatives of the foreign corporation.'^ The 
 decision of this court in Lafayette Insurance Co. v. French, to which 
 we have already referred, sustains these views. ^ 
 
 The State of Michigan permits foreign corporations to transact 
 business within her limits. Either by express enactment, as in the 
 case of insurance companies, or by her acquiescence, they are as 
 free to engage in all legitimate business as corporations of her own 
 creation. Her statutes expressly provide for suits being brought by 
 them in her courts; and for suits by attachment being brought 
 against them in favor of residents of the State. And in these 
 attachment suits they authorize the service of a copy of the writ of 
 attachment, with a copy of the inventory of the property attached, 
 on "any officer, member, clerk, or agent of such corporation" within 
 the State, and give to a personal service of a copy of the writ and of 
 the inventor}' on one of these persons the force and effect of personal 
 service of a summons on a defendant in suits commenced by summons. 
 
 It thus seems that a writ of foreign attachment in that State is 
 made to serve a double purpose, — as a command to the officer to 
 attach property of the corporation, and as a summons to the latter 
 to appear in the suit. We do not, however, understand the laws as 
 authorizing the service of a copy of the writ, as a summons, upon 
 an agent of a foreign corporation, unless the corporation be engaged 
 in ])usiness in the State, and the agent be appointed to act there. 
 We so construe the words "agent of such corporation within this 
 State." They do not sanction service upon an officer or agent of the 
 corporation who resides in another State, and is only casually in the 
 State, and not charged with any business of the corporation there. 
 The decision in Newell v. Great Western Railway Co., reported in 
 the 19th of Michigan Reports, supports this view, although that was 
 the case of an attempted service of a declaration as the commence- 
 ment of the suit. The defendant was a Canadian corporation own- 
 ing and operating a railroad from Suspension Bridge in Canada to 
 the Detroit line at Windsor opposite Detroit, and carrying passen- 
 gers in connection with the Michigan Central Railroad Company, 
 upon tickets sold by such companies respectively. The suit was 
 commenced in Michigan, the declaration alleging a contract by the 
 defendant to carry, the plaintiff over its road, and its violation of the 
 
 I Ace. Compagnie Generale Transatlantique v. Law, [1899] A. C. 431 ; Fireman's 
 Ins. Co. V. Thompson, 155 111. 204, 40 N. E. 488 ; Reyer v. Odd Fellows' Ace. 
 Assoc, 157 Mass. 367. — Ed.
 
 168 ST. CLAIR V. COX. [CHAP. III. 
 
 contract by removing him from its cars at an intermediate station. 
 The declaration was served upon Joseph Price, the treasurer of the 
 corporation, who was only casually in the State. The corporation 
 appeared specially to object to the jurisdiction of the court, and 
 pleaded that it was a foreign corporation, and had no place of busi- 
 ness or agent or otiicer in the State, or attorney to receive service of 
 legal process, or to appear for it; and that Joseph Price was not in 
 the State at the time of service on him on any official business of the 
 corporation. The plaintiff having demurred to this plea, the court 
 held the service insutticient. "The corporate entity," said the court, 
 "could by no possibility enter the State, and it could do nothing 
 more in that direction than to cause itself to be represented here by 
 its officers or agents. Such representation would, however, neces- 
 sarily imply something more than the mere presence here of a person 
 possessing, when in Canada, the relation to the company of an officer 
 or agent. To involve the representation of the com pany here, the 
 
 _si^)jw s edjrejjriientatlve^ 
 
 jin actuaI_present_official or representative_status. He would be re- 
 qiiirt^d to ba-iier fi as alTagent or~o!!icei^of the corporatio n, nnd- not- 
 as an isola ted indiv idjial'— If he should drop the official or represent- 
 ative character at the frontier, if he should bring that character no 
 further than the territorial boundary of the government to whose 
 laws the corporate body itself, and consequently the official positions 
 of its officers also, would be constantly indebted for existence, it 
 could not, with proprietj% be maintained that he continued to possess 
 such character by force of our statute. Admitting, therefore, for 
 the purpose of this suit, that in given cases the foreign corporation 
 would be bound by service on its treasurer in Michigan, this could ^ 
 only be so when the treasurer, the then official, the otHcer then in a I 
 manner impersonating the company, should be served. Joseph Price/ 
 was not here as the treasurer of the defendants. He did not then 
 represent them. His act in coming was not the act of the company, 
 nor was his remaining the business or act of any besides himself. 
 He had no principal, and he was not an agent. He had no otiieial 
 status or representative character in this State." 19 Mich. oi4. 
 
 I According to the view thus expressed by the Supreme Court of/ 
 Michigan, service upon an agent of a foreign corporation will noy 
 be deemed sufficient, unless he represents the corporation in th^ 
 State. This representation implies that the corporation does tusi- 
 ness, or has l)usiness, in the State for the transaction of whieli it 
 sends or appoints an agent there. If the agent occupies no repre- 
 sentative character with respect to the business of the corporation 
 in tlie State, a judgment rendered upon service on liiin would hardly 
 be considered in other tribunnls as possessing any probative force. 
 In a case where similar service was made in New York upon an 
 officer of a corporation of New Jersey accidentally in the f (Miner 
 State, the Supreme Court of New Jersey said, that a law of another
 
 SECT. II.] ST. CLAIR V. COX. 169 
 
 State which sanctioned such service upon an officer accidentally 
 within its jurisdiction was "so contrary to natural justice and to the 
 principles of international law, that the courts of other States ought 
 not to sanction it." Moulin v. Trenton Insurance Co., 24 N. J. L. 
 222, 234. 
 
 Without considering whether authorizing service of a copy of a 
 writ of attachment as a summons on some of the persons named in 
 the statute — a member, for instance, of the foreign corporation, 
 that is, a mere stockholder — is not a departure from the principle 
 of natural justice mentioned in Lafayette Insurance Co. v. French, 
 which forbids condemnation without citation, it is sufficient to ob- 
 serve that we are of opinion that when service is made within the 
 State upon an agent of a foreign corporation, it is essential, in order 
 to support the jurisdiction of the court to render a personal judg- 
 ment, that it should appear somewhere in the record — either in the 
 application for the writ, or accompanying its service, or in the plead- 
 ings or the finding of the court — tiial-JJi£-("ov[>orition T^as_eugaged 
 in-b usiness in the State. The transaction of business by the cor- 
 poration in the State, general or special, appearing, a certificate of 
 service by the proper officer on a person who is its agent there would, 
 in our opinion, be sufficient jJi'i ma facie evidence that the agent rep- 
 resented the company in the business. It would then be open, when 
 the record is offered as evidence in another State, to show that the 
 agent stood in no representative character to the company, that his 
 duties were limited to those of a subordinate employe, or to a par- 
 ticular transaction, or that his agency had ceased when the matter in 
 suit arose. 
 
 In the record, a copy of which was offered in evidence in this case, 
 there was nothing to show, so far as we can see, that the Winthrop 
 Mining Company was engaged in business in the State when service 
 was made on Colwell. The return of the officer, on which alone reli- 
 ance was placed to sustain the jurisdiction of the State court, gave 
 no information on the subject. It did not, therefore, appear even 
 2)rima facie that Colwell stood in any such representative character 
 to the company as would justify the service of a copy of the writ on 
 him. The certificate of the sheriff, in the absence of this fact in the 
 record, was insufficient to give the court jurisdiction to render a per- 
 sonal judgment against the foreign corporation. The record was, 
 therefore, properly excluded. Judgment affirmed.
 
 170 COPIN V. ADAMSON. [CHAP. III. 
 
 COPIN V. ADAMSON. 
 
 Exchequer. 1874. 
 
 [Reported Law Reports, 9 Exchequer, 345.] 
 
 Declaration by the assignee in bankruptcy of the Societe de Com- 
 merce de France, Limited, on a judgment for £151 15s. recovered on 
 the 7th of February, 1867, in the empire of France, by him against the 
 defendant in the Court of the Tribunal of Commerce of the Department 
 of the Seine, being a court duly holden, and having jurisdiction in that 
 behalf. 
 
 Plea. 3. That the suit was commenced, according to the French 
 law, b}' process and summons, and that the defendant was not at any 
 time previous to the recovery of judgment resident or domiciled within 
 the jurisdiction of the said court, nor is he a native of France, and he 
 was not served with any process or summons, nor did he appear, nor 
 had he any notice or knowledge of any process or summons, or any 
 opportunity of defending himself. 
 
 Replications. 1. That defendant was shareholder in a French com- 
 pany, the articles of which provided that every shareholder must elect 
 some domicile in Paris, or in default thereof would be taken to be domi- 
 ciled at the office of an imperial procurator, for tlie purpose of service 
 of process in all disputes arising out of the liquidation of the company 
 between the shareholders and the company ; and that such disputes 
 should be submitted to the proper French court. That service was 
 made accordingly, as provided by French law. 
 
 2. That the law of France contained similar provisions.- 
 
 Amphlett, B. An important question is raised on these replica- 
 tions, involving the liability of a British subject to be sued in the courts 
 of a foreign country. As to the first replication demurred to, the court 
 is unanimously of opinion that the defendant is shown upon the face of 
 it to have contracted with the company, of which he is a shareholder, 
 and whose representative the plaintiff is, that he would, under the cir- 
 cumstances disclosed, be amenable to the jurisdiction of the Court of 
 the Tribunal of Commerce of the Department of the Seine. But as 
 to the second replication, my brother Pigott and myself think that 
 although the allegations are sufficient to show that the defendant's con- 
 tract is to be governed by French law, still that they do not show that 
 he is subject to the jurisdiction of the French court. The contract must 
 be interpreted by an English tribunal. 
 
 Now, the plaintiff seems to have thought that all he need allege is 
 that French law is to govern the contract. But it by no means fol- 
 lows that the defendant has subjecti'd himself to a foreign jurisdiction. 
 tThe cases which have been referred to show that before an P^nglish- 
 man can be made amenable to a foreign court, he must bear either 
 
 1 The replications, stated at length by the reporter, arc here abridged. — Ed.
 
 SECT. IL] COPIN V. ADAMSON. 171 
 
 an absolute or a qualified or temporaiT allegiance to the country in } 
 which the court is. He must, as is pointed out by Blackburn, J., in 
 Schibsby v. Westenholz, Law Rep. 6 Q. B. 155, p. 161, be a subject 
 of the country, or as a resident there when the action was commenced 
 (or perhaps it would be enough if he were there when the obligation 
 was contracted, though upon this point doubt is expressed), so as to be 
 under the protection of or amenable to its laws. The learned judge 
 also puts two other cases in which a person might be bound, — one 
 where he, as plaintiff, has selected his tribunal, and the other where he 
 has voluntaril}' appeared before it and takes the chance of a judgment 
 in his favor. The defendant's liabilit}' in the latter case, however, is 
 left an open question. But independentl3' of that question, I appre- 
 hend that a man may contract with others that his rights shall be de- 
 termined not only b}' foreign law, but bj" a foreign tribunal, and thus, 
 by reason of his contract, and not of an}' allegiance absolute or quali- 
 fied, would become bound by that tribunal's decision. It is upon tliis 
 ground that I decide the demurrer to the first replication in the plain- 
 tiff's favor. I think that the defendant must be taken to have agreed 
 that if he did not elect a domicile one should be elected for him ; for 
 the articles of association provide for its being done. It is said that it 
 is not suflficiently stated that he had notice of this particular provision ; 
 but I think it must be implied that he had notice, from the fact of his 
 becoming a shareholder in the company*. 
 
 I now proceed to consider the 'second replication, which is silent 
 as to the statutes or articles of association, but simply alleges that 
 according to French law the members of the company were bound to 
 elect a domicile ; and that, according to French law, upon default a 
 domicile would be elected for them at a public office, where process 
 might be served, and that they would be bound thereb}'. I confess I 
 cannot find a case which has gone so far as to hold a defendant liable, 
 under such circumstances, upon a foreign judgment obtained, as this 
 was, without an}' knowledge on his part of the proceedings. Can it be 
 said that an Englishman, for example, who buys a share in a foreign 
 company on the London Stock Exchange, thereby becomes necessarily . 
 bound by any decision to which the foreign tribunal may come upon a 
 matter affecting his interests? Suppose there had been a provision by 
 the law of France that whenever a member neglected to elect a domi- 
 cile he should pay double calls, are we to enforce his liability in an 
 action on a judgment for such calls obtained against him without his 
 knowledge in the foreign court? No doubt in the present case, where 
 the law of France is in question, the probability is that the shareholder 
 would not be subjected to any extraordinary or unjust liabilities. But 
 if the principle of law is that which the plaintiff contends for, it must 
 be applied in cases of countries where the law might be very much 
 more open to objection than it is likely to be in a country such as 
 France. 
 
 It is said, however, that the authorities upon the point are decisive,
 
 172 COPIN V. ADAMSON. [CHAP. III. 
 
 and two were especially relied on. The first was the Bank of Austral- 
 asia V. Harding, 9 C. B. 661, 19 L. J. (C.P.) 345 ; and it is, I agree, 
 a strong authority in support of the first replication, but not of the 
 second. In that case there liad been a local act obtained giving power 
 to the company's creditors to obtain judgment against a representative 
 of all the members, and enacting that by that judgment all the mem- 
 bers should be bound ; and it was upon -the circumstance that the act 
 existed that the judgment of the court was founded ; and nothing falls 
 from any of the judges to indicate that they would have held the 
 defendant bound if there had been no such act. In their opinion the 
 defendant was to be considered as a consenting party to the passing of 
 the act, or as one of the parties at whose request it was passed, and 
 therefore bound by its provisions. See per Wilde, C.J., and Cress- 
 well, J., pp. 685, 687. In the absence of such consent, it seems to me 
 that the court would have come to a contrary conclusion. 
 
 The second case relied on was Vallee v. Dumergue, 4 Ex. 290, 18 
 L. J. (Ex.) 398 ; but here, again, although the decision supports the 
 first, it fails to support the second replication. There the defendant 
 had become by transfer the owner of shares in a French company ; and 
 upon accepting the shares was bound, according to French law, to elect 
 a domicile. He actually did so, and gave notice of his election to the 
 company. He was, therefore, aware of what the French law was, and 
 had complied with it. Then, having left the country, notice of process 
 was, as here, left at the elected domicile, but never reached the defend- 
 ant against whom judgment by default was recovered. It was held 
 he was liable on the judgment, but upon the ground that he had done 
 something more than become a shareholder in the company ; he had so 
 conducted himself as to warrant the inference that he had agreed to be 
 bound by the decision of the foreign court. " The replication consists," 
 says Alderson, B. (p. 303) " of a statement of facts which show that 
 by the agreement to which the defendant has become a party, no actual 
 notice need be given to him;" and, again (p. 303), ''It is not con- 
 trary to natural justice that a man who has agreed to receive a partic- 
 ular mode of notification of legal proceedings should be bound by a 
 judgment in which that particular mode has been followed, even though 
 he may not have had actual notice of them." 
 
 For these reasons my judgment (in wliich my brother Pigott con- 
 curs) is for the plaintiff upon the demurrer to the first replication, and 
 for the defendant upon the demurrer to the second. 
 
 Judgment accordingly. 
 
 Kelly, C B. [dissenting on the second replication.!
 
 SECT. II.] G. AND B. SEWING MACHIK"S CO. V. RADCLIFFE. 113 
 
 GROVER AND BAKER SEWING MACHINE CO. v. 
 RADCLIFFE. 
 
 Supreme Court of the United States. 1890. 
 [Reported 137 United States, 287.] 
 
 Error to the Court of Appeals of the State of Maryland. 
 
 This was an action brought in the Circuit Court of Cecil County, 
 Maryland, by the Grover and Baker Sewing Machine Company 
 against James and John Benge, citizens of Delaware, by summons 
 and attachment served on William P. Radcliffe as garnishee. The 
 suit was upon a judgment for the sum of three thousand dollars, 
 entered by the prothonotary of the Court of Common Pleas in and 
 for the county of Chester, Pennsylvania, against James and John 
 Benge (who were not citizens or residents of Pennsylvania and were 
 not served with process) upon a bond signed by them, giving author- 
 ity to "any attorney of any court of record in the State of New York 
 or auy other State " to confess judgment against them for the amount 
 of the bond. The law of Pennsylvania authorized the prothonotary 
 of any court to enter judgment upon such a bond.^ 
 
 Fuller, C. J. The Maryland Circuit Court arrived at its conclu- 
 sion upon the ground that the statute of Pennsylvania relied on did 
 not authorize the prothonotary of the Court of Common Pleas of that 
 State to enter the judgment; and the Court of Appeals of Maryland 
 reached the same result upon the ground that the judgment was void 
 as against John Benge, because the court rendering it had acquired 
 no jurisdiction over his person. 
 
 It is settled that notwithstanding the provision of the Constitution 
 of the United States, which declares that "full faith and credit shall 
 be given in each State to the public acts, records, and judicial pro- 
 ceedings of every other State," Art. IV., section I, and the acts of 
 Congress passed in pursuance thereof, 1 Stat. 22, Rev. Stat. § 905 
 — and notwithstanding the averments in the record of the judgment 
 itself, the jurisdiction of the court by which a judgment is rendered 
 in any State may be questioned in a collateral proceeding; that the 
 jurisdiction of a foreign court over the person or the subject-matter, 
 embraced in the judgment or decree of such court, is always open to 
 inquiry; that, in this respect, a court of another State is to be 
 regarded as a foreign court; and that a personal judgment is without 
 validity if rendered by a State court in an action upon a money 
 demand against a non-resident of the State, upon whom no personal 
 service of process within the State w^as made, and who did not 
 appear. D'Arcy ?'. Ketchum, 11 How. 165; Thompson v. Whitman, 
 18 Wall. 457; Hall v. Lanning, 91 U. S. 160; Pennoyer v. Neff, 
 95 U. S. 714. 
 
 1 This statement is abridged from the statement of Fuller, C. J. — Ed.
 
 174 G. AND B. SEWING MACHINE CO. V. KADCLIFFE. [CHAP. III. 
 
 The rule is not otherwise in the State of Pennsylvania, where the 
 judgment in question was rendered ; Guthrie v. Lowry, 84 Penu. St. 
 533; Scott v. Noble, 72 Penn. St. 115; Noble v. Thompson Oil Co., 
 79 Penn. St. 354; Steel v. Smith, 7 W. & S. 447; nor in the State 
 of Maryland, where the action under review was brought upon it; 
 Bank of the United States v. Merchants' Bank, 7 Gill, 415; Clark 
 V. Bryan, 16 Maryland, 171; Weaver v. Boggs, 38 Maryland, 255. 
 And the distinction between the validity of a judgment rendered in 
 one State, under its local laws upon the subject, and its validity in 
 another State, is recognized by the highest tribunals of each of these 
 States. 
 
 Thus in Steel v. Smith, 7 W. & S. 447, it was decided, in 1844, 
 that a judgment of a court of another State does not bind the person 
 of the defendant, in another jurisdiction, though it might do so 
 under the laws of the State in which the action was brought, and 
 that the act of Congress does not preclude inquiry into the jurisdic- 
 tion, or the right of the State to confer it. The action was brought 
 on a judgment rendered in Louisiana, and Mr. Chief Justice Gibson, 
 in delivering the opinion of the court, said: "The record shows that 
 there was service on one of the joint owners, which, in the estima- 
 tion of the law of the court, is service on all ; for it is affirmed in 
 Hill V. Bowman, already quoted [14 La. 445], that the State of 
 Louisiana holds all persons amenable to the process of her courts, 
 whether citizens or aliens, and whether present or absent. It was 
 ruled in George v. Fitzgerald, 12 La. 604, that a defendant, though 
 he reside in another State, having neither domicile, interest nor 
 agent in Louisiana, and having never been within its territorial 
 limits, may yet be sued in its courts by the instrumentality of a 
 curator appointed by the court to represent and defend him. All 
 this is clear enough, as well as that there was in this instance a 
 general appearance by attorney, and a judgment against all the 
 defendants, which would have full faith and credit given to it in 
 the courts of the State. But that a judgment is always regular when 
 there has been an appearance by attorney, with or without warrant, 
 and that it cannot be impeached collaterally, for anything but fraud 
 or collusion, is a municipal principle, and not an international one 
 having place in a question of State jurisdiction or sovereignty. 
 Now, though the courts of Louisiana would enforce this judgment 
 against the persons of the defendants, if found within reach of their 
 process, yet. where there is an attempt to enforce it by the process 
 of another State, it behooves the court whose assistance is invoked 
 to look narrowly into the constitutional injunction, and give the 
 statute to carry it out a reasonable interpretation." pp. 449, 450. 
 
 Referring to § 1307 of Mr. Justice Story's Commentaries on the 
 Constitution, and the cases cited, to which he added Benton v. 
 Burgot, 10 S. & R. 240, the learned Judge inquired; "What, then, 
 is the right of a State to exercise authority over the persons of those
 
 SECT. II.] G. AND B. SEWING MACHINE CO. V. RADCLIFFE. 175 
 
 who belong to another jurisdiction, and who have perhaps not been 
 out of the boundaries of it?" (p. 450) and quoted from Vattel, 
 Burge, and from Mr. Justice Story (Conflict of Laws, c. 14, § 539), 
 that '"no sovereignty can extend its process beyond its own territo- 
 rial limits, to subject other persons or property to its judicial deci- 
 sions. Every exertion of authority beyond these limits is a mere 
 nullity, and incapable of binding such persons or property in other 
 tribunals,'" and thus continued: "Such is the familiar, reasonable, 
 and just principle of the law of nations; and it is scarce supposable 
 that the framers of the Constitution designed to abrogate it between 
 States which were to remain as independent of each other, for all but 
 national purposes, as they were before the revolution. Certainly it 
 was not intended to legitimate an assumption of extraterritorial 
 jurisdiction which would confound all distinctive principles of sepa- 
 rate sovereignty; and there evidently was such an assumption in the 
 proceedings under consideration. . . . But I would perhaps do the 
 jurisprudence of Louisiana injustice, did I treat its cognizance of 
 the defendants as an act of usurpation. It makes no claim to extra- 
 territorial authority, but merely concludes the party in its own 
 courts, and leaves the rest to the Constitution as carried out by the 
 act of Congress. "When, however, a creditor asks us to give such a 
 judgment what is in truth an extraterritorial effect, he asks us to do 
 what we will not, till we are compelled by a mandate of the court in 
 the last resort." p. 45 L 
 
 In Weaver v. Boggs, 38 Maryland, 255, it was held that suit could 
 not be maintained in the courts of Mai-ylaud upon a judgment of a 
 court of Pennsylvania rendered upon returns of niht'l to two succes- 
 sive writs of scire facias issued to revive a Pennsylvania judgment 
 of more than twenty years' standing, where the defendant had for 
 more than twenty years next before the issuing of the writs resided 
 in Maryland and out of the jurisdiction of the court that rendered 
 the judgment. (^The court said: "It is well settled that a judgment 
 obtained in a court of one State cannot be enforced in the courts and 
 against a citizen of another, unless the court rendering the judgment 
 has acquired jurisdiction over the defendant by actual service of 
 process upon him, or by his voluntary appearance to the suit and 
 submission to that jurisdiction. Such a judgment may be perfectly 
 valid in the jurisdiction where rendered and enforced there even 
 against the property, effects, and credits, of a non-resident defendant 
 there situated ; but it cannot be enforced or made the foundation of 
 an action in another State.^ A law which substitutes constructive 
 for actual notice is binding upon persons domiciled within the State 
 where such law prevails, and as respects the property of others there 
 situated, but can bind neither person nor property beyond its limits. 
 This rule is based upon international law, and upon that natural 
 protection which every country owes to its own citizens. It con- 
 cedes the jurisdiction of the court to the extent of the State where
 
 176 G. AND B. SEWING MACHINE CO. V. KADCLIFFE. [CHAP. III. 
 
 the judgment is rendered, but upon the principle that it would be 
 unjust t'o its own citizens to give effect to the judgments of a foreign 
 tribunal against them when they had no opportunity of being heard, 
 its validity is denied." 
 
 Publicists concur that domicile generally determines the particular 
 territorial jurisprudence to which every individual is subjected. As 
 correctly said by Mr. Wharton, the nationality of our citizens is that 
 of the United States, and by the laws of the United States they are 
 bound in all matters in which the United States are sovereign ; but 
 in other matters, their domicile is in the particular State, and that 
 determines the applicatory territorial jurisprudence. A foreign judg- 
 ment is impeachable for want of personal service within the juris- 
 diction of the defendant, this being internationally essential to 
 jurisdiction in all cases in which the defendant is not a subject of 
 the State entering judgment; and it is competent for a defendant in 
 an action on a judgment of a sister State, as in an action on a for- 
 eign judgment, to set up as a defence, want of jurisdiction, in that 
 he°was not an inhabitant of the State rendering the judgment and 
 had not been served with process, and did not enter his appearance. 
 Whart. Conflict Laws, §§ 32, 654, 660; Story, Conflict Laws, §§ 539, 
 
 540, 586. 
 
 John Benge was a citizen of Maryland when he executed this obli- 
 gation. The subject-matter of the suit against him in Pennsylvania 
 was merely the determination of his personal liability, and it was 
 necessary to the validity of the judgment, at least elsewhere, that it 
 should appear from the record that he had been brought within the 
 jurisdiction of the Pennsylvania court by service of process, or his 
 voluntary appearance, or that he had in some manner authorized the 
 proceeding. By the bond in question he authorized "any attorney 
 of any court of record in the State of New York, or any other State, 
 to confess judgment against him (us) for the said sum, with release 
 of errors, etc." But the record did not show, nor is it contended, 
 that he was served with process, or voluntarily appeared, or that 
 judgment was confessed by an attorney of any court of record of 
 Pennsylvania. Upon its face, then, the judgment was invalid, and 
 to be treated as such when offered in evidence in the Maryland court. 
 
 It is said, however, that the judgment was entered against Benge 
 by a prothonotary, and that the prothonotary had power to do this 
 under the statute of Pennsylvania of February 24, 1806. Laws of 
 Pcnn. 1H05-6, p. 347. This statute was proved as a fact upon the 
 trial in ^Maryland, and may be assumed to have authorized the action 
 taken, though under Connay v. Ilalstead, 73 Penn. St. 354, that 
 may, perhaps, be doubtful. And it is argued that the statute, being 
 in force at the time this instrument was executed, should be read 
 into it and considered as forming a part of it, and therefore that 
 John Benge had consented tliat judgment miglit be thus entered 
 up against him without service of process, or appearance in person, 
 or by attorney.
 
 SECT. II.] FITZSIMMONS V. JOHNSON. 177 
 
 But we do not think that a citizen of another State than Pennsyl- 
 vania can be thus presumptively held to knowledge and acceptance 
 of particular statutes of the latter State. What Benge authorized 
 was a confession of judgment by any attorney of any court of record 
 in the State of New York or any other State, and he had a right to 
 insist upon the letter of the authority conferred. By its terms he 
 did not consent to be bound by the local laws of every State in the 
 Union relating to the rendition of judgment against their own citi- 
 zens without service or appearance, but on the contrary made such 
 appearance a condition of judgment. And even if judgment could 
 have been entered against him, not being served and not appearing, 
 in each of the States of the Union, in accordance with the laws 
 therein existing upon the subject, he could not be held liable upon 
 such judgment in any other State than that in which it was so 
 rendered, contrary to the laws and policy of such State. 
 
 The courts of Maryland were not bound to hold this judgment as 
 obligatory either on the ground of comity or of duty, thereby per- 
 mitting the law of another State to override their own. 
 
 No color to any other view is given by our decisions in Johnson v. 
 Chicago & Pacific Elevator Co., 119 U. S. 388, 400, and Hopkins v. 
 Orr, 124 U. S. 510, cited for plaintiff in error. Those cases in- 
 volved the rendition of judgments against sureties on restitution and 
 appeal bonds if judgment went against their principals, and the 
 sureties signed with reference to the particular statute under which 
 each bond was given; nor did, nor could, any such question arise 
 therein as that presented in the case at bar. 
 
 Judgment affirmed.^ 
 
 FITZSIMMONS v. JOHNSON. 
 
 Supreme Court of Tennessee. 1891. 
 
 {Reported 90 Tennessee, 416.] 
 
 Caldwell, J.^ .John W. Todd died, testate, at his residence in 
 Clermont County, Ohio, in the early part of the year 1864. He 
 nominated his friends, John Johnson and C. W. Goyer, of Memphis, 
 Tennessee, as executors of his will. They accepted the trust, went 
 to Ohio, and, on April 27, 1864, were duly qualified by the Probatt 
 Court of Clermont County as executors of the will. 
 
 1 See First Nat. Bank v. Cunningham, 48 Fed. 510 ; Snyder v. Critchfield. 44 
 Neb. 66, 62 N, W. 306 ; Teel v. Yost, 128 X. Y. 387. 
 
 On consent as a ground of jurisdiction of the person, see "Wright v. Boynton, 37 
 N. H. 9 ; McCormicky. R. R., 49 N. Y. 303. — Ed. 
 
 2 Only so much of the opinion as deals with the question of jurisdiction is here 
 given. — Ed. 2 ^
 
 178 FITZSIMMONS V. JOHNSON. [CHAP. III. 
 
 On November 6, 1865, the executors made what purported to be a 
 final settlement of the estate of their testator, showing that they had 
 received assets to the amount of S63,495.25, and that, of this, they 
 had paid to the widow of the testator, as sole distributee, $61,040.10, 
 and that the other §2,455.15 had been used in the payment of debts 
 and expenses of administration. This settlement was made in the 
 Probate Court of Clermont County, Ohio, on whose record the follow- 
 ing entry was made: "This day the court examined the accounts 
 and vouchers of C. W. Goyer and John Johnson, executors of the 
 estate of John W. Todd, deceased, and found the same to be in all 
 things correct; that they have been regularly advertised for excep- 
 tions, and none having been filed thereto, the same are hereby 
 approved and confirmed. And the court finds that said executors 
 have paid all just claims against said estate, and have distributed 
 the remainder according to the will of the testator. And the said 
 accounts are ordered to be recorded, and the executors are discharged." 
 The testator left no children or representatives of children. By 
 the first ten clauses of his will he expressed certain desires, which 
 need not be mentioned in this opinion, and made provision for his 
 widow; and by the eleventh clause he devised and bequeathed the 
 residuum of his estate, both real and personal, to his four sisters and 
 one brother. The provision made Tor the widow proved unsatisfac- 
 tory to her; hence, she failed to accept it. And her non-acceptance 
 had the same legal effect under the Ohio law that an affirmative 
 disseut has under our law. She had the same claims upon her hus- 
 band's estate as she would have had if he had died intestate. 
 
 The executors assumed that she was entitled to the whole of his 
 persona! estate after the payment of debts and expenses, and upon 
 that assumption they paid her the §61,040.10. 
 
 Such had been the statute law of Ohio, but it was changed, so as 
 to allow the widow only one-third of her husband's net personal 
 estate, a few years before the final settlement. 
 
 On January 15, 1887, Mary A. Fitzsimmons, one of the residuary 
 legatees, filed her petition in error, in the Court of Common Pleas of 
 Clermont County, Ohio, for the purpose of having the judgment of 
 the Probate Court reviewed and reversed. Goyer having died in the 
 meantime, Johnson alone, as surviving executor, was made defend- 
 ant to this petition. The petition was accompanied with an affi- 
 davit that Johnson was a non-resident of the State of Ohio, and 
 could not, therefore, be personally served with summons, that he had 
 no attorney of record in the State, and that it was a proper case for 
 publication. Tiiereupon pu1)lication was made for Johnson, as a 
 non-resident, requiring him to appear and i)lead to the petition; and 
 a copy of a newspaper containing the published notice was sent to 
 him at his residence in Memphis, Tennessee. 
 
 Johnson made default, and on January 20, 1888, the petition in 
 error was heard in the Court of Common Pleas, and the judgment of
 
 ?!ECT. II.] FITZSIMMOXS V. JOHNSON. 179 
 
 the Probate Court was reversed and set aside, and the cause was 
 remauded to the Probate Court for further proceedings. After the 
 remand, Mrs. Fitzsimmons and Mrs. Young, another of the residu- 
 ary legatees, appeared in the Probate Court and filed exceptions to 
 the accounts of Goyer and Johnson, which had been confirmed by 
 that court in 1865. These exceptions were set for hearing, and a 
 copy thereof, together with a notice of the time and place of hearing 
 the same by the court, was mailed to Johnson at Memphis. 
 
 Johnson again failed to appear. The exceptions were sustained, 
 and, on February 2, 1888, the Probate Court adjudged that the exec- 
 utors had been improperly credited in the former settlement with 
 the 861,040.10 paid the widow, and that they had received $30,000 
 besides, which they had not reported or accounted for in any way. 
 The court further adjudged that these two sums, together with inter- 
 est thereon, in all §130,640, remained, or should be, in the hands 
 of the executors for distribution; and it was ordered that Johnson, 
 as surviving executor, proceed to distribute said sum of 8130,640 
 according to the will of John W. Todd, deceased, and according to 
 law. 
 
 That judgment is the principal ground of the present action. On 
 March 28, 1888, Mrs. Fitzsimmons and the other four residuary 
 legatees, by themselves and their representatives, filed this bill in 
 the Chancery Court at Memphis, to recover from Johnson, as surviv- 
 ing executor, and from the estate of Goyer, the deceased executor, 
 the said $130,640, and other sums alleged to have been received by 
 the same persons as executors of John W. Todd's estate in Tennessee. 
 
 The chancellor dismissed the bill on demurrer, so far as relief 
 was sought on the Ohio record, but retained it for other purposes, to 
 be hereafter stated. After final decree on the merits of the other 
 branch of the cause, both complainants and defendants appealed to 
 this court. All material questions raised in the Chancery Court are 
 presented here by assignments of error. 
 
 Was that part of the bill seeking relief on the judgment of the 
 Probate Court in Ohio properly dismissed? 
 
 The main ground of demurrer to that part of the bill was want of 
 jurisdiction in that court to pronounce the judgment. 
 
 The question of the court's jurisdiction of the subject-matter need 
 not be discussed or elaborated, for, by the statute of Ohio, her Pro- 
 bate Courts are given general jurisdiction to settle the accounts of 
 executors and administrators, and to direct distribution of balance 
 found in their hands. Jurisdiction of the subject-matter was, there- 
 fore, ample and complete. Rev. Stat. Ohio, sect. 534. 
 
 Whether the court had jurisdiction of the person of Johnson is 
 not so easily answered. 
 
 It is conceded in the bill and recited on the face of the record that 
 Goyer was dead, and that Johnson, the surviving executor, was not 
 personally served with notice, either of the appellate proceedings in
 
 180 FITZSIMMONS V. JOHNSON. [CHAP. III. 
 
 the Court of Common Pleas or of the subsequent proceedings iii the 
 Probate Court, which resulted in the judgment sued on; and that, 
 being a non-resident, and without an attorney of record in the State, 
 only publication was made for him. 
 
 It is now well settled that a personal judgment against a non- 
 resident, rendei-ed in an original suit, upon constructive notice — 
 that is, upon notice by publication merely — is an absolute nullity, 
 and of no effect whatever. Though a State may adopt any rules of 
 practice and legal procedure she may deem best as to her own citi- 
 zens, she can adopt none that will give her courts jurisdiction of 
 non-residents so as to authorize personal judgments against them 
 without personal service of process upon them. 
 
 By personal judgments we mean judgments m persotKmi — as, for 
 payment of money — in contradistinction from judgments iti rem, 
 whereby the property of non-residents, situated within the territorial 
 limits of the State, may be impounded; for when non-residents own 
 property in a particular State it is subject to the laws of that State, 
 and may be attached or otherwise brought into custodia legis as 
 security for the debts of the owners, and actually sold and applied 
 by direction of the court, without personal service and by construc- 
 tive notice merely. Pennoyer v. Neff, 95 U. S. 714. 
 
 The judgment before us is confessedly a personal judgment. 
 Hence, if the appellate proceedings in the Court of Common Pleas 
 and the subsequent proceedings in the Probate Court were original 
 proceedings, standing upon the same ground with respect to notice 
 as an original action, that judgment is void for want of jurisdiction 
 of the person. 
 
 The demurrer assumed, and, in sustaining it, the chancellor held, 
 that the petition in error, by which the cause Avas removed from the 
 Probate Court to the Court of Common Pleas, was, in effect, an 
 original action, and that it could be prosecuted only on notice by 
 personal service; and that, it appearing that no such notice was 
 given, the judgment sued upon was null and void. 
 
 We do not concur in the view that the petition in error was a new 
 suit, or, that to entitle petitioner to prosecute the same, she must 
 have given the defendant therein the same notice required in the 
 commencement of an original action. In saying this, we are not 
 unmindful of the fact that many of the authorities speak of a writ 
 of error, whose office seems to be the same in most of the States as 
 the petition in error under the Ohio law, as a new suit. Such is the 
 language of some of the earlier decisions in Ohio. 3 Ohio, 337. 
 In some of the cases in our own State a writ of error has been called 
 a new suit (1 Lea, 290; 13 Lea, 151); in others it is said to be in 
 the nature of a new suit (6 Lea, 83; 13 Lea, 206); and in still 
 another the court says it is to be regarded as a new suit. 3 Head, 
 25. But in no case that we have been able to find, or to which our 
 attention has been called, does the court decide that a writ of error
 
 SECT. II.] FITZSIMMONS V. JOHNSON. 181 
 
 is a new suit in the sense of being the commencement of an original 
 action, or that it requires the same character and stringency of notice 
 as an original action. 
 
 In the very nature of the case a writ of error cannot be an original 
 action. A writ of error lies alone in behalf of a party or privy to an 
 original suit already finally determined in the lower court, and it 
 must run against another party or privy to such original suit, A 
 writ of error has no place in the law unless there has been an origi- 
 nal action; and, where given scope, it is but a suit on the record in 
 the original case. 
 
 The Supreme Court of the United States has several times said 
 that a writ of error is rather a continuation of a certain litigation 
 than the commencement of an original action, and we think that such 
 it is, most manifestly. Cohens v. Virginia, 6 Wheaton, 410; Clark 
 V. Matthewson, 12 Peters, 170; Nations v. Johnson, 24 Howard, 205; 
 Pennoyer v. Neff, 95 U. S., 734. 
 
 A writ of error is like a new suit, in that it can be prosecuted only 
 upon notice to the opposite party. But that notice need not be per- 
 sonal, as in the commencement of an original action; it may be 
 either personal or constructive, as the State creating the tribunal may 
 provide. 95 U. S., 734; 24 Howard, 206. 
 
 In 1865 Goyer and Johnson submitted themselves to the jurisdic- 
 tion of the Probate Court of Ohio, for the purpose of settling their 
 accounts, and then obtained a judgment in their favor. That judg- 
 ment was subject to review, and, if erroneous, to reversal, by error 
 proceedings in the Court of Common Pleas. Rev. Stat. Ohio, sect. 
 6708. 
 
 To obtain such revision or reversal, it was incumbent on the com- 
 plaining party to give Goyer and Johnson, or the survivor of them, 
 notice. Such notice was, by statute, authorized to be given in any 
 one of three ways — namel}^, by service of summons on the adverse 
 party in person, or by service on his attorney of record, or by publi- 
 cation. Rev. Stat., 6718. 
 
 Goyer being dead, and Johnson being a non-resident, and having 
 no attorney in the State, publication was duly made at the instance 
 of petitioner in error. That was all that was required by the law of 
 Ohio, and we are of opinion that it gave the Appellate Court full 
 jurisdiction of Johnson's person, and authorized any judgment that 
 the merits of the case required, so far as he was concerned. 
 
 That court had complete power to reverse the judgment of the 
 Probate Court, if found to be erroneous, and either to render such 
 judgment as should have been rendered below in the first instance or 
 to remand the case for further proceedings in the latter court. Rev. 
 Stat., 6726. 
 
 The latter course was pursued, as has already been seen. John- 
 son, being properly before the Appellate Court by constructive ser- 
 vice, was chargeable with notice of the reversal and remand of his
 
 182 FITZSIMMOXS V. JOHNSON. [CHAP. III. 
 
 case, and of the subsequent proceedings in the Probate Court, with- 
 out additional notice by publication or otherwise as to the steps 
 taken under the j^rocedendo. In that way he had his day in court 
 when the large judgment was pronounced against him, and he is 
 bound by it the same as if he had been personally served with 
 process.. 
 
 ThatAoustructive notice of a writ of error to a non-resident party, 
 when ^ch party was properly brought before the lower court, is 
 sufficient to bind him by the judgment Ir decree rendered in the 
 Appellate Court, was expressly decided^n the case of Nations v. 
 Johnson, 24 Howard, 195. In that case' Johnson had sued Nations 
 in the Chancery Court in Mississippi for some slaves. Decree was 
 for Nations, and he afterward removed himself and the slaves to the 
 State of Texas. Johnson prosecuted a writ of error to the Appellate 
 Court of Mississippi, giving to Nations notice by publication only. 
 The Appellate Court reversed the decree of the chancellor and pro- 
 nounced a decree in favor of Johnson. 
 
 Subsequently Johnson sued Nations in one of the District Courts 
 of the United States, in the State of Texas, on his decree rendered 
 by the State Court in Mississippi. Nations defended on the ground 
 that he had not been personally served with notice of the writ of 
 error to the Appellate Court. That question being decided against 
 him, not upon the facts but upon the law, in the District Court, 
 Nations prosecuted a writ of error to the Supreme Court of the 
 United States, with the result already stated. In the opinion, Mr. 
 Justice Clifford, speaking for a unanimous court, said: "No rule 
 can be a sound one which, by its legitimate operation, will deprive a 
 party of his right to have his case submitted to the Appellate Court; 
 and where, as in this case, personal service was impossible in the. 
 Appellate Court, through the act of the defendant in error, it must 
 be held that publication according to the law of the jurisdiction, 
 is constructive notice to the party, provided the record shows that 
 process was duly served in the subordinate court, and that the party 
 appeared and litigated the merits. . . . Common justice requires 
 that a party, in cases of this description, should have some mode of 
 giving notice to his adversary; and where, as in this case, the record 
 shows that the defendant appeared in the subordinate court and 
 litigated the merits to a final judgment, it cannot be admitted that 
 he can defeat an appeal by removing from the jurisdiction, so as 
 to render personal service of the citation impossible. On that state 
 of facts, service by publication according to the law of the jurisdic- 
 tion and the i)raetice of the court, we think, is free from objection, 
 and is amjjly sutlicient to sunport the judgment of the Appellate 
 Court." 24 Howard, 205, 20b. 
 
 The same rule is announced in Pennoyer v. Neff, 95 U. S. 734. 
 Text-writtis lay it down as a general n^le that jurisdiction once 
 .cquired over the parties iu the lower cowl may be continued until 
 
 L
 
 SECT. II.] MASSIE V. WATTS. 183 
 
 the final termination of the controversy in the Appellate Court by 
 giving proper notice of the appellate proceedings, and that notice to 
 a non-resident party by publication merely is sufficient. Freeman on 
 Judgments, sect. 569; 2 Black on Judgments, sect. 912. • 
 
 This rule commends itself to all men for its wisdom and justice. 
 If it did not prevail, a man having an unjust judgment in a subordi- 
 nate court, might, by removal from that State, cut off, absolutely, 
 the right of the adverse party to a hearing in the Appellate Court on 
 writ of error: and, having done so, he might then enforce his unjust 
 judgment. The adverse party would be powerless in such a case. 
 He could get relief neither in the courts of the State in which the 
 judgment was rendered, nor in those of the State to which the other 
 party had removed; for, in the former jurisdiction, the judgment 
 would be conclusive upon him, and if he should go to the latter to 
 relitigate his rights, he would be met and defeated by the previous 
 adjudication of the same rights. One judgment would control the 
 other, on the doctrine that the judgment of a competent court in one 
 State is entitled to the same faith and credit in the courts of every 
 other State as it would receive in those of the State where rendered ; 
 which doctrine will be considered hereafter. 
 
 MASSIE V. WATTS. 
 
 Supreme Court of the United States. 1810. 
 
 [Reported 6 Cranch, 148.] 
 
 This was an appeal from the decree of the Circuit Court of the 
 United States for the District of Kentucky, in a suit in equity 
 brought by Watts, a citizen of Virginia, against Massie, a citizen of 
 Kentucky, to compel the latter to convey to the former 1,000 acres of 
 land in the State of Ohio, the defendant having obtained the legal 
 title with notice of the plaintiff's equitable title. 
 
 Marshall, C. J. This suit having been originally instituted, in 
 the court of Kentucky, for the purpose of obtaining a conveyance 
 for lands lying in the State of Ohio, an objection is made by the 
 plaintiff in error, who was the defendant below, to the jurisdiction 
 of the court by which the decree was rendered. 
 
 Taking into view the character of the suit in chancery brought to 
 establish a prior title originating under the laud law of Virginia 
 against a person claiming under a senior patent, considering it as 
 a substitute for a caveat introduced by the peculiar circumstances 
 attending those titles, this court is of opinion, that there is much 
 reason for considering it as a local action, and for confining it to 
 the court sitting within the State in which the lands lie. Was this 
 cause, therefore, to be considered as involving a naked question of
 
 184 MASSIE V. WATTS. [CHAP. III. 
 
 title, was it, for example, a contest between Watts and Powell, the 
 jurisdiction of the Circuit Court of Kentucky would not be sus- 
 tained. But where the question changes its character, where the 
 defendant in the original action is liable to the plaintiff, either in 
 consequence of contract, or as trustee, or as the holder of a legal 
 title acquired by any species of mala fides practised on the plaintiff, 
 the principles of equity give a court jurisdiction wherever the person 
 may be found, and the circumstance, that a question of title may be 
 involved in the inquii'y, and may even constitute the essential point 
 on which the case depends, does not seem sufficient to arrest that 
 jurisdiction. 
 
 In the celebrated case of Penn v. Lord Baltimore, the Chancellor 
 of England decreed a specific performance of a contract respecting 
 lands lying in North America. The objection to the jurisdiction of 
 the court, in that case, as reported by Vezey, was not that the lands 
 lay without the jurisdiction of the court, but that, in cases relating 
 to boundaries between provinces, the jurisdiction was exclusively in 
 the king and council. It is in reference to this objection, not to an 
 objection that the lands were without his jurisdiction, that the chan- 
 cellor says, "This court, therefore, has no original jurisdiction on 
 the direct question of the original right of boundaries." The reason 
 why it had no original jurisdiction on this direct question was, that 
 the decision on the extent of those grants, including dominion and 
 political power, as well as property, was exclusively reserved to the 
 king in council. 
 
 In a subsequent part of the opinion, where he treats of the objec- 
 tion to the jurisdiction of the court, arising from its inability to 
 enforce its decree in rem, he allows no weight to that argument. 
 The strict primary decree of a court of equity is, he says, in />er- 
 sonam, and may be enforced in all cases where the person is within 
 its jurisdiction. In confirmation of this position he cites the prac- 
 tice of the courts to decree respecting lands lying in Ireland and in 
 the colonies, if the person against whom the decree was prayed be 
 found in England. 
 
 In the case of Arglasse v. Muschamp, 1 Vernon, 75, the defend- 
 ant, residing in England, having fraudulently obtained a rent charge 
 on lands lying in Ireland, a bill was brought in England to set it 
 aside. To an objection made to the jurisdiction of the court the 
 chancellor replied: "This is surely only a jest put upon th« jurisdic- 
 tion of this court by the common lawyers; for when you go about to 
 bind the lands and grant a sequestration to execute a decree, then 
 they readily tell you that the authority of this court is only to regu- 
 late a man's conscience, and ought not to affect the estate, but that 
 this court must agere in personam only; and when, as in this case, 
 you prosecute the person for a fraud, they tell you that you must not 
 intermeddle here, because the fraud, though committed here, con- 
 cerns lands that lie in Ireland, which makes the jurisdiction local.
 
 SECT. II.] MASSIE V. WATTS. 185 
 
 and so wholly elude the jurisdiction of this court." The chancellor, 
 in that case, sustained his jurisdiction on principle, and on the 
 authority of Archer and Preston, in which case a contract made 
 respecting lands in Ireland, the title to which depended on the act 
 of settlement, was enforced in England, although the defendant was 
 a resident of Ireland, and had ouly made a casual visit to England. 
 On a rehearing before Lord Keeper North this decree was affirmed. 
 
 In the case of The Earl of Kildare i\ Sir Morrice Eustace and 
 Fitzgerald, 1 Vern. 419, it was determined that if the trustee live in 
 England, the chancellor may enforce the trust, although the lands lie 
 in Ireland. 
 
 In the case of Toller v. Carteret, 2 Vern. 494, a bill was sustained 
 for the foreclosure of a mortgage of lauds lying out of the jurisdic- 
 tion of the court, the person of the mortgagor being within it. 
 
 Subsequent to these decisions was the case of Penn against Lord 
 Baltimoi'e, 1 Vez. 444, in which the specific performance of a con- 
 tract for lands lying in North America was decreed in England. 
 
 Upon the authority of these cases, and of others which are to be 
 found in the books, as well as upon general principles, this court is 
 of opinion that, in a case of fraud, of trust, or of contract, the juris- 
 diction of a court of chancery is sustainable wherever the person be 
 found, although lands not within the jurisdiction of that court may 
 be affected by the decree. 
 
 The inquiry, therefore, will be, whether this be an unmixed ques- 
 tion of title, or a case of fraud, trust, or contract. 
 
 The facts in this case, so far as they affect the question of juris- 
 diction, are, that, in 1787, the land warrant, of which Watts is now 
 the proprietor, and which then belonged to Oneal, was placed with- 
 out any special contract in the hands of Massie, as a common locator 
 of lands. In the month of August in the same year he located 1,000 
 acres, part of this warrant, to adjoin a previous location made on 
 the same day for Robert Powell. 
 
 In the year 1793 Massie, as deputy-surveyor, surveyed the lands 
 of Thomas Massie, on which Robert Powell's entry depended, and 
 the land of Robert Powell, on which Oneal's entry, now the property 
 of Watts, depended. On the 27th of June, 1795, Nathaniel Massie, 
 the plaintiff in error, entered for himself 2,366 acres of land to 
 adjoin the surveys made for Robert Powell, Thomas Massie, and one 
 Daniel Stull. The entry of Daniel Stull commences at the upper 
 corner of Ferdinand Oneal's entry on the Scioto, and the entry of 
 Ferdinand Oneal commences at the upper corner of Robert Powell's 
 entry on the Scioto; so that the land of Oneal would be supposed, 
 from the entries, to occupy the space on the Scioto between Powell 
 and Stull. Nathaniel Massie's entry, which was made after survey- 
 ing the lands of Thomas Massie and of Robert Powell, binds on the 
 Scioto, and occupies the whole space between Powell's survey and 
 StuU's survey.
 
 186 MASSIE V. WATTS. [CHAP. III. 
 
 In the year 1796, Nathaniel Massie surveyed 530 acres of Oneal's 
 entry, chiefly within StuU's survey, and afterwards, in the spring of 
 1797, purchased Powell's survey. Nathaniel Massie' s entry is sur- 
 veyed and patented. In 1801 Massie received from Watts, in money, 
 the customary compensation for making his location. 
 
 It is alleged that Nathaniel Massie has acquired for himself the 
 land which was comprehended within Oneal's entry, and has sur- 
 veyed for Oneal land to which his entry can by no construction be 
 extended. 
 
 If this allegation be unsupported by evidence, there is an end of 
 the case. If it be supported, had the court of Kentucky jurisdiction 
 of the cause? 
 
 Although no express contract be made, yet it cannot be doubted 
 that the law implies a contract between every man who transacts 
 business for another at the request of that other and the person for 
 whom it is transacted. A common locator who undertakes to locate 
 lands for an absent person is bound to perform the usual duties of 
 a locator, and is entitled to the customary compensation for those 
 duties. If he fails in the performance of those duties, he is liable to 
 the action of the injured party, which may be instituted wherever hi8 
 person is found. If his compensation be refused, he may sue there- 
 for in any court within whose jurisdiction the person for whom the 
 location was made can be found. In either action the manner in 
 which the service was performed is inevitably the subject of investi- 
 gation, and the difficulty of making it cannot oust the court of its 
 jurisdiction. 
 
 From the nature of the business and the situation of the parties, 
 the person for whom the location is made being generally a non- 
 resident, and almost universally unacquainted with the country in 
 which his land is placed, it is the duty of the locator not only to 
 locate the lands, but to show them to the surveyor. He also neces- 
 sarily possesses the power to amend or to change the location if 
 he has sufficient reason to believe that it is for the interest of his 
 employer so to do. So far as respects the location he is substituted 
 in the place of the owner, and his acts done bo7ia fide are the acts of 
 the owner. 
 
 If, under these circumstances, a locator finding that the entry he 
 has made cannot be surveyed, instead of withdrawing it or amend- 
 ing it so as to render it susceptible of being carried into execution, 
 secures the adjoining land for himself, and shows other land to the 
 surveyor whicli the location cannot be construed to comprehend, it 
 appears to this court to be a breach of duty, which amounts to a 
 violation of the implied contract, and subjects him to the action of 
 the party injured. 
 
 If the location be sustainable, and the locator, instead of showing 
 the land really covered by the entry, shows other land, and appro- 
 priates to himself the land actually entered, this appears to the court
 
 SECT. II.] WHITE V. AVHITE. 187 
 
 to be a species of mala fides which will, in equity, convert him into 
 a trustee for the party originally entitled to the land. 
 
 la either case the jurisdiction of the court of the State in which 
 the person is found is sustainable. 
 
 If we reason by analogy from the distinction between actions local 
 and transitory at common law, this action would follow the person, 
 because it Avould be founded on an implied contract, or on neglect of 
 duty. 
 
 If we reason from those principles which are laid down in the 
 books relative to the jurisdiction of courts of equity, the jurisdiction 
 of the court of Kentucky is equally sustainable, because the defend- 
 ant, if liable, is either liable under his contract, or as trustee.^ 
 
 WHITE V. WHITE. 
 
 Court of Appeals, Maryland. 1835. 
 
 [Reported 7 Gill ^ Johnson, 208.] 
 
 Buchanan, C. J. The bill in this case was filed for the sale of the 
 real estate of Abraham White, deceased, and the distribution of the 
 proceeds among his heirs, after deducting the amount of a subsisting 
 lien, by mortgage, on a part of it; on the ground that it will not admit 
 of an advantageous division, and that it would be to the advantage 
 of all the parties interested, that it should be sold, which is admitted 
 by the answers. A tract of laud, part of this estate, is stated in the 
 bill, to lie in the State of Pennsylvania, as to which the chancellor 
 dismissed the bill for the want of jurisdiction, and decreed a sale of 
 that portion of the property, which lies in this State, appointing a 
 trustee for that purpose. And the only question is, whether he 
 should not also have decreed a sale by the trustee, of the tract of 
 land in Pennsylvania. 
 
 It would be rather an idle thing in chancery, to entertain jurisdic- 
 tion of a matter not within its reach, and make a decree which it 
 could have no power to enforce, or to compel a compliance with. 
 And the absence of that very power is a good test by which to try 
 the question of jurisdiction. It would be a solecism to say, that the 
 chancellor has jurisdiction to decree in rem, where the thing against 
 
 1 Ace. Penn v. Lord Baltiaiore, 1 "Ves. Sr. 444 ; McGee v. Sweeney, Si Cal. 
 100, 23 Pac. 1117 ; Cloud v. Greasley, 125 111. 313, 17 N. E. 826 ; Reed r. Reed, 75 
 Me. 264 ; Brown v. Desmond, 100 Mass. 267 ; Vreeland v. Vreeland, 49 N. J. Eq. 
 322, 24 Atl. 551 ; Gardner v. Ogden, 22 N. Y. 327 ; Guerrant v. Fowler, 1 Hen. k M. 
 5 ; Poindexter v. Burwell, 82 Va. 507. 
 
 So a court of equity has jurisdiction to enjoin the conveyance of foreign land: 
 Frank v. Peyton, 82 Ky. 150 ; and to enjoin the obstruction of a foreign private way: 
 Alexander v. Tolleston Club, 110 111. 65. — Ed.
 
 188 WHITE V. WHITE. [CHAP. III. 
 
 which the decree goes, and is alone the subject of, and to be operated 
 upon by it, is beyond the territorial jurisdiction of the Chancery 
 Court, and not subject to its authority, and the decree, if passed, 
 would itself be nugatory for the want of power, or jurisdiction to 
 give it effect. Chancery can have no jurisdiction where it can give 
 no relief. Now what jurisdiction has the Chancery Court of Mary- 
 land over lands lying in a foreign country, or in another State; and 
 having no jurisdiction of lands so situated, what authority has it to 
 decree a sale of them, and impart to its trustee authority to go into 
 such State, or foreign country, to carry its decree into effect, by 
 making sale of them. 
 
 It is true that where the decree sought is m i)ersonavi^ and may be 
 carried into effect by process of contempt, the Court of Chancery 
 here may have jurisdiction, although it may affect land lying in 
 another State, the defendant being in the State of Maryland, as in 
 a case of trust, or fraud, or of contract. As where a bill is filed 
 against a person in this State, for the specific performance of a con- 
 tract, or agreement, relating to land in another State. In such a 
 case, the decree does not act directly upon the land, but upon the 
 defendant here, and within the jurisdiction of the court. So where 
 the land itself that is sought to be affected lies within the State, and 
 the proceedings are against a person residing out of the State. 
 
 But in this case the bill seeks a sale of land in Pennsylvania, not 
 within the jurisdiction of the Court of Chancery of Maryland; and 
 the decree if made would not be in 'personam^ but for the sale of the 
 land, through the instrumentality of a trustee, and could not be 
 enforced by any process from that court. It is not like the case of 
 Penn r. Lord Baltimore, 1 Ves. Sr. 444, where the bill was for the 
 specific performance or' articles concerning the bound^iries of the then 
 provinces of Maryland and Pennsylvania, Lord Baltimore the de- 
 fendant being in England, and subject to the compulsory process of 
 chancery there. Nor like the other cases to be found in the English 
 Chancery reports, affecting lands not lying in England, where the 
 proceedings were in personam, tiie defendants residing there, and 
 subject to process of contempt, etc. 
 
 Decree affirmed u'ith costs. ^ 
 
 1 Ace. Watkins v. Holman, 16 Pet. 25; Johnson v. Kimbro, 3 Head, 557 ; Gibson 
 V. Burgess, 82 Va. 650. But see Dunlap v. Byers, 110 Mich. 109, 67 N. W. 1067 ; 
 Wood')'. Warner, 15 N. J. Eq. 81. 
 
 Similarly, a court of ecjuity may not order the abatement of a foreign nuisance: 
 P. V. Central R. R., 42 N. Y. 283 ; nor grant specific ptjrformance of a contract to dig 
 a ditch in a foreign state : Port Royal R. R. v. Hammond, 58 Ga. 523 ; nor declare a 
 deed of foreign land void: Carpenter v. Strange, 141 U. S. 87 ; Davis v. Headlcy, 22 
 N. "J. Eq. 115 ; but see C. v. Levy, 23 Grat. 21. — Ed.
 
 SECT. III.J PENNOYEK V. NEFF. 189 
 
 SECTION III. 
 
 JURISDICTION QUASI IN REM. 
 
 PENNOYER V. NEFF. 
 
 Supreme Court of the United States. 1878. 
 
 {Reported 95 United States, 714.] 
 
 Field, J.^ This is an action to recover the possession of a tract of 
 land, of the alleged value of $15,000, situated in the State of Oregon. 
 The plaintiff asserts title to the premises by a patent of the United 
 States issued to him in 1866, under the act of Congress of September 
 27, 1850, usually known as the Donation Law of Oregon. The defend- 
 ant claims to have acquired the premises under a sheriffs deed, made 
 upon a sale of the property on execution issued upon a judgment re- 
 covered against the plaintiff in one of the circuit courts of the State. 
 The case turns upon the validity of this judgment. 
 
 It appears from the record that the judgment was rendered in Feb- 
 ruary, 1866, in favor of J. H. Mitchell, for less than $300, including 
 costs, in an action brought by him upon a demand for services as an 
 attorney ; that, at the time the action was commenced and the judgment 
 rendered, the defendant therein, the plaintiff here, was a non-resident 
 of the State ; that he was not personally served with process, and did 
 not appear therein ; and that the judgment was entered upon his de- 
 fault in not answering the complaint, upon a constructive service of 
 summons by publication. 
 
 The Code of Oregon provides for such service when an action is 
 brought against a non-resident and absent defendant who has property 
 within the State. It also provides, whei'e the action is for the recovery 
 of money or damages, for the attachment of the property of the non- 
 resident. And it also declares that no natural person is subject to the 
 jurisdiction of a court of the State, " unless he appear in the court, or 
 be found witliin the State, or be a resident thereof, or have property 
 therein, and in the last case only to the extent of such property at the 
 time the jurisdiction attached." Construing this latter provision to 
 mean, that in an action for mone}' or damages whex'e a defendant does 
 not appear in the court, and is not found within the State, and is not a 
 resident thereof, but has property therein, the jurisdiction of the court 
 extends only over such property, the declaration expresses a principle 
 of general, if not universal, law. Tlie authority of every tribunal is 
 necessarily restricted bv the territorial limits of the State in which it is 
 
 ^ Arguments of counsel and part of the dissenting opinion are omitted. — Ed.
 
 190 PENNOYER V. NEFF. [CHAP. HI. 
 
 established. An}- attempt to exercise autliority be3'ond those limits 
 would be deemed in every other forum, as has been said by this court, 
 an illegitimate assumption of power, and be resisted as mere abuse. 
 D'Arey v. Ketchum et al., 11 How. 165. In the case against the plain-^ 
 tiff, the property- here in controversy sold under the judgment rendered' 
 was not attached, nor in any wa}' brought under the jurisdiction of the 
 court. Its first connection with the case was caused by a levy of the 
 execution. It was not, therefore, disposed of pursuant to any adjudi- 
 cation, but only in enforcement of a personal judgment, having no rela- 
 tion to the property, rendered against a non-resident without service of 
 process upon him in the action, or his appearance therein. The court 
 below did not consider that an attachment of the property was essential 
 to its jurisdiction or to the validity of the sale, but held that the judg- 
 ment was invalid from defects in the affidavit upon which the order of 
 publication was obtained, and in the affidavit by which the publication 
 was proved. 
 
 There is some difference of opinion among the members of this court 
 as to the rulings upon these alleged defects. The majority are of 
 opinion that inasmuch as the statute requires, for an order of publica- 
 tion, that certain facts shall appear by affidavit to the satisfaction of 
 the court or judge, defects in such affidavit can onl}' be taken advan- 
 tage of on appeal, or by some other direct proceeding, and cannot 
 be urged to impeach the judgment collaterally. The majority of the 
 court are also of opinion that the provision of the statute requiring 
 proof of the publication in a newspaper to be made by the " affidavit 
 of the printer, or his foreman, or his principal clerk," is satisfied when 
 the affidavit is made by the editor of the paper. The term " printer," 
 in their judgment, is there used not to indicate the person who sets up 
 the type — he does not usually have a foreman or clerks ; it is rather 
 used as synonymous with publisher. The Supreme Court of New York 
 so held in one case, — observing that, for the purpose of making the 
 required proof, publishers were " within the spirit of the statute." 
 Bunce v. Reed, 16 Barb. (N. Y.) 350. And, following this ruling, the 
 Supreme Court of California held that an affidavit made by a "pub- 
 lisher and proprietor" was sufficient. Sharp v. Daugney, 33 Cal. 512. 
 The term "editor," as used when the statute of New York was passed, 
 from which the Oregon law is borrowed, usually included not only the 
 person who wrote or selected the articles for publication, but the person 
 who published the paper and put it into circulation. Webster, in an 
 early edition of his Dictionary, gives as one of the definitions of an 
 editor, a person "who superintends the publication of a newspaper." 
 It is principally since that time that the business of an editor has been 
 separated from that of a publisher and printer, and has become an 
 independent profession. 
 
 If, therefore, we were confined to the rulings of the court below upon 
 the defects in tlie affidavits mentioned, we should be unable to uphold 
 its decision. But it was also contended in that court, and is insisted
 
 SECT. III.] PENNOYER V. NEFF. 191 
 
 upon here, that the judgment in the State court against the plaintiff 
 was void for want of personal service of process on him, or of his ap- 
 pearance in the action in which it was rendered, and that the premises 
 in controversy could not be subjected to the payment of the demand of 
 ja resident creditor except by a proceeding in rem; that is, by a direct 
 proceeding against the property for that purpose. If these positions 
 are sound, the ruling of the Circuit Court as to the invalidity of that 
 judgment must be sustained, notwithstanding our dissent from the 
 reasons upon which it was made. And that they are sound would seem 
 to follow from two well-established principles of public law respecting 
 the jurisdiction of an independent State over persons and property. 
 The several States of the Union are not, it is true, in every respect 
 independent, many of the rights and powers which originally belonged 
 to them being now vested in the government created by the Consti- 
 tution. But, except as restrained and limited b}' that instrument, the}' 
 possess and exercise the authorit}' of independent States, and the prin- 
 ciples of public law to which we have referred are applicable to them. 
 One of these principles is, that ever}' State possesses exclusive juris- 
 diction and sovereignty over persons and property within its territor}'. 
 As a consequence ever}" State has the power to determine for itself the 
 civil status and capacities of its inhabitants ; to prescribe the subjects 
 upon which they may contract, the forms and solemnities with which 
 their contracts shall be executed, the rights and obligations arising 
 from them, and the mode in which their validit}' shall be determined 
 and their obligations enforced ; and also to regulate the manner and 
 conditions upon which property situated within such territory, both 
 personal and real, may be acquired, enjoyed, and transferred. The 
 other principle of public law referred to follows from the one men- 
 tioned ; that is, that no State can exercise direct jurisdiction and au- 
 thority over persons or property without its territor3% Stor}', Confl. 
 Laws, c. 2 ; Wheat. Int. Law, pt. 2, c. 2. The several States are of 
 equal dignity and r.uthorit}-, and the independence of one implies the 
 exclusion of power from all others. And so it is laid down by jurists 
 as an elementary principle that the laws of one State have no operation 
 outside of its territory except so far as is allowed b}' comity ; and that 
 no tribunal established by it can extend its process beyond that terri- 
 tory so as to subject either persons or propert}" to its decisions. " Any 
 exertion of authorit}- of this sort beyond this limit," says Stor}", " is a 
 mere nullit}^ and incapable of binding such persons or property in any 
 other tribunals." Stor}-, Confl. Laws, sect. 539. 
 
 But as contracts made in one State may be enforceable onl}' in an- 
 other State, and property may be held by non-residents, the exercise of 
 the jurisdiction which every State is admitted to possess over persons 
 and property within its own territor}' will often affect persons and 
 property without it. To any influence exerted in this way by a State 
 affecting persons resident or property situated elsewhere, no objection 
 can be justly taken ; whilst any direct exertion of authority upon them,
 
 192 PENMOYER V. NEFF. [CHAP. IIL 
 
 in an attempt to give exterritorial operation to its laws, or to enforce 
 an exterritorial jurisdiction by its tribunals, would be deemed an en- 
 oroacliment upon the independence of the State in which the persons 
 are domiciled or the property is situated, and be resisted as usurpation. 
 
 Thus the State, through its tribunals, may compel persons domiciled 
 within its limits to execute, in pursuance of their contracts respecting 
 property elsewhere situated, instruments in such form and with such 
 solemnities as to transfer the title, so far as such formalities can be 
 complied with ; and the exercise of this jurisdiction in no manner in- 
 terferes with the supreme control over the property b}' the State within 
 which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v. 
 Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet. 25; Corbett v. 
 Nutt, 10 Wall. 464. 
 
 So the State, through its tribunals, may subject property situated 
 within its limits owned b}' non-residents to the payment of the demand 
 of its own citizens against them ; and the exercise of this jurisdiction 
 in no respect infringes upon the sovereignty of the State where the 
 owners are domiciled. Ever}- State owes protection to its own citizens ; 
 and when non-residents deal with them, it is a legitimate and just exer- 
 cise of authorit}' to hold and appropriate an}- property owned by such 
 non-residents to satisfy the claims of its citizens. It is in virtue of the 
 State's jurisdiction over the property of the non-resident situated within 
 its limits that its tribunals can inquire into that non-resident's obliga- 
 tions to its own citizens, and the inquiry can then be carried onl}' to 
 the extent necessary to control the disposition of the property. If the 
 non-resident have no property- in the State, there is nothing upon which 
 the tribunals can adjudicate. 
 
 These views are not new. They have been frequently expressed, 
 with more or less distinctness, in opinions of eminent judges, and have 
 been carried into adjudications in numerous cases. Thus, in Picquet v. 
 Swan, 5 ^Vlason, 35, Mr. Justice Story said : — 
 
 " Where a party is within a territory, he may justly be subjected to 
 its process, and bound personally by the judgment pronounced on such 
 process against him. Where he is not within such territory, and is not 
 personally subject to its laws, if, on account of his supposed or actual 
 pro[)erty being within the territory-, process by the local laws may, by 
 attachment, go to compel his appearance, and for his default to appear 
 judgment ma}' be pronounced against him, such a judgment must, upon 
 general principles, be deemed only to bind him to the extent of such 
 property, and cannot have the effect of a conclusive judgment in per- 
 sonam^ for the plain reason that, except so far as the property is con- 
 cerned, it is a judgment coram non jialice" 
 
 And in BoswcU's Lessee v. Otis, 9 How. 336, where the title of the 
 plaintiff in ejectment was acquired on a slieriff's sale, under a monc}' 
 decree rendered upon publication of notice against non-residents, in a 
 suit bought to enforce a contract relating to land, Mr. Justice McLean 
 said : —
 
 SECT. III.] PENXOYER V. NEFF. 193 
 
 " Jurisdiction is acquired in one of two modes : first, as against tlic 
 ;)ersou of tlie defendant by tlie service of process ; or, secondly, by a 
 procedure against the property of tlie defendant within the jurisdiction 
 of the court. In the latter case, the defendant is not personally bound 
 by the judgment beyond the property in question. And it is imma- 
 terial whether the proceeding against the propert}- be b}- an attachment 
 or bill in chancer}-. It must be substantially a proceeding in rem." 
 
 These citations are not made as authoritative expositions of the law ; 
 for the language was perhaps not essential to the decision of the cases 
 in which it was used, but as expressions of the opinion of eminent 
 jurists. But in Cooper v. Re3'nolds, reported in the 10th of Wallace, 
 it was essential to the disposition of the case to declare the effect of a 
 personal action against an absent party, without the jurisdiction of the 
 court, not served with process or voluntarily submitting to the tribunal, 
 when it was sought to subject his property to the payment of a demand 
 of a resident complainant ; and in the opinion there delivered we have 
 a clear statement of the law as to the efficacy of such actions, and the 
 jurisdiction of the court over them. In that case, the action was for 
 damages for alleged false imprisonment of the plaintiff; and upon his 
 affidavit that the defendants had fled from the State, or had absconded 
 or concealed themselves so that the ordinarj- process of law could not 
 reach them, a writ of attachment was sued out against their propert}'. 
 Publication was ordered by the court, giving notice to them to appear and 
 plead, answer or demur, or that the action would be taken as confessed 
 and proceeded in ex parte as to them. Publication was had ; but they 
 made default, and judgment was entered against them, and the attached 
 property was sold under it. The purchaser having been put into pos- 
 session of the property, the original owner brought ejectment for its 
 recovery. In considering the character of the proceeding, the court, 
 speaking through Mr. Justice Miller, said : — 
 
 " Its essential purpose or nature is to establish, by the judgment of 
 the court, a demand or claim against the defendant, and subject his 
 property lying within the territorial jurisdiction of the court to the pay- 
 ment of that demand. But the plaintiff is met at the commencement of 
 his proceedings by the fact that the defendant is not within the terri- 
 torial jurisdiction, and cannot be served with any process bj- which he 
 can be brought personally within the power of the court. For this 
 difficulty the statute has provided a remedy. It says that, upon affi-[ 
 davit being made of that fact, a writ of attachment may be issued and' 
 levied on any of the defendant's property, and a publication ma}- be] 
 made warning him to appear, and that thereafter the court may proceed/ 
 in the case whether he appears or not. If the defendant appears, the 
 cause becomes mainly a suit in personam^ with the added incident that 
 the property attached remains liable, under the control of the court, to 
 answer to any demand which may be established against the defendant 
 by the final judgment of the court. But if there is no appearance of the 
 defendant, and no service of process on him, the case becomes in itB 
 
 13
 
 194 PENNOYER V. NEFF. [CHAP. Ill 
 
 essential nature a proceeding in rem ; the only effect of which is to sub- 
 ject the property attached to the payment of the demand which the court 
 may find to be" due to the plaintiff. That such is the nature of this 
 proceeding in this latter class of cases is clearly evinced by two well- 
 established propositions. First, the judgment of the court, though inj 
 form a personal judgment against the defendant, has no effect beyond 
 the property attached in that suit. No general execution can be issued 
 for any balance unpaid after the attached property is exhausted. No 
 suit can be maintained on such a judgment in the same court, or in 
 anv other ; nor can it be used as evidence in any other proceeding not 
 affecting the attached property ; nor could the costs in that proceeding 
 be collected of defendant out of any other property than that attached" 
 in the suit. Second, the court, in such a suit, cannot proceed unless 
 the officer finds some property of defendant on which to levy the writ 
 of attachment. A return that none can be found is the end of the case, 
 / and deprives the court of further jurisdiction, though the publication 
 I may have been duly made and proven in court." 
 
 The fact that the defendants in that case had fled from the State, or 
 had concealed themselves, so as not to be reached by the ordinary pro- 
 cess of the court, and were not non-residents, was not made a point in 
 the decision. The opinion treated them as being without the territorial 
 jurisdiction of the court ; and the grounds and extent of its authority 
 over persons and property thus situated were considered, when they 
 were not brought within its jurisdiction by personal service or voluntary 
 appearance. 
 
 The writer of the present opinion considered that some of the objec- 
 tions to the preliminary proceedings in the attachment suit were well 
 taken, and therefore dissented from the judgment of the court ; but to 
 the doctrine declared in the above citation he agreed, and he may add, 
 that it received the approval of all the judges. ^It is the^onl }- do^ jne 
 consiste nt wit h_£roj2er_pi'otection to citize ns of otjier States. If, with- 
 ^"ouTpersonal service, judgments in j^ersonam, obtained ex parte against 
 <-Trori-resiclents ahd^ absent parties, iipon mere publication of process, 
 — which, in the great majority of cases, would never be seen by the parties 
 "'iiitrivstcd, couhl be upheld and enforced, they would be the constant 
 _iii.slruuieiits of fraud and oppression. Judgments for all sorts of claims 
 uxmn contracts and for torts, real or pretended, would be thus obtained, 
 ~^.uuder which property would be seized, when the evidence of.lhe trans- 
 — .^ions upon which they were founded, if they ever had any existence, 
 had perished. 
 
 Substituted service by publication, or in any other authorized form, 
 may be sufficient to inform parties of the object of proceedings taken 
 where proi^orty is once brought under tlie control of the court by seizure 
 or some equivalent act. The law assumes that property is always in the 
 possession of its owner, in person or by agent ; and it proceeds upon tlie 
 theory that its seizure will inform him, not only that it is taken into 
 the custody of the court, but that he must look to any proceedings
 
 SECT. III.] PENNOYER V. NEFF. 195 
 
 authorized by law upon such seizure for its condemnation and sale. 
 8ucli service may also be sufficient in cases where the object of the 
 action is to reach and dispose of property in the State, or of some in- 
 terest therein, by enforcing a contract or a lien respecting the same, or 
 to partition it among diflereut owners, or, when the public is a party, 
 to condemn and appropriate it for a public purpose. In other words, 
 such service ma}' answer in all actions which are substantially proceed- 
 ings m rem. But where the entire object of the action is to determine 
 the personal rights and obligations of the defendants, that is, where the 
 suit is merely iii personam, constructive service in this form upon a 
 non-resident is ineffectual for any purpose. Process from the tribunals 
 of one State cannot run into another State, and summon parties there 
 domiciled to leave its territory and respond to proceedings against 
 them. Publication of process or notice within the State where the tri- 
 bunal sits cannot create any greater obligation upon the non-resident 
 to appear. Process sent to him out of the State, and process published 
 within it, are equally unavailing in proceedings to establish his personal 
 liabilit}-. 
 
 The want of authority of the tribunals of a State to adjudicate upon 
 the obligations of non-residents, where they have no property within 
 its limits, is not denied by the court below ; (but the position is assumed, 
 that, where they have property within the State, it is immaterial whether 
 the property is in the first instance brought under the control of the 
 court bj- attachment or some other equivalent act, and afterwards ap- 
 plied b}' its judgment to the satisfaction of demands against its owner ; 
 or such demands be first established in a personal action, and the prop- 
 erty of the non-resident be afterwards seized and sold on execution. ^ 
 But the answer to this position has already- been given in the statement, 
 that the jurisdiction of the court to inquire into and determine his obli- 
 gations at all is only incidental to its jurisdiction over the property. 
 Its jurisdiction in that respect cannot be made to depend upon facts to 
 be ascertained after it has tried the cause and rendered the judgment. 
 If the judgment be previoush' void, it will not become valid by the sub- 
 sequent discovery of property of the defendant, or hs his subsequent 
 acquisition of it. The judgment, if void when rendered, will always 
 remain void ; it cannot occupy the doubtful position of being valid if 
 property be found, and void if there be none. Even if the position 
 assumed were confined to cases where the non-resident defendant pos- 
 sessed property in the State at the commencement of the action, it 
 would still make the validity of the proceedings and judgment depend 
 upon the question whether, before the levy of the execution, the de- 
 fendant had or had not disposed of the propert}'. If before the lev)-, 
 the property should be sold, then, according to this position, the judg- 
 ment would not be binding. This doctrine would introduce a new ele- 
 ment of uncertainty in judicial proceedings. The contrar}- is the law. 
 
 The validity of e vpry judgn^t^^t rlappnrla npr>n thp jnn'c^r]u>t ion of thp 
 
 court before it is rendered, not upon what may occur subsequently. In
 
 igQ PENNOYER V. KEFF. [CHAP. III. 
 
 Webster u. Reid, reported in 11th of Howard, the plaintiff claimed 
 title to land sold under judgments recovered in suits brought in a 
 territorial court of Iowa, upon publication of notice under a law of the 
 territor}-, without service of process ; and the court said : — 
 
 "These suits were not a proceeding in rem against the land, but 
 were in personam against the owners of it. Whether they all resided 
 within the territory or not does not appear, nor is it a matter of any 
 importance. No perso n is reguirecUoa^iswer jijLa sujt on whom pror 
 cess hasj]£t_been_servedi_oi^^ In I 
 
 [ tUTs'casvtiiere warnol)ersonarnotice, nor an attachment or other proJ 
 ceeding against the land, until after the judgments. The judgments, 
 therefore, are nullities, and did not autljorize the executions on which 
 the land was sold." 
 
 The force and effect of judgments rendered against non-residents 
 without personal service of process upon them, or their voluntary ap- 
 pearance, have been the subject of frequent consideration in the courts 
 of the United States and of the several States, as attempts have been 
 made to enforce such judgments in States other than those in wliich 
 they were rendered, under the provision of the Constitution requiring 
 that " full faith and credit shall be given in each State to the public 
 acts, records, and judicial proceedings of every other State ; " and the 
 act of Congress providing for the mode of authenticating such acts, 
 records, and proceedings, and declaring that, when thus authenticated, 
 " they shall have such faith and credit given to them in every court 
 within the United States as they have by law or usage in the courts of 
 the State from which they are or shall be taken." In the earlier cases, 
 it was supposed that the act gave to all judgments the same effect in 
 other States which they had by law in the State where rendered.^ But 
 this view was afterwards qualified so as to make the act applicable only 
 when the court rendering the judgment had jurisdiction of the parties 
 and of the subject-matter, and not to preclude an inquiry into the juris- 
 diction of the court in wliich the judgment was rendered, or the right 
 of the State itself to exercise autliority over the person or the subject- 
 matter. ) M'Elmoyle r. Cohen, 13 Pet. 312. In the case of D'Arcy v. 
 Ketchum, reported in the lltli of Howard, this view is stated with groat 
 clearness. Tliat was an action in the Circuit Court of the United States 
 for Louisiana, brought upon a judgment rendered in New York under a 
 State statute, against two joint debtors, only one of whom hud been 
 served with process, the other being a non-resident of tlie State. The 
 Circuit Court held the judgment conclusive and binding upon the non- 
 resident not served with process ; but this court reversed its decision, 
 • observing, tliat it was a familiar rule that countries foreign to our own 
 disregarded a judgment merely against tlie person, where the defendant 
 liad not been served witli process nor had a day in court ; that national 
 comity was never thus extended ; that the proceeding was deemed an 
 illegitimnte aKsumption of power, and resisted as mere abuse; that no 
 faith and credit or force and effect had been given to such judgments
 
 SECT. III.] 
 
 PENNOYEK V. NEFF. 
 
 197 
 
 bj' any State of the Union, so far as known ; and that the State courts 
 had uniformly, and in many instances, held them to be void. "The 
 international law," said the court, "as it existed among the States in 
 1790, was, that a judgment rendered in one State, assuming to bind the 
 person of a citizen of another, was void within the foreign State when 
 the defendant had not been served with process or voluntarily made 
 defence; because neither the legislative jurisdiction nor that of courts 
 of justice had binding force." And the court held that the act of 
 Congress did not intend to declare a new rule, or to embrace judicial 
 records of this description. As was stated in a subsequent case, the 
 doctrine of this court is, that the act " was not designed to displace 
 that principle of natural justice which requires a person to have notice 
 of a suit before he can be conclusively bound by its result, nor those 
 rules of public law which protect persons and property within one State 
 from the exercise of jurisdiction over them by another." The Lafayette 
 Insurance Co. v. French et al.^ 18 How. 404. 
 
 This whole subject has been very fully and learnedly considered in 
 the recent case of Thompson v. Whitman, 18 Wall. 457, where all the 
 authorities are carefully reviewed and distinguished ; and the conclu- 
 sion above stated is not only reaffirmed, but the doctrine is asserted, 
 that the record of a judgment rendered in another State may be con- 
 tradicted as to the facts necessary to give the court jurisdiction against 
 its recital of their existence. In all the cases brought in the State and 
 Federal courts, where attempts have been made under the act of Con- 
 gress to give effect in one State to personal judgments rendered in 
 another State against non-residents, without service upon them, or upon 
 substituted service by publication, or in some other form, it has been 
 held, without an exception, so far as we are aware, that such judgments 
 / were without any binding force, except as to property, or interests in 
 ( propert}', within the State, to reach and affect which was the object of 
 I the action in which the judgment was rendered, and which property 
 \ was brought under control of the court in connection with the process 
 I against the person. The proceeding in such cases, though in the form 
 V of a personal action, has been uniformly treated, where service was not 
 obtained, and the party did not voluntarily appear, as effectual and 
 binding merely as a proceeding in rem, and as having no operation 
 beyond the disposition of the property, or some interest therein. And 
 the reason assigned for this conclusion has been that which w e have 
 already stated, that the tribunals of one State haA;e_no jurisdiction over 
 peTsons beyond its limits, and can inquire only into their^ligations_to 
 its citizens when exercising its concededj urisdiction ove r their property 
 within its limits. In Bissell y.Briggs, decided by the Supreme Court 
 of^Iassachusetts as early as 1813, the law is stated substantially in 
 conformity with these views. In that case, the court considered at 
 length the effect of the constitutional provision, and the act of Congress 
 mentioned ; and after stating that, in order to entitle the judgment ren- 
 dered in any court of the United States to the full faith and credit
 
 198 PENNOYER V. NEFF. [CHAP. III. 
 
 mentioned in the Constitution, the court must have had jurisdiction not 
 only of the cause, but of the parties, it proceeded to illustrate its posi- 
 tion by observing, that, where a debtor living in one State has goods, 
 effects, and credits in another, his creditor living in the other State 
 may have the property attached pursuant to its laws, and, on recovering 
 judgment, have the property applied to its satisfaction ; and that the 
 party in whose hands the property was would be protected by the judg- 
 ment in the State of the debtor against a suit for it, because the court 
 rendering the judgment had jurisdiction to that extent ; but that if the 
 property" attached were insufficient to satisfy the judgment, and the 
 creditor should sue on that judgment in the State of the debtor, he 
 would fail, because the defendant was not amenable to the court ren- 
 dering the judgment. In other words, it was held that over the prop- 
 erty within the State the court had jurisdiction by the attachment, but 
 had none over his person ; and that any determination of his liability, 
 except so far as was necessary for the disposition of the property, was 
 invalid.-' 
 
 In Kilbourn v. Woodworth, 5 Johns. (X. Y.) 37, an action of debt 
 was brought in New York upon a personal judgment recovered in 
 Massachusetts. The defendant in that judgment was not served with 
 process ; and the suit was commenced by the attachment of a bedstead 
 belonging to the defendant, accompanied with a summons to appear, 
 served on his wife after she had left her place in Massachusetts. The 
 court held that the attachment bound only the property attached as a 
 proceeding in rem, and that it could not bind the defendant, observing, 
 that to bind a defendant personally, when he was never personally 
 summoned or had notice of the proceeding, would be contrary to the 
 first principles of justice, repeating the language in that respect of 
 Chief Justice De Grey, used in the case of Fisher v. Lane, 3 Wils. 297, 
 in 1772. See also Borden r. Fitch, 15 Johns. (N. Y.) 121, and the 
 cases there cited, and Harris v. Hardeman et al, 14 How. 334. To the 
 same purport decisions are found in all the State courts. In several 
 of the cases, the decision has been accompanied with the observation 
 that a personal judgment thus recovered has no binding force without 
 the State in which it is rendered, implying that in such State it may be 
 valid and binding. But if the court has no jurisdiction over the person 
 of the defendant by reason of his non-residence, and, consequently, no 
 authority to pass upon his personal rights and obligations ; if the whole 
 proceeding, without service upon him or his appearance, is coram non 
 judice and void ; if to hold a defendant bound by such a judgment is 
 contrary to the first principles of justice, — it is difficult to see how the 
 iud<Tment can logitimatelv have anv force within the State. The Ian- 
 guage used can be justified only on the ground that there was no mode 
 of directly reviewing such judgment or impeaching its validity within 
 
 1 Ace. Freeman v. Aldcrsoii. 119 U. S. 185 ; Mc Vicar v. Beedy, 31 Mi-. 314 : Eliot 
 V. Md'ormick, 144 Mass. 10 ; Arndt v. Arndt, 15 Oliio, 33 ; Jones v. Spencer, 15 Wis. 
 683. See Melliop v. Doane, 31 la. 397.— Ed.
 
 SECT. III.] 
 
 PENNOYER V. NEFF. 
 
 199 
 
 the State where rendered ; and that, therefore, it could be called in 
 question only when its enforcement was elsewhere attempted. In later 
 cases, this language is repeated with less frequency than formerly, it 
 beginning to be considered, as it always ought to have been, that a 
 judgment which can be treated in any State of this Union as contrary 
 to the first principles of justice, and as an absolute nullity, because 
 rendered without any jurisdiction of the tribunal over the party, is 
 not entitled to any respect in the State where rendered. Smith v. 
 McCutchen, 38 Mo. 415; Darrance f. Preston, 18 Iowa, 396; Hakes 
 V. Shupe, 27 id. 465 ; Mitchell's Administrator v. Gray, 18 Ind. 123. 
 
 Be that^as itinay^the_ courts of tl ie U»jjgd States^ are^ not re^iir^ 
 to give e ject to ni djjmejit&jif JMs-character when_ any rjgh^is_cla]med 
 undej the2U.__WJiiisi-tliey-are not foreign J:ribunals_in_theirxektions to^ 
 the^ State~courts, they arejaibunals_^f _a._differeiit-sovei-eignt^V ex^ 
 cising g^digtTnHIgMJji^Tp p ^"'^*'"^ juri srl ipti n n^ , ajid are bound U)_giye to — 
 The jud g ments of the_St? vtP nonrts ._Qnly the same fa,ith aj]id_cre5lit_which__ 
 the courts ^another S tate_are_bomidJtQ-gi-V£- to them^,., ^ 
 
 Since the adopTioiTof the Fourteenth Amendment to the Federal 
 Constitution, the validity of such judgments may be directly questioned, 
 and their enforcement in the State resisted, on the ground that pro- 
 ceedings in a court of justice to determine the personal rights and 
 obligations of parties over whom that court has no jurisdiction do not 
 constitute due process of law. Whatever difficulty may be experienced 
 in giving to those terms a definition which will embrace every permis- 
 sible exertion of power affecting private rights, and exclude such as is 
 forbidden, there can be no doubt of their meaning when applied to 
 judicial proceedings. They then mean a course of legal proceedings 
 according to those rules and principles which have been established 
 in our systems of jurisprudence for the protection and enforcement of 
 private rights. To give such proceedings any validity, there must 
 be a tribunal competent by its constitution — that is, by the law of its 
 creation — to pass upon the subject-matter of the suit ; and if that 
 involves merely a determination of the personal liability of the defend- 
 ant, he must be brought within its jurisdiction by service of process 
 within the State, or his voluntary appearance. 
 
 Except in cases affecting the personal status of the plaintiff, and 
 cases in which that mode of service may be considered to have been 
 assented to in advance, as hereinafter mentioned, the substituted ser- 
 vice of process by publication, allowed by the law of Oregon and by 
 similar laws in other States, where actions are brought against non- 
 residents, is effectual only where, in connection with process against 
 the person for commencing the action, property in the State is brought 
 under the control of the court, and subjected to its disposition by pro- 
 cess adapted to that purpose, or where the judgment is sought as a 
 means of reaching such property or affecting some interest therein : in 
 \ other words, where the action is in the nature of a proceeding m rem. 
 As stated by Cooley in his Treatise on Constitutional Limitations, 405,
 
 200 PENNOYEK V. NEFF. [CHAP. III. 
 
 for any other purpose than to subject the property of a non-resident to 
 valid claims against him in the State, "due process of law would re- 
 quire appearance or personal service before the defendant could be 
 personally' bound b}' any judgment rendered." 
 
 It is true that, in a strict sense, a proceeding in rem is one taken 
 directl}' against property, and has for its object the disposition of the 
 propert}-, without reference to the title of individual claimants ; but, 
 in a larger and more general sense, the terms are applied to actions 
 between parties, where the direct object is to reach and dispose of 
 propert}' owned by them, or of some interest therein. Such are cases 
 commenced by attachment against the property of debtors, or insti- 
 tuted to partition real estate, foreclose a mortgage, or enforce a lien. 
 So far as they affect property in the State, they are substantially pro- 
 ceedings in rem in the broader sense which we have mentioned. 
 
 It is hardly necessar}- to observe, that in all we have said we have 
 had reference to proceedings in courts of first instance, and to their 
 Jurisdiction, and not to proceedings in an appellate tribunal to review 
 the action of such courts. The latter may be taken upon such notice, 
 personal or constructive, as the State creating the tribunal may provide. 
 They are considered as rather a continuation of the original litigation 
 than the commencement of a new action. Nations et al. v. Johnson 
 et al., 24 How. 195. 
 
 It follows from the views expressed that the personal judgment re- 
 covered in the State court of Oregon against the plaintiff herein, then 
 a non-resident of the State, was without any validity, and did not au- 
 thorize a sale of the property in controversy. 
 
 To prevent any misapplication of the views expressed in this opinion, 
 it is proper to observe that we do not mean to assert, by anything we 
 have said, that a State may not authorize proceedings to determine the 
 status of one of its citizen^ towards a non-resident, which would be 
 binding within the State, though made without service of process or 
 personal notice to the non-resident. The jurisdiction which every State 
 possesses to determine the civil status and capacities of all its in- 
 iiabitants involves authority to prescribe the conditions on which pro- 
 ceedings affecting them may be commenced and carried on within its 
 territory. The State, for example, has absolute right to prescribe the 
 conditions upon which the marriage relation l)etween its own citizens 
 shall be created, and the causes for which it ma}' be dissolved. One 
 of the parties guilty of acts for which, b}' the law of the State, a disso- 
 lution may be granted, may have removed to a State wiieie no dissolu- 
 tion is permitted. The complaining party would, therefore, fail if a 
 divorce were sought in the State of the defendant ; and if application 
 could not be made to the tribunals of the complainant's domicile in such 
 case, and proceedings be there instituted without personal service of 
 process or personal notice to the offending party, the injured citizen 
 would be without redress. Bish. Marr. and Div., sect. loG. 
 
 Neither do we mean to assert that a State ma}' not require a non-
 
 SECT. III.] PENXOYER V. XEFF. 201 
 
 resident entering into a partnership or association within its limits, or 
 making contracts enforceable there, to appoint an agent or representa- 
 tive in the State to receive service of process and notice in legal pro- 
 ceedings instituted with respect to such partnership, association, or 
 contracts, or to designate a place where such service may be made and 
 notice given, and provide, upon their failure, to make such appointment 
 or to designate such place that service may be made upon a public 
 officer designated for that purpose, or in some other prescribed way, 
 and that judgments rendered upon such service may not be binding 
 upon the non-residents both within and without the State. As was 
 said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290, 
 "It is not contrary to natural justice that a man who has agreed to 
 receive a particular mode of notification of legal proceedings should be 
 bound b}- a judgment in which that particular mode of notification has 
 been followed, even though he may not have actual notice of them." 
 See also The Lafayette Insurance Co. v. French et al., 18 How. 404, 
 and Gillespie v. Commercial Mutual Marine Insurance Co., 12 Gra}' 
 (Mass.), 201. Nor do we doubt that a State, on creating corporations 
 or other institutions for pecuniary or charitable purposes, may provide 
 a mode in which their conduct may be investigated, their obligations 
 enforced, or their charters revoked, which shall require other than per- 
 sonal service upon their officers or members. Parties becoming mem- 
 bers of such corporations or institutions would hold their interest 
 subject to the conditions prescribed by law. Copin v. Adamson, 
 Law Rep. 9 Ex. 345. 
 
 In the present case there is no feature of this kind, and, conse- 
 quently, no consideration of what would be the eflTect of such legislation 
 in enforcing the contract of a non-resident can arise. The question 
 here respects only the validity of a money judgment rendered in one 
 State, in an action upon a simple contract against the resident of 
 another, without service of process upon him, or his appearance 
 therein. Judgment affirmed. 
 
 HcNT, J., dissenting. I am compelled to dissent from the opinion 
 and judgment of the court, and, deeming the question involved to be 
 important, I take leave to record my views upon it. . . . 
 
 It is said that the case where a {^-eliminary seizure has been made, 
 and jurisdiction thereby conferred, diflfers from that where the property 
 is seized at the end of the action, in this : In the first case, the prop- 
 erty is supposed to be so near to its owner, that, if seizure is made of 
 it, he will be aware of the fact, and have his opportunity to defend, and 
 jurisdiction of the person is thus obtained. This, however, is matter 
 of discretion and of judgment only. Such seizure is not in itself notice 
 to the defendant, and it is not certain that he will by that means re- 
 ceive notice. Adopted as a means of communicating it, and although 
 a very good means, it is not the only one, nor necessarily better than a 
 publication of the pendency of the suit, made with an honest intention
 
 202 WOODRUFF V. TAYLOR. [GH\P. III. 
 
 to reach the debtor. Who shall assume to say to the legislature, that if 
 it authorizes a particular mode of giving notice to a debtor, its action 
 may be sustained, but if it adopts any or all others, its action is uncon- 
 stitutional and void? The rule is universal, that modes, means, ques- 
 tions of expediency or necessity, are exclusively within the judgment of 
 the legislature, and that the judiciary cannot review them. This has been 
 so held in relation to a bank of the United States, to the legal-tender 
 act, and to cases arising under other provisions of the Constitution. 
 
 In Jarvis v. Barrett, U Wis. 591, such is the holding. The court 
 say : — 
 
 "The essential fact on which the publication is made to depend is 
 property of the defendant in the State, and not whether it has been 
 attached. . . . There is no magic about the writ [of attachment] 
 which should make it the exclusive remedj-. The same legislative 
 power which devised it can devise some other, and declare that it shall 
 have the same force and effect. The particular means to be used are 
 always within the control of the legislature, so that the end be not 
 beyond the scope of legislative power." 
 
 If the legislature shall think that publication and deposit in the post- 
 office are likel}* to give the notice, there seems to be nothing in the 
 nature of things to prevent their adoption in lieu of the attachment. 
 The point of power cannot be thus controlled. 
 
 That a State can subject land within its limits belonging to non- 
 resident owners to debts due to its own citizens as it can legislate upon 
 all other local matters ; that it can prescribe the mode and process by 
 which it is to be reached, — seems to me very plain. 
 
 I am not willing to declare that a sovereign State cannot subject the 
 land within its limits to the payment of debts due to its citizens, or 
 that the power to do so depends upon the fact whether its statute shall 
 authorize the property to be levied upon at the commencement of the 
 suit or at its termination. This is a matter of detail ; and I am of 
 opinion that if reasonable notice be given, with an opportunity to 
 defend when appearance is made, the question of power will be fully 
 satisfied. 
 
 WOODRUFF V. TAYLOR. 
 
 Supreme Court of Vermont. 1847. 
 
 [Reported 20 Vermont, 65.] 
 
 Trespass for taking certain personal property. The defendant 
 pleaded the general issue, and also pleaded two pleas in bar; which 
 were, in substance, that he commenced a suit against one Phelps 
 Smith in the Court of King's Bench in the District of Montreal, in 
 Lower Canada, and caused his process to be served by arresting the
 
 SECT. III.J WOODRUFF ??. TAYLOR. 203 
 
 body of Smith; that in October, 1842, he recovered judgment against 
 Smith, in the suit for £2G 15s. 9^., debt, and £56 As. 2d., costs; that 
 in June, 1843, he took out a writ of Jieri facias, upon the judgment, 
 against the goods of Smith, and placed the same in the hands of the 
 sheriff's bailiff for service; that on the loth of June, 1843, the goods 
 described in the plaintiff's declaration being in the possession of 
 Smith at Stanbridge in Lower Canada, the defendant turned them 
 out to the bailiff, in the presence of one Hoyle, Recors, and the bailiff 
 levied on the same as the property of Smith; that, after giving public 
 notice of the time and place of sale, at the doors of two churches, 
 on Sunday, June 18, and by posting up notices of the sale at the 
 doors of the churches, the bailiff, on the 26th of June, sold the prop- 
 erty, in the presence of the said Recors and others, to the highest 
 bidder for £32 Is. 3(7. ; that at the October Term of the Court of 
 King's Bench the sheriff returned ihefi.fa. into court, together with 
 the money received thereon, excepting £8 2s. Id. for the bailiff's 
 costs; that then one Johnson appeared in court and claimed to be a 
 creditor of Smith and demanded a ratable division, with the other 
 creditors of Smith, of the money paid into court, that thereupon the 
 court ordered the money in court to be distributed as follows, — to 
 the crier and tipstaff £5 Is. %d., to Taylor, the plaintiff in that suit 
 and defendant here, £11 5s. 5c?., and to Johnson £7 lis. Id., — 
 being the whole of the proceeds of the sale, that had been paid into 
 court; and that the said judgment still remains in full force. And 
 the defendant averred that during the time of all these proceedings, 
 and until the time of pleading, there was a custom and law of the 
 said province of Lower Canada, that the proceeds of the sale of 
 goods so levied upon should be distributed, in manner aforesaid, 
 among creditors appearing in court and claiming distribution, and 
 farther, that by the custom and Inw of said province ail persons hav- 
 ing claim in any way or manner to the property so levied upon and 
 sold on execution, are permitted to enter their appearance in court, 
 when the proceeds of the sale are returned, "and if any person hav- 
 ing such claim, neglect to enter his said appearance and make and 
 prosecute his said claim, judgment of distribution is to be made by 
 the court of the money so paid in, in manner and form aforesaid, 
 and the said judgment for debt, or damages, and costs and the final 
 distribution, as aforesaid, is conclusive, both as to the title of said 
 goods and the amount of said damages and costs, and that the same 
 is a bar, against all persons, to any and all actions founded upon 
 any title, interest, claim, or possession in or to such goods." To 
 this plea the plaintiff replied, alleging that the property in the goods 
 was in himself, and not in Phelps Smith, and averring that, during 
 all the period of said proceedings, he was a citizen and resident of 
 the United States, and not a resident or citizen of Canada, nor sub- 
 ject to the laws of that province, and that he had no notice of such 
 proceedings, or any of them. To this replication the defendant de-
 
 204 WOODRUFF V. TAYLOR. [CHAP. III. 
 
 murred. The county court adjudged the replication insufficient, and 
 rendered judgment for the defendant. Exceptions by plaintiff.^ 
 
 Hall, J. A second argument having been directed in this case, 
 it has perhaps assumed an importance in the eyes of counsel, which 
 its intrinsic difficulties may not seem to warrant; but which may, 
 nevertheless, justify a more extended opinion than would otherwise 
 have been deemed necessary. 
 
 The question raised by the pleadings is, what is to be the effect 
 of the proceedings in the King's Bench in Canada upon one not per- 
 sonally amenable to its tribunal, — when those proceedings are used 
 here, in another and foreign jurisdiction? It is insisted, in behalf 
 of the defendant, that the record pleaded, in connection with the 
 custom and law of Canada set forth in the plea, is to be considered 
 as conclusive evidence, that the matter now in controversy between 
 the plaintiff and defendant has been adjudicated by a competent 
 tribunal, and that therefore the plea is a good bar to the action. 
 This renders it necessary to inquire into the nature of those pro- 
 ceedings, in reference to their sufficiency to constitute a record of 
 estoppel. 
 
 Judgments, in regard to their conclusive effects as estoppels, are 
 of two classes; — judgments in 2jefsona7H and judgments in rem. 
 The judgment pleaded in this case cannot be supported as a judg- 
 ment in personam^ because the court rendering it had no jurisdiction 
 of the person of the plaintiff, he being a citizen of another govern- 
 ment and having no notice of the suit. As a proceeding against his 
 person, the judgment was coram non Judice, a mere nullity. This is 
 too plain to need argument, and is, indeed, conceded by the counsel 
 for the defendant, who insist that it is an estoppel as a proceeding 
 in rem, — that although not binding on the person, it is binding on 
 the property in controversy and concludes its title. A judgment in 
 rem I understand to be an adjudication, pronounced upon the status 
 of some particular subject-matter, by a tribunal having competent 
 authority for that purpose. It differs from a judgment m personam 
 in this, that the latter judgment is, in form as well as substance, 
 between the parties claiming the right; and that it is so inter partes 
 appears by the record itself. It is binding only upon the parties 
 appearing to be such by the record and tliose claiming by them. I A 
 judgment in rem is founded on a proceeding instituted, not against 
 the person, as such, but against or upon the thing or subject-matter 
 itself, whose state, or condition, is to be determined.^ It is a pro- 
 ceeding to determine the state, or condition, of the thing itself; and 
 the judgment is a solemn declaration upon the status of the thing, 
 and it ipso facto renders it what it declares it to be. 
 
 The probate of a will I conceive to be a familiar instance of a 
 proceeding in rein in this State. The proceeding is, in form and 
 ^ Arguments of counsel are omitted. — Ed.
 
 SECT. III.] WOODRUFF V. TAYLOR. 205 
 
 substance, upon the will itself. No process is issued against any 
 one; but all persons interested in determining the state, or condi- 
 tion, of the instrument are constructively notified, by a newspaper 
 publication, to appear and contest the probate; and the judgment 
 is, not that this or that person shall pay a sum of money, or do any 
 particular act, but that the instrument is, or is not, the will of the 
 testator. It determines the status of the subject-matter of the pro- 
 ceeding. The judgment is upon the thing itself; and when the 
 proper steps required by law are taken, the judgment is conclusive, 
 and makes the instrument, as to all the world (at least so far as the 
 property of the testator within this State is concerned), just what 
 the judgment declares it to be. This is one instance of a proceedino- 
 upon a written instrument, to determine its state, or condition; and 
 that determination, in its consequences, involves and incidentally 
 determines the rights of individuals to property affected by it. 
 
 But proceedings hi rem may be and often are upon personal chattels, 
 directly declaring the right to them. In such cases the proceeding 
 is for the supposed violation by the property, so to speak, of some 
 public or municipal law, or regulation, by which it is alleged the 
 title of the former owner has become divested. The property being 
 seized, a proceeding is then instituted against it, upon an allegation 
 stating the cause for which it has become forfeited; upon which 
 public notice is given, in some prescribed form, to all persons to 
 appear and contest the allegation. It is by no means certain, that 
 all persons having an interest in the property have actual notice of 
 the proceeding; but if the thing itself, upon which the proceeding is 
 had, be within the jurisdiction of the court, all persons interested are 
 held to have constructive notice ; and the sentence, or decree, of the 
 court, declaring the state, or condition, of the property, is held to 
 be conclusive upon all the world. A sale of the property, under such 
 sentence, passes the right absolutely; and farther, in the case of 
 judgments of courts of admiralty, they are also held to be conclusive 
 evidence of the facts stated in the decree to have been found by the 
 court, as the basis of the decree. And perhaps the judgments of 
 municipal courts, acting in rem^ within the sphere of their jurisdic- 
 tion, would have the same effect. 
 
 These proceedings that have been mentioned are purely in rem. 
 But, besides these, there is another class of cases, which may per- 
 haps be considered, to some extent, proceedings in rem^ though in 
 form they are proceedings inter partes. An attachment of property 
 in this State, where the court has jurisdiction of the property, but 
 not of the person of the defendant, and a sale of it (or a levy upon 
 it, if it be real estate), on execution, is in the nature of a proceed- 
 ing in rem. The judgment, if the defendant have no notice, would 
 be treated as a nullity out of our jurisdiction, so far as the person 
 of the defendant was concerned; though it would be held binding, 
 as between the parties, so far as regarded the property, as a pro-
 
 206 WOODRUFF V. TAYLOR. [CHAP. III. 
 
 ceeding in rem. The defendant would not, 1 apprehend, be allowed 
 to recover back bis property in another jurisdiction. The status of 
 the property, as between the plaintiff and defendant, would be held 
 to have been determined by the proceeding. But the proceeding 
 would not in any way affect the status of the property as to any 
 other persons than the parties to the record and those claiming by 
 them. 
 
 Our proceeding of foreign attachment partakes, perhaps still more, 
 of the nature of a proceeding ui rem ; but its operation as such is 
 also of a limited character. The suit is hiter partes, and, as a pro- 
 ceeding m rem, it must be confined to such parties. A process is 
 issued in favor of a plaintiff, declaring against his debtor residing 
 in another government, and alleging, also, that another person here, 
 named in the process and styled a trustee, has goods in his hands 
 belonging to the plaintiff's debtor, or is indebted to him, and pray- 
 inof that the goods or debt found here may be declared forfeited to 
 the plaintiff, or, in other words, that the property here may be 
 applied in payment of the plaintiff's demand. I conceive the court 
 here has jurisdiction of the property in the hands of the trustee, or 
 the debt due from him, — it being found in our jurisdiction, — and 
 that the court may proceed upon it in rem. After publication, by 
 which the debtor is constructively notified of the proceeding against 
 his property, the court adjudicates upon the property and declares 
 that it shall be delivered, or paid, to the plaintiff, to be applied upon 
 his debt. I think such adjudication changes the status of the prop- 
 erty, or debt, and deprives the principal debtor of all title to it; 
 that such adjudication should be held binding and conclusive upon 
 all the parties to the proceeding; that the foreign creditor of the 
 trustee, having placed his property, or his credit, within this juris- 
 diction, should be bound by its forfeiture, declared by our courts; 
 and that he should be barred, in any other jurisdiction, from prose- 
 cuting his claim against the trustee. But the operation of this pro- 
 ceeding in rem must be limited to the parties to it, and cannot in 
 any manner affect the right or interest of any other person, having 
 an independent and adverse claim to the goods, or debt, which was 
 the sui)ject-matter of the suit. The court does not pretend to notify! 
 such adverse claimant, either constructively, or otherwise; nor does 
 the proceeding profess to determine the rights of any other persons) 
 than those who are parties of record to it; and it can, consequent!}', 
 affect the rights of no other persons. 
 
 The distinction between proceedings purely in rem and those of a 
 limited character, which have been mentioned, I think is strongly 
 and plainly marked. TJie object and purpf)se^f a^roceecling purely 
 
 in rem^ i 8 JQ_ ascertain the flgEOJljyeixr^*'^'^*'^ <^!'i:l^''^lLi ^°f^ ^^ ^^ 
 instituted on an allegation, th^^ the title of the former owner, who- 
 ever he may be, has become cnt^estcd; and notice of the proceeding 
 is given to the whole world to appear and make claim to it. From
 
 SECT. III.] WOODRUFF V. TAYLOR. 207 
 
 the nature of the case the notice is constructive, only, as to the 
 greater part of the world; but it is such as the law presumes -will be 
 most likely to reach the persons interested, and such as does, in point 
 of fact, generally reach them. In the case of a seizure for the viola- 
 tion of our revenue laws, the substance of the libel, which states the 
 ground on which the forfeiture is claimed, with the order of the court 
 thereon, specifying the time and place of trial, is to be published in 
 a newspaper, and posted up a certain number of days; and proclama- 
 tion is also made in court for all persons interested to appear and 
 contest the forfeiture. And in every court and in all countries, 
 whose judgments are respected, notice of some kind is given. It is, 
 indeed, as I apprehend, just as essential to the validity of a judg- 
 ment in rern^ that constructive notice, at least, should appear to 
 have been given, as that actual notice should appear upon the 
 record of a judgment in personam. A proceeding professing to 
 determine the right of property where no notice, actual or construc- 
 tive, is given, whatever else it might be called, would not be entitled 
 to be dignified with the name of a judicial proceeding. It would be 
 a mere arbitrary edict, not to be regarded anywhere as the judgment 
 of a court. Bradstreet v. Neptune Ins. Co., 3 Sumn. 607. 
 
 The limited proceedings in rem., before mentioned, are not based ' 
 on any allegation that the right of property is to be determined 
 between any other persons than the parties to the suit; no notice is 
 sought to be given to any other persons; and the judgment being' 
 only as to the status of the property as between the parties of record, 
 it is, as to all others persons, a mere nullity. 
 
 If we apply these principles to the record pleaded in bar in this 
 case, I think it will be impossible to maintain that, as to the plain- 
 tiff Woodruff, it was a proceeding in rem.( There was no allegation 
 that the status of the property, levied upon as the property of Phelps 
 Smith, or the avails of it, when paid into court, was to be adjudi- 
 cated as to him, and there was no notice, actual or constructive, to 
 him to appear and make any claim to it. ^ The judgment was ren- 
 dered in a suit inter partes, in which Taylor was plaintiff and Phelps 
 Smith defendant; and though it bound the property as between them, 
 it could affect the rights of no other person. It is precisely the case 
 of a levy of an execution, in this State, upon personal property, as 
 that of ^the judgment debtor, of which property some third person 
 claims to be the owner. If such third person were to bring trespass 
 against the judgment creditor for making the levy, I do not perceive 
 why such creditor, with the'same propriety as the defendant in this 
 case, might not plead his levy and sale in bar as a proceeding in 
 rem. The record in this case, indeed, shows that the levy was 
 made in the presence of a Becors, which a levy in this State would 
 not; but I apprehend the high standing or official character of the 
 witnesses to a trespass would not purge its illegality, or bar a right 
 of recovery.
 
 208 WOODRUFF V. TAYLOR. [CIIAP. 111. 
 
 But the record of the judgment in the King's Bench wholly fails to 
 show that the right of the plaintiff in this suit to the property was 
 attempted to be adjudicated; aud there is no averment in the plea 
 that it was adjudicated. The plea states, in substance, that, by the 
 law of Canada, it would have been adjudicated if the plaintiff had 
 appeared in the court and made claim to the property. And by the 
 facts set forth in the plea we are given clearly to understand that it 
 was not adjudicated, because the plaintiff did not so make his claim. 
 It would therefore be impossible to maintain this plea, as furnishing 
 evidence that the matter in controversy is ?-es adjudicatu, even if 
 the plaintiff had had notice of the proceeding. If the plea could, 
 under such circumstances, be sustained, even in the courts of 
 . Canada, it would not be because the matter had been adjudicated, 
 but because the plaintiff, having neglected to have his claim adju- 
 dicated at the time and in the manner pointed out by the laws of 
 that province, was thereby barred of any other remedy. The plea 
 does not aver that the property of the plaintiff, being found in the 
 possession of Phelps Smith, in Canada, might for that reason, or 
 for any other reason, be legally levied upon and sold as the property 
 of Smith. It in effect admits that the original levy upon the plain- 
 tiff's property was wrongful, but proceeds upon the ground that, by 
 reason of the subsequent proceedings, the wrong cannot now be re- 
 dressed. The original right of action of the plaintiff is conceded, 
 but it is insisted that, by something arising ex post facto, his 
 remedy is gone. It is not a bar to the right that is relied upon, but 
 a bar to the redress. This ground of defence would therefore seem 
 to rest upon a local law of the province of Canada, which affects the 
 plaintiff's remedy only, but which, by the well-settled doctrine of the 
 common law, can be of no avail when a remedy is sought in another 
 jurisdiction. 
 
 But it is unnecessary to consider farther what might have been 
 the effect of the defendant's plea, if the plaintiff, at the time, had 
 been a resident of Canada; because it seems quite clear that it can 
 have no effect whatever upon the cause of action of one who was, 
 during the whole proceeding, a resident citizen of another govern- 
 ment, not subject to the law of the province, and who had no notice 
 of the proceeding. Story's Confl. of Laws, 487. 
 
 The result is, that the judgment of the county court is reversed, 
 the replication is held sufficient, and the case is remanded to the 
 county court for the trial of the issue of fact.^ 
 
 ^ Ace. Putnam v. McDougall, 47 Vt. 478. — Ed.
 
 SECT. III.l HARUIS V. BALK. 
 
 209 
 
 HARRIS V. BALK. 
 
 Supreme Court of the United States. 1905. 
 
 {Reported 198 U. S. 215.] 
 
 The facts are as follows : The plaintiff in error, Harris, was a resident 
 of North Carolina at the time of the commencement of this action in 1896, 
 and prior to that time was indebted to the defendant in error, Balk, also 
 a resident of North Carolina, in the sum of $180, for money borrowed 
 from Balk by Harris during the year 1896, which Harris verbally prom- 
 ised to repay, but there was no written evidence of the obligation. 
 During the year above mentioned one Jacob Epstein, a resident of 
 Baltimore, in the State of Maryland, asserted that Balk was indebted 
 to him in the sum of over $300. In August, 1896, Harris visited 
 Baltimore for the purpose of purchasing merchandise, and while he 
 was in that city temporarily on August 6, 1896, Epstein caused to be 
 issued out of a proper court in Baltimore a foreign or non-resident 
 writ of attachment against Balk, attaching the debt due Balk from 
 Harris, which writ the sheriff at Baltimore laid in the hands of Harris, 
 with a summons to appear in the court at a day named. With that at- 
 tachment, a writ of summons and a short declaration against Balk (as 
 provided by the Maryland statute) were also delivered to the sheriff and 
 by him set up at the court house door, as required by the law of Mary- 
 land. Before the return day of the attachment writ Harris left Baltimore 
 and returned to his home in North Carolina. He did not contest the 
 garnishee process, which was issued to garnish the debt which Harris 
 owed Balk. After his return Harris made an affidavit on August 11, 
 1896, that he owed Balk $180, and stated that the amount had been 
 attached by Epstein of Baltimore, and by his counsel in the Maryland 
 proceeding Harris consented therein to an order of condemnation against 
 him as such garnishee for $180, the amount of his debt to Balk. Judg- 
 ment was thereafter entered against the garnishee and in favor of the 
 plaintiff, Epstein, for $180. After the entry of the garnishee judgment, 
 condemning the $180 in the hands of the garnishee, Harris paid the 
 amount of the judgment to one Warren, an attorney of Epstein, residing 
 in North Carolina. On August 11, 1896, Balk commenced an action 
 against Harris before a justice of the peace in North Carolina, to recover 
 the $180 which he averred Harris owed him. The plaintiff in error, by 
 way of answer to the suit, pleaded in bar the recovery of the Maryland 
 judgment and his payment thereof, and contended that it was conclusive 
 against the defendant in error in this action, because that judgment 
 was a valid judgment in Maryland, and was therefore entitled to full 
 faith and credit in the courts of North Carolina. This contention was 
 not allowed by the trial court, and judgment was accordingly entered 
 against Harris for the amount of his indebtedness to Balk, and that 
 
 14
 
 210 HARRIS V. BALK. [CHAP. III. 
 
 judgment was affirmed by the Supreme Court of North Carolina. The 
 ground of such judgment was that the Maryland court obtained no juris- 
 diction to attach or garnish the debt due from Harris to Balk, because 
 Harris was but temporarily in the State, and the situs of the debt was 
 in North Carolina. 
 
 Pkckham, J. The State court of North Carolina has refused to give 
 any effect in this action to the Maryland judgment ; and the Federal 
 question is, whether it did not thereby refuse the full faith and credit 
 to such judgment which is required by the Federal Constitution. If 
 the Maryland court had jurisdiction to award it, the judgment is valid 
 and entitled to the same full faith and credit in North Carolina that it 
 has in Maryland as a valid domestic judgment. 
 
 The defendant in error contends that the Maryland court obtained 
 no jurisdiction to award the judgment of condemnation because the 
 garnishee, although at the time in the State of Maryland, and personally 
 served with process therein, was a non-resident of tliat State, only cas- 
 ually or temporarily within its boundaries ; that the situs of the debt 
 due from Harris, the garnishee, to the defendant in error herein was in 
 North Carolina, and did not accompany Harris to Maryland ; that, con- 
 sequently, Harris, though within the State of ^Maryland, had not pos- 
 session of any property of Balk, and the Maryland State court therefore 
 obtained no jurisdiction over anj- property of Balk in the attachment 
 proceedings, and the consent of Harris to the entry of the judgment 
 was immaterial. The plaintiff in error, on the contrary, insists that, 
 though the garnishee were but temporarily in Maryland, jet the laws 
 of that State provide for an attachment of this nature, if the debtor, the 
 garnishee, is found in the State and the court obtains jurisdiction over 
 him by the service of process therein ; that the judgment, condemning 
 the debt from Harris to Balk, was a valid judgment, provided Balk 
 could himself have sued Harris for the debt in Maryland. This, it is 
 asserted, he could have done, and the judgment was therefore entitled 
 to full faith and credit in the courts of North Carolina. 
 
 The cases holding that the State court obtains no jurisdiction over 
 the garnishee if he be but tem[)orarily within the State, proceed upon 
 the theory that the situs of tlie debt is at the domieil either of the 
 creditor or of the debtor, and that it does not follow the debtor in his 
 casual or temporary journey into another State, and the garnishee has no 
 possession of any property or credit of the principal debtor in the foreign 
 State. 
 
 We regard tlie contention of the plaintiff in error as the correct one. 
 The autliorities in tlie various State courts ui)on this question are not at 
 all in harmony. They have been collected by counsel, and will be found 
 in their respective briefs, and it is not necessary to here enlarge upon 
 them. 
 
 Attachment is the creatin-c of the local law ; that is, unless there is 
 a law of the State providing for and permitting the attachment it can-
 
 SECT. III.j HARRIS V. BALK. 211 
 
 not be levied there. If there be a law of the State providing for the 
 attachment of the debt, then if the garnishee be found in that State, 
 and process be personally served upon him therein, we think the court 
 thereby acquires jurisdiction over him, and can garnish the debt due fromi 
 him to the debtor of the plaiutitfand condemn it provided the garnishee| 
 could himself be sued by his creditor in that State. We do not see how 
 the question of jurisdiction vel non can properly be made to depend upon 
 the so-called original situs of the debt, or upon the character of the stay 
 of the garnishee, whether temporary or permanent, in the State whei-e 
 the attachment is issued. Power over the person of the garnishee 
 confers jurisdiction on the courts of the State where the writ issues. 
 Blackstone v. Miller, 188 U. S. 189, 206. If, while temporarily there, 
 his creditor might sue him there and recover the debt, then he is liable 
 to process of garnishment, no matter where the situs of the debt was 
 originally. "We do not see the materiality of the expression " situs of 
 the debt," when used in connection with attachment proceedings. If 
 by situs is meant the place of the creation of the debt, that fact is im- 
 material. If it be meant that the obligation to pay the debt can only 
 be enforced at the situs thus fixed, we think it plainly untrue. The ob- 
 ligation of the debtor to pay his debt clings to and accompanies him 
 wherever he goes. He is as much bound to pay his debt iu a foreign 
 State when therein sued upon his obligation by his creditor, as he was 
 in the State where the debt was contracted. We speak of ordinary 
 debts, such as the one in this case. It would be no defence to such 
 suit for the debtor to plead that he was only in the foreign State casu- 
 ally or temporarily. His obligation to pAy would be the same whether 
 he was there in that way or with an intention to remain. It is nothing 
 but the obligation to pay which is garnished or attached. This obliga- 
 tion can be enforced b}- the courts of the foreign State after personal ser- 
 vice of process therein, just as well as b}- the courts of the domicil of 
 the debtor. If the debtor leave the foreign State without appearing, a 
 judgment b}" default ma}- be entered, upon which execution may issue, 
 or the judgment may be sued upon in any other State where the debtor 
 might be found. In such case the situs is unimportant. It is not a 
 question of possession in the foreign State, for possession cannot be 
 taken of a debt or of the obligation to pay it, as tangible property 
 might be taken possession of. Notice to the debtor (garnishee) of the 
 commencement of the suit, and notice not to pay to his creditor, is all 
 that can be given, whether the garnishee be a mere casual and tempo- 
 rary- comer, or a resident of the State where the attachment is laid. 
 His obligation to pay to his creditor is thcreb}- arrested and a lien 
 created upon the debt itself. Gaboon v. Morgan, 38 Vt. 234, 236 ; 
 National Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468, 483. We can 
 see no reason why the attachment .should not be thus laid, provided 
 the creditor of the garnishee could himself sue in that State and its 
 laws permitted the attachment.
 
 212 HARKIS V. BALK. [CHAP. III. 
 
 There can be no doubt that Balk, as a citizen of the State of North 
 Carolina, bad the right to sue Harris in Maryland to recover the debt 
 which Harris owed him. Being a citizen of North Carolina, he was 
 entitled to all the privileges and immunities of citizens of the several 
 States, one of which is the right to institute actions in the courts of an- 
 other State. The law of Maryland provides for the attachment of credits 
 in a case like this. See sections 8 and 10 of Article 9 of the Code of 
 Public General Laws of Maryland, which provide that, upon the proper 
 facts being shown (as stated in the article), the attachment may be sued 
 out against lands, tenements, goods, and credits of the debtor. Section 
 10 particularly provides that " Any kind of property or credits belong- 
 ing to the defendant, in the plaintiff's own hands, or in the hands of 
 any one else, may be attached ; and credits may be attached whicli 
 shall not then be due." Sections 11, 12, and 13 of the above-mentioned 
 article provide the general practice for levying the attachment and 
 the proceedings subsequent thereto. Where money or credits are 
 attached the inchoate lien attaches to the fund or credits when the 
 attachment is laid in the hands of the garnishee, and^ the judgment 
 condemning the amount in his hands becomes a personal judgment 
 against him. Buschman v. Hanna, 72 Md. 1, 5, 6. Section 34 of the 
 same Maryland Code provides also that this judgment of condemnation 
 against the garnishee, or payment by him of such judgment, is pleadable 
 in bar to an action brought against him b}' the defendant in the attach- 
 ment suit for or concerning the property or credits so condemned. 
 
 It thus appears that Balk could have sued Harris in Maryland to re- 
 cover his debt, notwithstanding the temporary character of Harris' stay 
 there ; it also appears that the municipal law of Maryland permits the 
 debtor of the principal debtor to be garnished, and therefore if the court 
 of the State where the garnishee is found obtains jurisdiction over him, 
 through the service of process upon him within the State, then the 
 judgment entered was a valid judgment. See Minor on Conflict of 
 Laws, section 125, where the various theories regarding the subject are 
 stated and many of the authorities cited. He there cites many cases to 
 prove the correctness of the theory of the validity of the judgment where 
 ^the municipal law permits the debtor to be garnished, although his being 
 within the State is but temporary. > See pp. 289, 290. This is the doc- 
 trine which is also adopted in Morgan r. Neville, 74 Pa. St. 52, by the 
 Supreme Court of Pennsylvania, per Agnew, J., in delivering the opin- 
 ion of that court. The same principle is held in AVyeth Hardware &c. 
 Co. V. Lang, 127 Mo. 242, 247; in Lancashire Lisurance Co. /'. Corbetts, 
 1G5 111. 592 ; and in Harvey v. Great Northern Ry. Co., 50 Minn. 405, 
 406, 407; and to the same effect is Embrec c. Hanna, 5 Johns. (N. Y.) 
 101 ; also Savin v. Bond, 57 Md. 228, where the court held that the at- 
 tachment was properly served ui)on a party in the District of Columbia 
 while he was temporarily there; that as his debt to the appellant was 
 payable wherever he was found, and process had been served upon
 
 SECT. III.] HAEEIS V. BALK. 213 
 
 liiiu in tlie District of Columbia, the Supreme Court of tiie District had 
 unquestioned jurisdiction to render judgment, and the same havino- been 
 paid, there was no error in granting the prayer of the appellee that such 
 judgment was conclusive. The case in 138 N. Y. 209, Douglass v. In- 
 surance Co., is not contrary' to this doctrine. The question there was 
 not as to the temporary character of the presence of the garnishee in 
 the State of Massachusetts, but, as the garnishee was a foreign corpora- 
 tion, it was held that it was not within the State of Massachusetts so as 
 to be liable to attachment by the service upon an agent of the compan}' 
 within that State. The general principle laid down in Embree v. Hanna, 
 5 Johns. (N. Y.) 101, was recognized as correct. There are, as we have 
 said, authorities to the contrary, and the}' cannot be reconciled. 
 
 It seems to us, however, that the principle decided in Chicago, R. I. 
 &;c. Ry. Co. v. Sturm, 174 U. S. 710, recognizes the jurisdiction, although 
 in that case it aj^pears that the presence of the garnishee was not merely 
 a temporary one in the State where the process was served. In that case 
 it was said : " ' All debts are pa3able everywhere, unless there be some 
 special limitation or provision in respect to the payment; the rule beino- 
 that debts as such have no locus or situs^ but accompany the creditor 
 everywhere, and authorize a demand upon the debtor everywhere.' 
 2 Parsons on Contracts, 8th ed., 702 (9th ed., 739). The debt involved 
 in the pending case had no ' special limitation or provision in respect to 
 payment.' It was payable generallj-, and could have been sued on in 
 Iowa, and therefore was attachable in Iowa. This is the principle and 
 effect of the best considered cases, — the inevitable effect from the na- 
 ture of transitory' actions and the purpose of foreign attachment laws 
 if we would enforce that purpose." ( The case recognizes the right of 
 the creditor to sue in the State where the debtor may be found, even if 
 but temporarih' there, and upon that right is built the further right of 
 the creditor to attach the debt owing by the garnishee to his creditor. > 
 The importance of the fact of the right of the original creditor to sue 
 his debtor in the foreign State, as affecting the right of the creditor of 
 that creditor to sue the debtor or garnishee, lies in the nature of the 
 attachment proceeding. ' The plaintiff, in such proceeding in the foreign 
 State, is able to sue out the attachment and attach the debt due from 
 the garnishee to his (the garnishee's) creditor, because of the fact that 
 the plaintiff is really in such proceeding a representative of the ci'editor 
 of the garnishee, and therefore if such creditor himself had the right to 
 commence suit to recover the debt in the foreign State his representative 
 has the same right, as representing him, and may garnish or attach the 
 debt, provided the municipal law of the State where the attachment 
 was sued out permits it. y 
 
 It seems to us, therefore, that the judgment against Harris in Mary- 
 land, condemning the $180 which he owed to Balk, was a valid judg- 
 ment, because the court had jurisdiction over the garnishee by personal 
 service of process witliin the State of Maryland.
 
 22^4 HARRIS V. BALK. [CHAP. III. 
 
 It ought to te and it is the object of courts to prevent the payment 
 of any debt twice over. Thus if Harris, owing a debt to Balk, paid it 
 under a vahd judgment against him, to Epstein, he certainly ought not 
 to be compelled to pay it a second time, but should have the right to 
 plead his payment under the Maryland judgment. It is objected, how- 
 ever, that the payment by Harris to Epstein was not under legal com- 
 pulsion. Harris' in truth owed the debt to Balk, which was attached 
 by Epstein. He had, therefore, as we have seen, no defence to set up 
 ao-ainst the attachment of the debt. Jurisdiction over him personally 
 had been obtained by the Maryland court. As he was absolutely with- 
 out defence, there was no reason why he should not consent to a judg- 
 ment impounding the debt, which judgment the plaintiff was legally 
 entitled to, and which he could not prevent. There was no %ierely 
 voluntary payment within the meaning of that phrase as a[)plicable 
 
 here. 
 
 But most rights may be lost by negligence, and if the garnishee were 
 t^uilty of negligence in the attachment proceeding, to the damage of 
 Balk, he ought not to be permitted to set up the judgment as a defence. 
 Thus it is recognized as the duty of the garnishee to give notice to his 
 own creditor, if he would protect himself, so that the creditor may have 
 the opportunity to defend himself against the claim of the person suing 
 out the attachment. This duty is affirmed in the case above cited of 
 Morgan v. Neville, 74 Pa. St. 52, and is spoken of in Railroad Co. v. 
 Sturm, sxipra, although it is not therein actually decided to be neces- 
 sary, because in that case notice was given and defence made. While 
 the want of notification by the garnishee to his own creditor may have j 
 no effect upon the validity of the judgment against the garnishee (the 
 proper publication being made by the plaintiff), we think it has and 
 ought to have an effect upon the right of the garnishee to avail himself 
 f of the prior judgment and his payment thereunder. This notification 
 by the garnishee is for the purpose of making sure that his creditor 
 shall have an opportunity to defend the claim made against him in the 
 attachment suit. Fair dealing requires this at the hands of the gar- 
 nishee. In this case, while neither the defendant nor the garnishee 
 appeared, the court, while condemning the credits attached, could not, 
 bv the terms of the Maryland statute, issue the writ of execution unless 
 the plaintiff gave bond or sufficient security before the court awarding 
 the execution, to make restitution of the money paid if the defendant 
 should, at any time within a year and a day, appear in the action and 
 show that the plaintiff's claim, or some part thereof, was not due to the 
 plaintiff. The defendant in error. Balk, had notice of this attachment, 
 certainly within a few days after the issuing thereof and the entry of 
 judgment thereon, because he sued the plaintiff in error to recover his 
 debt within a few days after his (Harris') return to North Carolina, in 
 which suit tlie judgment in Maryland was set up by Harris as a plea in 
 bar to Balk's claim. Balk, therefore, had an opportunity for a year and
 
 SECT. IV.] LE MESURIER V. LE MESURIER. 215 
 
 a clay after the entry of the judgment to htigate the question of his lia- 
 bilit}- in the Maryland court and to show tbat he did not owe the debt, 
 or some part of it, as was claimed by Epstein. He, however, took no 
 proceedings to that end, so far as the record shows, and the reason may 
 be supposed to be that he could not successfully defend the claim, be- 
 cause he admitted in this case that he did, at the time of the attachment 
 proceeding, owe Epstein some $344. 
 
 Generally-, though, the failure on the part of the garnishee to give 
 proper notice to his creditor of the levying of the attachment would be 
 such a neglect of duty on the part of the garnishee which he owed to 
 his creditor as would prevent his availing himself of the judgment in 
 the attachment suit as a bar to the suit of his creditor against himself, 
 which might therefore result in his being called upon to pay the debt 
 twice. 
 
 The judgment of the Supreme Court of North Carolina must be re- 
 versed and the cause remanded for further proceedings not inconsistent 
 with the opinion of this court. Reversed. 
 
 Mr. Justice Harlan and Mr. Justice Day dissented. 
 
 SECTION IV. 
 
 JURISDICTION FOR DIVORCE. 
 
 LE MESURIER v. LE MESURIER. 
 Judicial Committee of the Privy Council. 1895. 
 
 [^Reported [1893] Appeal Cases, 517.] 
 
 Appeal from the Supreme Court of Ce3-lon, which dismissed appel= 
 iant's libel for divorce on the ground of lack of jurisdiction. At 
 the time of the marriage (which was solemnized in England) appel
 
 216 LE MESURIER V. LE MESURIER. [CHAP. III. 
 
 .■ant, the husband, was and has since remained a resident of Ceylon, 
 but was then and has since remained domiciled in England. The 
 respondent was a Frenchwoman.^ 
 
 The judgment of their Lordships was delivered by Lord Watson. 
 
 When carefully examined, neither the English nor the Scottish 
 decisions are, in their Lordships' opinion, sufficient to establish the 
 proposition that, in either of these countries, there exists a recog- 
 nized rule of general law to the effect that a^_so-called matrimonia l 
 domicile gives iurisdiction to dissolve marriage. 
 
 ToUemache /•. Tollemache, 1 Sw. & Tr. 557, which was decided by 
 three judges in 1859, shortly after the passing of the Divorce Act, 
 appears to be an authority to the contrary. The learned judges 
 sustained the jurisdiction of the English court, which was the forum 
 of the husband's domicile, and disregarded as incompetent a decree 
 of the Court of Session dissolving his marriage, although he had a 
 matrimonial domicile in Scotland, where he had bo7ia fide resided for 
 four years with his wife, neither casually nor as a traveller. Then 
 in Brodie v. Brodie, 2 Sw. & Tr. 259, in the year 1861, three learned 
 judges decided the opposite, holding that residence of that kind, 
 which had been found in Tollemache v. Tollemache, to be insufficient 
 to give jurisdiction to a Scottish court where the domicile was Eng- 
 lish, was nevertheless sufficient to give jurisdiction to themselves 
 where the domicile was Australian. In "Wilson v. Wilson, L. R. 2 
 P. & D. 435, jurisdiction was sustained by Lord Penzance upon the 
 ground that the petitioner had acquired an English domicile, with an 
 expression of opinion by his Lordship that such domicile ought to be 
 the sole ground of jurisdiction to dissolve marriage. In Niboyet v. 
 Niboyet, 4 P. D. 1, Sir Robert Phillimore expressed a similar opin- 
 ion, and dismissed the suit of the petitioner, who had a matrimonial 
 domicile in England which fully answered the definition of such 
 domicile given either in Brodie v. Brodie or in Pitt v. Pitt, 1 Court 
 Sess. Cas. 3d Series, 106, 4 Macq. App. Cas. 627. His decision 
 was, no doubt, reversed in the Court of Appeal; but it had the sup- 
 port of the present Master of the Rolls, and their Lordships have 
 already pointed out that the judgment of the majority was mainly, if 
 not altogether, based upon a reason which will not bear scrutiny. 
 
 The Scottish decisions appear to their Lordships to be equally 
 inefficient to show that a matrimonial domicile is a recognized 
 ground of divorce jurisdiction. So far as they go, they are con- 
 sistent enough but the doctrine appears to have had a very brief 
 existence, because the three eases in which it was applied all occurred 
 between the 7th of February and the 14th of December in the year 
 1862. Although, owing to the course taken by the appellant's coun- 
 sel in Pitt r. Pitt, 1 Court Sess. Cas. 3d Series, 106, 4 Macq. App. 
 Cas. 627, the House of Lords had not an opportunity of expressly 
 
 1 This short statement of farts is substituted for that of the reporter. Arguments 
 of counsel and part of the oj)iuioii are omitted. — Ed.
 
 SECT. IV.] LE MESITRIER V. LE MESURIER. 217 
 
 deciding the point, there can be little doubt tliat the approval of the 
 course adopted by counsel, which was openly expressed by Lord 
 Westbury, has had the effect of discrediting the doctrine in Scot- 
 land; and it is impossible to affirm that the Court of Session would 
 now give effect to it. The eminent judge who, in 1862, was the first 
 to give a full and clear exposition of the doctrine of matrimonial 
 domicile, spoke of it, in the year 1882, not as a doctrine accepted in 
 the law of Scotland, but as matter of speculation. 
 
 It is a circumstance not undeserving of notice that the learned 
 judges, whether English or Scottish, who have expressed judicial 
 opinions in favor of a matrimonial domicile, have abstained from 
 reference to those treatises on international law which are generally 
 regarded as authoritative, in the absence of any municipal law to the 
 contrary. The reason for their abstinence is probably to be found 
 in the circumstance that nothing could be extracted from these 
 sources favorable to the view which they took. Their Lordships are 
 of opinion that in deciding the present case, on appeal from a colony 
 which is governed by the principles of the Roman-Dutch law, these 
 authorities ought not to be overlooked. 
 
 Huber (Lib. 1, tit. 3, s. 2, De Confl. Leg.) states the rule of inter- 
 national law in these terms: "Rectores imperiorum id comiter agunt, 
 ut jui'a cujusque populi intra terminos ejus exercita teneant ubique 
 suam vim, quatenus nihil potestati aut juri alterius imperantis 
 ejusque civium prtejudicetur." That passage was cited with appro- 
 bation by Lord Cranworth and Lord Westbury in Shaw v. Gould, 
 L. R. 3 H. L. 72, 81. To the same effect, but in language more 
 pointed, is the text of Rodenburg (De Stat. Divers, tit. 1, c. 3, s. 4), 
 cited in the same case by Lord Westbury: •' Unicum hoc ipsa ret 
 natura ac necessitas invexit, ut cum de statu et conditione hominum 
 quseritur, uni solummodo Judici, et quidem Domicilii, universum in 
 ilia jus sit attributum." The same rule is laid down by Bar, the 
 latest Continental writer on the theory and practice of international 
 private law. He says (sect. 173, Gillespie's Translation, p. 382), 
 " that in actions of divorce — unless there is some express enactment 
 to the contrary — the judge of the domicile or nationality is the 
 only competent judge." And he adds: "A decree of divorce, there- 
 fore, pronounced by any other judge than a judge of the domicile or 
 nationality, is to be regarded in all other countries as inoperative." 
 
 There can, in their Lordships' opinion, be no satisfactory canon 
 of international law, regulating jurisdiction in divorce cases, which 
 is not capable of being enunciated with sufficient precision to ensure 
 practical uniformity in its application. But any judicial definition 
 of matrimonial domicile which has hitherto been attempted has been 
 singularly wanting in precision, and not in the least calculated to 
 produce a uniform result. The definitions given in Brodie v. Brodie, 
 2 Sw. & Tr. 259, and in Pitt r. Pitt, 1 Court Sess. Cas. 3d Series. 
 106, 4 Macq. App. Cas. 627, appear to their Lordships to be equally
 
 218 LE MESUKIER V. LE MESURIER. [CHAP. III. 
 
 open to that objection. ^ Bona fide residence is an intelligible expres- 
 sion, if, as their Lordships conceive, it means residence which has 
 not been resorted to for the mere purpose of getting a divorce which 
 was not obtainable in the country of domicile, f Residence which is 
 "not that of a traveller" is not very definite; but nothing can be 
 more vague than the description of residence which, not being that 
 of a traveller, is not to be regarded as "casual." So, also, the place 
 where it is the duty of the wife to rejoin her husband, if they happen 
 to be living in different countries, is very indefinite. It may be 
 her conjugal duty to return to his society although he is living as a 
 traveller, or casually, in a country where he has no domicile. Neither 
 the English nor the Scottish definitions, which are to be found in the 
 decisions already referred to, give the least indication of the degree 
 of permanence, if any, which is required in order to constitute matri- 
 monial domicile, or afford any test by which that degree of perma- 
 nence is to be ascertained. The introduction of so loose a rule into 
 the jus gentivm would, in all probability, lead to an inconvenient 
 variety of practice, and would occasion the very conflict which it is 
 the object of international jurisprudence to prevent. 
 
 Their Lordships attach great weight to the consideration that the 
 theory of matrimonial domicile for which the appellant contends has 
 never been accepted in the court of last resort for England and Scot- 
 land. The matter does not rest there; because the theory is not 
 only in direct opposition to the clear opinion expressed by Lord 
 Westbury in Pitt v. Pitt, 1 Court Sess. Cas. 3d Series, 106, 4 Macq. 
 App. Cas. 627, but appears to their Lordships to be at variance with 
 the principles recognized by noble and learned Lords in Dolphin v. 
 Robins, 7 H. L. C. 390, and in Shaw v. Gould, L. R. 3 H. L. 55. 
 It is true that in these cases, and especially in Dolphin v. Robins, 
 there was ground for holding that the spouses had resorted to a for- 
 eign country and a foreign tribunal in order to escape from the law 
 and the courts of their English domicile. But in both the inter- 
 national principle upon which jurisdiction to dissolve a marriage 
 depends, was considered and discussed; and the arguments addressed 
 to their Lordships in favor of matrimonial domicile by the learned 
 counsel for the appellant appear to them to be at variance with the 
 weighty observations which were made by noble and learned Lords 
 in these cases. In Dolphin v. Robins, Lord Cranworth stated that 
 "it must be taken now as clearly established that the Scotch court 
 has no power to dissolve an English marriage, where, as in this case, 
 the parties are not really domiciled in Scotland, but have only gone 
 there for such a time as, according to the doctrine of the Scotch 
 courts, gives them jurisdiction in the matter." In Shaw r. Gould 
 the dicta of noble and learned lords upon the point raised in this 
 appeal were even more emphatic. ' Lords Cranworth and Westbury 
 expressed their entire approval of the doctrine laid down by Iluber 
 and Rodenburg in those passages which have already been cited
 
 SECT. IV. 1 LE MESURIER V. LE MESUEIER. 
 
 219 
 
 Their Lordships did not go the length of saying that the courts of 
 no other country could divorce spouses who were domiciled in ¥.ng- 
 land; but they held that t he courts of England were not bound, b y 
 any prin ciple of international law, to recognize as effectual tj ie 
 decr ee of a foreign court divorcing spouses who, at its date, had 
 M^pjr do micile in England, The other noble and learned lords who 
 took part in the decision of Shaw v. Gould, L. R. 3 H. L. 55, were 
 Lords Chelmsford and Colonsay. Lord Chelmsford did not express 
 any opinion upon the subject of matrimonial domicile. Lord Colon- 
 say rested his judgment upon the fact that the spouses had resorted 
 to Scotland for the very purpose of committing a fraud upon the law 
 of their English domicile; but he did indicate an opinion that, in 
 the absence of such fraudulent purpose, they might possibly have 
 obtained a divorce in Scotland, after a residence in that country 
 which was insufficient to change their domicile of succession. 
 
 Their Lordships have in these circumstances, and upon these con- 
 siderations, come to the conclusion that, according to international 
 law, thej^mMle_XoX-the J.ime being^pf Ahe jaaarri^ pair affords the_ 
 only true test of ^risdrotiqn to. dissolve their marriage. They con- 
 cur, without reservation, in the views expressed by Lord Penzance 
 in Wilson v. Wilson, L. R. 2 P. & D. 442, which were obviously 
 meant to refer, not to questions arising in regard to the mutual 
 rights of married persons, but to jurisdiction in the matter of 
 divorce: "It is the strong inclination of my own opinion that the 
 only lair and satisfactory rule to adopt on this matter of jurisdiction 
 is to insist upon the parties in all cases referring their matrimonial 
 differences to the courts of the country in which they are domiciled. 
 Different communities have different views and laws respecting 
 matrimonial obligations, and a different estimate of the causes which 
 should justify divorce. Cit is both just and reasonable, therefore, 
 that the differences of married people should be adjusted in accord- 
 ance with the laws of the community to which they belong, and dealt 
 with by the tribunals which alone can administer those laws. An 
 honest adherence to this principle, moreover, will preclude the 
 scandal which arises when a man and woman are held to be man and 
 wife in one country and strangers in another." ^ 
 
 Their Lordships will, therefore, humbly advise Her Majesty to 
 affirm the order appealed from. The appellant must pay to the first 
 and fourth respondents their costs of this appeal.^ 
 
 1 The doctrine that jurisdiction for divorce depends solely upon the domicile of the 
 husband is now fully established in England. Shaw u. Att. -Gen., L. R. 2 P. & D. 
 156 ; Green v. Green, [1893] P. 89. Ace. Humphrey v. Humphrey, 33 Scot. L. K, 
 99. — Ed.
 
 220 ARMYTAGE V. ARMYTAGE. [CHAP. IIL 
 
 ARMYTAGE v. ARINrYTAGE. 
 High Court of Justice, Probate Division. 1898. 
 
 [Reported [1898] Probate, 178.] 
 
 GoRELL Barnes, J.^ This is a suit for judicial separation by Mrs. 
 Armytage against her husband on the ground of his alleged cruelty 
 towards her. By his answer the respondent has denied the alleged 
 cruelty, and by an act on petition he has further pleaded that the 
 court has no jurisdiction to entertain the suit. I have, therefore, to 
 determine a question of fact, whether there has been cruelty by the 
 respondent to the petitioner, and a question of law, whether the court 
 has jurisdiction in the circumstances to entertain the suit. The second 
 question raises a point of considerable importance in private inter- 
 national law. 
 
 The parties were married at Toorak, near Melbourne, Australia, on 
 April 11, 1SS8, and there are two children of the marriage, whose 
 custody the petitioner seeks to obtain. The respondent is by birth an 
 Australian, and his domicile is in the colony of Victoria. He was edu- 
 cated at Cambridge, and has been called to the p:nglish Bar. The 
 petitioner is an P^nglishwoman, born in England, of parents residing 
 at Blackheath, near London. The respondent and the petitioner be- 
 came acquainted on board ship on the passage from this country to 
 Melbourne, and their marriage was celebrated shortly afterwards. 
 They cohabited in Australia and in England, and afterwards in Italy, 
 and the occurrences which give rise to this suit took place at Florence 
 in April and May, 1897. . . . 
 
 The further facts necessary to refer to are these : The petitioner 
 came to this country with her children on or about Ma^ y 25, 1897, and 
 she and the children have since resided under her parents' roof and at 
 Bexhill. The respondent's solicitor on May 31, 1897, wrote on behalf 
 of the respondent to the petitioner and her father requesting the peti- 
 tioner to return with the children to her husband, but she declined to 
 comply with this request. At the end of June, 1897, the respondent 
 came to, and has since resided in, England, but I understand he has 
 not taken up a permanent residence here, and has only come to and is 
 remaining in England for the purpose of enforcing, and so long as may 
 be necessary to determine, such riglits as he may have against the 
 petitioner with regard to the children. In the month of November, 
 1897, he settled the sum of £100 on each of his children, and made 
 them wards of Court in Chancery. He tliereupon applied to North, J., 
 for an order for the custody of the children, which was met by a cross- 
 application on tlie part of the petfhioner. In tlie meantime these pro- 
 ceedings were commenced, and the respondent was served with the 
 citation and petition in this country. North, J., ordered the application 
 1 Part of the opinion is omitted. — Ed.
 
 SECT. IV.] ARMYTAGE V. ARMYTAGE. 221 
 
 before him to stand over until after the determination of this suit. The 
 question to be decided, therefore, is whether or not this court can 
 entertain a suit for judicial separation by the petitioner against the 
 respondent in the circumstances above stated. . . . 
 
 The court does not now pronounce a decree of dissol ution w^^"'*" t'^^ 
 parti es are not domiciled in this p.nuntry. except in favor of a wi fe de- 
 eerted by her husband, or whose husband has so conducted hims elf 
 towa rds her that she is justified in living apart from him, and wh o, up 
 lO the time when she was deserted or began so to be, was domiciled 
 
 with h er husband in this country, in which case, without necessarily 
 resortuig to the American doctrine that in such circumstances a wife 
 ma}' acquire a domicile of her own in the country of the matrimonial 
 home, it is considered that, in order to meet the injustice which might 
 be done by compelling a wife to follow her husband from countr}- to 
 countr}', he cannot be allowed to assert for the purposes of the suit that 
 he has ceased to be domiciled in this country. The jurisdiction to 
 dissolve marriages was conferred upon this court by the Matrimonial 
 Causes Act, 1857, and although that act does not expressh* make 
 domicile a test of jurisdiction, that test is applied by the court to the 
 exercise of jurisdiction in cases of dissolution of marriage. It is de- 
 rived from the principles of private international law, an adherence to 
 which is necessary, as Lord Penzance said in Wilson v. Wilson, L. R. 
 2 P. & M. 435, at p. 442, in order to "preclude the scandal which 
 arises when a man and woman are held to be man and wife in one 
 countr}' and strangers in another." These principles are expounded 
 by many jurists in this and other countries. They are based on the 
 principle that a person's status ought to depend on the law of his domi- 
 cile, though there ma\' be limitations and exceptions to this principle : 
 see Dicey's Conflict of Laws, 1896, cap. 18, p. 474, et seq. (conf 
 Savigny, s. 362, Guthrie's translation, 2d ed. p. 148). 
 
 The jurisdiction in suits other than suits for dissolution of marriage 
 is conferred on the court b}- the 6th section of the act aforesaid. By 
 other sections judicial separation is substituted for the old divorce a 
 mensa et thoro^ and a new ground for separation, namely, desertion 
 without cause for two years and upwards, is added. Sect. 22 provides as 
 follows : " In all suits and proceedings other than proceedings to dissolve 
 any marriage, the said court shall proceed, and act, and give relief on prin- 
 ciples and rules which, in the opinion of the said court, shall be as nearly 
 as may be conformable to the principles and rules on which the Ecclesiasti- 
 cal Courts have heretofore acted and given relief, but subject to the pro- 
 visions herein contained, and to the rules and orders under this act." 
 There are no special provisions of the act or rules or orders which 
 directly affect the present question. VThe present suit is for judicial 
 separation on the ground of cruelt}'^ Before the act it would have 
 been a suit for divorce a mensa et thoro on the same ground, and the 
 inquiry is as to the principles and rules on which the Ecclesiastical 
 Courts would have acted in the circumstances. The petitioner main-
 
 222 AEMYTAGE V. ARMYTAGE. [CHAP. III. 
 
 tains that the test of domicile is not applicable as in a suit for dissolu- 
 tion of marriage, and that the Ecclesiastical Courts would have given 
 her relief where she and her husband are both residing in England in the 
 circumstances proved, whereas the respondent maintains t hat no relief 
 would have been given because the parties are not aomiciieci in England, 
 and no act of crueltv has been proved within the jurisdiction. . . . 
 
 Most of the writers on private international law and the conflict of 
 laws treat at length the question of the laws and principles upon which 
 the dissolubility or indissolubility of marriage depends, but there is little 
 to be found in the works of such writers on t he question of juri sdif tion in 
 decre e the separation or divorce a mensa et thoro pf marriecLp ersons who 
 are residing but not domiciled in the country of the forum. The reasons 
 are not far to seek! Dissolution of marriage has been permitted in 
 some States and not in others, and has been allowed in some States on 
 grounds different from those on which it could be obtained in others. 
 There has been want of unanimity as to the forum which ought to take 
 cognizance of the question of divorce, and as to the laws to be applied 
 and the recognition to be accorded in one State to a decree of dissolu- 
 tion of marriage pronounced in another. Persons domiciled in a coun- 
 try where divorce has not been pei-mitted, or only permitted on certain 
 grounds, have, in order to obtain divorces, temporarily resided or 
 assumed domicile in another country where divorce has been permitted 
 or more easily obtained than in the former countr}'. Hence numerous 
 difficult and varied questions have arisen and been discussed in re- 
 ported cases and by different jurists upon the question of dissolution 
 of marriage. But in practice suits for judicial separation or divorce a 
 mensa et thoro and restitution of conjugal rights do not appear to have 
 given rise to similar difficulties, and, therefore, cases and discussions 
 as to jurisdiction in these suits are not often .met with. Such suits 
 generally occur before the tribunals of the country in which the parties 
 are in fact domiciled, and a case like that before me was not so likely 
 to occur in former days as at the present time, when large numbers of 
 people are to be found residing for more or less lengthy periods away 
 from the place of their domicile.^ . . . 
 
 I conclude from the writers to whom I have referred that most of 
 them are disposed to consider that(the courts of the country in which 
 the parties are living, though not domiciled, ought to have the right in 
 a matrimonial suit to afford protection to an injured party from the 
 cruelty of the other party. ^ 
 
 Lord ITannen may possibly have had such a case in his mind when, 
 in giving judgment in Firebrace r. Fircbracc, (1878) 4 P. D. 63, he 
 said, " The domicile of the wife is that of the husband, and her remedy 
 for matrimonial wrongs must be. usually sought in the place of that 
 
 1 ^e learned judge here cited and Examined 4 Phil. Int. L. 382 ; Burfje, Colon. 
 Laws, 663 ; Bishop, Mar. & Div. s. 158 ; Guthrie's Bar's Priv. Internat. Law, 381 ; 
 Westlake, Priv. Internat. Law, s. 47 ; Fraser, Uusb. & Wife, 1294 ; Wharton, Confl. 
 Laws, s. 210. — Ed.
 
 SECT. IV.] ARMYTAGE V. ARMYTAGE. 223 
 
 domicile ; " but added : " It is not, however, inconsistent with this prin- 
 ciple that a wife should be allowed in some cases to obtain relief against 
 her husband in the tribunal of the country in which she is resident, 
 though not domiciled." 4 P. D. at p. 67. That was a suit for resti- 
 tution of conjugal rights where the respondent, the husband, who was 
 domiciled in Australia, had left England before the institution of the 
 suit, and it was held that the court had not jurisdiction over him after 
 he left this country, and that the suit could not be maintained. Had 
 he remained in England it would seem from the cases of Newton v. 
 Newton, (1885) 11 P. D. 11, and Thornton r. Thornton, (1886) 11 P. D. 
 176, that the suit could have been maintained. In the recent case of 
 Christian v. Christian, (1897) 78 L. T. 86, the President said that a 
 suit for judicial separation may be founded upon matrimonial residence 
 only as distinguished by our law from domicile. 
 
 Having considered sufficiently for the purposes of the case the opin- 
 ions of the jurists above mentioned, it is necessary that I should revert 
 to the 22d section of the Act of 1857, which requires the court in such 
 a suit as the present to act conformably to the principles and rules on 
 which the Ecclesiastical Courts had theretofore acted and given relief. 
 
 There are several works which deal more particularly with the juris- 
 diction and mode of proceeding in the Ecclesiastical Courts — e. g.> 
 Burn's Ecclesiastical Law, ed. 1842, Rogers's Ecclesiastical Law, ed. 
 1849, Shelford's Law of Marriage and Divorce, ed. 1841, and older 
 works, such as Godolphin's Abridgment ; but I cannot trace in them 
 any statement upon the precise point in question, and the principles to 
 govern it must be deduced from the general principles and practice of 
 the courts. These are stated in general terras so far as concerns the 
 matter under consideration by James, L. J., in his judgment above re- 
 ferred to, see Nibo3'et v. Niboyet, 4 P. D. 1 at p. 3, where the jurisdiction 
 of the Court Christian is considered, and it is pointed out that the Church 
 and its jurisdiction had nothing to do with the original nationality or 
 acquired domicile of the parties, that residence as distinct from casual 
 presence on a visit or in itinere was an important element, but that 
 residence had no connection with or little analogy to the question of a 
 person's domicile. 
 
 In my opinion, if the parties had a matrimonial home, but were not 
 domiciled within the jurisdiction of an Ecclesiastical Court, that court 
 would have interfered, if the parties were within the jurisdiction at the 
 commencement of the suit, to protect the injured pai-ty against the other 
 party in respect of the adultery or cruelty of the latter, and I can find 
 no authority for the suggestion made by the respondent's counsel that 
 such interference would be limited to cases where the offence com- 
 plained of was committed within the jurisdiction. In Warrender v. 
 Warrender, (1835) 2 CI. & F. 488, at p. 562, Lord Lyndhurst said: 
 ''The law, either in this country or in Scotland, makes no distinction 
 in respect of the place of the commission of the offence." Although 
 the Ecclesiastical Courts could not extinguish the mutual obligations of
 
 224 ARMYTAGE V. ARMYTAGE. [CHAP. III. 
 
 husband and wife, they, acting /»ro salute cmimce, suspended these obli- 
 gations in order to protect and relieve the injured party. It could make 
 no diflference, where the parties were residing within the jurisdiction, 
 that the necessity for protection and relief arose in consequence of 
 adultery committed by the wrong-doer while temporarily outside the 
 jurisdiction, or of cruelty committed while the parties were temporarily 
 outside the jurisdiction, and the apprehension of further acts of cruelty 
 remained. If the parties were within the jurisdiction, and the necessi- 
 ties of the case demanded that one of them should be protected against 
 a matrimonial wrong done by the other of which the courts would take 
 coo-nizance, I cannot doubt that the courts would have interfered. The 
 case of Manning v. Manning, (1871) L. R. 2 P. & M. 223, which was 
 relied upon by the respondent's counsel, is no authority against this 
 view, because in that case the respondent was not within the jurisdic- 
 tion of the court, and the petitioner was held not to be a bona fide 
 resident in England. If the respondent's contention be correct no 
 decree of judicial separation could be made, even in cases like Niboyet 
 V. Niboyet, 4 P. D. 1, where the parties, though not domiciled, were 
 resident for years in this country. 
 
 /Then, does the present case fall within the principles and rules upon 
 which the courts have acted ? I think it does. The wife, an English- 
 woman, whose domicile of origin was English, and who has resided at 
 times in England with her husband, is forced, by the cruelty committed 
 in Italy by her husband, a domiciled Australian, to seek the protection 
 of her" parents in England. Though legally domiciled in Australia, as 
 a matter of fact she has been forced to separate herself from her hus- 
 band and establish herself in a home of her own in this country. She 
 and her husband are both within the jurisdiction. She has been re- 
 quired to return with her children to her husband, and is afraid to do 
 so owing to her apprehension of a repetition of the acts of cruelty which 
 have been committed against her while they were living together abroad. 
 It is against the repetition of apprehended acts of cruelty that the court 
 grants its protection, and, unless the court interferes, there is nothing 
 to prevent the husband from forcing himself upon his wife and placing 
 her in a position in which she may be subjected to further acts of 
 cruelty. The status of married persons within the country is recog- 
 nized. Performance of the duties arising from the marriage tie should 
 be required, and protection afforded against an abuse of the position 
 resulting from that tie where necessary. Police protection is an in- 
 adequate remedy-V 
 
 It may be objected that a decree of judicial separation affects the 
 status of the parties, and that a change of status ought on principle 
 only to be effected by the courts of the domicile. But the relief is to be 
 o-iven on principles and rules which, in the opinion of the court, shall 
 be as nearly as may be conformable to the principles and rules on 
 which the Ecclesiastical Courts gave relief. According to those prin- 
 ciples and rules cruelty and adultery were grounds for a sentence of
 
 SECT. IV.] AEMYTAGE V. AEMYTAGE. 225 
 
 flivorce a mensa et thoro which did not dissolve the marriage, but 
 merely suspended either for a time or without limitation of time some 
 of the obligations of the parties. The sentence commonh- separated 
 the parties until they should be reconciled to each other. The relation 
 of marriage still subsisted, and the wife remained a feme covert. A 
 woman divorced by the court a mensa et thoro and living separate and 
 apart from her husband could not be sued as a feme sole (see Lewis v. 
 Lee, 1824, 3 B. & C. 291). The effect of the sentence was to leave 
 the legal status of the parties unchanged. Although a sentence of judi- 
 cial separation is to have the effect of a divorce a mensa et thoro under 
 the old law (s. 16 of the Act of 1857), and also the. further effect of 
 placing the wife in the position of a feme sole, with respect to property 
 which she may acquire, or which ma}- come to or devolve upon her, 
 from the date of the sentence and whilst the separation continues, and 
 also for the purposes of contract and wrongs and injuries and suing 
 and being sued during that period (ss. 25 and 26 of the Act of 1857) ; 
 yet as the relief to be given now is to be given according to the prin- 
 ciples and rules in force in the Ecclesiastical Courts, I am of opinion 
 that the effect of the said ss. 25 and 26, if they affect a wife's status 
 within the meaning of the term as applied to the principles under con- 
 sideration, which is doubtful, is not to deprive the court of the power 
 to grant relief in cases where it would have been granted by the Eccle- 
 siastical Courts. 
 
 It may be further objected that, as domicile is considered a test of 
 jurisdiction in cases of dissolution of marriage, in order that the decree 
 may be recognized in countries other than that of the domicile, for the 
 same reason a similar test should be applied in cases of judicial separa- 
 tion. But the reasons which apph' in the one case are not applicable 
 to the other ; and even if the principle should be established that the 
 courts of the country' of the domicile of the parties are the onh' courts 
 which can pronounce a decree of judicial separation which ought to be 
 recognized in other countries, in my opinion, no valid reason can be 
 urged against the courts of a country, in which a husband and wife are 
 actually living, pronouncing a decree which will protect the one against 
 the other so long as the}' remain within the jurisdiction. 
 
 In the present case the wife's domicile is legally in Australia, but, as 
 a matter of fact, she has justifiabh- separated herself from her husband 
 and made her home in England, and it is in England that she now re- 
 quires protection. He has come here and subjected himself to the 
 jurisdiction of the courts of this country. Could anj'thing be more 
 unreasonable than for this court to hold that it has no power to suspend 
 the wife's obligation to live with her husband while in this country, and 
 leave her to proceed in the courts in Australia to protect herself against 
 her husband in England? It may, I think, be safely laid down tliat 
 # the Ecclesiastical Courts would formerly, and this court will now, inter- 
 fere to protect a wife against the cruelty of her husband, both being 
 within the jurisdiction, when the necessities of the case require such 
 
 15
 
 226 DITSON V. DITSON. [CHAP. III. 
 
 intervention. I therefore hold that this court has jurisdiction to enter- 
 tain this suit, and I pronounce a decree of judicial separation in favor 
 of the petitioner with costs. Having held that the court has jurisdic- 
 tion to entertain the suit, I think it follows that the court has jurisdiction 
 under the powers expressly conferred upon it by the 35th section of the 
 said Act of 1857, and the 4th section of the Matrimonial Causes Act, 
 1859, to make provision for the custody of tlie children of the marriage ; 
 and, as I have heard the case, it is probably more convenient that I 
 should dispose of this matter rather than leave it for further contest in 
 the chancery proceedings^! will hear any application relating to the 
 children in chambers. 
 
 DITSON V. DITSON. 
 Supreme Court of Rhode Island. 1856 
 
 [^Reported 4 Rhode Island, 87.] 
 
 Ames, C. J.^ It is a well-settled principle of genei'al law upon this 
 subject, that the tribunals of a country have no jurisdiction over a 
 cause of divorce, wherever the offence may have occurred, if neither 
 of the parties has an actual ljo)ia Jide domicile within its territory; 
 and this holds, whether one or both the parties be temporarily resid- 
 ing within reach of the process of the court, or whether the defend- 
 ant appears or not, and submits to the suit. This necessarily results 
 from the right of every nation or State to determine the status of its 
 own domiciled citizens or subjects, without interference by foreign 
 tribunals in a matter with which they have no concern. Bishop on 
 Marriage and Divorce, § 721, p. 721, 2d ed. and cases cited. We 
 entirely agree with the judgment given by the Supreme Court of 
 Massachusetts on this point, in the well-considered case of Hanover 
 V. Turner, 14 Mass. 227, 231, in which both this rule, and the reason 
 for it are stated with that precision and largeness of view, which 
 indicate that tlie couit fully comprehended the question before them 
 as a question of general law; a kind of praise which cannot, with 
 any justice, be bestowed upon many American cases upon this 
 important and interesting subject. . . . 
 
 The question raised by the case at bar, and for the decision of 
 which in the anirmative this court is said by the Supreme Court of 
 Massachusetts in Lyon ik Lyon, 2 Gray, 367, to have pronounced 
 a decree in favor of Mrs. Lyon void upon general principles of law, 
 is, whether the bona fide domicilation of the petitioning party in this 
 State is sufficient to give this court jurisdiction to grant a divorce a ■^ 
 vinculo^ although the other party to the marriage to be dissolved has 
 never been subject to our jurisdiction, never been personally served 
 
 ' I'ai t ol the opinion only ia given. — Ed
 
 SECT. I\*.] DITSON V. DITSON. 227 
 
 with notice of the petition within the State, or appeared and answered 
 to the petition, upon constructive notice, or upon being served with 
 personal notice of it, out of the State? In other words, the question 
 is, wliether, as a matter of general law, a valid decree of divorce a, 
 vinculo can be passed in favor of a domiciled citizen of the State, 
 upon mere constructive notice to the 'foreign or non-resident party 
 to the marriage, against whom, or to dissolve whose marital rights 
 over or upon the petitioner, the aid of the court is invoked? . . . 
 
 It is undoubtedly true, as a common-law principle, applicable to 
 the judgments of its courts, that they bind only parties to them, or 
 persons in such relation to the parties and to the subject of the judg- 
 ment, as to be deemed privies to it. The rule of this system of 
 jurisprudence, which brings privies within the operation of the notice 
 served upon the principals to a judgment and binds them by its 
 effects, is founded upon quite as clear a policy, and is sanctioned by 
 quite as complete justice, as that which renders the judgment obliga- 
 tory upon those whom they represent. It is founded upon the great 
 policy ut sit Jljiis litum, and upon the necessity, to carry out this 
 policy, that the future and contingent representatives of the parties 
 in relation to the subject of the judgment should be bound by it. 
 Again, there is no system of jurisprudence, which, founded as the 
 jurisdiction of the court is upon the personal service of the subpoena, 
 is more special in its requisition that all parties interested should 
 be served in the suit, in order to be bound by the decree, than that 
 administered by the English chancery; yet even in this court, from 
 the same policy, and upon the same necessity, the first tenant in 
 tail, or the first person entitled to the inheritance, if there be no 
 tenant in tail living, or even the tenant for life, as the only repre- 
 sentative to be found of the whole inheritance, by his appearance to 
 the suit binds to the decree in it all those subsequently and con- 
 tingently interested in the estate; the court, in administering this 
 rule of representation of parties, taking care oul}^ that the repre- 
 sentative be one whose interest in the subject of the suit is such as 
 to insure his giving a fair trial to the question in contestation, the 
 decision of which is to affect those who remotely or contingently take 
 after him. Again, there is the large class of proceedings m rem^ or 
 quasi in rem, known especially to courts administering public or 
 general law, and borrowed from thence into every system of jurispru- 
 dence in which, the jurisdiction being founded upon the possession 
 ^f the thing, the decree binds all interested in it, whether within or 
 ffithout the jurisdiction of the nation setting up the court, and 
 whether personally or constructively notified of the institution or cur- 
 rency of the proceeding. This, too, is founded upon a necessity or 
 high expediency, since, without it, a prize or instance court, for 
 example, could not, so scattered or concealed are the parties inter- 
 ested, perform any of the functions for which, by the general or 
 public law, it is set up. Proceedings of this nature must, we think.
 
 228 DITSON V. DITSON. [CHA.P, III. 
 
 be familiar to the courts of Massachusetts; and probably not a day 
 passes in which things within their jurisdiction are not, by direct 
 attachment or garnishee process, seized, attached, condemned, and 
 sold under their judgments, without other than constructive notice 
 to the non-resident owners of them, in order that these courts may 
 do justice to their own citizens, or even to alien friends, properly 
 applying to them for relief. Here, too, necessity requires the courts 
 to dispense with personal notice, in order to give effect to their 
 judicial orders; since otherwise, the State might be full of the prop- 
 erty of non-residents and aliens, applicable to all purposes except 
 the commanding ones of justice. Without doubt, in these and other 
 like cases, the general law in dispensing with personal notice from 
 necessity, requires some fair approximation to it, by representation, 
 ^substitution, or at least such publicity, as under tlie circumstances, is 
 proper and possible, or the proceeding will be regarded as a fraud upon 
 the rights of the absent and unprotected, — a robbery under the forms 
 of lavv, and so a fraud upon law itself. It is, however, a very narrow 
 view of the general law, it is to form a very low estimate of the wisdom 
 which directs its administration, to suppose, that when it can do justice 
 to those within its jurisdiction and entitled to its aid only by dispensing 
 with personal notice to those out of it, and substituting instead what is 
 possible for notice to them, it is powerless to do this, and so, powerless 
 to help its own citizens or strangers within its gates, however strong 
 may be their claims or their necessities. Such a sacrifice of substance 
 to shadows, of the purposes to the forms of justice, might mark tlie 
 ordinances of a petty municipality, but could hardly be supposed to 
 characterize the system of general law. 
 
 Now, marriage, in tlie sense in which it is dealt with by a decree of 
 divorce, is not a contract, but one of the domestic relations. In strict- 
 ness, though formed by contract, it signifies the relation of husband and 
 wife, deriving both its rights and duties from a source higher than any 
 contract of which the parties are capable, and as to these uncontrollable 
 by anv contract which they can make. When formed, this relation is 
 no more a contract than "fatherhood " or "sonsliip " is a contract. It 
 is no more a contract than serfdom, slavery, or apprenticeship are con- 
 tracts, the latter of which it resembles in this, that it is formed by con- 
 tract. To this relation there are two parties, as to the others, two or 
 more, interested without doubt in the existence of the relation, and so 
 interested in its dissolution. Those parties are placed by the relation 
 in a certain relative state or condition, under the law, as are parents 
 and children, masters and servants ; and as every nation and State lias 
 an exclusive sovereignty and jurisdiction within its own territory, so it 
 has exclusively the right to determine the domestic and social condition 
 of the person domiciled within that territory. It may. except so fur as 
 checked by constitution or treaty, create by law new rights in, or im- 
 pose new duties upon, the parties to these relations, or lessen both 
 rights and duties, or abrogate them, and so the legal obligation of the
 
 SECT. IV.] DITSON V. DITSON. 229 
 
 relation which involves them, altogether. This it may do, with the 
 exception above stated, as in some relations, by law, when it wills; 
 declaring that the legal relation, of master and slave, for instance, shall 
 cease to exist within its jurisdiction, or for what causes or breaches of 
 duty in the relation, this, or the legal relation of husband and wife, or 
 of parent and child, may be restricted in their rights and duties or alto- 
 o-ether dissolved through the judicial intervention of its courts. The 
 right to govern and control persons and things within the State, sup- 
 poses the right, in a just and proper manner, to fix or alter the status 
 of the one, and to regulate and control the disposition of the other ; 
 nor is this sovereign power over persons and things lawfully domiciled 
 and placed within the jurisdiction of the State diminished by the fact 
 that there are other parties interested through some relation, in the 
 status of these persons, or by some claim or right, in those things, who 
 is out of the jurisdiction, and cannot be reached by its process. No 
 one doubts this, as a matter of general law, with regard to the other do- 
 mestic relations, and what special reason is there to doubt it, as to the 
 relation of husband and wife ? The slave who flees from Virginia to 
 Canada, — no treaty obliging his restoration — or who is brought by 
 his master thence to a free State of the Union — no constitutional pro- 
 vision enforcing his return — finds his status before the law in the new 
 jurisdiction he has entered changed at once ; and no one dreams that 
 this result of a new domicile and the new laws of it, is less legally certain 
 and proper as a matter of general law, because the master is out of the 
 new jurisdiction of his slave, and is not, or cannot be cited to appear 
 and attend to some formal ceremony of emancipation. It is true that 
 slavery is a partial and peculiar institution, not generally recognized 
 by the policy of civilized nations ; whereas marriage, in some form, is 
 coextensive with the race, and, as a relation, is nowhere so restrictive 
 and so binding in its obligations as amongst the most truly civilized 
 portions of it. Yet each nation and state has its peculiar law and pol- 
 icy as to the mode of forming, and the mode and causes for judicially 
 dissolving this last relation, according to its right ; and all that other 
 States or nations, under the general law which pervades all Christen- 
 dom can properly demand is, that in the exercise of its clear right in 
 this last respect as to its own citizens and subjects, it should pay all, 
 and no more attention, than is practicable to the competing rights and 
 interests of their citizens and subjects. It should give the non-residents 
 and foreigners, parties to such a relation of general legal sanctity as to 
 persons of the like description interested in property within its territory, 
 the rights to which are also everywhere recognized, at least such notice 
 by publicity before it proceeds to judicial action, as can, under such 
 circumstances, be given consistently with any judicial action at all efl3- 
 cient for the purposes of justice. To say that the general law inexora- 
 bly demands personal notice in order to such action, or, still worse, 
 demands that all parties interested in a relation or in property subject 
 to a jurisdiction should be physically within that jurisdiction, is to lay
 
 230 DITSON V. DITSON. [CHAP. III. 
 
 down a rule of law incapable of execution, or to make the execution of 
 laws dependent not upon the claims of justice, but upon the chance 
 locality, or, what is worse, upon the will of those most interested to 
 defeat it. 
 
 It is evident, upon examining the statutes of the diflferent States of 
 the Union, that legislation vesting jurisdiction for divorce in their courts 
 has followed no principle of general law in this respect whatsoever ; 
 some statutes making the jurisdiction, or supposing it to depend upon 
 the place of the contract, some upon the place of the delictum, and 
 some, as in this State, and as they should do, upon the domicile of the 
 wronged and petitioning party. The courts of each State exercise, as 
 they must, jurisdiction upon the principles laid down for them by stat- 
 ute ; and have very little occasion, unless called upon to review the 
 decree of some neighboring State, to attend to or consider any general 
 priaiciples pertaining to the subject. Engaged in this latter task, they 
 are very apt to confound the statute principles of jurisdiction, to which 
 they are accustomed, with the principles of general law relating to it; 
 notwithstanding the latter so obviously grow out of the right of every 
 State to regulate, in some cases by law, and in others by proper judi- 
 cial action, according to the nature of the subject, the social condition 
 or status, as it is called, of all persons subject to its jurisdiction. A 
 singular instance of forgetfulness of this principle of " State sover- 
 eignty " is afforded by the case of Hull v. Hull, 2 Strobhart's Equity 
 Appeals, 174 ; in which the right of the State of Connecticut to dissolve 
 through its courts under the law of that State, a marriage there formed 
 between two of its own citizens, upon the petition of a wife whose hus- 
 band had deserted her and her children and settled in South Carolina, 
 constructive notice only having been given to the absent and abscond- 
 ing husband, was put upon the ground that dissolution of the contract 
 of marriage upon such notice was part of the law of the place of the 
 contract and so part of the contract itself. The courts of that State, it 
 seems, whilst forgetting the State rights of their northern sister, stren- 
 uously insist upon the rights of their own ; holding, according to the 
 exploded notion of Lolley's Case, or rather of McArthy v. McArthy, 
 that a South Carolina marriage cannot be dissolved out of the State of 
 South Carolina, although any other may. In Irby ^'. Wilson, 1 Dev. & 
 Bat. Eq. R. 568, 576, under similar circumstances, except that in this 
 case the wife was the deserting, and the husband the petitioning party, 
 the Supreme Court of North Carolina held that a Tennessee divorce was 
 void, upon the ground hinted at in Lyon v. Lyon, sup., to wit, that 
 such a proceeding being between parties, and the wife having been 
 constructively notified only, although such notice was all that was possi- 
 ble, the courts of Tennessee could not alter by way of redress the status of 
 one of its own citizens become l)nrdensome to him by the alleged cause- 
 less and continued desertion of his wife. Upon the same principle, and 
 for the same reason, of course, North Carolina could not relieve from 
 the relation its citizen, the wife, although her husband might have com-
 
 SECT. IV.] DITSON V. DITSON. 231 
 
 pelled her to flee from him to the only home open to her in that State, 
 b}- the grossest violation of the duties which their relation to each other 
 imposed ; and thus, both these conterminous sovereignties would be 
 powerless for justice, over and upon the call of its respective domiciled 
 inhabitant. In Penns^ivania, the jurisdiction is made to depend upon 
 jurisdiction over the offender at the time of the offence (Dorsej y. Dor- 
 sey, 7 Watts, 349), as if the lex loci delicti were to govern ; in Louis- 
 iana, upon like jurisdiction, unless the marriage were contracted within 
 the State, when, we suppose, the delictum would be regarded as a breach 
 of contract, if such by the law of Louisiana in which the contract was 
 entered into. Edward v. Green, 9 La. Ann. R. 317. Thus, we per- 
 ceive, that by some courts marriage is treated as a species of continuing 
 executory contract between the parties, the obligations of which, 
 and the causes and even modes of dissolving which, are fixed by 
 the law of the place of contract. So sacredly local is it, in the view 
 of some, that it cannot be dissolved but by the courts of the country 
 in which it was formed. Others, perceiving, that though a contract, 
 it is one universally recognized, acknowledged the right of foreign tri- 
 bunals to act upon it, provided that in doing so, the}- govern themselves 
 not b}' the onlv law which thev, it may be by statute, can administer, 
 but ascertain whether it has been broken, and so ought to be dissolved, 
 by the law of the place of the contract. Some treat breaches of the 
 contract of every degree as quasi crimes, to be punished only in the 
 place in which they were committed, provided the parties be then there 
 domiciled ; and others, again, qualif}' this b}- an exception in favor of 
 the tribunals of the place of contract ; since there the delicta can be 
 treated as breaches of the contract, if such be the law of the place of 
 contract. If marriage be a contract, or the breach of it a tort, it may 
 well be asked, why are they not at least personal in their nature, and 
 transitorj' in their legal character ? passing with the wronged person 
 wherever he or she passes, for redress by any tribunal of the civilized 
 world, which can obtain jurisdiction of the person of the covenant 
 breaker or trespasser ? 
 
 It is evident that from such confusion of decisions and reasons, no 
 general principle worth considering can, b}' any process, be eliminated. 
 Raising ourselves above this mist of misapplied learning and ingenuit}', 
 and looking at the matter simply as it is, it is obvious that marriage, as 
 a domestic relation, emerged from the contract which created it, is 
 known and recognized as such throughout the civilized world ; ^hat it 
 gives rights and imposes duties and restrictions upon the parties to it, 
 affecting their social and moral condition, of the measure of which 
 every civilized State, and certainly every State in this Union, is the sole 
 judge so far as its own citizens or subjects are concerned, and should 
 be so deemed by other civilized, and especiall}' sister, States ; that a 
 State cannot be deprived, directly or indirectly, of its sovereign power 
 to regulate the status of its own domiciled subjects and citizens, by the 
 fact that the subjects and citizens of other States, as related to them,
 
 232 DITSON V, DITSON. [CHAP. III. 
 
 are interested in that status, and in such a matter has a right, under 
 the general law, judicially to deal with and modify or dissolve this rela- 
 tiont binding both parties to it by the decree, by virtue of its inherent 
 power over its own citizens and subjects, and to enable it to answer 
 their obligatory demands for justice ; and finally, that in the exercise 
 of this judicial power, and in order to the validity of a decree of divorce, 
 whether a meyisa et thoro or a vinculo matrimonii (the general law does 
 not deprive a State of its proper jurisdiction over the condition of 
 its own citizens, because non-residents, foreigners, or domiciled inhabi- 
 tants of other States have not or will not become, and cannot be made 
 to become, personally subject to the jurisdiction of its courts ; but upon 
 the most familiar principles, and as illustrated by the most familiar anal- 
 oo-ies of general law, its courts may and can act conclusively in such a 
 matter upon the rights and interests of such persons, giving to them 
 such notice, actual or constructive^ as the nature of the case admits of, 
 and the practice of courts in similar cases sanctions ; the purpose of 
 such notice being to banish the idea of secrecy and fraud in the proceed- 
 ing by inviting publicity to it, as well as to give to persons out of the 
 jurisdiction of the court every chance possible, under the circumstances, 
 of appearing to the proceeding, and defending, if they will, their own 
 rights and interests involved in it. 
 
 These views are supported by the practice of the States of Connecti- 
 cut and Tennessee called in question, as we have seen by the courts of 
 South and North Carolina, as probably by the practice of many other 
 States, and certainly by the long continued practice of our own. They 
 are sanctioned by the well-considered decision of Harding v. Alden, 
 9 Greenl, R. 140, and by that learned jurisconsult, the late Chancellor 
 Kent, in his note on that case, 2 Kent's Cora., 110, n. b. 4th ed. They 
 are otherwise best sustained by authorit}'. Tolen v. Tolen, 2 Blackf. 
 407. Guerabell v. Guembell, Wright, 286. Cooper v. Cooper, 7 Ohio, 
 238. Mansfield v. Mclntyre, 10 ib. 27. Harrison v. Harrison, 19 Ala- 
 bama, 499. Hare v. Hare, 10 Texas, 355. See also the whole subject 
 discussed in Bishop on Marriage and Divorce, passim.^ and especially 
 in ch. 34 of that valuable work. 
 
 It may be added, that the distressing consequences which otherwise 
 might arise from the conflict of laws and decisions upon this interesting 
 and important subject has been wisely provided against by a clause of 
 the Constitution of the United States, and can find a remedy under it 
 in the Supreme Court of the United States, as the court of last resort, 
 in cases demanding its application. By art. 4, sect. 1, of the Consti- 
 tution of the United States, " Full faith and credit shall be given in each 
 State to the public acts, records, and judicial proceedings of every other 
 State." As this has been construed by the highest authority to give 
 in every other State the same effect to a judgment or decree of a 
 State court that it has in that in which it is rendered or passed, no 
 serious injury can be done to tlie proper subjects of our judicial admin- 
 istration by the errors and mistakes of other courts with regard to our
 
 SECT. IV. J DITSON V. DITSON. 233 
 
 jurisdiction. From the nature of the topics constanth' agitated before 
 it, no court in the world is better qualified to deal with questions of 
 general law, and especially with one involving, as that before us does, 
 the rights of a State of the Union ; and under the trained qualifications 
 of the members of the court, as well as the constitutional power of the 
 court itself, those properly subject to our judgments and decrees in this 
 respect, as in all others, are quite safe, having honestly obtained them, 
 in acting by virtue of them. ^ . . . 
 
 We reserved this case, the first on the circuit which presented the 
 question before discussed for consideration, it being admitted that the 
 husband of the petitioner had never resided with her in this State, or 
 even as the proof showed, been within its borders, and was now abroad 
 in parts unknown, and was not, of course, personally served, because 
 under such circumstances he could not be personally served with the ordi- 
 nary citation issued by us to a resident defendant to such a petition. 
 Under the authorized rule of this court, in regard to constructive notice 
 to an absent defendant to a petition for divorce, upon affidavit of the 
 facts.\six weeks' notice of the pendency of this petition was given, by 
 publishing the same for the space of six weeks next before the sitting 
 of the court at this term \ and it is evident that the husband of this lady 
 knows, as from his conduct it is apparent that he cares, nothing about 
 this proceeding. Whatever was the former domicile of the petitioner, 
 we are satisfied that she is, and has, for upwards of the last t hree years, 
 been a domiciled citizen of Rhode Island, — her only home, in the house 
 of her father; and that, as such citizen, and upon such notice, we have 
 power and jurisdiction over her case, and to change her condition from 
 that of a married to that of a single woman, granting to her the relief, 
 which, under like circumstances, the law and policy of Rhode Island 
 accords to all its citizens. Let a decree be entered divorcing Mary Ann 
 Ditson from George L. Ditson, and annulling the bond of matrimony 
 now subsisting between them ; and that the name of the said Mary Ann 
 Ditson be changed to, and she be hereafter known and called by the 
 name of Marv Ann Simmons, according to the prayer of her petition.^ 
 
 1 Here follows a discussion of the question of domicile, for which see s. c. supra, 
 p. 205. — Ed. 
 
 2 Ace. Cheever v. Wilson, 9 Wall. 108 ; Hanberry v. Hanberr}-, 29 Ala. 719 ; Chap- 
 man V. Chapman, 129 111. 386 ; Harden v. Alden, 9 Me. 140 ; Shreck v. Shreck, 32 
 Tex. 578 ; Hubbell v. Hubbell, 3 Wis. 662 ; Stevens v. Fisk (Can. ), 8 L. N. 42. See 
 Rhyms v. Rhyms, 7 Bush. 316 ; Harteau v. Harteau, 14 Pick. 81 ; Frary v. Frary, 10 
 N. H. 61. 
 
 In Massachusetts the court at the domicile of either spouse is competent, at the 
 election of the libellant. Sewall v. Sewall, 122 Mass. 156; Watkins v. Watkins, 135 
 Mass. 83. In Pennsylvania the court of the libellee's domicile alone is competent, 
 unless the libellee has changed his domicile since cause for divorce given. Colvin v. 
 Reed, 55 Pa. 375; Reel v. Elder, 62 Pa. 308. In several States, the court of the libel- 
 lant's domicile alone is competent : Irby v. Wilson, 1 Dev. & B. Eq. 568 ; White ». 
 White, 18 R. L 292, 27 Atl. 506 ; Dutcher v. Butcher, 39 Wis. 651. — Ed.
 
 234 STATE V. AKMINGTON. [CHAP. III. 
 
 STATE V. ARMINGTON. 
 
 Supreme Court of Minnesota. 1878. 
 
 [Ecported 25 Minnesota, 29.] 
 
 The defendant was tried in a district court for the crime of polygamy^ 
 He offered in evidence a certified copy of a decree of divorce between 
 liimself and iiis former wife, granted by a Probate Court in Utah. This 
 was excluded by the court on the ground that both parties were at that 
 time resident in Minnesota ; the defendant excepted. The defendant 
 was convicted and sentenced to the state prison for two years, and 
 appealed.^ 
 
 Cornell, J. The remaining question for consideration relates to the 
 decision of the court excluding what purports to be an authenticated 
 cop3' of a decree of divorce of the '" probate court in and for Box 
 Elder county, in the territory of Utah," entered in that court at a special 
 term, on December 18, 1876, in an action between John L. Armington, 
 plaintiff, v. Martha F. Armington, defendant, dissolving the marriage 
 contract between them. Among the objections made to this evidence, 
 was the one that, at the time the decree purports to have been rendered 
 both parties thereto were residents of this State, and had been for sev- 
 eral 3'ears prior. When this evidence was offered, it incontestabl}' 
 appeared, from the testimony already given, that both the defendant 
 and his said wife, Mrs. Martha F. Armington, had been resident citi- 
 zens of this State, and domiciled therein, for over nine years prior to 
 the date of the decree, and that they were both actually living in this 
 State at the time of its entry, /it did not appear, nor was any offer 
 made to show the fact, that either had ever been domiciled, even tem- 
 porarily, within the territory of Utah; and as to Mrs. Armington, it is 
 quite clear that she never, at any time during the progress of the proceed- 
 ings in said court, was outside the limits of this State, or within the 
 territorial limits of Utah. /As to Mr. Armington, the most that can be 
 claimed from the evidence is that he temporarily left his residence in 
 Northfiekl, in this State, sometime in the summer of 1876, and returned 
 in August or Septeml)er of that year. AVhere he was, during this 
 period, does not affirmativel}' appear ; l)ut it does affirmativel}' appear 
 that he has resided and practised medicine in Northfield ever since 
 November in that year. /Upon this evidence, the court was warranted 
 in assuming that neither of the parties ever acquired a bona fid edom'\c\\Q 
 or residence in Utah, and that both were, during the conduct of these 
 divorce proceedings, domiciled residents of this State, and subject to its 
 laws. \, Upon this state of facts, the probate court of Utah, whatever 
 may have been the extent of its jurisdiction over the subject of divorce 
 under the local laws of that territory as respects its citizens, had no 
 
 1 Tills short statement of the facts necessary for the question of jurisdiction is sub- 
 stituted for the statement of the Reporter. I'art of the o[iinion only is given. — Ed.
 
 SECT. IV.] HADDOCK V. HADDOCK. 235 
 
 jurisdiction to adjudicate upon the marriage relation existing between 
 tliese parties. To each State belongs the exclusive right and power of 
 determining upon the status of its resident and domiciled citizens and 
 subjects, in respect to the question of marriage and divorce, and no 
 other State, nor its judicial tribunals, can acquire au}- lawful jurisdic- 
 tion to interfere in such matters between any such subjects^ when 
 neither of them has become bona fide domiciled within its limits; and 
 any judgment rendered by any such tribunal, under such circumstances, 
 is an absolute nullity. Ditson v. Ditson, 4 R. I. 93; Cooley Const. 
 Lim. 400, and notes; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoff- 
 man, 46 N. Y. 30 ; Hanover v. Turner, 14 Mass. 227. It does not 
 appear upon the face of the judgment or decree, or in any of its recitals, 
 that either of the parties were ever residents of said territory of Utah, 
 or domiciled therein. This is a jurisdictional matter, which should 
 appear, to entitle the judgment to any respect whatever ; for though it 
 be conceded that the probate court that rendered the judgment was in 
 the legal sense a court of record, " its jurisdiction," if any, under the 
 local laws of the territory, "over the subject of divorce, was a special 
 authorit}' not recognized b}- the common law, and its proceedings in 
 relation to it stand upon the same footing witli those of courts of 
 limited and inferior jurisdiction," unaided b}- any legal presumptions 
 in their favor. Com. v. Blood, 97 Mass. 538. The evidence was 
 properly excluded.^ 
 
 HADDOCK V. HADDOCK. 
 Supreme Court of the United States. 1906. 
 
 [Reported 201 U. S. 562.] 
 
 White, J. The plaintiff in error will be called the husband and the 
 defendant in error the wife. 
 
 The wife, a resident of the State of New York, sued the husband in 
 that State in 1899, and there obtained personal service upon him. The 
 complaint charged that the parties had been married in New York in 
 1868, where they both resided and where the wife continued to reside, 
 and it was averred that the husband, immediately following tlie mar- 
 riage, abandoned the wife, and thereafter failed to support her, and 
 that he was the owner of property. A decree of separation from bed 
 and board and for alimony was prayed. The answer admitted the mar- 
 riage, but averred that its celebration was procured by the fraud of the 
 wife, and that immediately after the marriage the parties had separated 
 by mutual consent. It was also alleged that during the long period be- 
 tween the celebration and the bringing of this action the wife had in no 
 manner asserted her rights and was barred by her laches from doing so. 
 Besides, the answer alleged that the husband had, in 1881, obtained in 
 a court of the State of Connecticut a divorce which was conclusive.
 
 236 HADDOCK V. HADDOCK. [CHAP. III. 
 
 At the trial before a referee the judgment roll in the suit for divorce 
 in Connecticut was offered by the husband and was objected to, first, 
 because the Connecticut court had not obtained jurisdiction over the 
 person of the defendant wife, as the notice of the pendency of the peti- 
 tion was by publication and she had not appeared in the action ; and, 
 second, because the ground upon which tlie divorce was granted, viz., 
 desertion by the wife, was false. The referee sustained the objections 
 and an exception was noted. The judgment roll in question was then 
 marked for identification and forms a part of the record before us. 
 
 Having thus excluded the proceedings in the Connecticut court, the 
 referee found that the parties were married in New York in 1868, that 
 the wife was a resident of the State of New York, that after the mar- 
 riage the parties never lived together, and shortly thereafter that the 
 husband without justifiable cause abandoned the wife, and has since 
 neglected to provide for lier. The legal conclusion was that the wife 
 was entitled to a separation from bed and board and alimony in the sum 
 of S780 a year from the date of the judgment. The action of the ref- 
 eree was sustained by the Supreme Court of the State of New York, and 
 a judgment for separation and alimony was entered in favor of the wife. 
 This judgment was affirmed by the Court of Appeals. As by the law 
 of the State of New York, after the affirmance by the Court of Appeals, 
 the record was remitted to the Supreme Court, this writ of error to that 
 court was prosecuted. 
 
 The Federal question is, Did the court below violate the Constitution X 
 of the United States by refusing to give to the decree of divorce ren- ¥ 
 dered in the State of Connecticut the faith and credit to which it was 
 entitled? 
 
 As the averments concerning the alleged fraud in contracting the 
 marriage and the subsequent laches of the wife are solely matters of 
 State cognizance, we may not allow them to even indirectly influence 
 our judgment upon the Federal question to which we are confined, and 
 we, therefore, put these subjects entirely out of view. Moreover, as, 
 for the purpose of the Federal issue, we are concerned not Avith the 
 mere form of proceeding by which the Federal riglit, ii any, was denied, 
 but alone have power to decide whether such right was denied, we do 
 not inquire v/hether the New York court should preferably have admit- 
 ted the rec(Md of the Connecticut divorce suit, and, after so admitting 
 it, determine what effect it would give to it instead of excluding the 
 record and thus refusing to give efl'ect to the judgment. In order to 
 decide whether the refusal of the court to admit in evidence the Con- 
 necticut decree denied to that decree the efllcacy to which it was enti- 
 tled under the full faith and credit clause, we must first examine the 
 judgment roll of the Connecticut cause in order to fix the precise cir- 
 cumstances under which the decree in that cause was rendered. 
 
 Without going into detail, it sufl^ces to say that on the face of the 
 Connecticut record it appeared that the husband, alleging that he had 
 acquired a domicil in Connecticut, sued the wife in that State as a per-
 
 SECT. IV.] HADDOCK V. HADDOCK. 237 
 
 son whose residence was unknown, but whose last known place of resi- 
 dence was in the State of New York, at a place stated, and charged 
 desertion by the wife and fraud on her part in procuring the marriage ; 
 and, further, it is shown that no service was made upon the wife except 
 by publication and by mailing a copy of the petition to her at her last 
 known place of residence in the State of New York. 
 
 With the object of confining our attention to the real question arising 
 from tills condition of the Connecticut record, we state at the outset 
 certain legal propositions irrevocabh- concluded by previous decisions 
 of this court, and which are required to be borne in mind in analyzing 
 the ultimate issue to be decided. 
 
 First. The requirement of the Constitution is not that some, but that 
 full, faith and credit shall be given b}' States to the judicial decrees of 
 other States. That is to sa}-, wiiere a decree rendered in one State is 
 embraced b}' the full faith and credit clause that constitutional provision 
 commands that the other States shall give to the decree tlie force and 
 effect to which it was entitled in the State where rendered. Harding v. 
 Harding, 198 U. S. 317. 
 
 Second. Where a personal judgment has been rendered in the courts 
 of a State against a non-resident merelv upon constructive service and, •/ 
 therefore, without acquiring jurisdiction over the person of the defend- 
 ant, such judgment ma}' not be enforced in another State in virtue of 
 the full faith and credit clause. Indeed, a personal judgment so 
 rendered is by operation of the due process clause of the Fourteenth 
 Amendment void as against the non-resident, even in the State where 
 rendered, and, therefore, such non-resident in virtue of rights granted 
 b}' the Constitution of the United States may successfullj' resist even in 
 the State where rendered, the enforcement of such a judgment. Pen- 
 noyer v. Neff, 95 U. S. 714. The facts in that case were these: Neff, 
 who was a resident of a State other than Oregon, owned a tract of land 
 in Oregon. Mitchell, a resident of Oregon, brought a suit in a court of 
 that State upon a money demand against Neff. The Oregon statutes 
 required, in the case of personal action against a non-resident, a publi- 
 cation of notice, calling upon the defendant to appear and defend, and 
 also required the mailing to such defendant at his last known place 
 of residence of a copy of the summons and complaint. Upon affidavit 
 of the absence of Neff, and that he resided in the State of California, 
 the exact place being unknown, the publication required by the statute 
 was ordered and made, and judgment b}- default was entered against 
 Neff. Upon this judgment execution was issued and real estate of Neff 
 was sold and was ultimately acquired by Pennoyer. Neff sued in the 
 Circuit Court of the United States for the District of Oregon to recover 
 the property, and the question presented was the validitj- in Oregon of 
 the judgment there rendered against Neflf. After the most elaborate 
 consideration it was expressly decided that the judgment rendered in 
 Oregon under the circumstances stated was void for want of jurisdic- 
 tion and was repugnant to the due process clause of the Constitution of
 
 238 HADDOCK V. HADDOCK. CHAP. HI. 
 
 the United States. The ruling was based on the proposition that a 
 court of one State could not acquire jurisdiction to render a personal 
 judgment against a non-resident who did not appear by the mere publi- 
 cation of a summons, and that the want of power to acquire such juris- 
 diction b}' publication could not be aided by the fact that under the 
 statutes of the State in which the suit against the non-resident was 
 brought the sending of a copy of the summons and complaint to the 
 post office address in another State of the defendant was required and 
 complied with. The court said (p. 727) : 
 
 ''Process from the tribunals of one State cannot run into another 
 State, and summon parties there domiciled to leave its territorj' and 
 respond to proceedings against them. Publication of process or notice 
 within the State where the tribunal sits cannot create any greater obli- 
 gation upon the non-resident to appear. Process sent to him out of the 
 State, and process published within it, are equally unavailing in pro- 
 ceedings to establish his personal liability." 
 
 And the doctrine thus stated but expressed a general principle ex- 
 pounded in previous decisions. Bischoff /■. Wetliered, 9 Wall. 812. In 
 that case, speaking of a money judgment recovered in tlie Common 
 Pleas of Westminster Hall, England, upon personal notice served in the 
 city of Baltimore, Mr. Justice Bradley, speaking for the court, said 
 (p. 814) : 
 
 "It is enough to say [of this proceeding] that it was wholl}' without 
 jurisdiction of tlie person, and whatever validity it may have in England, 
 by virtue of statute law against property' of the defendant there situate, 
 it can have no validity here, even of a prima facie character. It is 
 simply null." 
 
 Third. The principles, however, stated in the previous proposition 
 are controlling onl}' as to judgments in persouani and do not relate to 
 proceedings in rem. That is to say, in consequence of the authority 
 which government possesses over things within its borders there is juris- 
 diction in a court of a State by a proceeding in. rem, after the giving of 
 reasonable opportunit}' to the owner to defend, to affect things within 
 the jurisdiction of the court, even although jurisdiction is not direct!}' 
 acquired over the person of the owner of the thing. Pennoyer t'. Neff, 
 sujjra. ' 
 
 Fourth. The general rule stated in the second proposition is, more-i/ 
 over, limited by the inlierent power which all governments must possess' 
 over the marriage relation, its formation and dissolution, as regards 
 their own citizens. From this exception it results that where a court 
 of one State, conformably to the laws of such State, or the State through 
 its legislative department, has acted concerning the dissolution of tlie 
 marriage tie, as to a citizen of that State, such action is binding in that 
 State as to such citizen, and the validity of the judgment may not 
 therein be questioned on the ground that the action of the State in 
 dealing with its ovvn citizen concerning the marriage relation was re- 
 pugnant to the due process clause of the Constitution. Maynard v.
 
 SECT. IV.] HADDOCK V. HADDOCK. 239 
 
 Hill, 125 U. S. 190. In that case the facts were these: Maynard was 
 married in Vermont, and the husband and wife removed to Ohio, from 
 whence Maj-nard left his wife and family and went to California. Sub- 
 sequently he acquired a domicil in the Territory of Washington. Being 
 there so domiciled, an act of the legislature of the Territory was passed 
 granting a divorce to the husband. Maynard continued to reside in 
 Washington, and there remarried and died. The children of the former 
 wife, claiming in right of their mother, sued in a court of the Territory 
 of Washington to i-ecover real estate situated in the Territory, and one 
 of the issues for decision was the validity of the legislative divorce 
 granted to the father. The statute was assailed as invalid, on the 
 ground that Mrs. Maynard had no notice and that she was not a resi- 
 dent of the Territory when the act was passed. From a decree of the 
 Supreme Court of the Territory adverse to their claim the children 
 brought the case to this court. The power of the territorial legislature, 
 in the absence of restrictions in the organic act, to grant a divorce to a 
 citizen of the Territory- was, however, upheld, in view of the nature and 
 extent of the authorit}' which government possessed over the marriage 
 relation. , It was therefore decided that the courts of the Territory com- 
 mitted no error in giving effect within the Territor}- to the divorce in 
 question. And as a corollary of the recognized power of a govern- 
 ment thus to deal with its own citizen by a decree which would be 
 operative within its own borders, irrespective of anj' extraterritorial 
 efficacy, it follows that the right of another sovereignt}' exists, under 
 principles of comity, to give to a decree so rendered such efficacy as to 
 that government may seem to be justified by its conceptions of duty and 
 public polic}'. 
 
 Fifth. It is no longer open to question that where husband and wife 
 are domiciled in a State there exists jurisdiction in such State, for good 
 cause, to enter a decree of divorce which will be entitled to enforcement 
 in another State by virtue of the full faith and credit clause. It has, 
 moreover, been decided that where a bona fide domicil has been acquired 
 in a State by either of the parties to a marriage, and a suit is brought 
 by the domiciled party in such State for a divorce, the courts of tliat 
 State, if they acquire personal jurisdiction also of the other part}', have 
 authority to enter a decree of divorce, entitled to be enforced in every 
 State by the full faith and credit clause. Cheever v. Wilson 9 Wall. 
 108. 
 
 Sixth. Where the domicil of matrimony was in a particulai State, and 
 the husband abandons his wife and goes into another State in order to 
 avoid his marital obligations, such other State to which the husband has 
 wrongfuU}' fled does not, in the nature of things, become a new domicil 
 of matrimon}', and, therefore, is not to be treated as the actual or con- 
 structive domicil of the wife ; hence, the place where the wife was domi- 
 ciled when so abandoned constitutes her legal domicil until a new actual 
 domicil be by her elsewhere acquired. This was clearly expressed ill 
 Barber v. Barber, 21 How. 582, where it was said (p. 595) :
 
 240 HADDOCK V. HADDOCK. [CHAP. III. 
 
 "The general rule is, that a voluntary separation will not give to the 
 wife a different domiciliation in law from that of her husband. But if 
 the husband, as is the fact in this case, abandons their domicil and his 
 wife, to get rid of all those conjugal obligations which the marriage re- 
 lation imposes upon him, neither giving to her the necessaries nor the 
 comforts suitable to their condition and his fortune, and relinquishes 
 altogether his marital control and protection, he j-ields up that power 
 and authority over her which alone makes his domicil hers. ..." 
 
 And the same doctrine was expressl}- upheld in Cheever v. Wilson, 
 supra, where the court said (9 Wall. 123) : 
 
 " It is insisted that Cheever never resided in Indiana ; that the dom- 
 icil of the husband is the wife's, and that she cannot have a different 
 one from his. The converse of the latter proposition is so well settled 
 that it would be idle to discuss it. The rule is that she nia\' acquire a 
 separate domicil whenever it is necessary or proper that she should do 
 so. The riglit springs from the necessity of its exercise, and endures 
 as long as the necessity continues." 
 
 Seventh. So also it is settled that where the domicil of a husband is 
 in a particular State, and that State is also the domicil of matrimony, 
 the courts of such State having jurisdiction over the husband may, in 
 virtue of the duty of the wife to be at the matrimonial domicil, disregard 
 an unjustifiable absence therefrom, and treat the wife as having her 
 domicil in the State of the matrimonial domicil for the purpose of the 
 dissolution of the marriage, and as a result have power to render a 
 judgment dissolving the marriage which will be binding upon both par- 
 ties, and will be entitled to recognition in all other States by virtue of 
 the full faith and credit clause. Athei'ton v. Atherton, 181 U. S. 155 
 
 Coming to apply these settled propositions to the case before us three 
 things are beyond dispute : a. In view of the authority which govern- 
 ment possesses over the marriage relation, no question can arise on this 
 record concerning the right of the State of Connecticut within its borders 
 to give effect to the decree of divorce rendered in favor of the husband 
 by the courts of Connecticut, he being at the time when the decree was 
 rendered domiciled in that State, b. As New York was the domicil of 
 the wife and the domicil of matrimony, from which the husband fled in 
 disregard of his duty, it clearly results from the sixth proposition that 
 the domicil of the wife continued in New York. c. As then there can be 
 no question that the wife was not constructively present in Connecticut 
 by virtue of a matrimonial domicil in that State, and was not there indi- 
 vidually domiciled and did not appear in the divorce cause, and was only 
 constructively served with notice of the pendency of that action, it is 
 apparent that the Connecticut court did not acquire jurisdiction over 
 the wife within the fifth and seventh propositions; that is, did not ac- 
 quire such jurisdiction by virtue of the domicil of the wife within the 
 State or as the result of personal service upon her within its borders. 
 
 These subjects being thus eliminated, the case reduces itself to this : 
 Wli(>thor the Coiniecticut court, in virtue alone of the domicil of the bus- 
 
 /
 
 SECT. IV.] HADDOCK V. HADDOCK. 241 
 
 band in that State, had jurisdiction to render a decree against the wife 
 under the circumstances stated, which was entitled to be enforced in 
 other States in and by virtue of the full faith and credit clause of the 
 Constitution. In other words, the final question is whether to enforce 
 in another jurisdiction the Connecticut decree would not be to enforce in 
 one State, a personal judgment rendered in another State against a de- 
 fendant over whom the court of the State rendering the judgment had 
 not acquired jurisdiction. Otherwise stated, the question is this : Is a 
 proceeding for divorce of such an exceptional character as not to come 
 within the rule limiting the authority of a State to persons within its 
 jurisdiction, but on the contrary, because of the power which govern- 
 ment may exercise over the marriage relation, constitutes an exception 
 to that rule, and is therefore embraced, either within the letter or spirit 
 of the doctrines stated in the third and fourth propositions? 
 
 Before reviewing the authorities relied on to establish that a divorce 
 proceeding is of the exceptional nature indicated, we propose first to 
 consider the reasons advanced to sustain the contention. In doing so, 
 however, it must always be borne in mind that it is elementary that 
 
 where the full faith and credit clause of the Constitution is invoked to 
 ^111 — I — — — — — ■ — — — -.— . — ' 
 
 compel the enforcement in one State of a decree rendered in anothei:^. 
 tjie que stion of the jurisdict ion of tlie court by which the decree was 
 rendered is open to inquiry . And if there was no jurisdiction, either of 
 the subject matter or of the person of the defendant, the courts of an- 
 other State are not required, by virtue of the full faith and credit clause 
 of the Constitution, to enforce such decree. National Exchange Bank 
 V. Wilej", 195 U. S. 257, 269, and cases cited. 
 
 I. The wide scope of the authority which government possesses over 
 the contract of marriage and its dissolution is the basis upon which it is 
 argued that the domicil within one State of one part}' to the marriage 
 gives to such a State jurisdiction to decree a dissolution of the marriage 
 tie which will be obligatoiy in all the other States by force of the full 
 faith and credit clause of the Constitution. But the deduction is de- 
 structive of the premise upon which it rests. This becomes clear when 
 it is perceived that if one government, because of its authority over its 
 own citizens has the right to dissolve the marriage tie as to the citizen 
 of another jurisdiction, it must follow that no government possesses as 
 to its own citizens, power over the marriage relation and its dissolution. 
 For if it be that one government in virtue of its authorit}' over marriage 
 ma}" dissolve the tie as to citizens of another government, other govern- 
 ments would have a similar power, and hence the right of every gov- 
 ern joent as to its own citizens might be rendered nugatory by the 
 exercise of the power which every other government possessed. To 
 concretely illustrate : If the fact be that where persons are married in 
 the State of New York either of the parties to the marriage may, in 
 violation of the marital obligations, desert the other and go into the 
 State of Connecticut, there acquiring a domicil, and procure a dissolu- 
 tion of the marriage which would be binding in the State of New York 
 
 16
 
 242 HADDOCK V. HADDOCX. [CHAP. III. 
 
 as to the part}' to the marriage there domiciled, it would follow that the 
 power of the State of New York as to the dissolution of the marriage as 
 to its domiciled citizen would be of no practical avail. And conversely 
 the like result would follow if the marriage had been celebrated in Con- 
 necticut and desertion had been from that State to New York, and 
 consequently the decree of divorce had been rendered in New York. 
 Even a superficial analysis will make this clear. Under the rule con- 
 tended for it would follow that the States whose laws were the most lax 
 as to length of residence required for domicil, as to causes for divorce 
 and to speed of procedure concerning divorce, would in effect dominate 
 all the other States. In other words, any person who was married in 
 one State and who wished to violate the marital obligations would be 
 able, by following the lines of least resistance, to go into the State 
 whose laws were the most lax, and there avail of them for the purpose 
 of the severance of the marriage tie and the destruction of the rights of 
 the other party to the marriage contract, to the overthrow of the laws 
 and public policy of the other States. Thus the argument comes neces- 
 sarily to this, that to pre serve the lawful authorjty_of.till^the-States over 
 marriage it is e^senflaTto'decide that all the States have such authority 
 ontrat the sufferance of the other States. And the considerations just 
 stated serve to dispose of the argument that the contention relied on 
 finds support in the ruling made in Maynard v. Hill, referred to in the 
 fourth proposition, which was at the outset stated. For in that case 
 the sole question was the effect within the Territory of Washington of a 
 legislative divorce granted in the Territory to a citizen thereof. The 
 ui)holding of the divorce within the Territory was, therefore, but a rec- 
 ognition of the power of the territorial government, in virtue of its 
 authority over marriage, to deal with a person domiciled within its 
 jurisdiction. The case, therefore, did not concern the extraterritorial 
 efficacy of the legislative divorce. In other words, whilst the ruling 
 recognized the ample powers which government possesses over mar- 
 riage as to one within its jurisdiction, it did not purport to hold that 
 such ample powers might be exercised and enforced by virtue of the 
 Constitution of the United States in another jurisdiction as to citizens 
 of other States to whom the jurisdiction of the Territory did not 
 extend. 
 
 The anomalous result which it is therefore apparent would arise from 
 maintaining the proposition contended for is made more inanifest by 
 considering the instrument from which such result would be produced, 
 tliat is, llie full faith and credit clause of the Constitution. No one 
 denies tliat tlie States, at the time of the adoption of the Constitution, 
 possessed full power over the subject of marriage and divorce. No 
 one, moreover, can deny that, prior to the adoption of the Constitution, 
 the extent to which the States would recognize a divorce obtained in a 
 foreign jin-isdiction depended upon their conceptions of duty and comity. 
 Besides, it must be conceded that the Constitution delegated no author- 
 ity to the Government of the United States on the subject of marriage
 
 SECT. IV.] HADDOCK V. HADDOCK. 243 
 
 aud divorce. Yet, if tlie proposition be maintained, it would follow 
 that tiie destruction of tlie power of tlie States over the dissolution of 
 marriage, as to their own citizens, would be brought about by the oper- 
 ation of the full faith and credit clause of the Constitution. That is to 
 sa}-, it would come to pass that, although the Constitution of the United 
 States does not interfere with the authority of the States over marriage, 
 nevertheless the full faith aud credit clause of that instrument destroyed 
 the authority of the States over the marriage relation. And as the 
 Government of the United States has no delegated authorit}' on the 
 subject, that Government would be powerless to prevent the evil thus 
 brought about b}' the full faith and credit clause. Thus neither the 
 States nor the National Government would be able to exert that au- 
 thority over the marriage tie possessed by every other civilized gov- 
 ernment. Yet, more remarlvable would be such result when it is borne 
 in mind that, when the Constitution was adopted, nowhere, eitlier in 
 the mother country or on the continent of Europe, either in adjudged 
 cases or in the treatises of authoritative writers, had the theory ever 
 been upheld or been taught or even suggested that one government, 
 solely because of the domicil within its borders of one of the parties to 
 a marriage, had authorit}-, without the actual or constructive presence 
 of the other, to exert its authority b}- a dissolution of the marriage tie, 
 which exertion of power it would be the duty of other States to respect 
 as to those subject to their jurisdiction. 
 
 II. It is urged that the suit for divorce was a proceeding in rem, and, 
 therefore, the Connecticut court had complete jurisdiction to enter a 
 decree as to the res, entitled to be enforced in the State of New York. 
 But here again the argument is contradictory. It rests upon the theory 
 that jurisdiction in Connecticut depended upon the domicil of the person 
 there suing and yet attributes to the decree resting upon the domicil of 
 one of the parties alone a force and effect based upon the theory that a 
 thing within the jurisdiction of Connecticut was the subject matter of 
 the controvers}-. But putting this contradiction aside, what, may we 
 ask, was the res in Connecticut? Certainly it cannot in reason be said 
 that it was the cause of action or the mere presence of the person of the 
 plaintiff within the jurisdiction. The only possible theorj' then upon 
 which the proposition proceeds must be that the res in Connecticut, 
 from which the jurisdiction is assumed to have arisen, was the marriage 
 relation. But as the marriage was celebrated in New York between 
 citizens of that State, it must be admitted, under the hypothesis stated, 
 that before the husband deserted the wife in New York, the res was in 
 New York and not in Connecticut. As the husband, after wrongfully 
 abandoning the wife in New York, never established a matrimonial 
 domicil in Connecticut, it cannot be said that he took with him the 
 marital relation fi'om which he fled to Connecticut. Conceding, how- 
 ever, that he took with him to Connecticut so much of the marital rela- 
 tion as concerned his individual status, it cannot in reason be said that 
 he did not leave in New York so much of the relation as pertained to
 
 2^:-^: HADDOCK V. HADDOCK. [CHAP. III. 
 
 the status of the wife. From any point of view, then, under the propo- 
 sition referred to, if the roarriage relation be treated as the res, it follows 
 that it was divisible, and therefore there was a res in the State of New 
 York and one in the State of Connecticut. Thus considered, it is clear 
 that the power of one State did not extend to affecting the thing situated 
 in another State. As illustrating this conception, we notice the case 
 of Mississippi & Missouri R. R. Co. v. Ward, 2 Black, 485. The facts 
 in that case were these : A bill was filed in a District Court of the 
 United States for the District of Iowa to abate a nuisance alleged to 
 have been occasioned by a bridge across the Mississippi River dividing 
 the States of Illinois and Iowa. Under the assumption that the nuisance 
 was occasioned by the operation of the bridge on the Illinois side, the 
 court, after pointing out that the United States Circuit Court for the Dis- 
 trict of Iowa exercised the same jurisdiction that a State court of Iowa 
 could exercise and no more, said (p. 494 ) : 
 
 " The District Court had no power over the local object inflicting the 
 injury ; nor any jurisdiction to inquire of the facts, whether damage had 
 been sustained, or how much. These facts are beyond the court's juris- 
 diction and powers of inquiry, and outside of the case." 
 
 Nor has the conclusive force of the view which we have stated been 
 met by the suggestion that the res was indivisible, and therefore was 
 wholly in Connecticut and wholly in New York, for this amounts but 
 to saying that the same thing can be at one and the same time in differ- 
 ent places. Further, the reasoning above expressed disposes of the 
 contention that, as the suit in Connecticut involved the status of the 
 husband, therefore the courts of that State had the power to determine 
 the status of the non-resident wife by a decree which had obligatory 
 force outside of the State of Connecticut. Here, again, the argument 
 comes to this, that, because the State of Connecticut had jurisdiction 
 to fix the status of one domiciled within its borders, that State also had 
 the authority to oust the State of New York of the power to fix the 
 status of a person who was undeniably subject to the jurisdiction of that 
 State. 
 
 III. It is urged that whilst marriage is in one aspect a contract, it is 
 nevertheless a contract in which society is deeply interested, and, there- 
 fore, government must have the power to determine whether a marriage 
 exists or to dissolve it, and hence the Connecticut court had jurisdiction 
 of the relation and the right to dissolve it, not only as to its own citizen 
 but as to a citizen of New York who was not subject to the jurisdiction 
 of the State of Connecticut. The proposition involves in another form 
 of statement the ?io)i sctpiitur which we have previously pointed out ; 
 that Is, that, because government possesses power over marriage, there- 
 fore the existence of that power must be rendered unavailing. 
 
 Nor is the contention aided by the proposition that because it is im- 
 possible to conceive of the dissolution of the marriage as to one of the 
 parties in one jurisdiction without at the same time saying that the mar- 
 riage is dissolved as to both in every other jurisdiction, therefore the
 
 SECT. IV.] HADDOCK V. HADDOCK. 245 
 
 Connecticut decree should have obligatory effect in New York as to the 
 citizen of that State. For, again, by a change of form of statement, 
 the same contention which we have disposed of is reiterated. Besides, 
 the proposition presupposes that, because in the exercise of its power 
 over its own citizens, a State may determine to dissolve the marriage 
 tie by a decree which is efficacious within its borders, therefore such 
 decree is in all cases binding in every other jurisdiction. As we have 
 pointed out at the outset, it does not follow that a State may not exert 
 its power as to one within its jurisdiction simply because such exercise 
 of authority may not be extended beyond its borders into the jurisdiction 
 and authority of another State. The distinction was clearly pointed 
 out in Blackinton v. Blackinton, 141 Mass. 432. In that case the par- 
 ties were married and lived in Massachusetts. The husband abandoned 
 the wife without cause and became domiciled in New York. The wife 
 remained at the matrimonial domicil in Massachusetts and instituted a 
 proceeding to prohibit her husband from imposing any restraint upon 
 her personal liberty and for separate maintenance. Service was made 
 upon the husband in New York. The court, recognizing fully that 
 under the circumstances disclosed the domicil of the husband was not 
 the domicil of the wife, concluded that, under the statutes of Massa- 
 chusetts, it had authority to grant the relief prayed, and was then 
 brought to determine whether the decree ought to be made, in view of 
 the fact that such decree might not have extraterritorial force. But 
 this circumstance was held not to be controlling and the decree was 
 awarded. The same doctrine was clearly expounded by the Privy 
 Council, in an opinion delivered by Lord Watson, in the divorce case 
 of Le Mesurier v. Le Mesurier (1895), A. C. 517, where it was said 
 (p. 527) : 
 
 "When the jurisdiction of the court is exercised according to the 
 rules of international law, as in the case where the parties have their 
 domicil within its forum, its decree dissolving their marriage ought to 
 be respected by the tribunals of every civilized country. ... On the 
 other hand, a decree of divorce a vinculo, pronounced by a court whose 
 jurisdiction is solely derived from some rule of municipal law peculiar 
 to its forum, cannot, when it trenches upon the interests of any other 
 courtry to whose tribunals the spouses were amenable, claim extraterri- 
 torial authority." 
 
 IV. Tiie contention that if the power of one State to decree a disso- 
 lution of a marriage which would be compulsory upon the other States 
 be Umited to cases where both parties are subject to the jurisdiction, 
 the right to obtain a divorce could be so hampered and restricted as t(5 
 be in effect impossible of exercise, is but to insist that in order to favor 
 the dissolution of marriage and to cause its permanency to depend upon 
 the mere caprice or wrong of the parties, there should not be applied 
 to the right to obtain a divorce those fundamental principles which safe- 
 guard the exercise of the simplest rights. In other words, the argument 
 but reproduces the fallacy already exposed, which is, that one State
 
 246 HADDOCK V. HADDOCK. [CHAP. III. 
 
 must be endowed with the attribute of destroying the authority of all 
 the others concerning tlie dissolution of marriage in order to render such 
 dissolution easy of procurement. But even if the true and controlling 
 principles be for a moment put aside and mere considerations of incon- 
 venience be looked at, it would follow that the preponderance of incon- 
 venience would be against the contention that a State should have the 
 power to exert its authority concerning the dissolution of marriage as 
 to those not amenable to its jurisdiction. By the application of that 
 rule each State is given the power of overshadowing the authority of all 
 the other States, thus causing the marriage tie to be less protected than 
 any other civil obligation, and this to be accomplished by destroying 
 individual rights without a hearing and by tribunals having no jurisdic- 
 tion. Further, the admission that jurisdiction in the courts of one State 
 over one party alone was the test of the right to dissolve the marriage 
 tie as to the other party although domiciled in another State, would at 
 once render such test impossible of general application. In other words, 
 the test, if admitted, would destroy itself. This follows, since if that 
 test were the rule, each party to the marriage in one State would have 
 a right to acquire a domicil in a different State and there institute pro- 
 ceedings for divorce. It would hence necessarily arise that domicil 
 would be no longer the determinative criterion, but the mere race of 
 diligence between the parties in seeking different forums in other States 
 or the celerity by which in such States judgments of divorce might be 
 procured would have to be considered in order to decide which forum 
 was controlling. 
 
 On the other hand, the denial of the power to enforce in another State 
 a decree of divorce rendered against a person who was not sul)ject to 
 the jurisdiction of the State in which the decree was rendered obviates 
 all the contradictions and inconveniences which are above indicated. It 
 leaves uncurtailed the legitimate power of all the States over a subject 
 peculiarly within their authority, and thus not only enables them to 
 maintain their public policy but also to protect the individual rights of 
 their citizens. It does not deprive a State of the power to render a de- 
 cree of divorce susceptible of being enforced within its borders as to the 
 person within the jurisdiction, and does not debar other States from giv- 
 ing such effect to a judgment of that character as they may elect to do 
 under mere principles of State comity. It causes the full faith and 
 credit clause of the Constitution to operate upon decrees of divorce in 
 the respective States just as that clause operates upon other rights, that 
 is, it compels all the States to recognize and enforce a judgment of 
 tlivorce rendered in other States where both parties were subject to the 
 jurisdiction of the State in which the decree was rendered, and it en- 
 ables the States rendering such decrees to take into view for the purpose 
 of the exercise of their authority the existence of a matrimonial domicil 
 from which the presence of a party not physically present within the 
 borders of a State may be constructivel}' found to exist. 
 
 Having thus disposed of the reasoning advanced to sustain the asser-
 
 SECT. IV.] HADDOCK V. HADDOCK. 247 
 
 tion that the courts of the State of New York were bound by the full 
 faith and credit clause to give full effect to the Connecticut decree, we 
 are brought to consider the authorities relied upou to support that 
 proposition. 
 
 Whilst the continental and English authorities are not alluded to in 
 the argument, it may be well, in the most summary way, to refer to 
 them as a means of illustrating the question for consideration. The 
 extent of the power which independent sovereignties exercised over the 
 dissolution of the marriage tie, as to their own citizens, gave rise, in the 
 nature of things, to controversies concerning the extraterritorial effect 
 to be given to a dissolution of such tie when made between citizens of 
 one country by judicial tribunals of another country in which such citi- 
 zens had become domiciled. We do not deem it essential, however, 
 to consider the conflicting theories and divergent rules of public policy 
 which were thus engendered. We are relieved of the necessity of enter- 
 ing upon such an inquiry, since it cannot be doubted that neither the 
 practice nor the theories controlling in the countries on the continent 
 lend the slightest sanction to the contention that a government, simply 
 because one of the parties to a marriage was domiciled within its bor- 
 ders, where no matrimonial doraicil ever existed, had power to render a 
 decree dissolving a marriage which on principles of international law 
 was entitled to obligatory extraterritorial efiect as to the other party to 
 the marriage, a citizen of another country. Wharton Conf. Laws, 3d 
 ed., V. 1, p. 441, § 209 and notes. 
 
 It cannot be doubted, also, that the courts of England decline to treat 
 a^ t oreign dec re e of divorce as having obligatory extraterritorial forc e 
 when both parties to the marriage were not subject to the jurisdiction 
 oT the court which rendered the decree. , 8haw /•. Gould, L. R. 3 H. L. 
 00 ; Harvey v. Farnie, 8 App. Cas. 43. And, although it has been sug- 
 gested in opinions of English judges treating of divorce questions that 
 exceptional occasions might arise which perhaps would justify a relax- 
 ation of the rigor of the presumption that the domicil of the husband 
 was the domicil of the wife, per Lords Eldon and Redesdale, in Tovey 
 V. Lindsay, 1 Dow. 133, 140 ; per Lord Westbury, in Pitt v. Pitt, 4 
 Macq. 627, 640 ; per Brett, L. J., in Niboyet v. Niljoyet, 4 P. D. 1, 14 ; 
 Briggs V. Briggs, 5 P. D. 163, 165 ; and per James and Cotton, L. JJ., 
 in Harvey v. Farnie, 6 P. D. 47, 49, the courts of England, in cases 
 where the jurisdiction was dependent upon domicil, have enforced the 
 presumption and treated the wife as being within the jurisdiction where 
 the husband was legally domiciled. But this conception was not a de- 
 parture from the principle uniformh' maintained, that, internationally 
 considered, jurisdiction over both parties to a marriage was essential to 
 the exercise of power to decree a divorce, but was simply a means of 
 determining by a legal presumption whether both parties were within 
 the jurisdiction. Of course the rigor of the English rule as to the dom- 
 icil of the husband being the domicil of the wife is not controlling in 
 this court, in view of the decisions to which we have previously referred, 
 recognizing the right of the wife, for the fault of the husband, to acquire
 
 248 HADDOCK V. HADDOCK. [CHAP. III. 
 
 a separate domicil. Barber v. Barber, 21 How. 582; Cheever u Wil- 
 son, 9 Wall. 108 ; Atherton v. Atherton, 181 U. S. 155. 
 
 And even in Scotland, where residence, as distinguished from domicil, 
 was deemed to authorize the exercise of jurisdiction to grant divorces, 
 it was invariabl}' recognized that the presence within the jurisdiction of 
 both parties to the marriage was essential to authorize a decree in favor 
 of the complainant. Wharton, Conf. Laws, §215, v. 1, p. 447; per 
 Lord Westbury, in Shaw v. Gould, L. R. 3 H. L. 88. 
 
 As respects the decisions of this court. We at once treat as inappo- 
 site, and therefore unnecessary to be here specially reviewed, those hold- 
 ing, a, that where the domicil of a plaintiff in a divorce cause is in the 
 Srtate where the suit was brought, and the defendant appears and de- 
 fends, as both parties are before the court, there is power to render 
 a decree of divorce which will be entitled in other States to recognition 
 under the full faith and credit clause (Cheever ik Wilson, siipni) ; b, that, 
 as distinguished from legal domicil, mere residence within a particular 
 State of the plaintiff in a divorce cause brought in a court of such State 
 is not sufficient to confer jurisdiction upon such court to dissolve the 
 marriage relation existing between the plaintiff and a non-resident de- 
 fendant. Andrews r. Andrews, 188 U. S. 14 : Streitwolf r. Streitwolf, 
 181 U. S. 179; Bell r. Bell, 181 U. S. 175. This brings us to again 
 consider a case heretofore referred to, principally relied upon as sus- 
 taining the contention that the domicil of one party alone is sufficient 
 to confer jurisdiction upon a judicial tribunal to render a decree of 
 divorce having extraterritorial effect, viz., Atherton r. Atherton, 181 
 U. S. 155. The decision in that case, however, as we have previously 
 said, was expressly placed upon the ground of matrimonial domicil. 
 This is apparent from the following passage, which we excerpt from the 
 opinion, at page 171 : 
 
 "This case does not involve the validity of a divorce granted, on 
 constructive service, by the (^urt of a State in which ouh' one of the 
 parties ever had a domicil ; nor the question to what extent the good 
 faith of the domicil ma}- be afterwards inquired into. In this case the 
 divorce in Kentuck}- was by the court of the State which had always 
 been the undoubted domicil of the husband, and whicli was the only 
 matrimonial domicil of the husband and wife. The single question to 
 be decided is the validity of that divorce, granted after such notice had 
 been given as was required by the statutes of Kentucky." 
 
 The contention, therefore, that the reasoning of the opinion demon- 
 strates that tlie domicil of one of the parties alone was contemplated as 
 being sufficient to found jurisdiction, but insists that the case decided a 
 proposition which was excluded in unmistakable language. But, more- 
 over, it is clear, when the facts which were involved in the Atherton 
 case are taken into view, that the case could not have been decided 
 merely upon the ground of the domicil of one of the parties, because 
 that consideration alone would have afforded no solution of the problem 
 which tlie case presented. The salient facts were these : The husband 
 lived in Kentuckv, married a citizen of New York, and the married
 
 SECT. IV.] HADDOCK V. HADDOCK. 249 
 
 couple took up their domicil at the home of the husband in Kentucky, 
 where they continued to reside and where children were born to them. 
 The wife left the matrimonial domicil and went to New York. The 
 husband sued her in Kentucky for a divorce. Before the Kentucky suit 
 merged into a decree the wife, having a residence in New York sufficient, 
 under ordinar}- circumstances, to constitute a domicil in that State, sued 
 the husband in the courts of New York for a limited divorce. Thus the 
 two suits, one by the husband against the wife and the other by the wife 
 against the husband, were pending in the respective States at the same 
 time. The husband obtained a decree in the Kentucky suit before the 
 suit of the wife had been determined, and pleaded such decree in the suit 
 brought by the wife in New York. The New York court, however, re- 
 fused to recognize the Kentucky decree and the case came here, and this 
 court decided that the courts of New York were bound to give effect to 
 the Kentucky decree by virtue of the full faith and credit clause. Under 
 these conditions it is clear that the case could not have been disposed 
 of on the mere ground of the individual domicil of the parties, since 
 upon that hypothesis, even if the efficacy of the individual domicil had 
 been admitted, no solution would have been thereby afforded of the 
 problem which would have arisen for decision, that problem being which 
 of the two courts wherein the conflicting proceedings were pending had 
 had the paramount right to enter a binding decree. Having disposed 
 of the case upon the principle of matrimonial domicil, it cannot in reason 
 be conceived that the court intended to express an opinion upon the 
 soundness of the theory of individual and separate domicil which, iso- 
 latedly considered, was inadequate to dispose of, and was, therefore, 
 irrelevant to, the question for decision. . . .^ 
 
 Without questioning the power of the State of Connecticut to enforce 
 within its own borders the decree of divorce which is here in issue, and 
 without intimating a doubt as to the power of the State of New York to 
 give to a decree of that character rendered in Connecticut, within the 
 borders of the State of New York and as to its own citizens, such effi- 
 cacy as it may be entitled to in view of the public policy of that State, 
 we hold that the decree of the court of Connecticut rendered under the 
 circumstances stated was not entitled to obligatory enforcement in the 
 State of New York by virtue of the full faith and credit clause. It 
 therefore follows that the court below did not violate the full faith and 
 credit clause of the Constitution in refusing to admit the Connecticut 
 decree in evidence; and its judgment is, therefore, 
 
 ■Affirmed. 
 
 Holmes, J., with whom concurred Harlan, Brewer, and Brown, JJ., 
 
 dissenting. - 
 
 I do not suppose that civilization will come to an end whichever way 
 
 1 The learned judge here examined numerous decisions of State courts, and con- 
 cluded that they did not establish the proposition that such a decree as the one here 
 examined was entitled to full faith and credit. — Ed. 
 
 2 Another dissenting opinion of Brown, J., is omitted. — Ed.
 
 250 HADDOCK V. HADDOCK. [cUAP. IIL 
 
 this case Is decided. But as the reasoning which prevails in the mind 
 of the majority does not convince me, and as I think that the decision 
 not only reverses a previous well-considered decision of this court but 
 is likely to cause considerable disaster to innocent persons and to bas- 
 tardize children hitherto supposed to be the offspring of lawful marriage, 
 I think it proper to express my views. Generally stated, the issue is 
 whether, when a husband sues in the court of his domicil for divorce 
 from an abse nt wife on the ground of her desertion, the jurisdiction o f 
 the court, if there is no personal service, dei)en(ls upon the merits of th e 
 CTTSf: — 1 1' tlit^ Vvlfe did deser t her husband in fact, or if she was served 
 witli process, I understand it not to be disputed that a decree of divorce 
 in the case supposed would be conclusive, and so I understand it to be 
 admitted that if the court of another State on a retrial of the merits 
 finds them to have been decided rightly its duty will be to declare the 
 decree a bar to its inquiry. The first form of the question is whether it 
 has a right to inquire into the merits at all. But I think that it will 
 appear directly that the issue is narrower even than that. 
 
 In Atherton v. Atherton, 181 U. S. 155, a divorce was granted on 
 the ground of desertion, to a husband in Kentucky against a wife who 
 had established herself in New York. She did not appear in the suit 
 and the only notice to her was by mail. Before the decree was made 
 she sued in New York for a divorce from bed and board, but pending 
 the latter proceedings the Kentucky suit was brought to its end. The 
 husband appeared in New York and set up the Kentucky decree. The 
 New York court found that the wife left her husband because of his 
 cruel and abusive treatment, without fault on her part, held that the 
 Kentucky decree was no bar, and granted the wife her divorce from bed 
 and board. The New York decree, after being affirmed by the Court 
 of Appeals, was reversed by this court on the ground that it did not 
 give to the Kentucky decree the faitli and credit which it had by law in 
 Kentucky. Of course, if the wife left her husband because of his cruelty 
 and without fault on her part, as found by the New York court, she was 
 not guilty of desertion. Yet this court held that the question of her 
 desertion was not open but was conclusively settled by the Kentucky 
 decree. 
 
 There is no difference, so far as I can see, between Atherton v. Ath- 
 erton and the present case, except that in Atherton i\ Atherton the 
 forum of ihe first decree was that of the matrimonial domicil, whereas 
 in tliis the court was that of a domicil afterwards acquired. After that 
 decision any general objection to the effect of the Connecticut decree 
 on the ground of the wife's absence from the State comes too late. So 
 does any general objection on the ground that to. give it etFect invites a 
 race of diligence. I therefore pass such arguments without discussion, 
 although they seem to me easy to answer. Moreover, Atherton v. 
 Atherton decides that tlie jurisdiction of the matrimonial domicil, at 
 least, to grant a divorce for the wife's desertion without personal ser- 
 vice, does not depend upon the fact of her desertion, but continues even 
 if her husband's cruelty has driven her out of the State and she has ac-
 
 SECT. IV.] HADDOCK V. HADDOCK. 251 
 
 quired a separate domicil elsewhere upon the principles which we all 
 agree are recognized by this court. 
 
 I can see no ground for giving a less effect to the decree when the 
 husband changes his domicil after the separation has taken place. The 
 question whether such a decree should have a less effect is the only 
 question open, and the issue is narrowed to that. No one denies that 
 the husband may sue for divorce in his new domicil, or, as I have said, 
 that if he gets a decree when he really has been deserted, it will be 
 binding everywhere. Hawkins v. Ragsdale, 80 Ky. 353, cited 181 U. S. 
 162; Gheely t;. Clayton, 110 U. S. 701, 705. It is unnecessary to add 
 more cases. The only reason which I have heard suggested for holding 
 the decree not binding as to the fact that he was deserted, is that if he 
 is deserted his power over the matrimonial domicil remains so that the 
 domicil of the wife accompanies him wherever he goes, whereas if he is 
 the deserter he has no such power. Of course this is a pure fiction, and 
 fiction always is a poor ground for changing substantial rights. It 
 seems to me also an inadequate fiction, since by the same principle, if 
 he deserts her in the matrimonial domicil, he is equally powerless to 
 keep her domicil there, if she moves into another State. The truth is 
 that jurisdiction no more depends upon both parties having their domicil 
 within the State, than it does upon the presence of the defendant there, 
 as is shown not only by Atherton v. Atherton, but by the rights of the 
 wife in the matrimonial domicil when the husband deserts. 
 
 There is no question that a husband may establish a new domicil for 
 himself, even if he has deserted his wife. Yet in these days of equality 
 I do not suppose that it would be doubted that the jurisdiction of the 
 ■ court of the matrimonial domicil to grant a divorce for the desertion 
 remained for her, as it would for him in the converse case. See Cheever 
 V. Wilson, 9 Wall. 108. Indeed, in Ditson v. Ditson, 4 R. I. 87, which, 
 after a quotation of Judge Cooley's praise of it, is stated and j-elied 
 upon as one of the pillars for the decision of Atherton v. Atherton, a 
 wife was granted a divorce, without personal service, in the State of a 
 domicil acquired by her after separation, on the sole ground that in the 
 opinion of the court its decree would be binding everywhere. If that is 
 the law it disposes of the case of a husband under similar circumstances, 
 that is to say of the present case, a fortiori ; for I suppose that the 
 notion that a wife can have a separate domicil from her husband is a 
 modern idea. At least Ditson v. Ditson confirms the assumption that 
 jurisdiction is not dependent on the wife's actually residing in the same 
 State as her husband, which has been established by this court. Ather- 
 ton V. Atherton, 181 U. S. 155 ; Maynard v. Hill, 125 U. S. 190 ; Cheever 
 V. Wilson, 9 Wall. 108. When that assumption is out of the way, I 
 repeat that I cannot see any ground for distinguishing between the ex- 
 tent of jurisdiction in the matrimonial domicil and that, admitted to 
 exist to some extent, in a domicil later acquired. I also repeat and 
 emphasize that if the finding of a second court, contrary to the decree, 
 that the husband was the deserter, destroys the jurisdiction in the later 
 acquired domicil because the domicil of the wife does not follow his, the
 
 252 - HADDOCK V. HADDOCK. [CHAP. III. 
 
 same fact ought to destro}' the jurisdiction in the matrimonial domicil if 
 in consequence of the husband's conduct the wife has left the State. 
 But Atherton v. Atherton decides that it does not. 
 
 It is important to bear in mind that the present decision purports to 
 respect and not to overrule Atherton v. Atherton. For that reason, 
 among others, I spend no time in justifying that case. And yet it ap- 
 pears to me that the whole argument which prevails with the majority 
 of the court is simply an argument that Atherton v. Atherton is wrong. 
 I have tried in vain to discover anything tending to show a distinction 
 between that case and this. It is true that in Atherton v. Atherton, Mr. 
 JustieeGray confined the decision to the ease before the court. Evidently', 
 I should say, from internal evidence, in deference to scruples which he did 
 not share. But a court bj' announcing that its decision is confined to the 
 facts before it does not decide in advance that logic will not drive it fur- 
 ther when new facts arise. New facts have arisen. I state what logic 
 seems to me to require if that case is to stand, and I think it reasonable 
 to ask for an articulate indication of how it is to be distinguished. 
 
 I have heard it suggested that the difference is one of degree. I am 
 the last man in the world to quarrel with a distinction simply because it 
 is one of degree. Most distinctions, in my opinion, are of that sort, and 
 are none the worse for it. But the line wliich is drawn must be justified 
 b}- the fact that it is a little nearer than the nearest opposing case to 
 one pole of an admitted antithesis. When a crime is made burglary by 
 the fact that it was committed thirtv seconds after one hour after sun- 
 set, ascertained according to mean time in the place of the act, to take 
 an example from Massachusetts (R. L. c. 219, § 10), the act is a little 
 nearer to midnight than if it had been committed one minute earlier, 
 and no one denies that there is a difference between night and da}'. 
 The fixing of a point when day ends is made inevitable b}- the admis- 
 sion of that difference. But I can find no basis for giving a greater 
 jurisdiction to the courts of the husband's domicil when the married 
 pair happens to have resided there for a month, even if with intent to 
 make it a permanent abode, than if they had not lived there at all. 
 
 I may add, as a consideration distinct from those which I have urged, 
 that I am unable to reconcile with the requirements of the Constitution, 
 Art. 4, § 1, the notion of a judgment being valid and binding in the 
 State where it is rendered, and yet depending for recognition to the 
 same extent in other States of the Union upon the comity of those 
 States. No doubt some color for such a notion may be found in State 
 decisions. State courts do not always liave tlie Constitution of the 
 United States vividly present to their minds. I am responsible for lan- 
 guage treating what seems to me the fallacy as open, in Blackinton v. 
 Blackinton. 141 Mass. 402, 436. But there is no exception in the words 
 of the Constitution. " If the judguuMit is conclusive in the State wliere 
 it was pronounced it is equally conclusive everywhere." Christmas v. 
 Russell, 5 Wall. 290, 302 ; Marshall, C. J., in Hampton v. McConnel, 
 3 Wheat. 234; Mills r. Duryee, 7 Cranch, 481, 485; Story, Const. 
 § 1313. See also Hancock National Bank v. Farnum, 176 U. S. 640,
 
 SECT. IV.] TURNER V. THOMPSON. 253 
 
 644, 645. I find no qualification of the rule In "Wisconsin v. Pelican 
 Ins. Co., 127 U. S. 265. That merely decided, with regard to a case 
 not within the words of the Constitution, that a State judgment could 
 not be sued upon when the facts which it estabUshed were not a cause 
 of action outside the State. It did not decide or even remotely suggest 
 that the judgment would not be conclusive as to the facts if in any way 
 those facts came in question. It is decided as well as admitted that a 
 decree like that rendered in Connecticut in favor of a deserting husband 
 is binding in the State where it is rendered. Maynard v. Hill, 125 U. S. 
 190. I think it enough to read that case in order to be convinced that at 
 that time the court had no thought of the divorce being confined in its 
 effects to the Territory where it was granted, and enough to read Ather- 
 ton V. Atherton to see that its whole drift and tendency now are reversed 
 and its necessary consequences denied. 
 
 TURNER V. THOMPSON". 
 High Court of Justice, Probatk Division. 1888. 
 
 [Reported 13 Probate Division, 37.] 
 
 SiK James Hannen, President. The facts of this case are as fol- 
 lows : The petitioner, Georgiana Turner, was a British subject, dom- 
 iciled in England, and, on November 7, 1872, she married, in England, 
 the respondent, who is a citizen of the United States, domiciled there. 
 He was in the United States marine service, and he was from time to 
 time engaged professionall}' away from his wife ; but they met and 
 coliabited together at various places in the United States and elsewhere. 
 In 1879 she instituted proceedings in the United States for a decree 
 dissolving the marriage on the ground of her husband's incompetency ; 
 the form of decree in the United States being a dissolution of mar- 
 riage, and not, as in this country, a declaration that the marriage was 
 null and void. That is a mere difference in form. The marriage was 
 accordingly dissolved, and she has now returned to England to institute 
 proceedings here for the purpose of having her marriage declared null 
 and void. The case came before my brother Butt, and he raised the 
 question whether there was anything on which this court could proceed, 
 and whether this court has any jurisdiction, because, of course, if the 
 marriage were absolutely dissolved by the court in the United States, 
 then there exists no marriage between the parties upon which this court 
 can be called on to pronounce an opinion. Mr. Justice Butt ordered 
 the case to be argued by the Queen's Proctor, and it now comes before 
 
 me. 
 
 I am of opinion that this court has no jurisdiction, in the sense I 
 have already mentioned ; that is, that the marriage was totally and 
 absolutely dissolved by the decree of the court in the United States ; 
 and therefore that there is no marriage between the parties, which could 
 be dissolved or declared null and void by this court.
 
 254 CUMMINGTON V. BELCHERTOWN. [CHAP. III. 
 
 The marriage, though it took place in England, must, no doubt, 
 according to the decision in Harvey v. Farnie, 8 App. Cas. 43, which 
 went up to the House of Lords, be taken to be prima facie an Ameri- 
 can marriage, because the husband was domiciled in the United States, 
 and prima facie the courts of the place of his domicile had jurisdiction 
 in the matter. If the parties had remained in England, then, under 
 some circumstances, the case of Niboyet i'. Niboyet, 3 P. D. 52, is an 
 authority for saying that the courts of this country would have jurisdic- 
 tion. But, as a matter of fact, these parties after the solemnization of 
 the marriage went to the United States and there took up their perma- 
 nent abode. I am of opinion that the wife did completely acquire a 
 domicile in the United States. I know it is alleged on her behalf that 
 that is not so. It is said she was by origin a British subject, and as by 
 the law of England the matter in dispute between her and her husband 
 would have been disposed of in the form of a declaration that the mar- 
 riage was null, she therefore was entitled to treat the marriage as null 
 and void from the beginning, so that she never lost her English domicile 
 at all. The fallacy which underlies that argument appears to me to be 
 evident from this. A woman when she marries a man, not only by con- 
 struction of law, but absolutely as a matter of fact, does acquire the 
 domicile of her husband if she lives with him in the country of his 
 domicile. There is no ground here for contending that she did not 
 take up that domicile. She had the intention of taking up her perma- 
 nent abode with him, and of making his country her permanent home. 
 It is to be remembered that a marriage by the law of England, when 
 one of the parties is incompetent, is not a marriage absolutel}' void, but 
 onl}' voidable at the instance of the injured party. If she had thought 
 fit she might have remained a wife, enjoying all the advantages of a 
 wife, save that of a marital intercourse. It was only in 1879, the 
 marriage having taken place in 1872, that she instituted proceedings 
 for getting that marriage put aside. 
 
 I am of opinion that at the time of the institution of that suit, which 
 is the turning point of the proceeding, her domicile was, in fact and in 
 law, in the United States ; therefore the United States courts had juris- 
 diction in the matter, and upon this ground I think the petition must 
 be dismissed. 
 
 J 
 
 CUMMINGTON v. BELCHERTOWN. 
 
 Supreme Judicial Court of Massachusetts. 1889. 
 
 [Reported 149 Massachusetts, 223.] 
 
 Devens, J. Mrs. Angle L. Richards, the expenses of whose support 
 as an insane pauper are here in controversy, had, as Angle L. Root, a 
 legal settlement in the defendant town at the time of her marriage. 
 She acquired one in the plaintiff town by her marriage, on June 10,
 
 SECT. IV.] CUMMIXGTON V. BELCHERTOWN. 255 
 
 1873, with Charles A. Richards, who was there settled. Milford v. 
 Worcester, 7 Mass. 48. It is the contention of the pUiintiflf, that, the 
 marriage of the pauper having been legally annulled as having been 
 procured by fraud, her settlement in Cumraington thus gained is de- 
 stroyed, and that in Belchertown is revived, it having been suspended 
 only during the de facto existence of the mari'iage. 
 
 It was held in Dalton v. Bernardston, 9 Mass. 201, that a woman ac- 
 quiring a settlement by her marriage under the St. of 1793, c. 34 (Pub. 
 Sts. c. 83, § 1, cl. 1), did not lose her settlement bv a divorce, except 
 for a cause which would show the marriage to have been void. In the 
 latter case, there would have been no such marriage as the statute in- 
 tended as the means of acquiring a settlement. Assuming that the law 
 would be the same where a marriage not originally void, but voidable 
 on the ground of fraud, or for an}' other reason, was declared void, we 
 consider the question whether the plaintiff has shown any sufficient evi- 
 dence of a decree annulling the marriage bj- which the defendant or 
 others collaterally affected by the marriage or the dissolution of it would 
 be bound. If the pauper herself would not be bound by such a decree, 
 it is quite clear that the defendant would not be, whether the marriage 
 was absolutely void or voidable onh-. Not being a party to the decree, 
 and unable, therefore, to take any steps to reverse it, the defendant is 
 not precluded from showing in a collateral proceeding that the decree 
 was erroneous, or that it has no effect such as the plaintiff claims for 
 it. The plaintiff contends that a decree valid as against the pauper, by 
 which her marriage with Richards has been annulled, has been rendered 
 by the Supreme Court of New York, having jurisdiction both of the 
 subject-matter and of the parties. 
 
 It appeared that Richards and his wife lived together in this State for 
 about a year and three months, when, in October, 1874, Mrs, Richards 
 was adjudged insane, and legally committed to the lunatic hospital in 
 Northampton, where she remained, with the exception of short inter- 
 vals of time during which she was in the custody of her pai-ents, until 
 September 20, 1877, when she was again and finally committed to the 
 hospital, and has remained, and now remains, hopelessl}- insane, Rich- 
 ards never cohabited with her after her first committal to the hospital ; 
 and at some time thereafter, but at what time does not appear, removed 
 to the State of New York, without, however, any purpose of there ob- 
 taining a divorce, and without then having it in mind. On November 
 14, 1881, Richards, having only a short time before been informed for 
 the first time that his wife had been insane before their marriage, com- 
 menced a proceeding in New York to have the marriage annulled, on 
 the ground that he was induced to enter into it bv fraud, and, after a 
 notice to Mrs. Richards by a summons served upon her while an inmate 
 of the Northampton Hospital, a decree annulling the marriage on the 
 ground that the consent of Richards to the marriage was obtained by 
 fraud was rendered on March 30, 1882. A "transcript of the doings 
 and record of, and testimony in, the Supreme Court, County of Fulton,
 
 256 CUMMINGTON V. BELCHERTOWN. [CHAP. III. 
 
 State of New York," was used at the trial in the Superior Court, and 
 the decree there rendered was reUed on b}' the plaintiff as establish- 
 ing the fact of a legal dissolution of the marriage, by which the rights 
 of the plaintiff and of the defendant would be affected in this 
 Commonwealth. 
 
 AVliile b}' the Constitution of the United States, Art. 4, § 1, full faith 
 and credit are to be given to the judgments of other States, the juris- 
 diction of the courts rendering them is open to inquiry, both as regards 
 the subject-matter of the controversy and the parties thereto. The re- 
 citals of the record are not conclusive evidence, and a party, or one 
 affected collaterally by the judgment, ma}' show that the court had no 
 jurisdiction over the party such as it assumed to exercise. Mrs. Rich- 
 ards was, when the proceedings were commenced and concluded, an 
 utterly insane woman. This not onl}' appears by the finding of the 
 Superior Court, but by all the proceedings of the New York court. It 
 is averred in the petition addressed to it, and the allegations of the 
 petition are found by the referee to whom the inquiries of fact were 
 referred; and by that court, to have been true. It appears also b}' the 
 return of the summons, and most clearly by the evidence taken before 
 the referee. At no time did she, or any one on her behalf, appear be- 
 fore the referee or the court. Yet no guardian, next friend, or other 
 person was appointed to represent her, and a decree annulling her mar- 
 riage was rendered against a person whom the record and evidence 
 showed to be insane, and whose rights were wholh* unprotected. She 
 had no actual residence in New York at any time. Her husband had 
 abandoned her here on account of her insanity some time before he 
 went to New York, had made no provision for her support, and she had 
 always resided in this State, which was her domicile of origin. 
 
 That a decree of divorce rendered under similar circumstances of 
 residence and condition of the wife in another State would not be re- 
 cognized in the State of New York, or allowed in any way, directl}' or 
 indirectly, there to affect an}- rights, whether of person or property, of 
 the party against whom it had been made, appears clearly from its 
 decisions. People v. Baker, 76 N. Y. 78 ; Jones ik Jones, 108 N. Y. 
 415. We shall not have occasion to consider what would be the effect 
 that should be given here to a decree of divorce, under the circum- 
 stances above stated, if such had been rendered by the New York 
 court. Such a decree necessarily implies the original existence of a 
 lawful marriage. A decree annulling a marriage upon the ground that 
 it was contracted under such circumstances that the party petitioning 
 has a right to have it so annulled, stands upon quite different grounds. 
 The validity of a marriage depends upon the question whether it was 
 valid where it was contracted. To this rule there are but two excep- 
 tions : marriages which are deemed contrary to the law of nature as 
 generally recognized in Christian countries, and those marriages which 
 the Legislature of the Commonwealth has declared shall not be valid be- 
 cause contrary to the policy of our own laws. Commonwealth v. Lane,
 
 SECT. IV.] CUMMINGTON V. BELCIIERTOWN. 257 
 
 113 Mass. 458. Even wbeu parties had gone from this Commonwealth 
 into anottier State with intent of evading our own laws, and had 
 there married, it was held reluctantly, in the absence of a statute declar- 
 ing marriage solemnized there with such intent to be void here, that 
 their validit}' must be recognized. Med way v. Needham, 16 Mass. 157 ; 
 Putnam v. Putnam, 8 Pick. 433. 
 
 Without discussing the failure to appoint a guardian, the service in 
 the case at bar on Mrs. Richards can have given the New York court 
 no jurisdiction over her personally. To hold that her domicile might 
 be changed to any other State by the act of her husband in removing 
 thereto after he had abandoned her here and ceased to support her, and 
 thus that she could be deprived of the protection in her marital rights, 
 whether of person or property, (which this State could extend to her, 
 would be to use the legal fiction of the unity created b}- the marriage to 
 her serious injury, and to work great injustice. /, 
 
 If the decree of the New York court is to have any validity here, it 
 must be on grounds of comity. Blackinton v. Blackinton, 141 Mass. 
 432, 436. * There can be no ground of comity which requires that we 
 should recognize the decree of a New York court annulling a Massa- 
 chusetts marriage between Massachusetts citizens, unless it had juris- 
 diction of both the parties ; nor even if it did have such jurisdiction 
 should it be recognized here, unless it was based upon grounds which 
 are here held to be sufficient. Suppose two citizens of Massachusetts 
 are married here, each of the age of eighteen years, have children, and 
 then move to New York, where the husband obtains a decree of nullity 
 on the ground that persons under the age of twenty-one years cannot 
 lawfully marry. The children are not therefore rendered illegitimate in 
 Massachusetts, so that they cannot here inherit their father's lands. 
 Marriages between blacks and whites are still prohibited in some of the 
 States, but a decree in such a State annulling a marriage of this char- 
 acter valid where contracted could not here be regarded. Illustrations 
 of this sort, growing out of the different laws as to marriage in the sev- 
 eral States, could readily be multiplied. The right of a State to declare 
 the present or future status, so far as its own limits are concerned, of 
 persons there lawfully domiciled, cannot be extended so as to enable it 
 to determine absolutely what such status was at a previous time, and 
 while they were subject to the laws of another State. The decrees of its 
 courts in the latter respect must be subject to revision in the State where 
 rights were then existing, or had been acquired. Blackinton v. Black- 
 inton, 141 Mass. 432. 
 
 The cause alleged and found by the New York court was not sufficient 
 to annul a marriage contracted in Massachusetts between its citizens 
 according to the laws of this Commonwealth. Assuming that a mar- 
 riage may here be declared void on account of fraud, and assuming tliat 
 fraud is a cause which will enable the party defrauded to maintain a 
 libel for the dissolution of the marriage which has therebv been pro- 
 cured, although the word " fraud," which is found in the Gen. Sts. c. 107, 
 
 17
 
 258 CUMMINGTON V. BELCIIERTOWN. [CHAP. III. 
 
 §§ 4, 5, is omitted in the Pub. Sts. c. 145, § 11, no fraud was shown such 
 as would enable a party here to avoid a marriage. Mrs. Richards was 
 sane at the time of her marriage, and entirely competent to make the 
 marriage contract ; she had been insane at a previous period, but had 
 recovered from such attacks, and the fact of such previous insanity was 
 concealed from her husband by Mrs. Richards herself and her family, 
 _in the hope that marriage would prove beneficial to her health. She 
 lived with her husband about a year and three months before symptoms 
 of insanity again developed themselves. The possibility or probability 
 that she might again become insane, growing out of the fact that she 
 had previously been so, did not constitute such a fraud as entitled her 
 husband to have the marriage dissolved. 
 
 There was no fraud of such a character as to affect the basis or the 
 essential character of the contract. Donovan v. Donovan, 9 Allen, 140; 
 Foss V. Foss, 12 Allen, 26. " It is not to be supposed that every error 
 or mistake into which a person may fall concerning the character or 
 qualities of a wife or husband, although occasioned by disingenuous or 
 even falsa statements or practices, will afford sufficient reason for 
 annulling an executed contract of marriage. . . . Therefore no mis- 
 conception as to the character, fortune, health, or temper, however 
 brought about, will support an allegation of fraud on whicli a disso- 
 lution of the marriage contract, when once executed, can be obtained 
 in a court of justice." Bigelow, C. J., in Reynolds v. Reynolds, 3 Allen, 
 605. 
 
 Upon the ground, then, that the decree of the New York court 
 attempts to annul a marriage contracted in Massachusetts between 
 Massachusetts citizens, and thus affect the legal status of the woman 
 who has remained domiciled in Massachusetts, and has never been 
 within the jurisdiction of the New York court, and deprive her of the 
 rights acquired by her marriage, and especially because it declares the 
 marriao-e void for a reason on account of which, by the Massachusetts 
 law, it cannot be avoided, we are of opinion that it should not be en- 
 forced here, and that no principle of interstate comity requires that we 
 should give it effect. 
 
 For these reasons, a majority of the court are of opinion that the 
 settlement acquired by Mrs. Richards by her marriage continues, and 
 that judgment should be entered for the defendant. 
 
 Judgment for the defendant} 
 
 1 See Linke v. Van Aerde, 10 Times L. Rep. 426; Roth v. Roth, 104 111. 35; 
 Blurnentbal v. Tannenholz, 31 N. J. Eq. 194; Johusou v. Cooke, [1898] 2 Ir. 130. 
 — Ed.
 
 PART n. 
 
 REMEDIES. 
 
 CHAPTER IV. 
 
 RIGHT OF ACTION. 
 
 BRITISH SOUTH AFRICAN CO. v. COMPANHIA DE 
 . , MOgAMBIQUE. 
 
 House of Lords. 1893. 
 
 [Reported [1893] Appral Cases, 602.] 
 
 In an action by the respondents against the appellants the plaintiffs 
 by their statement of claim alleged (inter alia) that the plaintiff com- 
 pany was in possession and occupation of large tracts of lands and 
 mines and mining rights in South Africa ; and that the defendant com- 
 pany by its agents wrongfully broke and entered and took possession 
 of the said lands, mines, and mining rights, and ejected the plaintiff 
 company, its servants, agents, and tenants therefrom ; and also took 
 possession of some of the plaintiffs' personal property and assaulted 
 and imprisoned some of the plaintiffs. 
 
 The statement of defence in paragraph 1 — as to so much of the 
 statement of claim as alleged a title in the plaintiff company to the 
 lands, mines, and mining rights, and alleged that the defendants by 
 their acrents wrongfully broke and entered the same, and claimed a dec- 
 laration of title and an injunction — whilst denying the alleged title 
 and the alleged wrongful acts, said that the lands, mines, and mining 
 rights were situate abroad, to wit in South Africa, and submitted that 
 th°e court had no jurisdiction to adjudicate upon the plaintiffs' claim. 
 
 In paragraph 2 of the reply the plaintiffs objected that paragraphs 
 1 and 9 of the defence were bad in law, and alleged that paragraph 1
 
 260 BRITISH, ETC. CO. V. COMPANHIA DE MO(;'AMBIQUE. [CHAP. IV. 
 
 did not show that there was any court other than that in which this 
 action was brought having jurisdiction to adjudicate on the plaintiffs' 
 said claims ; and the plaintiffs further allege that there was no compe- 
 tent tribunal having jurisdiction to adjudicate on the said claims in the 
 countrv where the acts complained of were committed ; and that the 
 acts complained of were illegal according to the laws of the country 
 where the same were committed. 
 
 An order having been made for the disposal of the points of law thus 
 raised by the pleadings, the Queen's Bench Division (Lawrance and 
 Wright, JJ.) made an" order that judgment be entered for the defend- 
 ants'^dismissing the action so far as it claimed a declaration of title to 
 land, and also so far as it claimed damages or an injunction in relation 
 to trespass to land. 
 
 The Court of Appeal (Fry and Lopes, L. JJ. ; Lord Esher, M. R. , 
 dissenting) declared that Her Majesty's Supreme Court has jurisdiction 
 to entertain the claim for damages. The defendants appealed against 
 this order. ^ 
 
 Lord Herschell, L. C. The d istinction between matters which ar e 
 trans itory or pprsonal and those which are local in their nature, and the 
 "re fusaf t o exercise jurisdiction as regards the latter where they occur 
 '"outside ten-itorial l imit&>- is not confine d to the jurisprudence of 
 Ihis country. Story, in his work on the Conflict of Laws (s. 551), 
 after stating that by the Roman law a suit might in many cases be 
 brought, either where property was situate or where the party sued had 
 his domicile, proceeds to say that "even in countries acknowledging the 
 Roman law it has become a very general principle that suits w rem 
 should be brought where the property is situate ; and this principle Js 
 applied with almost universal approbation in regard to immovable prop- 
 erty. The same rule is applied to mixed actions, and to all suits which 
 touch the realty." 
 
 In section 553, Story quotes the following language of Vattel : 
 "The defendant's judge" (that is, the competent judge), says he, "is 
 the judge of the place where the defendant has his settled abode, or 
 the judge of the place where the defendant is when any sudden diffi- 
 culty arises, provided it does not relate to an estate in land, or to a 
 right annexed lo such an estate. In such a case, as property of this 
 kind is to be held according to the laws of the country where it is sit- 
 uated, and as the right of granting it is vested in the ruler of the coun- 
 try, controversies relating to such property can only be decided in the 
 State in which it depends." He adds, in the next section : "It will be 
 perceived th.it in many respects the doctrine here laid down coincides 
 with that of the common law. It has been already stated that by the 
 common law, personal actions, being transitory, may be brought in any 
 place where the party defendant can be found ; that real actions must be 
 brought in the forum ret sitce ; and that mixed actions are properly re- 
 1 The stuternent of facts has been abridged, and arguments and part of the opinion 
 omitted. — Ed.
 
 CHAP. lY.] BRITISH, ETC. CO. V. COMPANHIA DE MOZAMBIQUE. 261 
 
 ferable to the same jurisdiction. Among the latter are actions for tres- 
 passes and injuries to real property which are deemed local ; so that 
 the}' will not lie elsewhere than in the place rei sitce." 
 
 The doctrine laid down by foreign jurists, which is said by Story to 
 coincide in many respects with that of our common law, obviously had 
 relation to the question of jurisdiction, and not to any technical rules 
 determining in what part of a country a cause was to be tried. 8t<jry 
 was indeed regarded by one of the learned judges in the court below. 
 (Lopes, L. J., [1892] 2 Q. B. 420) as sanctioning the view that our 
 rules with regard to venue in the case of local actions offered the only 
 obstacle to the exercise of jurisdiction in actions of trespass to real 
 property. The passage relied on is as follows (s. 554) : " Lord Mans- 
 field and Lord Chief Justice E^-re held at one time a ditferent doctrine, 
 and allowed suits to be maintained in England for injuries done by 
 pulling down houses in foreign unsettled regions, namely, in the desert 
 coasts of Nova Scotia and Labrador. But this doctrine has been 
 since overruled as untenable according to the actual jurisprudence of 
 England, however maintainable it might be upon general principles of 
 international law, if the suit were for personal damages only." 
 
 By the words "untenable according to tlie actual jurisprudence of 
 England," I do not think Story was referring to the rule which in this 
 country regulated the place of trial in the case of local actions. Nor 
 am I satisfied that either Lord Mansfield or Story would have regarded 
 an action of trespass to land as a suit for personal damages only, if th.e 
 title to the land were at issue ; and in order to determine whether there 
 was a right to damages it was necessary for the court to adjudicate 
 upon the conflicting claims of the parties to the real estate. In both 
 the cases before Lord Mansfield, as I understand thetn, no question of 
 title to real property was in issue. The sole controversy was, whether 
 the British oflScers sued were, under the circumstances, justified in in- 
 terfering with the plaintiffs in their enjoyment of it. 
 
 The question what jurisdiction can be exercise d by the courts of an j T 
 country according to its municipal law cannot, I think, b e. p,o n c]nsiv &ly 
 determined by a reference to principles of international l aw. No nation 
 can execute its ludg meTTts, wh e ther np i ainst persons or mov a bles or re id. 
 property, in the country of another. On the o ther h and , if th e courts. 
 of a country we rejo claim, as ngginst. a person resident there, jurisdic- 
 
 "3ionJo_ adjudicate upon the title to land in a foreign _co mitAvar»fUo 
 enforce its ad judication _ m_gg2 
 any ruie'"oflnternationallaw would bejviolated. But in considering 
 
 ""wFa t juri sd iction 6ur~cou rts|_EOS sess^ and J i ave clai m e d to exercise , 
 
 IrTlrelation to matters arising out of the country, the pr inciples which.. 
 
 '^ave found general acceptance amongst ci viliz ed nations as defining 
 the limits of jurisdietio«-*H»e of great weight."" ' 
 
 JJusra*^ admitted-Ju-the_present_cjse,_on b_ehal,f o f the resp ondents^ 
 that the court co uld not make a declaration of title, or p;rant an in.iunc- _ 
 TT^r. ir^ vnofvQin tvpa'^^^^ps^ thp rpgpnntlPTits havinp- in relation to these
 
 262 BRITISH, ETC. CO. V. COMPANHIA DE MOZAMBIQUE. [CHAP. IV. 
 
 matters abandoned their appeal in the court below. But it is said that 
 the court ma}' inquire into the title, and, if the plaintiffs and not the de- 
 fendants are found to have the better title, may award damages for the 
 trespass committed. My Lords, I find it difficult to see why this dis- 
 tinction should be drawn. It is said, because the courts have no 
 power to enforce their judgment b^- any dealing with the land itself, 
 where it is outside their territorial jurisdiction. But if the}' can 
 determine the title to it and compel the payment of damages founded 
 upon such determination, why should not they equally proceed in per- 
 sonam against a person who, in spite of that determination, insists on 
 disturbing one who has been found by the court to be the owner of the 
 property ? 
 
 It is argued that if an action of trespass cannot be maintained in this 
 country where the land is situate abroad, a wrong-doer by coming to 
 this country might leave the person wronged without any remedy. It 
 might be a sufficient answer to this argument to say that this is a state 
 of things which has undoubtedly existed for centuries without any evi- 
 dence of serious mischief or any intervention of the legislature ; for 
 even if the Judicature Rules have the effect contended for, I do not 
 think it can be denied that this was a result neither foreseen nor in- 
 tended. But there appear to me, I confess, to be solid reasons why 
 the courts of this country should, in common with those of most other 
 nations, have refused to adjudicate upon claims of title to foreign land 
 in proceedings founded on an alleged invasion of the proprietary rights 
 attached to it, and to award damages founded on that adjudication. 
 
 The inconveniences which might arise from such a course are 
 obvious, and it is by no means clear to my mind that if the couits 
 were to exercise jurisdiction in such cases the ends of justice would in 
 the long run, and looking at the matter broadly, be promoted. Sup- 
 posing a foreigner to sue in this country for trespass to his lands sit- 
 uate abroad, and for taking possession of and expelling him from them, 
 what is to be the measure of damages? There being no legal process 
 here by which he could obtain possession of the lands, the plaintiff 
 might, I suppose, in certain circumstances, obtain damages equal in 
 amount to their value. But what would there be to prevent his leav- 
 ing this country after obtaining these damages and re-[)ossessing him- 
 self of the lands? What reraody would the defendant have in such a 
 case where the lands are in an unsettled country, with no laws or regu- 
 lar system of government, but where, to use a familiar expression, the 
 only right is might? Such an occurrence is not an impossil)le, or even 
 an improbable, hypothesis. It is quite true that in the exercise of the un- 
 doul)ted jurisdiction of the courts it may become necessary incidentally 
 to investigate and determine the title t^o foreign lands; but it docs not 
 seem to me to follow that because such a question may incidentally 
 arise and fall to be adjudicated upon, the courts possess, or that it is 
 expedient that they shoidd exercise, jurisdiction to try an action 
 founded on a disputed claim of title to foreign lands.
 
 CHAP. IV.] GARDNER V. THOMAS. 263 
 
 For the reasons with which I have troubled your Lordships at some 
 leiiigth, I think the judgment appealed from should be reversed and the 
 judgment of the Divisional Court restored, and that the respondents 
 should pay the costs here and in the court below, and I move your 
 Lordships accordingly. i 
 
 ANONYMOUS. 
 
 General Court of Massachusetts Bay Colony. 1648. 
 
 [Reported 2 Massachusetts Colonial Records, 255.] 
 
 A QUESTION arising about the interpretation of a clause in a law, 
 made 42, about tryall of actions, &c., viz. whether a personall action, as 
 for battery, &c. ariseing upon an act commited in England, & the 
 parties come both into this iurisdiction, whether by law we are barred 
 from trying the action of battery in this iurisdiction, the Courte hath 
 voted that we are not barred by that lawe, because a personall action 
 followeth the person, & from the person onely the cause of the action 
 ariseth. 
 
 GARDNER v. THOMAS. 
 Supreme Court of New York. 
 
 [Reported 14 Johnson's Reports, 134.] 
 
 Yates, J., delivered the opinion of the court.^ This cause comes up 
 on certiorari to the Justices' Court in New York. The action was for 
 an assault and battery. The defendant pleaded that the assault and 
 battery (if any) was committed on board of a British vessel upon the 
 high seas, and that the plaintiff and defendant were both British sub- 
 jects, one the master, and the other a sailor, on board the same vessel. 
 To this plea there was a demurrer and joinder, on which judgment was 
 given for the plaintiff below. 
 
 The question presented b}- this case is, whether this court will take 
 cognizance of a tort committed on the high seas, on board of a foreign 
 vessel, both the parties being subjects or citizens of the country' to 
 which the vessel belongs. 
 
 1 Lords Halsbury, Macnaghten, and Morris concurred. 
 
 Ace. (in addition to the authorities cited in the dissenting opinion in Little v. 
 Ry., infra), Howard v. Ingersoll, 23 Ala. 673. See Laird v. R. R., 62 N. H. 254; 
 Tyson v. McGuiness, 25 Wis. 656. — Ed. 
 
 '•^ The opinion only is given ; it sufficiently states the case. — Ed.
 
 264 GAEDNER V. THOMAS. [CHAP. IV. 
 
 It rnust be conceded that the law of nations gives complete and entire 
 jurisdiction to the courts of the country to which the vessel belongs, 
 but not exclusively. It is exclusive only as it respects the public injury, 
 but concurrent with the tribunals of other nations, as to the private 
 remedv. There may be cases, however, where the refusal to take cog- 
 nizance of causes for such torts may be justified by the manifest public 
 inconvenience and injur}' which it would create to the community of 
 both nations ; and the present is such a case. 
 
 In Mostyn v. Fabrigas (Cowp. 176), Lord Mansfield, in his opin- 
 ion there stated, is sufficiently explicit as to the doctrine, that for an 
 Injury committed on the high seas, circumstanced like the one now 
 before us, an action may be sustained in the court of King's Bench ; 
 he onl}' appears to doubt whether an action may be maintained in 
 England for an injur}- in consequence of two persons fighting in France, 
 when botli are within the jurisdiction of the court. The present action, 
 however, is for an injur}- on tlie high seas ; and, of course, witliout the 
 actual or exclusive territory of any nation. 
 
 The objection to the jurisdiction, because it must be laid in the 
 declaration to be against the peace of the people, is not sufficient, for 
 that is mere matter of form, and not traversable. In Rafael v. Verelst, 
 2 Black. Rep. 1058, De Grey, chief justice, says, that personal injuries 
 are of a transitory nature, et sequuntur forum 7-ei ; and though, in all 
 declarations, it is laid contra pacern, yet that is only matter of form, 
 and hot traversable. 
 
 It is evid entj^thenj^ th at our cour ts_may take cognizance ^f_torts 
 eommitted^oiTthe high seas, on board oX_a. foreign vessel, where both 
 par ties areToreigners ; but Fam inclined to think it must, on principle s 
 of policy. often rpst in the sound discretion of the court to afford juris - 
 diction or not, according to the circunQstancea_af-t hc case . — To say that 
 
 Ifcan be claimed in all cases, as matter of right, would introduce a 
 principle which might, often times, be attended with manifest disadvan- 
 tage, and serious injury to our own citizens abroad, as well as to 
 foreigners here. Mariners might so annoy the master of a vessel as to 
 break up the voyage, and thus produce great distress and ruin to tlie 
 owners. The facts in this case sufficiently show the impropriety of 
 extending jurisdiction, because it is a suit brought by one of the 
 mariners against the master, both foreigners, for a personal injury sus- 
 tained on board of a foreign vessel, on the high seas, and lying in port 
 when the action was commenced, and, for aught that appears in the 
 ease, intending to return to their own country, without delay, other 
 than what the nature of the voyage required. Under such circum- 
 stances, it is manifest that correct policy ought to have induced tiie 
 court below to have refused jurisdiction, so as to prevent the serious 
 consequences which must result fi'om the introduction of a system, with 
 regard to foreign mariners and vessels, destructive to commerce; since 
 it must materially affect the necessary intercourse lietweon nations, by 
 which alone it can be maintained. The plaintiff, therefore, ought to
 
 CHAP. IV.] ROBERTS V. KNIGHTS. 265 
 
 have been left to seek redress in the courts of his own countr}' on his 
 return. The judgment, for these reasons, may be deemed to be im- 
 providently rendered in the court below, and is, therefore, reversed. 
 
 Judgment of reversal,^ 
 
 ROBERTS V. KNIGHTS. 
 Supreme Judicial Court of Massachusetts. 1863. 
 
 {Reported 7 Allen, 449.] 
 
 Contract brought in the Police Court of Boston by the plaintiff, who 
 is a British subject, against the master of a British vessel, who is also a 
 British subject. The defendant objected, in the Police Court, that the 
 court had no jurisdiction, and a hearing was thereupon had upon all 
 the questions involved, and the case was dismissed, and the plaintiff 
 appealed to the Superior Court.^ 
 
 Chapman, J. The question now presented is, whether our courts are 
 bound to take jurisdiction of this case, both the parties being aliens, and 
 having only a transient residence within the Commonwealth. 
 
 The Gen. Sts. do not settle the question. Not much light is thrown, 
 upon it by c. 123, § 1, cited by the plaintiff's counsel, which provides 
 that, if neither party lives in the State, a transitory action may be 
 brought in any county. Nor have we been able to find any provisions 
 in any of our treaties with Great Britain which give us any aid. The 
 
 1 See Otis v. Wakeraan, 1 Hill, 604. In Smith v. Crocker, 14 App. Div. 245 (1897), 
 O'Brien, J., said: " The contention that, because both the plaintiff and the defendant 
 Crocker are non-residents, the trial court should have refused to entertain jurisdiction 
 of the cause, we regard as equally untenable. We are referred to a number of cases 
 (Ferguson v. Neilson, 33 N. Y. St. Repr. 814 ; Robinson v. Oceanic Steam Nav. Co., 
 112 N. Y. 315) in which it was held that the courts of this State will not retain juris- 
 diction of and determine an action for tort between parties residing in other States on 
 causes of action arising out of the State, as a matter of public policy, unless special 
 reasons are shown to exist which make it necessary or proper so to do. An examina- 
 tion of the cases cited, as well as of all to which our attention has been called where 
 that rule has been applied, were actions in tort, and not actions upon a contract. Our 
 courts have never refused to entertain jurisdiction of a cause of action arising upon 
 contract. In the case of Davidsburgh v. The Knickerbocker Life Ins. Co. (90 N. Y. 
 526), it was held that as the City Court of Brooklyn was a local court, of limited juris- 
 diction, unless the defendants came within the classes over which the statute had con- 
 ferred jurisdiction upon this court, the parties could not confer jurisdiction by consent. 
 This case is in no respect an authority for the rule contended for by the appellants. 
 Whether, therefore, this contract was made in California or New York — upon which 
 question mucli in favor of the view that it was a New York contract might be said — 
 we do not think it is necessary to determine ; as it appears that the action was one 
 upon contract, the court committed no error in entertainiiig jurisdiction of the 
 cause." — Ed. 
 
 2 Only so much of the case as involves this question is given. — Ed.
 
 266 EOBEKTS V. KNIGHTS. [CHAP. IV. 
 
 question whether the courts of a countr y ought to take jurisdiction of 
 xitiga tigrr between ^h^ns, temporarily residing within its limits, j j Pri- 
 marily one of internationallaw_. 
 
 Vattel, h. 2, c. 8, § 103, ^ays that by the law of nations disputes that 
 may arise between strangers, or between a stranger and a citizen, ought 
 to be terminated by the judge of the place, and also by the laws of the 
 place. In 2 Kent's Com. (6th ed.) 64, this authority is cited, and the 
 law is stated to be that if strangers are involved in disputes with our 
 citizens, or with each other, they are amenable to the ordinary tribunals 
 of the country. No distinction is made between transient and perma- 
 nent residents. 
 
 In 1650 our colonial legislature passed an act, reciting that " whereas 
 oftentimes it comes to pass that strangers coming amongst us have sud- 
 den occasions to try actions of several natures in our courts of justice," 
 the right is therefore given to them. 3 Col. Rec. 202. See also Anc. 
 Chart. 91. In 1672 another act was passed, confirming and regulating 
 the right. 4 Col. Rec. part 2, 532. See also Anc. Chart. 192. These 
 acts make no exce[)tion of cases of transient residence, and they 
 established our municipal law at a very early date. 
 
 In Barrell v. Benjamin, 15 JNIass. 354, it was objected that the de- 
 fendant, whose domicile was in Demerara, beinji transientl}' here, M'as 
 not liable to be sued in our courts by the plaintiff, whose domicile was 
 in Connecticut, and who was also transiently here. The precise ques- 
 tion which arises in the present case was not before the court, but the 
 reasoning of Parker, C. J., goes to sustain the marginal note of the case, 
 which is as follows : "It seems that one foreigner may sue another who 
 is transiently within the limits of this State, upon a contract made be- 
 tween them in a foreign country." 
 
 In Judd V. Lawrence, 1 Cush. 531, it was held that an alien resident 
 within the Commonwealth is entitled to the benefit of the insolvent laws. 
 Since St. 1852, c. 29, aliens have been able to take, hold, and transmit 
 real estate. It seems, tlierefore, to be the policy of modern times to 
 enlarge rather than diminish the rights and privileges of aliens. 
 
 The courts of the United States have not jurisdiction where both par- 
 ties are aliens, because this is not one of the enumerated cases in which 
 jurisdiction is given to them. Barrell v. Benjamin, ubi supra ; Turner 
 V. Bank of North America, 4 Dall. 11 ; Hodgson v. Bowerbank, 5 Cranch, 
 303. 
 
 The argument ab inconvenienti, which is nrgcd on behalf of the de- 
 fendant, has much force. It is extremely inconvenient to one who is 
 temporarily in a foreign country to be sued by a fellow-countryman in 
 its courts. But 't is met by an argument of equal force on the other 
 side. If the plaintiff had no such remedy, he would often be subjected 
 to great hardships. OjLlhc_whole, it is consona nt to natural r ight and 
 justice that the courts of every ^ivllizcd"^uii try shodd be open to hear 
 the'causesTof all par ties who may be resident for the time being within 
 its limits.
 
 CHAP. IV.] BTJRDICK V. FREEMAN. 267 
 
 The defendant relies upon a clause in the Merchants' Shipping Act 
 (17 & 18 Vict. c. 104), which provides that, in a contract like that of 
 the plaintiff, no seaman shall sue for wages in any court abroad, except 
 in cases of discharge or of danger to life. 
 
 But this act cannot affect the question of jurisdiction, which, on the 
 motion to dismiss, is the only question to be considered.^ 
 
 BURDICK V. FREEMAN. 
 Court of Appeals, New York. 1890. 
 
 [Reported 120 New York, 420.] 
 
 FoLLETT, C. J. This action, begun February 19, 1895, is for crim- 
 inal conversation.^ . . . After the court had concluded its charge, the 
 defendant asked that the jury be instructed "that the plaintiff cannot 
 maintain this action in the courts of this State, and that this court has 
 no jurisdiction of this case." This request was refused, and the defend- 
 ant excepted. This action was for the recovery of damages for a per- 
 sonal injury. Code Civil Proc, § 3343, subd. 9. The courts of this 
 State may, in^ their discretion, entertain jurisdictiom of such an action 
 befween citizens of anotheF^tate actually "domiciled therein when the 
 action was "begun and tried, though tlie Injur}'' was"^comraitted in the 
 Staie oTOielr resIdeWe anit dcTi^^ "Gardner 'o. Thomas7T:4 Johns. 
 134 ; Johnson v. Dalton, 1 Cow. 543 ; Dewitt v. Buchanan, 54 Barb. 
 31 ; Mclvor v. McCabe, 26 How. 257 ; Newman v. Goddard, 3 Hun, 70 ; 
 Mostyn v. Fabrigas, 2 Smith, Lead. Cas. (9th ed.), 916 ; Story, Conf, 
 Laws", § 542; Whart. Conf. Laws, §§ 705, 707, 743; 4 Phillim. Int. 
 Law, 701. The judgments in Molony v. Dows, 8 Abb. Pr. 316, and 
 Latourette v. Clark, 30 How. Pr. 242, in so far as they hold otherwise, 
 must be regarded as overruled. The defendant had not left the State 
 of his residence, nor had he removed his property therefrom, when this 
 action was begun, and we find no sufficient reason for prosecuting it in 
 the courts of this State. But this action had been pending for a j-ear, 
 and the question as to whether the court should entertain jurisdiction 
 had not been raised by answer, by special motion, or during the trial; 
 and we think that, while the Supreme Court might, in the exercise of its 
 discretion, have refused to entertain the action, or dismissed it on its 
 own motion, yet the defendant, not being entitled to a dismissal as a 
 matter of right, ought not to be permitted to lie by until the close of the 
 trial, when its probable result could be inferred, and then successfully 
 invoke the exercise of the discretion of the court in his favor. The 
 judgment should be affirmed, with costs. All concur, except Bradley 
 and Haight, JJ., not sitting. 
 
 1 Ace. Cofrode v. Gartner, 79 Mich. 332, 44 N. W. 623. — Ed. 
 
 2 Part of the opinion is omitted. — Ed.
 
 263 DE LA VEGA V. VIANNA. [CHAP. V, 
 
 CHAPTER V. 
 
 PROCEDURE. 
 
 DE LA VEGA v. VIANNA. 
 
 King's Bench. 1830. 
 
 [Reported 1 Bariieivall d; Adolphus, 284.] 
 
 Lord Tenterden, C. J.-* This was an application to discharge the 
 defendant, who had been arrested upon mesne process, out of custody 
 on filing common bail. The plaintiff and defendant were both foreign- 
 ers ; the debt was contracted in Portugal, and it appears that, by the law 
 of that country, the defendant would not have been liable to arrest. It is 
 contended on the authority of Melan v. The Duke de Fitzjames, 1 B. & P. 
 139, that he is entitled to the relief now sought. We are, however, of 
 opinion, that he is not. In the case just mentioned, the distinction taken 
 by Mr. Justice Heath, who differed from the other judges, was, that in 
 construing contracts the law of the countr}- in which they are made 
 must govern, but that the remedy upon them must be pursued b}' such 
 means as the law points out where the parties reside. This doctrine is 
 said to correspond with the opinions of Huber and Voet. I have not 
 had an opportunity of looking into those authorities, but we think, on 
 consideration of the present case, that the distinction laid down by Mr. 
 Justice Heath ought to prevail. A person suing in this country must 
 take the law as he finds it ; he cannot, by virtue of an}' regulation in 
 his own country, enjo}' greater advantages than other suitors here, and 
 he ought not therefore to be deprived of any superior advantage which 
 the law of this countrj' may confer. He is to have the same rights 
 which all the subjects of this kingdom are entitled to. The rule must 
 be discharged. Rule discharged.^ 
 
 1 The opinion only is given ; it sufficiently states the case. — Ed. 
 
 2 Ace. Inilay v. EUefsen, 2 East, 453 ; Atwate'r v. Townsend, 4 Conn. 47 ; Smith v. 
 Spinolla, 2 Johns. 198; Anon. (Austria, 12 Dec. 1876), 8 Chinet, 176. —Ed.
 
 CHAP. Y.J BULLOCK V. CAIRO. 269 
 
 BULLOCK V. CAIRD. 
 
 Queen's Bench. 1875. 
 
 [Reported Law Reports, 10 Queen's Bench, 276.] 
 
 Action by the plaintiffs against the defendant for the breach of an 
 agree m e n t to build a s hip. 
 
 The material part of the agreement, which was set out in the declara- 
 tion, was as follows : — 
 
 "Glasgow, July 15th, 1874. Messrs. Caird & Co., shipbuilders, 
 Greenock, agree to build for Messrs. James and George Bullock & Co., 
 London, who agree to accept an iron sailing ship of the following dimen- 
 sions, &c.'" Throughout the agreement the parties were mentioned as 
 Caird & Co. and Bullock & Co. 
 
 Plea, that there was a trading partnership or firm domiciled and 
 carrying on business in Scotland by the name of Caird & Co., and the 
 alleged agreement was an agreement made in Scotland by the plaintiffs 
 with the firm, and was to be performed wholly in Scotland without the 
 jurisdiction of the English courts and within the jurisdiction of the 
 Scotch courts, and by the law of Scotland the firm was and is a sepa- 
 rate and distinct person from any or ihe whole of the individual members 
 of whom it consists and of whom the defendant was and is one, and the 
 firm, by the law of Scotland, is capable of maintaining the relation of 
 debtor and creditor separate and distinct from the obligation of the 
 partners as individuals, and can hold property-, and has the capacity of 
 suing and being sued as such separate person by its name of Caird & 
 Co., and the alleged agreement was made by the firm as such separate 
 person and not jointly and severally hy the individual members thereof; 
 that at the date of the agreements the firm consisted of certain individ- 
 uals, namely, the defendant James Tennant Caird and Patrick Tennant 
 Caird, and has always since consisted and still consists of the same 
 members, and the firm and each of its individual members then was and 
 alwavs since has been and still is domiciled and carr3'ing on business 
 in Scotland, and within and subject to the jurisdiction of the Scotch 
 courts and possessed of sufficient property and funds, within and sub- 
 ject to the jurisdiction to answer in full the claim of the plaintiffs ; that 
 by the law of Scotland the defendant became and was, as a partner of 
 the firm of Caird & Co., on the making of the agreement, liable to the 
 plaintiffs for the satisfaction of any judgment which might be obtained 
 against the firm or the whole of the individual partners thereof jointly 
 for an}' breaches of the agreement ; and save as aforesaid no liability by 
 the law of Scotland attached or attaches to the defendant in respect of 
 the agreement ; that by the law of Scotland it is a condition precedent 
 to any individual liability attaching to the defendant or any individual 
 members of the firm in I'espect of the agreements that the firm as such 
 person as aforesaid or the whole individual partners thereof jointly
 
 270 LE BOY V. BEARD. [CHAP. V. 
 
 should first have been sued, and that judgment should have been re' 
 covered against the firm or the whole of the said partners jointly, and 
 that the plaintifts have not sued the firm of Caird & Co. nor the whole 
 of the partners jointl}', nor recovered judgment against it or them. 
 
 Demurrer to the plea and joinder.^ 
 
 Blackburn, J. It is quite clear that the firm of Caird & Co. are not 
 a body corporate. The plea alleges that the firm, or the whole indi- 
 vidual partners thereof jointly, should first have been sued. If one of 
 the members of the firm was not joined it might be a bar to an action 
 in Scotland, but it could onl^- be pleaded in abatement in an action in 
 England. I think all the matters stated in the plea are mere matter of 
 procedure, and that the plea is bad. 
 
 Mellor and Field, JJ., concurred. 
 
 Judgment for the plaintiff's.^ 
 
 LE ROY V. BEARD. 
 
 Supreme Court of the United States. 1849. 
 [Reported 8 Howard's Reports, 451.] 
 
 Woodbury, J.^ This was an action of assumpsit for money had and 
 received; and also counting speciall}-, that, on the 17th of November, 
 1836, the original defendant, Le Roy, in consideration of $1,800 then 
 paid to him b}' the original plaintiff, Beard, caused to be made to the 
 latter, at Milwaukie, Wisconsin, a conve3-ance, signed by Le Roy and 
 his wife, Charlotte. This conveyance was of a certain lot of land 
 situated in Milwaukie, and contained covenants that they were seized 
 in fee of the lot, and had good right to convey the same. Whereas it 
 was averred, that, in truth, they were not so seized, nor authorized to 
 convey the premises, and that thejeby Le R03' became liable to repay 
 the $1,800. 
 
 Under several instructions given by the Circuit Court for the South- 
 ern District of New York, where the suit was instituted, the jur}' found 
 a verdict for the original plaintiff", on which judgment was rendered in 
 his favor, and which the defendant now seeks to reverse by writ of 
 error. Among those instructions, which were excepted to by the 
 
 1 Arguments of counsel are omitted. — Ed. 
 
 2 Ace. Taft V. Ward, 106 Mass. 518 ; Henry Briggs Sons & Co. v. Niven (Antwerp, 
 22 July, 1893), 21 Clunet, 1080. See Carnegie ». Morrison, 2 Met. 381. So of the 
 question whether an assignee of a chose in action may sue in his own name. Roosa y. 
 Crist, 17 111. 450 ; Foss v. Nutting, 14 Gray, 484 ; Lodge v. Phelps, 2 Cai. Cas. 321 ; 
 see Levyu. Levy, 78 Pa. 507. Whether an assignee for creditors may sue in his own 
 name. Glenn v. Marbury, 145 U. S. 499 ; Osborn v. First Nat. Bank, 175 Pa. 494, 
 34 All. 858. So of suit by a married woman in her own name. Stoneman v. Eria 
 Ry., 52 N. Y. 429. — Ed. 
 
 3 Part of the opinion only is given. — Ed.
 
 CHAP, v.] HAMILTON V. SCHOENBERGEK. 271 
 
 defendant, and are at this time to be considered, was, first, that " the 
 action of assumpsit is properly brought in this court, upon the promises 
 of the defendant contained in the deed, if any promises are made 
 therein which are binding or obligatory on the defendant." 
 
 The conveyance in this case was made in the State of Wisconsin, 
 and a scrawl or ink seal was affixed to it, rather than a seal of wax or 
 wafer. By the law of that State, it is provided, that " any instrument, 
 to which the person making the same shall affix any device, b}' way of 
 seal, shall be adjudged and held to be of the same force and obligation 
 as if it were actually sealed." 
 
 But in the State of New York it has been repeatedly held (as in 
 Warren v. Lynch, 5 Johns. 239) that, by its laws, such device, without 
 a wafer or wax, are not to be deemed a seal, and that the proper form 
 of action must be such as is practised on an unsealed instrument in the 
 State where the suit is instituted, and the latter must therefore be 
 assumpsit. 12 Johns. 198; 2 Hill, 228, 544 ; 3 Hill, 493 ; 1 Denio, 
 376 ; 5 Johns. 329 ; Andrews et al. v. Herriott, 4 Cowen, 508, overrul- 
 ing Meridith v. Hinsdale, 2 Caines, 362; 4 Kent, 451 ; 8 Peters, 362; 
 Story's Conflict of Laws, 47. A like doctrine prevails in some other 
 States. 3 Gill & Johns. 234 ; Douglas et al. v. Oldham, 6 N. H. 150. 
 
 It becomes our duty, then, to consider the instruction given here, in 
 an action brought in the Circuit Court of New York, as correct in rela- 
 tion to the form of the remedy. It was obliged to be in assumpsit in 
 the State of New York, and one of the counts was special on the prom- 
 ise contained in the covenant. 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 on it elsewhere, the law of Wiscon- 
 sin, as the lex loci contractus, must govern. Kobinson v. Campbell, 
 3 Wheat. 212.^ 
 
 HAMILTON V. SCHOENBERGER. 
 
 Supreme Court of Iowa. 1877. 
 
 [Reported 47 Iowa, 385.] 
 
 The petitioner alleges that a judgment had been entered against him 
 in the Benton District Court on a "judgment note," upon confession of 
 judgment by an attorney of the court, not authorized to appear for him 
 except by the power contained in the note ; and asks that the judgment 
 be declared void and c ancelled. The defendants demurred to this peti- 
 tion. The demurrer was overruled, and judgment was rendered can- 
 
 » Ace. Thrasher v. Everhart, 3 G. & J. 234 ; Broadhead v. Noyes, 9 Mo. 55 ; 
 Andrews v. Herriott, 4 Cow. 508. See Williams v. Haines, 27 la. 251. — Ed.
 
 272 MINERAL POINT RAILROAD CO. V. BARRON. 'lCHAP. V. 
 
 celling the judgment in favor of defendants against plaintiff. The 
 defendants appeal.^ 
 
 Day, C. J. Sojaras wea re advised^ itjias never been the under- 
 standing of the professioiTnorof the" business community in this^taTe" 
 ^thltv^rants-ot- attorney to confess judgment had.anypjacc in our -law. 
 AcoHfeisionofludgment pertains to the remedy. A party seeking to 
 enforce here a contract made in another State must do so in accordance 
 with tlie laws of this State. Parties cannot by contract made in another 
 State engraft upon our procedure here remedies which our laws do not 
 contemplate nor authorize. 
 
 We are fully satisfied that the demurrer to the petition was properly 
 overruled. Ajfirmed. 
 
 MINERAL POINT RAILROAD CO. v. BARRON. 
 
 Supreme Court of Illinois. 1876. 
 [Reported 83 Illinois, 365.] 
 
 Craig, J.^ Under the laws of Wisconsin, had the proceedings been 
 instituted in that State, tlie wages of the defendant in the original ac- 
 tion were exempt from garnishment, and it is urged by appellant, that, 
 as the parties resided in that State and the debt was there incurred, the 
 exemption laws of Wisconsin must control, although the proceedings 
 for the collection of tlie debt were commenced in tliis State. 
 
 It is true, the validity of a contract is to be determined by the law of 
 the place where it is made, but the law of the remedy is no part of the 
 contract, as is well said by Parsons on Contracts, vol. 2, page 588 : 
 "But on tlie trial, and in respect to all questions as to the forms or 
 methods, or conduct of process or remedy, the \uw of the place of the 
 forum is applied." 
 
 In Sherman v. Gassett, 4 Gilman, 521, after referring to a number of 
 cases in illustration of the rule, it is said : " The cases above referred 
 to, although not precisely analogous, yet settle the principle that the 
 lex loci only governs in ascertaining whether the contract is valid, and 
 what the words of the contract mean. When the question is settled 
 that the contract of the parties is legal, and what is the true interpreta- 
 tion of the language employed by the parties in framing it, the lex loci 
 ceases, and the lex fori steps in and determines the time, the mode, and 
 the extent of the remedy." 
 
 Statutes of limitations fixing the time within which an action may be 
 brought, laws providing for a set-off in certain actions, and statutes 
 providing that certain articles of personal property, wearing apparel, 
 
 * The statemetit of facts has bpen .il)nflg('il, and part of the opinion ouiitted. — Ed. 
 
 * Part of the ojiiniou only is given. — Ed.
 
 CHAP, v.] GIBBS V. HOWAED. 273 
 
 farming implements, and the tools of a mechanic shall be exempt from 
 levy and sale upon execution, have always, so far as our observation 
 o-oes, been regarded by courts as regulations affecting the remedy which 
 might be enacted by each State, as the judgment of the legislature might 
 think for the best interests of the people thereof. Bronson v. Kinzie, 
 1 Howard, 311. 
 
 The statute of Wisconsin, under which appellant was not liable to be 
 garnisheed, was a law affecting merely the remedy where an action 
 should be brought in the courts of that State. That law, however, can- 
 not be invoked where the remedy is sought to be enforced in the courts 
 of this State. The remedy must be governed by the laws of the State 
 where the action is instituted.^ 
 
 GIBBS y. HOWARD. 
 Superior Court of .Judicature, New Hampshire. 1820. 
 
 [Reported 2 New Hampshire, 296.] 
 
 This was an action of assumpsit upon a note of hand, dated Septem- 
 ber 29, 1817, for $57,njade by Howard, and payable to Almon Burgess, 
 or order, in the month of April, 1818 ; and on the 31st of October, 
 1817, indorsed by Burgess to Patience Cone, then sole, now the wife 
 of Gibbs, the plaintiff. 
 
 The defendant pleaded the general issue, and gave notice of a set-off 
 consisting of three notes of hand, made by Almon Burgess, and pay- 
 able to three several persons, and by them indorsed to the defendant, 
 November 1, 1817. 
 
 The cause was submitted to the decision of the court upon the fol- 
 lowing facts. The note described in the declaration was made by 
 Howa°d, and at the time when made, the original parties to it were 
 both inhabitants of the State of Vermont. The same note was for a 
 valuable consideration indorsed to Patience Cone, then an inhabitant of 
 Vermont, before it became due, and before the defendant had any inter- 
 
 1 Ace. Chic, R. I. & P. Rv. V. Sturm, 174 U. S. 170 ; Boykin v. Edwards, 21 Ala. 
 261 ; Broadstreet v. Clark, 65 la. 670 ; B. & M. R. R. v. Thompson, 31 Kan. 180, 
 1 Par 622 • Morgan v. Neville, 74 Pa. 52. But see Mo. P. Ry. v. Sharitt, 43 Kan. 
 385, 23 Pac. 430 ; Drake v. L. S. & M. S. Ry., 69 Mich. 168, 179, 37 N. W. 70 In 
 the last case, Morse, J., said : " It must be held, I think, not only as a matter of sim- 
 ple justice, but as sound law, which means justice, that where the creditor, debtor, and 
 garnishee, at the time of the creation of both debts, are all residents and doing business 
 hi Indiana, and both debts are created, and intended to be payable, in that State, the 
 . exemption of wages is such an incident and condition of the debt from the employer 
 that it will follow the debt, if the debt follows the person of the garnishee into Michi- 
 gan, and attach itself to every process of collection in this State, unless jurisdiction is 
 obtained over the person of the principal debtor ; that it becomes a vested right zn rem, 
 which follows the debt into any jurisdiction where the debt may be considered as 
 going. — Ed. 18
 
 274 TOWXSEND V. JEMISON. [CHAP. V. 
 
 est in the notes mentioned in the set-off. Gibbs is an inhabitant of 
 Massachusetts. There is a statute of Vermont, passed on the 31st 
 October, 1798, by which it is enacted, " that in all actions on indorsed 
 notes it shall be lawful for the defendant to i:»lead an offset of all de- 
 mands proper to be plead in offset which the defendant may have 
 against the original payee, before notice of such an indorsement 
 against the indorsee, and may also plead or give in evidence on the 
 trial of any such action, any matter or thing which would equitably dis- 
 charge the defendant in an action brought in the name of the original 
 payee." 
 
 And it was agreed, that if the court should be of opinion that the 
 defendant could not avail himself of the set-off filed in tlie case, judg-* 
 ment should be rendered for the plaintiffs for the amount of the note 
 described in the declaration. 
 
 By the Court. It is very clear that the notes, which tl»e defendant 
 holds against Burgess, are not a legal set-off in this action by the laws 
 of this State ; and it is equally clear, that we can take no notice of the 
 statute of Vermont. The lex loci must settle the nature, validity, and 
 interpretation of contracts, but it extends no further. The laws of the 
 State in which contracts are attempted to be enforced, must settle what 
 is the proper course of judicial proceedings to enforce them. The stat- 
 ute of Vermont relates merely to tlie remedy, by which a contract may 
 l)e enforced. There must, therefore, according to the agreement of the 
 parties, be Judgment for the plaintiff} 
 
 TOWNSEND V. JEMISON. 
 
 SUPRKME CoUItT OF THK UNITED StATES. 1819. 
 [Reported 9 Howard's Reports, 407.] 
 
 Wayne, J.^ This suit has been brought here from the District 
 Court of tlie United States for the INIiddle District of Alabama. The 
 defendant in the court below, the plaintiff here, besides other pleas, 
 pleaded that the cause of action accrued in Mississippi more than 
 three years before the suit was brought; and that the Mississippi 
 statute of limitations barred a recovery in the District Court of Ala- 
 bama. The plaintiir demurred to the plea. The court sustained the 
 demurrer. 
 
 We do not think it necessary to do more than to decide this point 
 
 in the case. 
 
 The rule in the courts of the United States, in respect to pleas of 
 the statutes of limitation, has always been, that they strictly affect the 
 
 1 Arc. Meyer i;. Dresser, 16 C. B. N. s. 646 (scmhie) ; Savery v. Savery, 3 la. 271 ; 
 Davis I'. Morton, 5 Bush, 160. — Ed. 
 a The opiuion only is given ; it sufficiently states the case. — Ed.
 
 CHAP. V.j TOWNSEND V. JEMISON. 275 
 
 remed}', and not the merits. In the case of McElmo3-le v. Cohen, 13 
 Peters, 312, this point was raised, and so decided. All of the judges 
 were present and assented. The fullest examination was then made 
 of all the authorities upon the subject, in connection with the diversi- 
 ties of opinion among jurists about it, and of all those considerations 
 which have induced legislatures to interfere and place a limitation upon 
 the bringing of actions. 
 
 We thought then, and still think, that it has become a formular}' in 
 i nternational jurisprudence, that all suits must be brnng ht w 'thin - t h.e 
 pj^rjofl prpsf.ril> ed bv the local law of <-1ip' prtnnt.ry vvIipi-p tliP> suit is- 
 brought^j — - the le x fori ; otherwise the suit would be barred, unless 
 the plaintltl' can bring himself within one of the exceptions of the 
 statute, if that is pleaded by the defendant. This r ul e is as fu lly 
 rec Qofnized in foreign jurisprudence as it is in the comm on law. We 
 then referred to authorities in the common law, and to a summary 
 of them in foreign jurisprudence. Burge's Com. on Col. and For. 
 Laws. They were subsequently cited, with others besides, in the 
 second edition of the Conflict of Laws, 483. Among them will be 
 found the case of Lero}' v. Crowninshield, 2 Mason, 151, so much 
 relied upon by the counsel in this case. 
 
 Neither the learned examination made in that case of the reasoning 
 of jurists, nor the final conclusion of the judge, in opposition to his 
 own inclinations, escaped our attention. Indeed, he was here to 
 review them, with those of us now in the court who had the happiness 
 and benefit of being associated with him. He did so with the same 
 sense of judicial obligation for the maxim, Stare decisis et non quieta 
 rtiovere^ which marked his official career. His language in the case in 
 Mason fully illustrates it: ^ But I do not sit here to consider what in 
 theory ought to be the true doctrines of the law, following them out 
 upon principles of philosophy and juridical reasoning. My humbler 
 and safer duty is to administer the law as I find it, and to follow in 
 the path of authority, where it is clearly defined, even though that 
 path may have been explored by guides in whose judgment the most 
 implicit confidence might not have been originally reposed." Then 
 follows this declaration : "It does appear to me that the question now 
 before the court has been settled, so far as it could be, by authorities 
 which the court is bound to respect." The error, if an}' has been 
 committed, is too strongly engrafted into the law to be removed with- 
 out the interposition of some superior authority. Then, in support of 
 this declaration, he cites Huberus, Voet, Pothier, and Lord Kames, 
 and adjudications from English and American courts, to show that, 
 whatever ma}' have been the differences of opinion among jurists, the 
 uniform administration of the law has been, that the lex loci contractus 
 expounds the obligation of contracts, and that statutes of limitation 
 prescribing a time after which a plaintiflf shall not recover, unless he 
 can bring himself within its exceptions, appertain ad tempus et modum 
 actio/lis instituendcB and not ad valorem contractus. Williams v.
 
 276 TOWNSEND V. JEMISON. [CHAP. V. 
 
 Jones, 13 East, 439 ; Nash v. Tupper, 1 Caines, 402 ; Ruggles v. 
 Keeler, 3 Johns. 263 ; Pearsall v. Dvvight, 2 Mass. 84 ; Decouche 
 V. Savetier, 3 Johns. Ch. 190, 218 ; McCluny v. Silliiuan, 3 Peters, 
 276 ; Hawkins v. Barney, 5 Peters, 457 ; Bank of the United States 
 V. Donnally, 8 Peters, 361 ; McElmoyle v. Cohen, 13 Peters, 312. 
 
 Tliere is nothing in Siielby v. Guy, 11 Wheaton, 361, in conflict with 
 what this court decided in the four hist-mentioned cases. Its action 
 upon the point has been uniform and decisive. In cases before and 
 since decided in England, it will be found there has been no fluc- 
 tuation in the rule in the courts there. _Thp rn1f> is, t.liat the statute of 
 limitations o_f_the _country in which the su it is brought niay_ be plea ded/ 
 to bar a rfii:QA:ery_iipQiL a contract tnnde out of its political jurisdictiQn.| 
 ^^^jj^^tli" Hm'>itir>n nf tl^P l.PT. loci c.onfrac.liiii p.nnnot \\<^,. 2 Bing- 
 ham, New Cases, 202, 211 ; Don v. Lippman, 5 Clark & Y\\\. 1, 16, 
 17. It has become , as we have already said, a fixed rule of the jus 
 rjemthi.m, prhmtum ^ unalterable, in our opinion, either in England or in 
 the States of the United States, ornopt hy lp|Tigln,t-|ivp pngH.TT^pnt_ 
 
 We will not enter at large into the learning and philosophy of the 
 question. We remember the caution given by Lord Stair in the sup- 
 plement to his Institutes (p. 852), about citing as authorities the works 
 and publications of foreign jurists. It is appropriate to the occasion, 
 having been written to correct a mistake of Lord Tenterden, to whom 
 no praise could be given which would not be deserved by his equally 
 distinguished contemporary. Judge Story. Lord Stair says: "There 
 is in Abbott's Law of Shipping (5th edition, p. 365) a singular mis- 
 take ; and, considering the justly eminent character of the learned 
 author for extensive, sound, and practical knowledge of the English 
 law, one which ought to operate as a lesson on this side of the Tweed, as 
 well as on the other, to be a little cautious in citing the works and pub- 
 lications of foreign jurists, since, to comprehend their bearings, such 
 a knowledge of the foreign law as is scarcely attainable is absolutely 
 requisite. It is magnificent to array authorities, but somewhat humili- 
 ating to be detected in errors concerning them ; — yet how can errors be 
 avoided in such a case, when every day's experience warns us of the 
 prodigious study necessary to the attainment of proficiency in our own 
 law? My object in adverting to the mistake in the work referred to is, 
 not to depreciate the author, for whom I entertain unfeigned respect, 
 but to show that, since even so justly distinguished a lawyer fails when 
 he travels beyond the limits of his own code, the attempt must be infi- 
 nitely hazardous with others." 
 
 We will now venture to suggest the causes which mislc djjie-j£a£12£d. 
 judge in Lc-rovw. Crowninshield into a conclusion, that if the question 
 beforelilm hacrbccir entirely^ew, his inclination would strongly lead 
 him to declare, that where all remedies are barred or discharged by the 
 lex loci contractus, and have operated upon the case, then the bar may 
 be pleaded in a foreign tribunal, to repel any suit brought to enforce 
 tho debt
 
 CHA-P. v.] TOWNSEND V. JEMISON. ' 277 
 
 We remark, first, that only a few of the civilians who have written 
 upon the point differ from the rule, that statutes of limitation relate 
 to the remedy and not to the contract. If there is an}- case, either in 
 our own or the English courts, in which the point is more discussed 
 than it is in Leroy v. Crowninshield we are not acquainted with it. In 
 every case but one, either in England or in the United States, in which 
 the point has since been made, that case has been mentioned, and it has 
 carried some of our own judges to a result which Judge Story himself 
 did not venture to support. 
 
 We do not find him pressing his argument in Leroy v. Crowninshield 
 in the Conflict of Laws, in which it might have fceen appropriately 
 done, if his doubts, for so he calls them, had not been removed. 
 Twenty years had then passed between them. In all that time, when 
 so much had been added to his learning, really great before, that by 
 common consent he was estimated in jurisprudence par summis, we 
 find him, in the Conflict of Laws, stating the law upon the point in 
 opposition to his former doubts, not in deference to authority alone, 
 but from declared conviction. 
 
 The point had been examined by him in Leroy v. Crowninshield 
 without any consideration of other admitted maxims of international 
 jurisprudence, having a direct bearing upon the subject. Among 
 others, that the obligation of every law is confined to the State in 
 which it is established, that it can only attach upon those who are its 
 subjects, and upon others who are within the territorial jurisdiction of 
 the State ; that debtors can only be sued in the courts of the jurisdic- 
 tion where they are ; that all courts must judge in respect to remedies 
 from their own laws, except when conventionally, or from the decisions 
 of courts, a comity has been established between States to enforce in 
 the courts of each a particular law or principle. When there is no 
 positive rule, affirming, denying, or restraining the operation of foreign 
 laws, courts establish a comity for such as are not repugnant to the 
 policy or in conflict with the laws of the State from which they derive 
 their organization. We are not aware, except as it has been brought 
 to our notice by two cases cited in the argument of this cause, that it 
 has ever been done, either to give or to take away remedies from 
 suitors, when there is a law of the State where the suit is brought 
 which regulates remedies. But for the foundation of comity, the man- 
 ner of its exercise, and the extent to which courts can allowably carry 
 it, we refer to the case of the Bank of Augusta v. Earle, 13 Peters, 
 519, 589 ; Conflict of Laws, Comity. 
 
 From what has just been said, it must be seen, when it is claimed 
 that statutes of limitation operate to extinguish a contract, and for 
 that reason the statute of the State in which the contract was made 
 may be pleaded in a foreign court, that it is a point not standing alone, 
 disconnected from other received maxims of international jurisprudence. 
 And it may well be asked, before it is determined otherwise, whether 
 contracts by force of the different statutes of limitations in States are
 
 278 TOWNSEND V. JEMISON. [CHAP. V. 
 
 not exceptions from the ganeral rule of the lex loci contractus. There 
 are such exceptions for dissolving and discharging contracts out of the 
 jurisdiction in which they were made. The limitations of remedies, 
 and the forms and modes of suit, make such an exception. Confl. of 
 Laws, 271, and 524 to 527. We may then infer that the doubts 
 expressed in Leroy (k Crowninshield would have been withheld if the 
 point had been considered in the connection we have mentioned. 
 
 We have found, too, that several of the civilians who wrote upon 
 the question did so without having kept in mind the ditference between 
 the positive and negative prescription of the civil law. In doing so, 
 some of them — no* regarding the latter in its more extended signifi- 
 cation as including all those bars or exceptions of law or of fact wliich 
 raav be opposed to the prosecution of a claim, as well out of the juris- 
 diction in which a contract was made as in it — were led to the conclu- 
 sion, that the prescription was a part of the contract, and not the 
 denial of a remedy for its enforcement. It may be as well here to 
 state the difference between the two prescriptions in the civil law. 
 Positive, or the Roman usucaptio, is the acquisition of property, real 
 or personal, immovable or movable, by the continued possession of the 
 acquirer for such a time as is described by the law to be sufficient. 
 Erskine's Inst. 556. '•'■ Adject io dominii 2>&r continuationem posses- 
 sionis temporis ler/i dejiniti." Dig. 3. 
 
 Negative prescription is the loss or forfeiture of a right by the pro- 
 prietor's neglecting to exercise or prosecute it daring the whole period 
 which the law hath declared to be sufficient to infer the loss of it. It 
 includes the former, and appUes also to all those demands wliich are 
 the subject of personal actions. Erskine's Inst. 560, and 3 Burge, 26. 
 
 Most of the civilians, however, did not lose sight of the differences 
 between these prescriptions, and if their reasons for doing so had been 
 taken as a guide, instead of some expressions used by them, in respect 
 to what may be presumed as to the extinction or payment of a claim, 
 •while the plea in bar is pending, we do not think that any doubt would 
 have been expressed concerning the correctness of their other conclu- 
 sion, that statutes of limitation in suits upon contracts only relate to 
 the remedy. But that was not done, and, from some expressions of 
 Pothier and Lord Kames, it was said, " If the statute of limitations 
 does create, proprio vigore, a presumption of the extinction or payment 
 of the debt, which all nations ought to regard, it is not easy to see why 
 the presumption of such payment, thus arising from the lex loci con- 
 tractus, should not be as conclusive in every other place as in the place 
 of the contract." And that was said in Leroy v. Crowninshield, in op- 
 position to the declaration of both of those writers, that in any other 
 place than that of the contract such a presumption could not be made 
 to defeat a law providing for proceedings upon suits. Here, turning 
 aside for an instant from our main purpose, we find the beginning or 
 source of those constructions of the English statutes of limitation 
 which almost made them useless for the accomplishment of their end.
 
 CHAP. T.] TOWNSEND V. JEMISON. 279 
 
 Within a few years, tbe abuses of siicli constructions have been much 
 corrected, and we are now, in the English and American courts, nearer 
 to the legislative intent of such enactments. 
 
 But neither Pothier nor Lord Kanies meant to be understood, that 
 the theor}- of statutes of limitation purported to afford positive pre- 
 sumptions of pa3ment and extinction of contracts, according to the 
 laws of the [)lace where the}' are made. (The extract which was made 
 from Pothier shows his meaning is, that, when the statute of limitations 
 has been pleaded b}- a defendant, the presumption is in his favor that 
 he has extinguished and discharged his contract, until the plaintiff 
 overcomes it h\ proof that he is within one of those exceptions of the 
 statute which tal^es it out of the time after which he cannot bring a suit 
 to enforce judicially the obligation of the defendant. ^The extract 
 from Lord Kames only shows what may be done in Scotland when a 
 process has been brought for payment of an English debt, after the 
 English prescription has taken place. The English statute cannot be 
 pleaded in Scotland in such a case, but, according to the law of that 
 forum, it may be pleaded that the debt is presumed to have been paid. 
 And it makes an issue, in whicli the plaintiff in the suit ma}' show that 
 such a presumption does not appl}' to his demand ; and that without 
 any regard to the prescription of time in the English statute of limita- 
 tion. It is upon this presumption of pa^-ment that the conclusion in 
 Leroy v. Crowninshield was readied, and as it is now universally ad- 
 mitted that it is not a correct theory for the administration of statutes 
 of limitation, we ma}' say it was in fact because that theory was 
 assumed in that case that doubts in it were expressed, contrary to the 
 judgment which was given, in submission to what was admitted to be 
 the law of the case. What we have said may serve a good purpose. 
 It is pertinent to the point raised by the pleading in the case before us, 
 and in our judgment there is no error in the District Court's having 
 sustained the demurrer. 
 
 Before concluding, we will remark that nothing has been said in this 
 case at all in conflict with what was said by this court in Shelby v. 
 Guv, 11 Wheaton, 361. The distinctions made by us here between 
 statutes giving a right to property from possession for a certain time, 
 and such as only take away remedies for the recovery of property after 
 a certain time has passed, confirm it. In Shelby* v. Guy this court 
 declared that, as by the laws of Virginia five years' bona fide posses- 
 sion of a slave constitutes a good title upon which the possessor may 
 recover in detinue, such a title may be set up by the vendee of such 
 possessor in the courts of Tennessee as a defence to a suit brought by 
 a third party in those courts. The same had been previously ruled in 
 this court in Brent v. Chapman, 5 Cranch, 358 ; and it is the rule in 
 all cases where it is declared by statute that all rights to debts due more 
 than a prescribed term of years shall be deemed extinguished, and that 
 all titles to real and personal property not pressed within the prescribed 
 time shall give ownership to an adverse possessor. Such a law, though
 
 280 TOWNSEND V. JEMISON. [CHAP. V. 
 
 one of limitation, goes direct!}' to the extinguishment of the debt, 
 claim, or right, and is not a bar to the remedy. Lincoln v. Battelle, 
 8 Wend. 475 ; Confl. of Laws, 582. 
 
 In Lincoln v. Battelle, 6 Wend. 475, the same doctrine was held. It 
 is stated in the Conflict of Laws, 582, to be a settled point. The courts 
 of Louisiana act upon it. We could cite other instances in which it 
 has been announced in American courts of the last resort. In the 
 cases of De la Vega v. Vianna, 1 Barn. & Adol. 284, and the British 
 Linen Company v. Drummond, 10 Barn. & Cres. 903, it is said that, if 
 a French bill of exchange is sued in England, it must be sued on 
 according to the laws of England, and there the English statute of 
 limitations would form a bar to the demand if the bill had been due 
 for more than six years. In the case of Don v. Lippman, 5 Clark & 
 Fin. 1, it was admitted by the verj' learned counsel who argued that 
 case for the defendants in error, that, though the law for expounding a 
 contract was the law of the place in which it was made, the remed}' for 
 enforcing it must be the law of the place in which it is sued. In that 
 case will be found, in the argument of Lord Brougham before the 
 House of Lords, his declaration of the same doctrine, sustained by very 
 cogent reasoning, drawn from what is the actual intent of the parties to 
 a contract when it is made, and from the inconveniences of pursuing a 
 different course. In Beckford and others v. Wade, 17 Vese}', 87, Sir 
 William Grant, acknowledging the rule, makes the distinction between 
 statutes merely barring the legal remedy' and such as prohibit a suit 
 from being brought after a specified time. It was a case arising under 
 the possessory law of Jamaica, which converts a possession for seven 
 years under a deed, will, or other conveyance, into a positive absolute 
 title, against all the world, — without exceptions in favor of any one or any 
 right, however a part}' may have been situated during that time, or what- 
 ever his previous right of property may have been. There is a statute 
 of the same kind in Rhode Island. 2 R. I. Laws, 363, 364, ed. 1822. 
 In Tennessee there is an act in some respects similar to the possessory 
 law of Jamaica ; it gives an indefeasible title in fee simple to lands of 
 which a person has had possession for seven years, excepting only from 
 its operation infants, feme coverts, non compotes mentis^ persons im- 
 prisoned or beyond the Hmits of the United States and the territories 
 thereof, and the heirs of the excepted, provided they bring actions 
 within three years after they have a right to sue. Act of November 16, 
 1817, ch. 28, §§ 1, 2. So in North Carolina there is a provision in 
 the act of 1715, ch. 17, § 2, with the same exceptions as in the act of 
 Tennessee, the latter being probably copied substantially from the 
 former. Thirty years' possession in Louisiana prescribes land, though 
 possessed without title and mala fide. 
 
 We have mentioned those acts in our own States only for the pur- 
 pose of sliowing the difference lietween statutes giving title from posses- 
 sion, and such as only limit the bringing of suits. It not unfrequcntly 
 happens in legislation that such sections are found in statutes for the
 
 CHAP, v.] THE HAERISBURG. 28\ 
 
 limitation of actions. It is, in fact, because they have been overlooked 
 that the distinction between them has not been recognized as much as 
 it ought to have been, in the discussion of the point whether a certain 
 time assigned bj' a statute, within which an action must be brought, is 
 a part of the contract, or solel}^ the remedy. ^The rule in such a case 
 is, that the obligations of the contract upon the parties to it, except in 
 well-known cases, are to be expounded by the lex loci contractus. 
 Suits brought to enforce contracts, either in the State where thev were 
 made or in the courts of other States, are subject to the remedies of the 
 forum in which the suit is, including that of statutes of limitation. ^ 
 
 Judgment affirmed.'^ 
 
 THE HAERISBURG. 
 
 Supreme Court of the United States. 1886. 
 
 [Reported 119 United States, 199.] 
 
 This is a suit in rem begun in the District Court of the United States 
 for the Eastern District of Pennsylvania, on the 25th of February, 
 1882, against the steamer " Harrisburg," bj' the widow and child of 
 Silas E. Rickards, deceased, to recover damages for his death caused 
 by the negligence of the steamer in a collision with the schooner 
 " Marietta Tilton," on the 1 6th of May, 1877, about one hundred yards 
 from the Cross Rip Light Ship, in a sound of the sea embraced between 
 the coast of Massachusetts and the Islands of Martha's Vinej'ard and 
 Nantucket, parts of the State of Massachusetts. The steamer was en- 
 gaged at the time of the collision in the coasting trade, and belonged 
 to the port of Philadelphia, where she was duly enrolled according to 
 the laws of the United States. The deceased was first officer of the 
 schooner, and a resident of Delaware, where his widow and child also 
 resided when the suit was begun. 
 
 The statutes of Pennsylvania in force at the time of the collision 
 provided that, " whenever death shall be occasioned b}' unlawful vio- 
 lence or negligence, and no suit for damages be brought by the party 
 injured, during his or her life," "the husband, widow, children, or 
 parents of the deceased, and no other relative," "may maintain an 
 action for and recover damages for the death thus occasioned." " The 
 action shall be brought within one 3'ear after the death, and not there- 
 after." Brightly's Purdon's Dig. 11th ed., 1267, §§ 3, 4, 5 ; Act of 
 April 15, 1851, § 18 ; Act of April 6, 1855, §§ 1, 2. 
 
 1 Ace. Don V. Lippraan, 5 CI. & Fin. 1 ; Alliance Bank v. Carey, 5 C. P. D. 429 ; 
 Bank of U. S. v. Donnally, 8 Pet. 361 ; Biirgett v. Williford, 56 Ark. 187, 19 S. W. 
 750 ; Atwater v. Townsend, 4 Conn. 47 ; Collins v. Manville, 170 111. 614, 48 N. E. 
 914 ; Labatt v. Smith, 83 Ky. 599 ; Pearsall v. Dwight, 2 Mass. 84 ; Perkins v. Guy, 
 55 Miss. 153 ; Carson v. Hunter, 46 Mo. 467 ; Warren v. Lynch, 5 Johns. 239 ; Watson 
 ». Brewster, 1 Barr, 381. — Ed.
 
 282 THE HAREISBUEG. [CHAP. V. 
 
 By a statute of Massachusetts relating to railroad corporations, it 
 was provided that " if, by reason of the negligence or carelessness of a 
 corporation, or of the unfitness or gross negligence of its servants or 
 agents while engaged in its business, the life of any person, being in 
 the exercise of due diligence, ... is lost, the corporation shall be pun- 
 ished by a fine not exceeding five thousand nor less than five hun- 
 dred dollars, to be recovered by indictment and paid to the executor 
 or administrator for the use of the widow and children." ..." Indict- 
 ments against corporations for loss of life shall be prosecuted within 
 one year from the injury causing the death." Mass. Gen. Sts. 1860, c. 
 63, §§ 97-99 ; Stat. 1874, c. 372, § 163.^ 
 
 Waite, C. J. We are entirely satisfied that this suit was begun too 
 late. The statutes create a new legal liability, with a right to a suit for 
 its enforcement, provided the suit is brought within twelve months, and 
 not otherwise. The tim^ withj" wh'^'h tlip snit, must he hrf.nf7ht^^»p^- 
 ates a s a Umitation of the liabilitv itself as crpnted , nnd not n f tlie - 
 ' TemeHya"l on_e. lUs a conditi on atta ched to the righ t tn si]p at. p11, No 
 one will pretend that the suit in Pennsylvania, or the indictment in 
 Massachusetts, could be maintained if brought or found after the expi- 
 ration of the year, and it would seem to be clear that, if the admiralty 
 adopts the statute as a rule of right to be administered within its own 
 jurisdiction, it must take the right subject to the limitations which have 
 been made a part of its existence. It matters not that no rights of 
 innocent parties have attached during the delay. Time has been made 
 of the essence of the right, and the right is lost if the time is disre- 
 garded. JThpj2n }Mlity nnd t,lip vomPf] y nr^ prpgt.prl hv tlipj-imn ntnt t itun, 
 and the li mitations of th e remedy ar e, there fore, _to_bf^ tyQi;iU^^^-rv =, liini Na- 
 tions of the r ights ]So~question arises in this case as to the power of a 
 court of admiralt}' to allow an equitable excuse for delay in suing, be- 
 cause no excuse of any kind has been shown. As to this, it only appears 
 that the wrong was done in May, 1877, and that the suit was not brought 
 until February, 1882, while the law required it to be brought within a 
 year. 
 
 The decree of the Circuit Court is reversed^ and the cause remaiuled^ 
 with instructio7is to dismiss the libel.^ 
 
 1 Only so much of the case as involves the question of limitation of time is given. 
 Arguments of counsel are omitted. — En. 
 
 'i See Brunswick Terminal Co. v. Bank, 99 Fed. 635. — Ed.
 
 CHAP, v.] HOADLEY V. NOKTHERN TRANSPORTATION CO. 283 
 
 HOADLEY V. NORTHERN TRANSPORTATION CO. 
 
 Supreme Judicial Court of Massachusetts. 1874. 
 
 [Reported 115 Massachusetts, 304.] 
 
 Colt, J.^ The plaintiff seeks to recover in tort against the defendant 
 as a common carrier for the loss of a steam-engine which it had under- 
 taken to transport from Chicago, Illinois, and deliver to him at Law- 
 rence in this State. The engine was destroyed at Chicago in the great 
 fire of 1871, and one question at the trial was, whether bj- the terms of 
 the contract of transportation the defendant was liable for this loss. 
 
 The plaintiff put in the bill of lading received b}' his agent at Chicago 
 of the defendant at the time the propert}' was delivered for transporta- 
 tion. It is in the usual form, and the terms and conditions are ex- 
 pressed in the body of the paper in a way not calculated to escape 
 attention. In one clause it exempts the defendant from all liability 
 for loss or damage by fire ; in another from all liability " for loss or 
 damage on any article or property whatever b\' fire while in transit or 
 while in depots or warehouses or places of transshipment," and further 
 provides that the deUvery of the bill of lading shall be conclusive evi- 
 dence of assent to its terms. 
 
 It was assumed by both parties as now settled that a common car- 
 rier ma}' b}' special contract avoid or limit his liability at common law 
 as an insurer of propert}- intrusted to him against loss or damage by 
 fire occurring without his own fault. Such is the declared law of this 
 Commonwealth, and the Illinois cases produced at the trial assume that 
 the same rule prevails there. An express contract, once established, 
 is in both States effectual to limit the carrier's liability. But the plain- 
 tiff contended that by the law of Illinois, as declared in the courts of 
 that State, the mere receipt, without objection, of a bill of lading which 
 limits the carrier's common law liability for loss by fire, would not 
 raise a presumption that its terms were assented to, but such assent, 
 if relied on, must be shown by other and additional evidence. The 
 jury have found this to be the law of that State, under instructions not 
 objected to, and we are not required to say whether there was sufficient 
 evidence to warrant the finding. Adams Express Company v. Haynes, 
 42 111. 89; American Express Company v. Schier, 55 111. 140, 150; 
 Illinois Central Railroad v. Frankenberg, 54 111. 88, 98. The court 
 ruled that this law of Illinois must govern the case, and that under it 
 the jury could not find that the mere receipt of the bill of lading would 
 be evidence of assent to its terms. 
 
 The law of this Commonwealth differs from the law of Illinois as thus 
 found. In Grace v. Adams, 100 Mass. 505, decided by this court on 
 an agreed statement of facts, it was held that a bill of lading or ship- 
 ping receipt, taken by a consignor without dissent at the time of the 
 delivery of the property for transportation, by the terms of which the 
 carrier stipulates against such liability, would exempt the carrier when 
 1 Part of the opinion only is given. — Ed.
 
 284 HOADLEY V. NORTHERN TRANSPORTATION CO. [CHAP. V» 
 
 the loss was not caused by his own negligence, on the ground that such 
 acceptance would authorize him to infer assent, and amount to evidence 
 of the contract between the parties. The defendant contends that 
 the case is to be tried b}- the law of this Commonwealth. 
 
 It is a general rule that personal contracts must lia^ p tlio anmp I'nfor- 
 pre tation and bindi"ng force uTall countr ips whirli they h.qyf '" ^'^'^ 
 j2Jn (^ft whprft made. The contract is presumed to have been entered 
 into with reference to the law of that place. If formalities and solemni- 
 ties are there required to give validity to it, the requirement must be 
 shown to have been observed. But the law of the place where the 
 action is brought, by the same general rule, regulates the remedy and 
 all the incidents of the remedy upon it. Thg_ iaw of the former pla ce 
 determines the right ; the law of the latter controls the admission~o Y 
 evlHenceTnd~presCT5es~Ttig^ ol pro of by which the terms ofj jia. 
 
 ecFTltractai-e made~known to the"couVt^a s^ell as the ."ormof the action^ 
 b T^hichitlsrelifofcea : — Thus in a suit in Connecticut against the in- 
 dorser on a note made and indorsed in New York, it was held that 
 parol evidence of a special agreement different from that implied by 
 law would be received in defence, although by the law of the latter 
 State no agreement different from that which the law implies from a 
 blank indorsement could be proved by parol. Downer v. Chesebrough, 
 36 Conn. 39. And upon the same principle it has been held that a 
 contract valid by the laws of the place where it is' made, although not 
 in writing, will not be enforced in the courts of a country where the 
 statute of frauds prevails unless it is put in writing as required. Leroux 
 V. Brown, 12 C. B. 801. So assumpsit was held to lie in New York 
 on an undertaking in Wisconsin contained in a writing having a scrawl 
 and no seal affixed to the defendant's name, although in the latter 
 State it had in pleadings and in evidence the effect of a seal. Le Roy 
 V. Beard, 8 How. 451. The statute of limitations for the same reasons 
 affects only the remedy, and has no extra-territorial force. 
 
 It is not always indeed easy to determine wliether the rule of law 
 sought to be applied touches the validity of the contract or only the 
 remedy upon it. In the opinion of the court, the rn1e_of law laid down 
 i n Illinois and here relied on by the plaintiff affects the remedy only, 
 a£d_ ought not to co ntrnl t|io rQiirt.c; of f^iis Con)m onwealtl L.__Tlie nature 
 and validity of the special contract set up is the same in both States. 
 Jt-ia- QuJv a difference in the mode of proof. A presumption of fact in 
 one State is held legally sufTicient to prove assent to the special con- 
 tract relied on to support the defence. In the other State it is held not 
 to be sufficient. It is as if proof of the contract depended upon the 
 testimony of a witness competent in one place and incompetent in the 
 other. The instructions given at the trial upon this point did not 
 conform to the view of tlie law above stated, in which, upon more full 
 consideration, we all concur. Exceptions sustained.^ 
 
 1 Ace. Johnson v. C. & N. W. Ry., 91 la. 248, 59 N. W. 66. Contra, Teueoni v. 
 Terzaghi (Turin Cass. 7 July, 1887), 15 Clunet, 426. Lord Brougham in Bain v.
 
 CHAP, v.] PECK I'. MAYO. 
 
 285 
 
 PECK V. MAYO. 
 Supreme Court, Vermoxt. 1842. 
 
 [Rejjorted 14 Vermont, 33.] 
 
 Redfield, J.^ This action is upon a promissory note, made in Mon- 
 treal, where the legal rate of interest is six per cent, payable at the M. & 
 F.'s bank, in the city of Albany, where the legal rate of interest is 
 seven per cent, and indorsed by tjie defendants in this Sta te, wliere 
 the legal rate of interest is six per cent. This action being against the 
 defendants, as indorsers, the only question is, what rate of interest are 
 they liable for? The note was payable at a day certain, but no interest 
 stipulated in the contract. The interest claimed is for damages in 
 not paying the money when due. 
 
 The first question naturally arising in this case is, what rate of inter- 
 est, by way of damages, are the signers liable for? There are fewer 
 decisions to be found in the books, bearing directly upon this subject, 
 than one would naturally have expected. It is an elementary principle, 
 upon this subject, that all the incidents pertaining to the validity and 
 construction, and especially to the discharge, performance, or satisfaction 
 of contracts, and the rule of damages for a failure to perform such con- 
 tract, will be governed by the lex loci co)itractus. This term, as is 
 well remarked by Mr. Justice Story, in his Conflict of Laws, 248, may 
 have a double meaning or aspect ; and that it may indifferently indicate 
 the place where the contract is actually made, or that where it is vir- 
 tuall}' made, according to the intent of the parties, that is,ythe place 
 of performance. \ The general rule now is, I apprehend, that the latter 
 is the governinghavv of the contract. Hence the elementary principle 
 undoubtedly is that the rate of interest, whether stipulated in the con- 
 tract or given by way of damages for the non-performance, is the in- 
 terest of the place of payment. 
 
 We will next examine whether any positive rule of law has been 
 established contravening this principle. 2 Kent Com. 460, 461. Chan- 
 cellor Kent expressly declares that this elementary principle is now the 
 "received doctrine at Westminster Hall," and cites Thompson v. 
 
 Whitehaven, &c. Ry., 3 H. L. C. 1, 19, said : "The law of evidence is the lex fori 
 which governs the courts. Whether a witness is competent or not ; whether a certain 
 matter requires to be proved by writing or not ; whether certain evidence proves a cer- 
 tain fact or not : This is to be determined by the law of the country where the question 
 arises, where the remedy is sought to be enforced, and where the court sits to enforce 
 it." 
 
 So if a stamp is required for admitting any document in evidence, even a foreign 
 document must be stamped before it will be admitted ; while a document valid but in- 
 admissible, under this rule, where made, may be admitted in another State not requir- 
 ing a stamp. Bristow v. Sequeville, 5 Ex. 275 ; Fant v. Miller, 17 Grat. 47 ; Murdock 
 i;. Roebuck, 1 Juta (Cape Colony), 1 ; Dearsley v. Rennels (Ghent, 7 Dec. 1876), 
 6 Clunet, 509. — Ed. 
 1 Part of the opinion only is given. — Ed.
 
 286 PECK V. MAYO. [chap. V. 
 
 Powles, 2 Simons' R. 194 (2 Cond. Ch. R. 378). This case does 
 not necessarily decide tliis point, but the opinion of the Vice Chancellor 
 expressly recognizes the rule, that, although the rate of interest stipu- 
 lated is above the English interest, still the contract will not be 
 usurious, unless it appear to be a contract made in England and there 
 to be performed. The case of Harvey v. Archbold, 1 Ryan & Moody, 
 184 (21 Eng. C. L. 729), recognizes more expressly the same doctrine. 
 The case of Depau v. Humphreys, 8 Martin, 1, expressly decides, that 
 a contract made in one country, to be performed in another, where the 
 rate of interest is higher than at the place of entering into the contract, 
 it may stipulate the higher rate of interest. Mr. Justice Story recog- 
 nizes the elementarv rule, above alluded to, as the settled law. Con- 
 flict of Laws, 243, 246. Similar language is adopted b}- Mr. Justice 
 Thompson, Boyce v. Edwards, 4 Peters' R. Ill, and by Mr. Chief 
 Justice Taney, in Andrews v. Pond, 13 Peters, 65, and by Chancellor 
 Walworth, in Hosford v. Nichols, 1 Paige, 220. Much the same is 
 said by the court in the- case of the Bank of the U. S. v. Daniel, 12 
 Peters, 32. In many of these cases the question alluded to was not 
 directly before the court, but, by all these eminent jurists, it seems to 
 have been considered as one of the long settled principles of the law of 
 contract. The same rule of damages was, in the case of Ekins ?'. the 
 East India Company, 1 P. Wms. 395, applied to the tortious conversion 
 of a ship in Calcutta, the court making the company liable for the value 
 of the ship, at the time of conversion, and the India rate of interest 
 for the delay of the payment of the money. In this case the interest 
 allowed was greater than the English interest. 
 
 ^When the contract is entered into in one country, to be performed in 
 another, having established a lower rate of interest than the former, 
 and the contract stipulates interest generally, it has always been held 
 that the tote of interest recoverable was that of the place of perform- 
 ance onl^'J It is expressly so decided in Robinson v. Bland, 2 Bur- 
 row, 1077 ; Fanning v. Consequa, 17 Johns. 511 ; Schofield v. Day, 20 
 Johns. R. 102. 
 
 From all which I consider the following rules, in regard to interest on 
 contracts, made in one country to be executed in another, to be well 
 settled : 1. If a contract be entered into in one place to be performed 
 in another, and the rate of interest differ in the two countries, the par- 
 ties may stipulate for the rate of interest of either country, and thus by 
 their own express contract, determine with reference to the law of 
 which country that incident of the contract shall be decided. 2. If the 
 contract, so entered into, stipulate for interest generally, it shall be the 
 rate of interest of the place of i)ayment, unless it appear the par- 
 ties intended to contract with reference to the law of the other place. 
 3. If the contract be so entered into, for mone^-, payable at a place on a 
 day certain, and no interest be stipulated, and payment be delayed, 
 interest, by way of dam.nges, shall be allowed according to the law of 
 the place of payment, where the money may be supposed to have been
 
 CHAP, v.] AYER V. TILDEN. 287 
 
 required hy the creditor for use, and where he might be supposed to 
 have borrowed money to supply the deficiency thus occurring, and to 
 liave paid the rate of interest of that country. Tliis is expressly recog- 
 nized as the settled rule of law, in regard to the acceptor of a bill, 
 who stands in the place of the maker of these notes. 3 Kent's 
 Com. 116.^ 
 
 AYER V. TILDEN. 
 Supreme Judicial Court of Massachusetts. 1860. 
 
 [Reported 15 Gray, 178.] 
 
 Action of contract upon this promissory note, made and indorsed 
 by the defendants: "$670.81. New Lebanon, 20th June, 1857. Six 
 months after date we promise to pay to the order of ourselves six 
 hundred and seventy dollars and eighty-one cents, value received, at 
 Bank of America, n" Y. Tilden & Co." 
 
 The parties stated the following case, upon which the Superior Court 
 in Middlesex gave judgment for the defendants, and the plaintiffs 
 appealed.^ 
 
 Hoar, J. The plaintiffs are entitled to recover, according to the 
 agreement of parties, the principal of the note, with interest at such a 
 rate as the law will allow. That rate will be six per cent from the 
 maturit}' of the note. The interest is not a sum due b}' the contract, 
 for by the contract no interest was payable, and is not therefore 
 affected by the law of the place of contract. It is given as damages 
 for the breach of contract, and must follow the rule in force within the 
 jurisdiction where the judgment is recovered. Grimshaw v. Bender, 
 6 Mass. 157 ; Eaton v. Melius, 7 Gray, 566 ; Barringer v. King, 5 
 Gray, 12. The contrary rule has been held to be applicable where there 
 was an express or implied agreement to pay interest. Winthrop v. 
 Carleton, 12 Mass. 4; Von Hemert v. Porter, 11 Met. 220; Lanusse 
 V. Barker, 3 Wheat. 147. 
 
 Perhaps it would be difficult to support the decision in Winthrop v. 
 Carleton upon an}- sound principle ; because ihe court in that case 
 held that interest could only be computed from the date of the writ, 
 thus clearly showing that it was not considered as due b}- the contract, 
 and 3'et adopted the rate of interest allowed at the place of the contract. 
 But the error would seem to be in not treating mone}-, paid at the 
 implied request of another, as entitled to draw interest from the time 
 of payment. 
 
 1 Ace. Gibbs v. Fremont, 9 Ex. 25; Ex parte Heidelbaek, 2 Low. 526: Ballistev v. 
 Hamilton, 3 La. Ann. 401; Fanning v. Conseqna, 17 Johns. 511 ; Raymond v. Messiel 
 (French Cass. 9 June, 1880), 7 Clunet, 394.— Ed. 
 
 2 Only so much of the case as deals with the rate of interest is given. — Ed.
 
 288 COMMERCIAL NATIONAL BANK V. DAVIDSON. [CHAP. V. 
 
 An objection to adopting the rule of the rate of interest in the juris- 
 diction wliere the action is brought as the measure of damages may be 
 wortliy of notice, that this rule would allow the creditor to wait until 
 he could find his debtor or his property within a jurisdiction where a 
 much higher rate of interest was allowed than at the place of the con- 
 tract. But a debtor could always avoid this danger by performing his 
 contract ; and the same difficulty exists in relation to the actions of 
 trover and replevin. 
 
 If such a case should arise, it might with more reason be argued that 
 the damages should not be allowed to exceed those which would have 
 been recovered in the State where the contract was made and to be 
 performed.^ 
 
 COMMERCIAL NATIONAL BANK v. DAVIDSON. 
 
 Supreme Court of Oregon. 1889. 
 
 [Reported 18 Oregon, 57.] 
 
 Thayer, C. J.^ ... It is stipulated in the note to the effect that if 
 it is not paid at maturity the makers will pay ten per cent additional as 
 costs of collection. ... It is my opinion that a clause in a promissory 
 note, in the form of the stipulation in question, is not valid, and should 
 not be enforced. . . . 
 
 Counsel for the respondent insists that the stipulation to pa}' the 
 additional sum contained in the note in suit was valid and binding in 
 the Territor}' where the note was executed, and that therefore it should 
 be upheld in this State. As a general rule, the law of the place where 
 contracts merely personal are made, governs as to their nature, obli- 
 gation, and construction. But I do not think that rule applies to an 
 agreement, the obligation of which does not arise until a renied}' is 
 sought upon the contract, to which it is ou\y auxiliary. In regard to 
 such agreements, the law of the place where the}- are attempted to be 
 
 1 See Kopelke v. Kopelke, 112 Ind. 43.5. 
 
 In Meyer v. Estes, 164 Mass. 457, 465, Field, C. J., said : "In determining the 
 measure of damages the first (juestion is whether the contract is to be governed by the 
 law of Massachusetts or by the law of the kingdom of Saxony. We think that it is 
 to be governed by the law of Massachusetts. The contract was signed in Massachusetts 
 and sent to the plaintiff at Leipzig, Saxony ; it did not become a contract until the 
 plaintiff acce])ted it and notified the defendants of such acceptance, wliich he did by 
 telegram .si'Ut to them at Hoston. Lewis v. Browning, 130 Mass. 173 ; Pine v. Smith, 
 11 Gray, 38 ; Hill v. Chase, 143 Mass. 129. The contract relates to what is to be done 
 by the defendants in the United States of America ; the defendants are described as 
 'of Boston, Mass., U. S. A.,' and the date of the contract is Boston. We think 
 that it must be regarded as a contract to be performed in Massachusetts, and that the 
 law of Massachusetts, which is also the law of the forum, must determine the damages 
 to be recovered in the action." — Ed. 
 
 * Only so much of the opinion as deals with the question of costs is given. — Ed.
 
 CHAP, v.] COMMERCIAL NATIONAL BANK V. DAVIDSON. 289 
 
 enforced, I should suppose, would prevail. This agreement was to pay 
 the additional percentage as costs for collection of the note, and if the 
 courts where the note was executed would have enforced the agree- 
 ment, it does not follow that the courts of another jurisdiction are 
 bound to do so. The effect of the agreement was to provide for an 
 increase of costs, which are onl^- incidental to the judgment, and the 
 allowance of which must necessarily depend upon the law of the forum. 
 A stipulation in a note made in Utah Territory, providing that in an 
 action on the note the plaintiff, in case of a recover}', should be entitled 
 to double costs, might be considered valid under the laws of that Ter- 
 ritory, and enforceable in its courts ; but that certainly would not ren- 
 der it incumbent upon the courts of this State, in an action upon such 
 note, to award double costs. ^ 
 
 1 Ace. Security Co. v. Eyer, 36 Neb. 507, 54 N. W. 838, — Ed. 
 
 19
 
 290 MALE V. ROBERTS. [CHAP. VL 
 
 PART III. — The Creation of Rights. 
 
 CHAPTER VI. — Personal Eights. 
 
 SECTION I. — Capacity. 
 
 MALE V. ROBERTS. 
 Nisi Prius, in the Commox Pleas. 1800. 
 
 [Reported 3 'Espinas.ie, 163.] 
 
 Assumpsit for mone}- paid, laid out, and expended, to the use of the 
 defendant ; money lent and advanced, with the other common money 
 counts. 
 
 Plea of the general issue. 
 
 The case, as opened by the plaintiff's counsel, was, that the plaintiff 
 and the defendant were performers at the Royal Circus. While the 
 compan}' were performing at Edinburgh, in Scotland, the defendant 
 had become indebted to one Cockburn, for liquors of different sorts, 
 with which Cockburn had furnished him ; not having discharged the 
 debt, and it being suspected that the defendant was about to leave 
 Scotland, Cockburn arrested him, by what is there termed a Writ of 
 Fuge, the object of which is to prevent the debtor from absconding. 
 
 The defendant being then unable to pay the raone}', the plaintiff paid 
 it for him ; and he was liberated. The present action was brought to 
 recover the mone}' so paid, as money paid to his use. 
 
 The defence relied upon was, that the defendant was an infant when 
 the money was so advanced. 
 
 Lord Eldox. It appears from the evidence in this cause, that the 
 cause of action arose in Scotland ; the contract must be therefore 
 governed by the laws of that country- where the contract arises. 
 Would infancy be a good defence by the law of Scotland, had the 
 action been commenced there? 
 
 Be.^t, Sergeant, for the defendant, contended, that the contract was 
 to be governed by the laws of England ; in which case, the plaintiff 
 could recover for necessaries only. That at all events it should not 
 be presumed that the laws were different ; and as it appeared that 
 the debt did not accrue for necessaries, the plaintiff could neither 
 recover on the counts for mone}- paid, or for money lent to an 
 infant. 
 
 Lord Eldon. What the law of Scotland is with respect to the right 
 of recovering against an infant for necessaries, I cannot say ; but if 
 the law of Scotland is, that such a contract as the present could not be 
 enforced against an infant, that should have been given in evidence; 
 and I hold myself not warranted in saying that such a contract is void 
 by tlio law of Scotland, because it is void by the law of England. The
 
 SECT. I.] COOPER V. COOPER. 291 
 
 law of the countiy where the contract arose, must govern the contract ; 
 and what that law is, should be given in evidence to me as a fact. No 
 such evidence has been given ; and I cannot take the fact of what that 
 law is, without evidence. 
 
 The plaintiflF failed in proving his case, and was nonsuited.^ 
 
 COOPER V. COOPER. 
 
 House of Lords (Scotch Appeal). 1888. 
 
 [Reported 13 Appeal Cases, 88.] 
 
 LoRB Halsbury, L. C.'^ M\' Lords, in this case the appellant, the 
 widow of a domiciled Scotchman, seeks to set aside an antenuptial 
 contract executed by her on the da}' of her marriage. 
 
 A question has been raised whether the contract was not in fact 
 executed after the celebration of the marriage ; but, without minutely 
 considering the evidence, I am satisfied with the conclusion of the Lord 
 Ordinar}', that the contract was executed before the marriage, a con- 
 clusion which, indeed, is but feebly contested on the other side. 
 
 A Scottish widow is entitled to her jus relictm and to her terce, 
 unless they have been discharged ; and the appellant seeks to remove 
 the bar to these rights b}' setting aside the contract in question which, 
 if unimpeached, discharges these rights. 
 
 My Lords, I think there has been some slight confusion between the 
 question what forum can decide the controversy between the parties 
 and what law that forum should administer in deciding it. Now it is 
 admitted that the appellant was a domiciled Irishwoman at the time she 
 executed the instrument in question. It is admitted she was a minor ; 
 and apart altogether from the remedy peculiar to Scottish jurisprudence 
 of setting aside a contract which operates to the enorm lesion of a 
 minor, a question to be determined in a great measure by the position 
 of the parties and the provisions of the contract itself, the first question 
 arises here whether a domiciled Irishwoman could bind herself at all, 
 while a minor, by a contract executed in Ireland. 
 
 There can be no doubt as to what would be the rule of English law 
 in this respect. The line of cases which were brought to your Lord- 
 ships' attention upon the subject of provisions whereby the common- 
 law right of dower was extinguished seem to me beside any question in 
 this case. The statute created the power of extinguishing the right to 
 dower, and Courts of Equity have from time to time considered and 
 
 1 Ace. U. S. V. Garlinghouse, 4 Ben. 194 (semble) ; Appeal of Huey, 1 Grant Cas. 
 51. See Thompson r. Ketcham, 8 .Johns. 190; where it was assumi^d that the law of 
 the place of contracting governed, but in the absence of evidence that defendant waa 
 by that law incapable the plaintiff recovered. — Ed. 
 
 '■^ Parts of the opinions only are given. — Ed.
 
 292 COOPER V. COOPER. [chap. vi. 
 
 acted upon their view how far the provision for the wife has complied 
 with the conditions of the statute ; but such cases have no relation to 
 the question of a minor's capacity by his or her act to part with rights 
 with which the law would otherwise invest them. \^None of these cases 
 relate to the question of incapacity to contract by reason of minority, 
 and the capacity to contract is regulated by the law of domicihi Story 
 has with his usual precision laid down the rule (Conflict of Laws, § G4) 
 that if a person is under an incapacity to do any act by the law of his 
 domicil, the act when done there will be governed by the same law 
 wherever its validity maj" come into contestation with any other 
 country : quando lex in personam dirigitur respiciendum est ad leges 
 illius civitatis qua personam habet subjectam. 
 
 There is an unusual concurrence in this view amongst the writers on 
 international law : qua state minor contrahere possit et ejusmodi 
 respicere oportet ad legem, cujusque domicilii: Burgundus, Tract 2, 
 n. 6. C'est ainsi que la majorite et la minorite du domicile out lieu par- 
 tout meme pour les biens situes ailleurs : 1 Boullenois, Princip. Gen. 6. 
 Quotiescunque de habilitate aut de inhabilitate personarum quaeratur, 
 toties domiciUi leges et statuta spectanda : D'Argentre. So also J. 
 Voet : Quoties in qusestione, an quis minor vel majorennis sit, obtinuit, 
 id dijudicandum esse ex lege domicilii ; sit ut in loco domicilii minor- 
 ennis, ubique terrarum pro tali habendus sit, et contra. 
 
 It is said that the familiar exception of the place where the contract 
 is to be performed prevents the application of the general rule, and 
 that as both parties contemplated a Scottish married life, and as a con- 
 sequence a Scottish domicil, the principle I have spoken of does not 
 regulate the contract relations of these two persons. I think two 
 answers may be given to this contention. In the first place, I think it 
 is a misapplication of the principle upon which the exception is founded. 
 Here there is no contractual obligation to make Scotland the domicil, 
 nor is there any part of the contract which could not and ought not to 
 receive complete fulfilment even if (contrary to what I admit was the 
 contemplation of both the parties) the place of married life should 
 remain in Ireland as if they had emigrated altogether and gone to some 
 other country. 
 
 But another and a more overwhelming answer is to be found in this, 
 that the argument assumes a binding contract, and if one of the parties 
 was under incapacity the whole foundation of the argument fails. . . . 
 
 Lord Watson. ■. . . Whether the capacity of a minor to bind himself 
 by personal contract ought to be determined by the law of his domicil, 
 or by the lex loci contractus, has been a fertile subject of controversy. 
 In the present case it is unnecessary to decide the point, because Ire- 
 land was the country of the appellant's domicil, and also the place 
 where the contract was made. It was argued, however, for the re- 
 spondents, that the appellant's objection to the contract, although it 
 rests upon her alleged incapacity to give consent, must be decided by 
 the law of Scotland, as the lex loci solKlionis. I am by no means
 
 SECT. I.] 'MILLIKEX V. PRATT. 293 
 
 satisfied that Scotland was, in tlie proper sense of the phrase, the place 
 of performance of the contract. The spouses no doubt intended to 
 reside in Scotland, but they must also have intended that the contract 
 should remain in force and be performed in any other country where 
 they might, from choice or necessity-, take up their abode. Apart from 
 that consideration, and assuming Scotland to have been, in the strictest 
 sense of the term, the locus solutionis, I think the argument of the 
 respondents is untenable. The principle of international private law, 
 which makes, in certain cases, the law of the place where it is to be 
 performed the legal test of the validit}- of a contract, rests, in the first 
 place, upon the assumption that the parties were, at the time when 
 they contracted, both capable of giving an effectual consent ; and, in 
 the second place, upon an inference derived from the terms of the 
 document, or from the circumstances of the case, that they mutually 
 agreed to be bound by the lex loci solutionis in all questions touching 
 its validit}-. That principle can, in my opinion, have no application to 
 a case in which, at the time when the}' professed to contract, one of the 
 parties was, according to the law of that party's domicil and also of 
 the place of contracting, incapable of giving consent. ... , 
 
 Lord Macnaghten. ... It has been doubted whether the personal 
 competency or incompetency of an individual to contract depends on 
 the law of the place where the contract is made or on the law of the 
 place where the contracting part}' is domiciled. Perhaps in this 
 country the question is not finally settled, though the preponderance 
 of opinion here as well as abroad seems to be in favor of the law of 
 the domicil. It may be that all cases are not to be governed by 
 one and the same rule. But when the contract is made in the place 
 where the person whose capacity is in question is domiciled there can 
 be no room for dispute. It is difficult to suppose that Mrs. Cooper 
 could confer capacity on herself by contemplating a different country 
 as the place where the contract was to be fulfilled, if that be the proper 
 expression, or by contracting in view of an alteration of personal status 
 which would bring with it a change of domicil. . . . 
 
 ' Aj)peal allowed.^ 
 
 MILLIKEN V. PRATT. 
 StrpREME Judicial Court of Massachusetts. 1878. 
 [Reported 125 Massachusetts, 374.] 
 
 Contract to recover $500 and interest from January 6, 1872. Writ 
 dated June 30, 1875. The case was submitted to the Superior Court 
 on agreed facts, in substance as follows : 
 
 The plaintiffs are partners doing business in Portland, Maine, under 
 
 1 See In re Cooke's Trusts, 56 L. J. Ch. 637. — Ed.
 
 294 MILLIKEN V. PRATT. [CHAP. VI 
 
 the firm name of Deering, Milliken &, Co. The defendant is, and has 
 been since 1850, the wife of Daniel Pratt, and both have always 
 resided in Massachusetts. In 1870, Daniel, who was then doing busi- 
 ness in Massachusetts, applied to the plaintiffs at Portland for credit, 
 and they required of him, as a condition of granting the same, a guar- 
 anty from the defendant to the amount of five hundred dollars, and 
 accordingly he procured from his wife the following instrument: 
 
 '• Portland, January 29, 1870. In consideration of one dollar paid 
 by Deering, Milliken & Co , receipt of whicli is hereby acknowledged, I 
 guarantee the payment to them by Daniel Pratt of the sum of five 
 hundred dollars, from time to time as he may want — this to be a con- 
 tinuing guaranty. Sarah A. Pratt." 
 
 This instrument was executed by the defendant two or three days 
 after its date, at her home in Massachusetts, and there delivered by 
 her to her husband, who sent it by mail from Massachusetts to the 
 plaintiffs in Portland ; and the plaintiffs received it from the post- 
 ofiice in Portland early in February, 1870. 
 
 The plaintiffs subsequently sold and delivered goods to Daniel from 
 time to time until October 7, 1871, and charged tlie same to him, and, 
 if competent, it may be taken to be true, that in so doing they relied 
 upon the guaranty. Between February, 1870, and September 1, 1871, 
 they sold and delivered goods to him on credit to an amount largely 
 exceeding $500, which were fully settled and paid for by him. This 
 action is brought for goods sold from September 1, 1871, to October 7, 
 1871, inclusive, amounting to $860.12, upon which Ive paid $300, leav- 
 ing a balance due of $560.12. The one dollar mentioned in the guar- 
 anty was not paid, and the only consideration moving to tlie defendant 
 therefor was the giving of credit by the plaintiffs to her husband. 
 Some of the goods were selected personally by Daniel at the plaintiffs' 
 store in Portland, others were ordered by letters mailed by Daniel from 
 Massachusetts to the plaintiffs at Portland, and all were sent by the 
 plaintiffs b}' express from Portland to Daniel in Massachusetts, who 
 paid all express charges. The parties were cognizant of the facts. 
 
 By a statute of Maine, duly enacted and approved in 1866, it is 
 enacted that '' the contracts of any married woman, made for any law- 
 ful purpose, shall be valid and binding, and may be enforced in the 
 same manner as if she were sole." The statutes and the decisions of 
 the court of Maine may be referred to. 
 
 Payment was duly demanded of the defendant before the date of the 
 writ, and was refused by her. 
 
 The Superior Court ordered judgment for the defendant ; and the 
 jjlaintiffs appealed to this court. 
 
 Gray, C. J. The general rule is that the validity of a contract is to 
 be determini'd l)y the law of the State in which it is made ; if it is valid 
 there, it is deemed valid everywhere, and will sustain an action in the 
 courts of a State wiiose laws do not permit such a contract. Scudder 
 V. Union National Bank, 91 U. S. 406. Even a contract expressly
 
 SECT. I.] MILLIKEN V. PRATT. 295 
 
 prohibited b}- the statutes of the State in which the suit is brought, if 
 not in itself immoral, is not necessarily nor usually deemed so invalid 
 that the comit}- of the State, as administered by its courts, will refuse 
 to entertain an action on such a contract made by one of its own 
 citizens abroad in a State the laws of which permit it. Greenwood v. 
 Curtis, 6 Mass. 358 ; M'Intyre v. Parks, 3 Met. 207. 
 
 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 said by Lord Lyndhurst, "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." Pattison v. 
 Mills, 1 Dow & CI. 342, 363. So if a person residing in this State 
 signs and transmits, either by a messenger or through the post-office, 
 to a person in another State, a written contract, which requires no 
 special forms or solemnities in its execution, and no signature of the 
 person to whom it is addressed, and is assented to and acted on by him 
 there, the contract is made there, just as if the writer personall}- took 
 the executed contract into the other State, or wrote and signed it 
 there ; and it is no objection to the maintenance of an action thereon 
 here, that such a contract is prohibited b}' the law of this Common- 
 wealth. M'Intyre c. Parks, above cited. 
 
 The guaranty, be ni'iii g i|ate of Portland, in the Stai j&-&L-Maine. xgafr-^^ 
 pvpfiitpd h y th p rjpffnilnnt i n ninrri"'! "^"mnn, hnving h p r home in thig 
 Commouwealtb , p^ pf>llntprnl ^ppnHry for the liability of her husba ajd. 
 
 fur g ;oods sold by the. pln.int.ifPs; to him, nnd wns spnf. hy lipr thmnoh 
 
 him by jnnil to t llf pl^intifft^ it Pni-t-lm rh — Thu salbo uf I h u gooda u 
 ordered by him from the plnintiffs at Poi-tlnml. and t here delivered bv_^ 
 
 ■ them to him i n pei' i '"^" i '^'' ^^ •^ P^i-ripr fftr bim wPi-P rrnrln in thia S;fntP 
 
 r>r )\[;iina. Orcutt V. Nelson, 1 Gray, 536 ; Kline v. Baker, 99 Mass. 
 
 253. The COn f''^^'^ hpfvvPPn l-.hp <1pfftnr]r.r.l^ <^^^ ] thp [)]n ,i]ltiffa woa or.m- 
 
 ^ plcte when th e giini-n.nt i j- Imr! >-"^'^" vr.nr>;,rppj ^,^ ( \ acted on by t.hpm^ a4^ 
 Portland, and not before. Jori lan v. Dobbins, 122 Mass. 168. _Lt 
 must therefore be treated as made and to be performed in the State of 
 Maine. ^ 
 
 The law of Main e aut horized a married woman to bind herself by 
 an y^ntract as if she were unmarried. St. of Main e . nf 1866, r fii^) 
 Mayo V. Hutchinson, 57 Elaine, 546. ^The law of Massachusetts, as 
 
 then existing, did not allow her t*^ pntpr into n ponl-mpt ^g gnrpty f>r_ 
 
 for the accommodation of her husband or of any third pejig on. Gen. 
 Sts. c. 108, § 3 ; Nourse v. Henshaw, 123 Mass. 96. Since the mak- 
 ing of the contract sued on, and before the bringing of this action, the 
 law of this Commonwealth has been changed, so as to enable married 
 women to make such contracts. St. 1874, c. 184 ; Major v. Holmes, 
 124 Mass. 108 ; Kenworthy v. Sawyer, 125 Mass. 28. 
 
 The question therefore is, whether a contract made in another State 
 by a married woman domiciled here, which a married woman was not
 
 296 MILLIKEN V. PRATT. [CHAP. VI. 
 
 at the time capable of making under the law of this Commonwealth, /l/^ • 
 but was then allowed by the law of that State to make, and which she /^ 
 could now lawfully make in this Commonwealth, will sustain an action 
 against her in our courts. 
 
 It has been often stated by commentators that the law of the/^ 
 domicil, regulating the capacity of a person, accompanies and governs 
 the person everywhere. But this statement, in modern times at least, 
 is subject to many qualifications ; and the opinions of foreign jurist3 
 upon the subject, the principal of which are collected in the treatises of 
 Mr. Justice Story and of Dr. Francis Wharton on the Conflict of 
 Laws, are too varying and contradictory to control the general current 
 of the English and American authorities in favor of holding that 
 a contract, which by the law of the place is recognized as lawfully 
 made by a capable person, is valid everywhere, although the person 
 would not, under the law of his domicil, be deemed capable of mak- 
 ing it.^ 
 
 Mr. Westlake, who wrote in 1858, after citing the decision of Lord 
 Eldon,^ well observed, "That there is not more authority on the sub- 
 ject may be referred to its not having been questioned ; " and summed 
 up the law of England thus : " While the English law remains as it is, 
 it must, on principle, be taken as exceeding, in the case of transac- 
 tions having their seat here, not only a foreign age of majority, but 
 also all foreign determination of status or capacity, whether made 
 by law or by judicial act, since no diflEerence can be established 
 between the cases, nor does any exist on the continent." "The va- 
 lidity of a contract made out of England, with regard to the personal 
 capacity of the contractor, will be referred in our courts to the lex 
 loci contractus ; that is, not to its particular provisions on the capacity 
 of its domiciled subjects, but in this sense, that, if good where made, 
 the contract will be held good here, and conversely." Westlake's 
 Private International Law, §§ 401, 402, 404.8 
 
 In Greenwood v. Curtis, Chief Justice Parsons said, " By the /^ 
 common law, upon principles of national comity, a contract made in 
 a foreign place, and to be there executed, if valid by the laws of that 
 place, may be a legitimate ground of action in the courts of this State ; 
 although such contract may not be valid by our laws, or even may be 
 
 1 The learned Chief Justice here examined the following cases: Ex parte 
 Lewis, 1 Ves. Sen. 298 ; Morrison's Case, Mor. Diet. Dec. 4595 ; Ex parte Watkins, 2 
 Ves. Sen. 470; In re Houston, 1 Russ. 312; Johnstone v. Beattie, 10 CI. and F. 42; 
 Stuart V. Bute, 9 II. L. C. 440 ; Nugent v. Vetzera, L. R. 2 Eq. 704 ; Woodworth v. 
 Spring, 4 All. 321 ; Male v. Roberts, 3 Esp. 163 ; Thompson v. Ketcham, 8 Johns. 
 189. — Ed. 
 
 2 Male V. Roberts, supra. — Ed. 
 
 8 The learned Chief Justice here stated In re Ilellmann's Will, L. R. 2 Eq. 363 ; 
 and criticised the following Louisiana ca.scs: Baldwin v. Gray, 16 Mart. 192; Saul 
 V. His Creditors, 17 Mart. 569; Andrews v. His Creditors, 11 La. 464; Le Breton v. 
 Nouchet, 3 Mart. 60; Barrcra v. Alpuente, 18 .Mart. 69; Gamier v. Poydras, 13 La. 
 177 : Gale v. Davis. 4 Mart. 645. — Ed.
 
 SECT. I.] MILLIKEN V. PEATT. 297 
 
 prohibited to our citizens; " and that the Chief Justice considered this/,^- 
 rule as extending to questions of capacity is evident from his subse- 
 quent illustration of a marriage contracted abroad between persons 
 prohibited to intermarry- bj- the law of their domicil. 6 Mass. 377- 
 379. The validit}- of such marriages (except in case of polygamy, or 
 of marriages incestuous according to the general opinion of Christen- 
 dom) has been repeatedly affirmed in this Commonwealth. Medway y. 
 Needham, 16 Mass. 157 ; Sutton v. Warren, 10 Met. 451 ; Common- 
 wealth c. Lane, 113 Mass. 458. 
 
 The recent decision in Sottoma3'or v. De Barros, 3 P. D. 1, bj' which 
 Lords Justices James, Baggallay, and Cotton, without referring to any 
 of the cases that we have cited, and reversing the judgment of Sir 
 Rol)ert Phillimore in 2 P. D. 81, held that a marriage in England 
 between first cousins, Portuguese subjects, resident in England, who 
 by the law of Portugal were incapable of intermarrying except by a 
 Papal dispensation, was therefore null and void in England, is utterly 
 opposed to our law ; and consequently the dictum of Lord Justice 
 Cotton, " It is a well-recognized principle of law that the question of 
 personal capacity to enter into anj' contract is to be decided by the law 
 of domicil," is entitled to little weight here. 
 
 It is true that there are reasons of public policy for upholding the 
 validit}' of marriages, that are not applicable to ordinarj' contracts ; 
 but a greater disregard of the lex domicilii can hardl}- be suggested, 
 than in the recognition of the validit}- of a marriage contracted in 
 another State, which is not authorized bj- the law of the domicil, and 
 which permanentl}' affects the relations and the rights of two citizens 
 and of others to be born. 
 
 Mr. Justice Story, in his Commentaries on the Conflict of Laws, 
 after elaborate consideration of the authorities, arrives at the conclu- 
 sion that " in regard to questions of minority or majorit}-, competency 
 or incompetency to marry, incapacities incident to coverture, guardian- 
 ship, emancipation, and other personal qualities and disabiUties, the 
 law of the domicil of birth, or the law of any other acquired and fixed 
 domicil. is not general!}- to govern, but the lex loci contractus aut actus, 
 the law of the place where the contract is made, or the act done ; " or 
 as he elsewhere sums it up, ^' although foreign jurists crpnomlly hr>lri. 
 that the law o f thn rlnminil nuirhx tr> g'^^'o'-ti in reo-ard to the capacitj i-Qf 
 persons \<^ pnnt.mr't ■ rmf thn nnmmnn In w holds a different doctrinc , 
 
 ,-,o»-.Qly fl.nf <l)p 7^0,. l^n,- r.r...f,,r,r^t.,o jr. f^p Q-nyPrn" StOry COUfl. §§ 103, 
 
 241. So Chancellor Kent, although in some passages of the text of his 
 Commentaries he seems to incline to the doctrine of the civilians, yet 
 in the notes afterwards added unequivocally concurs in the conclusion 
 of Mr. Justice Storv. 2 Kent Com. 233 note, 458, 459 & note. 
 
 In Pearl v. Hansborough, 9 Humph. 426, the rule was carried so far 
 as to hold that where a married woman domiciled with her husband in 
 the State of Mississippi, by the law of which a purchase by a mar- 
 ried woman was valid and the property purchased went to her separate
 
 298 
 
 MILLIKEN V. PRATT. 
 
 [chap. VI. 
 
 use, bought personal property in Tennessee, by the law of which 
 married women were incapable of contracting, the contract of purchase 
 was void and could not be enforced in Tennessee. Some authorities, 
 on the other hand, would uphold a contract made by a party capable 
 by the law of his domicil, though incapable by the law of the place of 
 the contract. In re Hellraann's Will, and Saul v. His Creditors, 
 above cited. But that alternative is not here presented. In Hill v. 
 Pine River Bank, 45 X. H. 300, the contract was made in the State of 
 the woman's domicil, so that the question before us did not arise and 
 was not considered. 
 
 The principal reasons on which continental jurists have maintained 
 that personal laws of the domicil, affecting the status and capacity of 
 all inhabitants of a particular class, bind them wherever they may go, 
 appear to have been that each State has the rightful power of regula- 
 ting tlie status and condition of its subjects, and, being best acquainted 
 with the circumstances of climate, race, character, manners, and cus- 
 toms, can best judge at what age young persons may begin to act for 
 themselves, and whether and how far married women may act indepen- 
 dently of their husbands : that laws limiting the capacity of infants or 
 of married women are intended for their protection, and cannot there- 
 fore be dispensed with by their agreement ; that all civilized States 
 recognize the incapacity of infants and married women ; and that a 
 person, dealing with either, ordinarily has notice, by the apparent age 
 or sex, that the person is likely to he of a class whom tlie laws pro- 
 tect, and is thus put upon inquiry how far, by the law of the domicil of 
 the person, the protection extends. 
 
 On the other hand, it is only by the comity of other States that laws 
 can operate beyond the limit of the State that makes them. In the 
 great majority of cases, especially in this country, where it is so com- 
 mon to travel, or to transact business through agents, or to correspond 
 by letter, from one State to another, it_js more, jiis t, as we ll as more 
 convenient, to have regard to the law of the place of tlie contract, a s a 
 ' niiifnrm rule operating on ail contracts of JjuLsamt^ kind, .iiii d which t he 
 contracting; parties may be pj- psmnf^^] to have in cont emplation when 
 jnaki ng. their contracts, than to reguj j-n thfilH at their peril to know_ the 
 domkiL Lof those w ith witomthe y deal, and to ascertain the law^ oLihat 
 fIom^i(Ml 7T^owe verr cn^ioter^^ many^ ascs c-ould^ot_be _done w i th- 
 
 nTsimlljIc^lay lis woukl_£r eatlv crippj ^uIlcpbweTofcontracting abroad 
 ^at^. 
 
 ""J^ls the law of another State can neither operate nor be executed in 
 this State by its own force, but only by the comity of this State, its 
 operation and enforcement here may be restricted by positive prohibi- 
 tion of statute. A State may always by express enactment protect 
 itself from being obliged to enforce in its courts contracts made abroad 
 by its citizens, which are not authorized by its own laws. Under the 
 French code, for instance, which enacts that the laws regulating the 
 status and capacity of persons shall bind French subjects, even when
 
 SECT. I.] SWANK V. HUFNAGLE. 299 
 
 livino' in a foreign country, a French court cannot enforce a contract 
 made by a Frenchman abroad, which he is incapable of making by the 
 law of France. See Westlake, §§ 399, 400. 
 
 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 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. 
 
 But it is not true at the present day that all civilized States recognize 
 the absolute incapacity of married women to make contracts. The 
 tendency of modern legislation is to enlarge their capacity in this 
 respect, and in many States they have nearly or quite the same powers 
 as if unmarried. In Massachusetts, even at the time of the making of 
 the contract in question, a married woman was vested by statute with 
 a ver}' extensive power to carr}- on business by herself, and to bind 
 herself by contracts with regard to her own property, business, and 
 earnings ; and, before the bringing of the present action, the power had 
 been extended so as to include the making of all kinds of contracts, 
 with any person but her husband, as if she were unmarried. _Thereis 
 therefore no reason of public policy which should prevent the majn - 
 tenance of this action. Jxidgment for the plaintiffs. 
 
 SWANK V. HUFNAGLE. 
 
 Supreme Court of Indiana. 1887. 
 
 [Reported 111 Indiana, 583.] 
 
 f 
 
 Elliott, J. The appellant sued the appellee, Melissa Hufnagle, 
 
 and her husband, upon a note and mortgage executed in Darke County, 
 Ohio, on land situate in this State. The appellee, Melissa Hufnagle, 
 answered that she was a married woman, and that the mortgage was 
 executed by her as the surety of her husband, and assumed to convey 
 land in this State owned by her. The appellant replied that the con-
 
 y^ 
 
 300 SWANK V. HUFNAGLE. [CHAP. VI. 
 
 tract was made in Ohio, and that by a statute of that State a married 
 woman had power to execute such a mortgage, but the statute of Ohio 
 is not set forth. 
 
 The trial court did right in adjudging the replj' bad. The jvalidjt^>^ 
 ^ofjihe-ffiertgage-of- real property is to be determined by tlie lajy of the^ 
 place where the property is situated. Mr. Jones says : "A mortgage 
 of course takes effect b}' virtue of the law of the place where the land 
 is situated." 1 Jones, Mortg. § 823. This is well settled law. Story, 
 Conflict of Laws (8th ed.), 609 auth. n. ; Bethell v. Bethell, 92 Ind. 
 318. 
 
 Judge Story, in sections 66 and 102 of his work on the Conflict of 
 Laws, does not treat of conveyances or mortgages of land, but of con- 
 tracts of an entirely diff"erent class, so that the appellant gets no 
 support from what is there laid down as the law. 
 
 Under the act of 1881 a mortgage executed by a married woman as 
 suret}' on laud owned by her in this State is void. 
 
 There is another reason for adjudging tlie reply bad, and that is this, 
 it does not set out the foreign statute on which it professes to be based. 
 It is well settled that where a pleading is founded on a foreign statute 
 the statute must be set forth. Wilson v. Clark, 11 Ind. 385 ; Men- 
 denhall v. Gately, 18 Ind. 149; Kenyon v. Smith, 24 Ind. 11 ; Tyler 
 V. Kent, 52 Ind. 583 ; Milligan lu State, ex rel, 86 Ind. 553. 
 
 We cannot disturb the finding on the evidence. 
 
 Judgment affirmed. 
 
 On Petition for a Reheaking. 
 
 Elliott, J. In the argument on the petition for a rehearing, 
 counsel contend that we were in error in holding that a mortgage 
 executed b}- a married woman in Ohio as suret}' for her husband can- 
 not be enforced in this State, and they refer us to cases holding that 
 the construction of a contract is governed by the law of tlie place 
 where it was made. But the argument is unavailing, for counsel 
 mistake the point in dispute. The question is not how the contract 
 shall be construed, but had the married woman^capacityijo execute it? 
 The question is one oiTcapacity, nor^"constructioTL The trial court 
 was not asked to construe a mortgage, but to enforce one which our 
 statute declares shall not be enforceable. The purpose of the suit is 
 not to obtain a judicial interpretation of a contract, but to foreclose a 
 mortgage which our law declares a married woman has no capacity to 
 execute. 
 
 We suppose it quite clear that if the mortgagor has no capacity- to 
 execute a deed or mortgage, tlie instruinont cannot be enforced, 
 although tlic incapacity is established by the law of the place where 
 the land is situated. If, for instance, a married woman should ex- 
 ecute a deed or mortgage without her husband joining with her, it 
 could not be enforced in a State where the law required her husband 
 to join. This is so because the question is one of power, and power 
 
 ^
 
 SECTs I.] SELL V. MILLER. 801 
 
 is created or withheld bj- the law of the place where the land lies. It 
 is hardly necessary to cite authorities upon this elementary proposi- 
 tion, but there is so convenientl}' at hand a decision of the Supreme 
 Court of Ohio, where the rule is affirmed, that we cite it. Brown v. 
 National Bank, 44 Ohio St. 269. In that case it was said : " We are 
 not unmindful of the principle that deeds intended to convey or en- 
 cumber an interest in land situated in one State, executed in another, 
 must derive their vitality from the laws of the former." 
 
 Our statute provides that the deeds of persons under twenty-one 
 j'ears of age shall be voidable, and this law would undoubtedly entitle 
 an infant under that age to avoid a deed to land in this State ex- 
 ecuted in Ohio, and the principle in such a case is the same as that 
 which rules here, for, in both cases, the question is one of capacity'. 
 In discussing this question an American author saj^s : "But in re- 
 ference to contracts about the sale and conveyance of land such 
 capacity depends upon the laws of the State wherein the land is 
 situated. This is the general ruling in America as to the law upon 
 these subjects, in whatsoever court the question may arise, domestic 
 or foreign. This rule applies to questions of infanc}', coverture, 
 majorit}^, and of legal capacity generall}-." Rorer, Inter-State Law, 
 190 ; 1 Jones, Mortg., § 662 ; 4 Kent Com., star p. 441. 
 
 Petition overruled.^ 
 
 SELL V. MILLER. 
 
 Supreme Court of Ohio. 1860. 
 [Reported 11 Ohio State, 331.] 
 
 By the Court. Where a married woman over eighteen, but under 
 twenty-one years of age, has her domicil, and joins with her husband 
 in the execution of a mortgage, within a foreign jurisdiction, where 
 the age of majority is fixed at twenty-one 3'ears, upon real estate 
 situate in Ohio, held : That such mortgage is not invalid for want of 
 capacity on her part to contract ; the capacit}' to contract, in respect 
 to immovables, being governed by t5e~^^w^nEe~^^s^j:nd^MG£^j^e 
 taw^fthe domicth " "Motion overruled. 
 
 1 Ace. Post V. First Nat. Bank, 138 111. 559, 28 N. E. 978 ; Cochran v. Benton, 126 
 Ind. 58; Frierson v. Williams, 57 Miss. 451; Johnson v. Gawtry, 1 Mo. App. 322; 
 Wood I'. Wheeler, 111 X. C. 231 ; Bauin v. Birchall, 150 Pa. 164, 24 Atl. 620. Contra, 
 Kelly V. Davis, 28 La. Ann. 773. — Ed.
 
 302 DALRYMFLE V. DALUYMPLE. [CHAP. VI. 
 
 SECTION n. 
 
 MARRIAGE. 
 
 DALRYMPLE v. DALRYMPLE. 
 Consistory Court of London. 1811. 
 
 [Reported 2 Haggard Consistory, 54.] 
 
 This was a case of restitution of conjugal rights, brought by the wife 
 against tlie husband, in which the chief point in discussion was, the 
 validity of a Scotch marriage, ;jer verba de jyrcesenti, and without reli- 
 gious celebration : one of the parties being an English gentleman, not 
 otherwise resident in Scotland than as quartered with his regiment in 
 that country. 
 
 Sir William Scott. ^ The cause has proceeded regularly on both 
 sides, and has been instructed with a large mass of evidence, much of 
 it replete with legal erudition, for which the court has to acknowledge 
 great obligations to the gentlemen, who have been examined in Scotland. 
 It has also been argued with great industr}* and ability bj' the counsel 
 on both sides, and now stands for final judgment. Being entertained 
 in an English court, it must be adjudicated according to the principles 
 of English law applicable to such a case. But the only principle appli- 
 cable to such a case b}' the law of England is that the validit}' of TNIiss ' 
 Gordon's marriage rights must be tried by reference to the la;w of the 
 country where, if they exist at all, they had their origin. Having fur- 
 nished this principle, the law of England withdraws altogether, and 
 leaves the legal question to the exclusive judgment of the law of 
 Scotland. . . . 
 
 The considerations that apply to the indiscretions of youth, to the 
 habits of a military profession, and to the ignorance of the law of Scot- 
 land, arising from a foreign birth and education, are common to both, 
 and I might say, to all systems of law. The}- are circumstances, which 
 are not to be left entirely out of the consideration of the court, in weigh- 
 ing the evidence for the establishment of the facts, but have no power- 
 ful effect upon the legal nature of the transaction when established. 
 
 The law, which, in both countries, allows the minor to marry, attri- 
 butes to him, in a way which cannot be legally averred against, upon 
 the mere ground of youth and inexperience, a competent discretion to 
 dispose of himself in marriage; he is arrived at years of discretion, 
 quoad hoc, whatever he may be with respect to other transactions of 
 life, and he cannot be heard to plead the indiscretion of minority. Slill 
 less can the hal)its of a particular profession exonerate a man from the 
 
 ^ Part of the opinion is omitted. — Ed.
 
 SECT. II.] DALRYMPLE V. DALRYMPLE. 303 
 
 general obligations of law. And with respect to any ignorance arising 
 from foreign birth and education, it is an indispensable rule of law, as 
 exercised in all civilized countries, that a man who contracts in a 
 country, engages for a competent knowledge of the law of contracts in 
 that countrj'. If he rashly presumes to contract without such knowl- 
 edge, he must take the inconveniences resulting from such ignorance 
 upon himself, and not attempt to throw them upon the other party, who 
 has engaged under a proper knowledge, and sense of the obligation, 
 which the law would impose upon him by virtue of that engagement. 
 According to tlie judgment of all the learned gentlemen who have been 
 examined, the law of Scotland binds Mr. Dalrymple, though a minor, 
 a soldier, and a foreigner, as effectively as it would do if he had been 
 an adult, living in a civil capacity, and with an established domicil in 
 that country. 
 
 The marriage, which is pleaded to be constituted, by virtue of some 
 or all of the facts, of which I have just given the outline, and to which 
 I shall have occasion more particularly to advert in the course of my 
 judgment, has been in the argument described as a clandestine and 
 irregular marriage. It is certainly a private transaction between the 
 individuals, but it does not of course follow that it is to be considered 
 as a clandestine transaction, in any ignominious meaning of the word ; 
 for it may be that the law of the country in which the transaction took 
 place ma^' contemplate private marriages with as much countenance 
 and favor as it does the most public. It depends likewise entirely 
 upon the law of the countr}' whether it is justly to be styled an irregular 
 marriage. In some countries one onlv form of contracting marriage is 
 acknowledged, as in our own, with the exception of particular indul- 
 gences to persons of certain religious persuasions ; saving those excep- 
 tions, all marriages not celebrated according to the prescribed form 
 are mere nullities ; there is and can be no such thing in this countr}- as 
 an irregular marriage. In some other countries, all modes of exchang- 
 ing consent being equally legal, all marriages are on that account equally 
 regular. In other countries, a form is recommended and sanctioned, 
 but with a toleration and acknowledgment of other more private modes 
 of effecting the same purpose, though under some discountenance of the 
 law, on account of the non-conformity to the order that is established. 
 What is the law of Scotland upon this point? . . . 
 
 I entertain as confident an opinion as it becomes me to do, that the 
 rule of the law of Scotland remains unshaken ; that the contract de 
 prcesenti does not require consummation in order to become " verj' 
 mati'imon}' ; " that it does, ipso facto et ipso jure, constitute the relation 
 of man and wife. . . . "When I speak of a contract, I mean of course 
 one that is attended with such qualifications as the law of Scotland 
 requires for such a contract.^ . . . 
 
 1 The court, upon examining the evidence, held that in this case a marriage had 
 taken place according to the Scotch law. — Ed.
 
 304 WARTER V. WARTER. [CHAP. Vt 
 
 WARTER V. WARTER. 
 High Court of Justice, Probate Division. 1890. 
 
 [Reported 15 Probate Division, 152.] 
 
 Sib James Hannen, President. The plaintiff claims probate of 
 a will ^ dated Februar}^ 6, 1880, made by her father, Henry De Grey 
 Warter, who died on March 23, 1889. The defendant, the son of 
 Henry De Grey Warter, alleges that the will, dated February 6, 1880, 
 was revoked by the subsequent marriage of the testator with Annette 
 Louisa Tayloe on April 2, 1881. The question in the cause is whether 
 the marriage celebrated on April 2, 1881, was the marriage of the 
 parties — that is, whether they had not concluded a valid marriage 
 before the execution of the will — namely, on February 3, 1880. 
 The material facts are as follows : The mother of the plaintiff and 
 defendant was formerly the wife of John Edward Tayloe, and was 
 resident with him in India. In 1879 Henry De Grey Warter, the de- 
 ceased in this cause, was a major in the Royal Artillery, stationed 
 in India. In 1879 John Edward Tayloe, being so resident, instituted 
 proceedings in the High Court of Judicature at Fort William in Bengal 
 for the dissolution of his marriage on the ground of his wife's adultery 
 with Major De Grey Warter, and a decree nisi was pronounced on 
 Ma}' 19, 1879. This decree was made absolute on November 27, 
 1879. By the Indian Divorce Act of 1869, jurisdiction is given to 
 dissolve the marriage when the petitioner professes the Christian re- 
 ligion and resides in India at the time of presenting the petition — 
 that is, though he or she may not be domiciled there. On the insti- 
 tution of the proceedings Mrs. Tayloe returned to England. Major 
 De Grey Warter afterwards joined her in England, and went through 
 a ceremony of marriage on February 3, 1880. At the time of the 
 marriage Major De Grey Warter was domiciled in England. By the 
 Indian Divorce Act — Act No. 4 of 1869 — under which the pro- 
 ceedings were taken, it is enacted that " when six months after the 
 date of any decree of the High Court dissolving a marriage have ex- 
 pired, and no appeal has been presented against such decree to the 
 High Court in its appellate jurisdiction, but not sooner, it shall be 
 lawful for the respective parties to the marriage to marry again as if 
 the prior marriage had been dissolved by death." The marriage in 
 question in this case took place witliin three months of the decree. 
 It was contended that as tliis marriage was celebrated in England the 
 parties were freed from the restraint imposed by the Indian Divorce 
 Act. I am of opinion that that is not the case. Mrs. Tayloe was 
 subject to the Indian law of divorce, and she could only contract a 
 valid second marriage by showing tliat the incapacity arising from her 
 
 * By the terms of his will Colonel Warter left .'\11 Iiis property to his " reputed 
 wife." — Ed.
 
 SECT. II.] SOTTOMAYOR V. DE BARROS. 
 
 305 
 
 previous marriage had been effectually removed by the proceedings 
 taken under that law. This could not be done, as the Indian law, 
 like our own, does not completely dissolve the tie of marriage until 
 the lapse of a specified time after the decree. This is an integral 
 part of the proceedings by which alone both the parties can be released 
 from their incapacity to contract a fresh marriage. The case of Scott 
 V. Attorney-General, 11 P. D. 128, was relied on for the plaintiff. I 
 there held that a colonial law prohibiting the marriage of the guilty 
 party, so long as the other remained unmarried, did not operate as a 
 bar to marriage where the guilty party had acquired a domicil in this 
 country. The distinction between that case and the present is that 
 there the incapacity to remarry imposed by the colonial law only at- 
 tached to the guilty party. It was, therefore, penal in its character, 
 and as such was inoperative out of the jurisdiction under which it was 
 inflicted. A case to the same effect, and based on the same principle, 
 was cited from an American report : Ponsford v. Johnson, 2 Blatchf. 
 51. For these reasons I am of opinion that the marriage of Febru- 
 ary 3, 1880, was invalid, and consequently that the will of February 6, 
 1880, was revoked by the valid marriage celebrated on April 2, 1881. 
 
 SOTTOMAYOR v. DE BARROS. 
 Court of Appeal. 1877. 
 \_Reported 3 Probate Division, 1.] 
 
 Cotton, L. J. This is an appeal from an order of the Court ol 
 Divorce, dated the 17th of March, 1877, dismissing a petition pre- 
 sented by Ignacia Sottomayor, praying the court to declare her mar- 
 riage with the respondent Gonzalo de Barros to be null and void. 
 The respondent appeared to the petition, but did not file an answer or 
 appear at the hearing; and by direction of the judge, the Queen's 
 proctor was served with the petition, and appeared by counsel to 
 argue the case against the petition. 
 
 There were several grounds on which the petitioner originally claimed 
 relief, but the onU- g ;round now to be considered is that sh ^ nnri thp 
 respond ent were under a personal infap.ic ity to contract mnrriagp^ 
 The facts are these : The petitioner and respondent are Portuguese 
 subjects, and are and have always been domiciled in that country, 
 where they both now reside. They are first cousins, and it was 
 proved that b\' the law of Portugal first cousins are incapable of con- 
 tracting marriage b}' reason of consanguinit}-, and that any marriage 
 between parties so related is by the law of Portugal held to be in- 
 cestuous and therefore null and void ; but though not proved, it was 
 
 20
 
 306 SOTTOMAYOR V. DE BARROS. [CHAP. VI. 
 
 admitted before us that such a marriage would be valid if solemnized 
 under the authorit}' of a papal dispensation. 
 
 In the year 1858 the pe titioner, her father and mother, and her 
 uncle, De Barros, and his family, including the respondent, his eldest 
 son, ca me~tb Engla nd, and the two families occupied a house jointly 
 in Dorset Square, London. The petitioner's father came to this coun- 
 try for the benefit of his health, and De Barros for the education of 
 his children and to superintend the sale of wine. De Barros subse- 
 quently, in 1861, became manager to a firm of wine merchants in 
 London, carrying on business under the style of Caldos Brothers & 
 Co., of which the petitioner's father was made a partner, and which 
 stopped payment in 1865. nn__tlip ^^^t of Jiinn, 1S66, tlip potitionerT 
 at that ti me of t he ag e of fourteen years nnd n. half, nnd the respo nd- 
 ent, ofT hc ag e__of ffixt*^^" ypm-g, ^ ere married at a registiar's _officp 
 irTTomloni Noi-eligious ceremon}' accompanied or followed the mar- 
 riao-e, and although" the parties lived together in^Tlie same iiouse until 
 the year 1872, the v never slept together, and the marriage was never 
 consummated. The petitioner stated that she went through the form 
 of marriage contrary to her own inclination, by the persuasion of her 
 uncle and mother, on the representation that it would be the means of 
 preserving her father's Portuguese property from the consequences of 
 the bankruptcy of the wine business. 
 
 Under these circumstances the petitioner, in November, 1874, pre- . 
 sented her petition for the object above mentioned, and Sir R. Philli- 
 more, before whom the case was heard, declined to declare the marriage 
 invalid and dismissed the petition, but did so, as we understand, 
 rather because he felt himself bound by the decision in the case of 
 Simonin v. Mallac, 2 Sw. & Tr. 67 ; 29 ^L. J. (P. M. & A.) 97, than 
 because he considered that on principle the marriage ought to be held 
 good. Ifjlie_pgjliaa-had j3een subjects of Her Majestx jjpniifilpd in 
 England, the marriage would" uncloubtc dl}- b.nyp Ikhmi valirl. But it is 
 a well-recog nized prii iciplc^ofja^v t.hut tliiLaiI££ti£ILP^ DersonaPcaiiac^ 
 Uy~to~eivEerTnro any contract is to be dccidcdbyjli^ )aw of ilonikl,!. 
 It' is, howeverT urged that thiis doos noL^iTplyToTthe contract of mar- 
 riage, and that a marriage valid according to the law of the country 
 where it is solemnized is valid everywhere. This, in our opinion, is 
 not a correct statement of the law. TlMUaH_Qll^a^camitrx where a 
 marriage issole mnizcd must alone dc cidejiU questions rela tiiit.'- to th£ 
 varidirrofjt hc ceremony l)y which the marri. n^e is allc^^'-ed to have been 
 co"nstj tiitcniQ2Hk-a5JlL2^!^ solirThiit of mnrriiffp iirrsopil 
 
 capa city must depend on the law of domj cU.; and if the laws of any 
 country prohibit its subjects within certain degrees of consanguinity 
 from contracting marriage, and stamp a marriage between ].ersons 
 within the prohibited degrees as incestuous, this, in our opinion, im- 
 poses on the subjects of that country a personal incapacity, which 
 continues to affect tlicm so long as they are domiciled in the country 
 where this law prevails, and renders invalid a marriag e between
 
 SECT. II.] SOTTOMAYOE V. DE BARROS. 307 
 
 persons b oth a t t he time of their marriage subjects of and domi ciled 
 ijtiThe countrj^ which_imposes this restriction, wharever such__marriage 
 may have been so lernnized. In argument several passages in Story's 
 Conflict of Laws were referred to, in support of the contention that 
 in an English court a marriage between persons who b}' our law may 
 lawfully intermarry ought not to be declared void, though declared 
 incestuous by the law of the parties' domicil, unless the marriage is 
 one which the general consent of Christendom stamps as incestuous. 
 It is hardly possible to suppose that the law of England, or of any 
 Christian countrj', would consider as valid a marriage which the 
 general consent of Christendom declared to be incestuous. Probabl}' 
 the true explanation of the passages in Story is given in Brook v. 
 Brook, 9 H. L. C. 193, at pp. 227, 241, b}' Lord Cranworth and by 
 Lord Wensleydale, who express their opinions that he is referring to 
 marriages not prohibited or declared to be incestuous bj' the municipal 
 law of the country of domicil. 
 
 But it is said that the impediment imposed b}' the law of Portugal 
 can be removed by a Papal dispensation, and, therefore, that it cannot 
 be said there is a personal incapacity of the petitioner and respondent 
 to contract marriage. The evidence is clear that by the law of Portu- 
 gal the impediment to the marriage between the parties is such that, 
 in the absence of Papal dispensation, the marriage would be by the 
 law of that countr}- void as incestuous. The statutes of theEngli^h 
 
 Parliament contain a declaration _that no^ Pa pal dispensation can 
 
 sanction a marj;iage otherwise incesjtuous ;_but the law of^Portjigal 
 does recognize the validity of _^ch a dispensation, and it cannot 
 in~'our o[Jinion beTield"tFat such a dispensation is a matter of form 
 affecting only the sufficiency of the ceremony b}- which the marriage 
 is effected, or that the law of Portugal, which prohibits and declares 
 incestuous, unless with such a dispensation, a marriage between the 
 petitioner and respondent, does not impose on them a personal in- 
 capacity to contract marriage. It is proved that the courts of Portu- 
 gal, where the petitioner and respondent are domiciled and resident, 
 would hold the marriage void, as solemnized between parties incapable 
 of marrying, and incestuous. How can the courts of this country 
 hold the contrary, and, if appealed to, say the marriage is valid? It 
 was pressed upon us in argument that a decision in favor of the 
 petitioner would lead to many difficulties, if questions should arise 
 as to the validit}' of a marriage between an English subject and a 
 foreigner, in consequence of prohibitions imposed by the law of the 
 domicil of the latter. Our opinion on this a])peal is confine d to the 
 case wher e bo th the_contract ing p arties are, at the timp r>f fhoir mnr. 
 riage, domiciled in a country the laws of which prohibit their marriage.^ 
 All persons arelegally bound to take notice of the laws of the country 
 where they are domiciled. No country is bound to recognize the laws 
 of a foreign state when thej* work injustice to its own subjects, and 
 this principle would prevent the judgment in the present case being
 
 308 SOTTOMAYOR V. DE BARROS. [CHAP. VI. 
 
 relied on as an autborit}- for setting aside a marriage between a 
 foreigner and an Englisli subject domiciled in England, on the ground 
 of any personal incapacity not recognized by the law of this country. 
 
 The counsel for the petitioner relied on tlie case of Brook v. Brook, 
 as a decision in his favor. If, in our opinion, that case had been a 
 decision on the question arising on this petition, we should have 
 thought it sufficient without more to refer to that case as decisive. 
 The judgment in that case, however, only decided that the English 
 courts must hold invalid a marriage between two English subjects 
 domiciled in this countr3', who were prohibited from intermarrying by 
 an English statute, even though the marriage was solemnized during a 
 temporary' sojourn in a foreign country. It is, therefore, not decisive 
 of the present case ; but the reasons given by the Lords who delivered 
 their opinions in that case strongly support the principle on which this 
 judgment is based. 
 
 It only remains to consider the case of Simonin v. Mallac. The 
 objection to the validity of the marriage in that case, which was 
 solemnized in England, was the want of the consent of parents 
 required by the law of France, but not under the circumstances by 
 that of this country. In our opinion, this consent must be considered 
 a part of the ceremony of marriage, and not a matter affecting the 
 personal capacity of the parties to contract marriage ; and the decision 
 in Simonin v. Mallac does not, we think, govern the present case. 
 We are of opinion that the judgment appealed from must be reversed, 
 and a decree made declaring the marriage null and void. 
 
 Judgmejit reversed.^ 
 
 1 The case having been sent down to the Probate Division of the High Court, Sir 
 James Hennen, President, found that though the petitioner was domiciled in 
 Portugal at the time of the marriage, the respondent was domiciled in England at 
 that time ; and he held the marriage valid. In tlie course of his opinion he said : 
 "The Lord .Justices appear to have laid down as a principle of law a proposition 
 which was much wider in its terms than was necessary for the determination of the 
 case before them. It is thus expressed : ' It is a well recognized principle of law that 
 the question of personal incapacity to enter into any contract is to be decided by the 
 law of domicil ; ' and again, 'As in other contracts, so in that of marriage, personal 
 capacity must depend on the law of domicil.' It is of course competent for the 
 Court of Appeal to lay down a principle which, if it formed the basis of a judgment of 
 that court, mu.-^t, unless it should be disclaimed by the House of Lords, be binding in 
 all future cases. But I trust that I may be permitted without disrespect to say that 
 the doctrine thus laid down has not hitherto been ' well recognized.' On the con- 
 trary, it appears to me to be a novel principle, for which up to the present time there 
 has been no English authority. What authority there is seems to me to be the other 
 way." — Ed.
 
 SECT. II.] COMMONWEALTH V. LANE. 309 
 
 COMMONWEALTH v. LANE. 
 Supreme Judicial Court of Massachusetts. 1873. 
 
 {Reported 113 Massachusetts, 458.] 
 
 Indictment on the Gen. Sts. e. 165, § 4, for polygamy.^ 
 
 Gray, C. J. The report finds that the defendant was lawfully mar- 
 ried to his first wife in this Commonwealth ; that she obtained a divorce 
 here from the bond of matrimony, for his adultery ; that he was after- 
 wards, while still a resident of this Commonwealth, married to a second 
 wife in the State of New Hampshire, and cohabited with her in this 
 Commonwealth, the first wife being still alive ; and the question is 
 whether he is indictable for polygamy, under the Gen. Sts. c. 165, § 4. 
 
 It is provided by our statutes of divorce that, in cases of divorce from 
 the bond of matrimony, the innocent party may marry again as if the 
 other party were dead ; but that any marriage contracted by the guilty 
 party during the life of the other, without having obtained leave from this 
 court to marry again, shall be void, and such party shall be adjudged 
 guilty of pol3gamy. Gen. Sts. c. 107, §§ 25, 26 ; St. 1864, c. 216. 
 
 The marriage act, Gen. Sts. c. 106, specifies, in §§ 1-3, what mar- 
 riages shall be void by reason of consanguinity or affinity ; in § 4, that 
 all marriages contracted while either of the parties has a former wife or 
 husband living, except as provided in c. 107, shall be void ; in § 5, that 
 no insane person or idiot shall be capable of contracting marriage ; and 
 in § 6 as follows: "When persons resident in this State, in order to 
 evade the preceding provisions, and with an intention of returning to 
 reside in this State, go into another State or country, and there have 
 their marriage solemnized, and afterwards return and reside here, the 
 marriage shall be deemed void in this State." 
 
 All these sections, except the last, are manifestly directed and 
 limited to marriages within the jurisdiction of this Commonwealth ; and 
 the last has no application to this case, because it does not appear to 
 have been proved or suggested at the trial that the parties to the 
 second marriage went out of this State to evade our laws, or even that 
 the second wife had resided in this State or knew of the previous mar- 
 riage and divorce. 
 
 By the Gen. Sts. c. 165, § 4, " whoever, having a former husband or 
 wife living, marries another person, or continues to cohabit with such 
 second husband or wife in this State," shall (except when the first 
 husband or wife has for seven years been absent and not known to the 
 other party to be living, or in case of a person legally divorced from 
 the bonds of matrimony and not the guilty cause of such divorce) be 
 deemed guilty of polygamy and punished accordingly. 
 
 This statute is not intended to make any marriages unlawful which 
 
 i Statement of facts and arguments of counsel are omitted. — Ed.
 
 310 COMMONWEALTH V. LANE. [CHAP. VL 
 
 are not declared to be unlawful by other statutes, nor to punish co- 
 habitation under a lawful marriage. Its object is to prohibit unlawful 
 second marriages, whether the parties are actuallj' married in this 
 Commonwealth, or continue after being married elsewhere to cohabit 
 here. But in either alternative, in order to sustain the indictment, the 
 second marriage must be unlawful. It is not enough that the marriage 
 is such as would be unlawful if contracted in this Commonwealth ; it must 
 be a marriage which, being contracted where it was, is unlawful here. 
 
 The marriage in New Hampshire is stated in the report to have 
 been " according to the forms of law ; " and it appears by the statutes 
 of New Hampshire, therein referred to, that the only provision relating 
 to the invalidity' of marriages on account of the incompetency of parlies 
 to contract them is as follows : " All marriages prohibited by law, on 
 account of the consanguinit\- or affinity of the parties, or where either 
 has a former wife or husband living, knowing such wife or husband to 
 be alive, if solemnized in this State, shall be absolutely void without 
 an}' decree of divorce or other legal process." Gen. Sts. of N. H. 
 (1867), c. 163, § 1. That provision clearly does not extend to a case 
 in which the former wife, having obtained a divorce from the bond of 
 matrimony, was absolutely freed from all obligation to the husband, 
 and in which, as observed by Mr. Justice Wilde, in a like case, *■*• not- 
 withstanding the restraints imposed on the husband, he being the guilty 
 cause of the divorce, the dissolution of the marriage contract was total, 
 and not partial." Commonwealth v. Putnam, 1 Pick. 136, 139. The 
 marriage in New Hampshire must therefore be taken to have been 
 valid by the law of that State. 
 
 The question presented by the report is therefore reduced to this : If 
 a man who has been lawfully* married in this Commonwealth, and 
 whose wife has obtained a divorce a vinculo here because of his 
 adultery, so that he is prohibited by our statutes from marrying again 
 without leave of this court, is married, without having obtained leave 
 of the court, and being still a resident of this Commonwealth, to 
 another woman in another State, according to its laws, and afterwards 
 cohabits with her in this Commonwealth, is his second marriage valid 
 here ? 
 
 The determination of this question depends primarily upon the con- 
 struction of our statutes, but ultimately upon fundamental principles 
 of jurisprudence, which have been clearly declared b}' the judgments of 
 our predecessors in this court, and in the light of which those statutes 
 must be read in order to ascertain their just extent and effect. 
 
 Wiiat marriages between our own citizens shall be recognized as 
 valid in this Commonwealth is a subject within the power of the legis- 
 lature to regulate. But when the statutes are silent, questions of the 
 validity of marriages are to be determined by the Jus f/entium, the 
 common law of nations, the law of nature as generall}' recognized by 
 all civilized peopkjs. 
 
 By that law, the validity of a marriage depends upon the question
 
 SECT. II.] COMMONWEALTH V. LANE. 311 
 
 whether it was valid where it was contracted ; if valid there, it is valid 
 everywhere. 
 
 The onl}' exceptions admitted by our law to that general rule are of 
 two classes: 1st. Marriages which are deemed contrary to the law of 
 nature as generall}' recognized in Christian countries ; 2d. Marriages 
 which tlie legislature of the Commonwealth has declared sliall not be 
 allowed any validity, because contrary to th(! policy of oin* own laws. 
 
 The first class includes onh' those void for polygam}- or for incest. 
 To bring it within the exception on account of polygamy, one of the 
 parties must have another husband or wife living. To bring it within 
 the exception on the ground of incest, there must be such a relation 
 between the parties contracting as to make the marriage incestuous 
 according to the general opinion of Christendom ; and, by that test, 
 the prohibited degrees include, beside persons in the direct line of 
 consanguinit}', brothers and sisters only, and no other collateral kin- 
 dred. Wightman v. Wightman, 4 Johns. Ch. 343, 349-351 ; 2 Kent 
 Com. 83 ; Story, Confl. § 114 ; Sutton v. Warren, 10 Met. 451 ; Steven- 
 son V. Gra}-, 17 B. Mon. 193 ; Bowers v. Bowers, 10 Rich. Eq. 551. 
 
 A marriage abroad between persons more remoteh' related, not 
 absolutel}' void by the law of the country where it was celebrated, is 
 valid here, at least until avoided by a suit instituted for the purpose, 
 even if it might have been so avoided in that country ; and this is so 
 whether the relationship between the parties is one which would not 
 make the marriage void if contracted in this Commonwealth, as in the 
 case of a marriage between a widower and his deceased wife's sister, 
 or one which would invalidate a marriage contracted here, as in the 
 case of a marriage between aunt and nephew. 
 
 In Greenwood v. Curtis, 6 Mass. 358, 378, 379, Chief Justice Par- 
 sons said: " If a foreign State allows of marriages incestuous bj- the 
 law of nature, as between parent and child, such marriage could not be 
 allowed to have an}' validity here. But marriages not naturally' unlaw- 
 ful, but prohibited b}- the law of one State, and not of another, if cele- 
 brated where they are not prohibited, would be holden valid in a State 
 where they are not allowed. As in this State a marriage between a 
 man and his deceased wife's sister is lawful but it is not so in some 
 States ; such a marriage celebrated here would be held valid in any 
 other State, and the parties entitled to the benefits of the matrimonial 
 contract." This distinction was approved b}' Chancellor Kent and by 
 Judore Story. 2 Kent Com. 85, note a ; Stor}-, Confl. § 116. 
 
 In The Queen v. Wye, 7 A. & E. 761, 771; s. c 3 N. & P. 6, 13, 
 14 ; it was decided that the marriage of a man with his mother's sister 
 in England before the St. of 5 & 6 Will. IV. c. 54, though voidable by 
 process in the ecclesiastical courts, was, until so avoided, valid for all 
 civil purposes, including legitimacy and settlement. In accordance 
 with that decision, it was held in Sutton v. Warren, 10 Met. 451, that 
 such a marriage contracted in England, and never avoided there, must, 
 upon the subsequent removal of the parties to Massachusetts, and the
 
 312 COMMONWEALTH V. LANE. [CHAP. VL 
 
 question arising collaterally in an action at common law, be deemed 
 valid here, although, if contracted in this Commonwealth, it would 
 have been absolutel}' void. 
 
 A marriage which is prohibited here by statute, because contrary to 
 the policy of our laws, is yet valid if celebrated elsewhere according to 
 the law of the place, even if the parties are citizens and residents of 
 this Commonwealth, and have gone abroad for tlie purpose of evading 
 our laws, unless the legislature has clearly enacted that such marriages 
 out of the State shall have no validity here. This has been repeatedly 
 affirmed by well-considered decisions. 
 
 For example, while the statutes of Massachusetts prohibited mar- 
 riages between white persons and negroes or mulattoes, a mulatto and 
 a white woman, inhabitants of Massachusetts, went into Rhode Island, 
 and were there married according to its laws, and immediately returned 
 into Massachusetts ; and it was ruled by Mr. Justice Wilde at the trial, 
 and affirmed by the whole court, that the marriage, even if the parties 
 went into Rhode Island to evade our laws, yet, being good and valid 
 there, must upon general principles be so considered here, and that the 
 wife therefore took the settlement of her husband in this Common- 
 wealth. Medway r. Needham, 16 Mass. 157. 
 
 So it has been held that a man, from whom his wife had obtained in 
 this State a divorce a vinculo for his adulter}', which b}' our statutes 
 disabled him from contracting another marriage, might lawfully marr}' 
 again in another State according to its laws; that the children of such 
 marriage took the settlement of their father in this Commonwealth ; 
 and that the new wife was entitled to dower in his lands here, even if 
 the wife as well as the husband was domiciled here, and knew of the 
 previous divorce and its cause, and went into the other State to evade 
 our laws — so long as our statutes did not declare a marriage con- 
 tracted there with such intent to be void here. West Cambridge v. 
 Lexington, 1 Pick. 506 ; Putnam v. Putnam, 8 Pick. 433. See also 
 Dickson v. Dickson, 1 Yerger, 110; Ponsford y. Johnson, 2 Blatcbf. 
 C. C. 51 ; 2 Kent Com. 91-93. 
 
 The principles upon which these decisions proceeded were recognized 
 in all the English cases decided before the American Revolution, 
 although it is true, as has since been pointed out, that the particular 
 question in each of them related rather to the forms required than to 
 the capacity of the parties. 
 
 Lord Hardwicke's Marriage Act in 1752 provided that all marriages 
 of minors, solemnized by license without the consent of parents or 
 guardians, should be void. St. 26 Geo. II. c. 33, § 11. Yet in the 
 first case which arose under that act, in which an English bo}' of eight- 
 een years old went abroad with an English woman, and was there 
 married to licr without such consent, Lord Hardwioke, sitting as chan- 
 cellor, assumed that if the marriage had been valid b^' the law of the 
 countr}' in which it was celebrated, it would have been valid in Eng- 
 land, sayiug: '' It will not be v.ilid here unless it is so by the laws of
 
 SECT. II.] COMMONWEALTH V. LANE. 318 
 
 the country where it was had ; and so it was said by Murray, attorney- 
 general, to have been determined lately at the Delegates." And it 
 would seem by the report that the woman defeated an application to 
 the Ecclesiastical Court to annul the marriage, by refusing to appear 
 there. Butler v. Freeman, Ambl. 301. 
 
 The case, thus referred to as determined at the Delegates, was evi- 
 dently Scrimshire v. Scrimshire, decided by Sir Edward Simpson in the 
 Consistor}' Court in 1752. Of that opinion. Sir George Hay, in Har- 
 ford V. Morris, 2 Hagg. Con. 423, 431, said, " Every man has allowed 
 the great and extensive knowledge of the judge ; " and Sir William 
 Wynne, in Middleton v. Janverin, 2 Hagg. Con. 437, 446, remarked 
 that he remembered to have heard that the judgment was founded on 
 great deliberation, and that Lord Hardwicke was consulted on it. 
 
 In Scrimshire v. Scrimshire, Sir Edward Simpson, in delivering 
 judgment, said : " The question being in substance this. Whether, by 
 the law of this country, marriage contracts are not to be deemed good 
 or bad according to the law of the country in which they are formed ; 
 and whether they are not to be construed by that law? If such be the 
 law of this country, the rights of English subjects cannot be said to be 
 determined by the laws of France, but by those of their own country, 
 which sanction and adopt this rule of decision." " All nations allow 
 marriage contracts; thej- are juris gentium, and the subjects of all 
 nations are equally concerned in them ; and from the infinite mischief 
 and confusion that must necessarily arise to the subjects of all nations, 
 with respect to legitimacy, successions, and other rights, if the respec- 
 tive laws of different countries were only to be observed, as to mar- 
 riages contracted by the subjects of those countries abroad, all nations 
 have consented, or must be presumed to consent, for the common 
 benefit and advantage, that such marriages should be good or not, 
 according to the laws of the country where they are made. It is of 
 equal consequence to all, that one rule in these cases should be 
 observed by all countries, — that is, the law where the contract is 
 made." And he declared the marriage in that case to be invalid, only 
 because it appeared to be wholly null and void by the laws of France, 
 where it was celebrated. 2 Hagg. Con. 395, 407, 408, 417, 421. 
 
 In Compton v. Bearcroft (1767-69), where the parties, both being 
 English subjects and the libellant a minor, ran away and were married 
 in Scotland, a libel for the nullity of the marriage was dismissed by 
 Sir George Hay in the Court of Arches, upon the ground that Lord 
 Hardwieke's Act did not extend to Scotland ; but by the Court of 
 Delegates on appeal, consisting of Justices Gould and Aston, Baron 
 Perrott, and two doctors of civil law, upon the broader ground that 
 the marriage was good by the lex loci. 2 Hagg. Con. 430, 443, 444, 
 and note; s. c. Bui. N. P. 113, 114. See also Ilderton v. Ilderton, 2 
 H. Bl, 145 ; Dairy mple v. Dairy raple, 2 Hagg. Con. 54, 59 ; Ending v. 
 Smith, ib. 371, 390, 391 ; Steele v. Braddell, Milward, 1, 21. 
 
 In a recent case in the House of Lords, the cases of Medway v.
 
 314 COMMONWEALTH V. LANE. [CHAP. VI. 
 
 Needham, 16 Mass. 157, and Sutton v. Warren, 10 Met. 451, above 
 cited, have been severely criticised, and pointedly denied to be law. 
 Brook V. Brook, 9 H. L. Cas. 193; s. c. 3 Sm. &'^Gif:f. 481. As that 
 court is the one of all foreign tribunals, the opinions of which, owing 
 to the learning, experience, and ability of the judges, we are accustomed 
 to regard with the most respect, it becomes necessary to examine with 
 care the scope of that decision, and the soundness of the reasons 
 assigned for it ; and in order to make this examination intelligible, it 
 will be convenient first to refer to the English statutes and to some 
 earlier decisions. 
 
 Several statutes of Henry VIII., which it is necessary to state in 
 detail, declared marriages within certain degrees of consanguinity and 
 affinit}', and among others the marriage of a widower with his deceased 
 wife's sister, to be " contrary to God's law as limited and declared b}' 
 act of Parliament." Sts. 25 Hen. VIII. c. 22 ; 28 Hen. VIII. cc. 7, 
 16 ; 32 Hen. VIII. c. 38. While those statutes remained unaltered, a 
 period of nearly three hundred years, such marriages were held by the 
 judges not to be absolutely void, but voidable only by suit in the 
 ecclesiastical courts during the lifetime of both parties, and, if not so 
 avoided, were treated as valid, the wife entitled to dower, and the 
 children of the marriage legitimate. Co. Lit. 33; Hinks v. Harris, 4 
 Mod. 182; s. c. 12 Mod. 35; Garth. 271; 2 Salk. 548. Lord Hard- 
 wicke, in Brownsword v. Edwards, 2 Ves. Sen. 243, 245; 1 Bl. Com. 
 434, 435 ; Elliott v. Gurr, 2 Phillim. 16; The Queen v. Wye, 7 A. & 
 E. 761, 771 ; s. c. 3 N. & P. 6, 13, 14; Westby v. Westby, 2 Dru. 
 & War. 502, 515, 516; s. c. 1 Con. & Laws. 537, 544, 545; 4 Irish 
 Eq. 585, 593. 
 
 The St. of 5 «&; 6 Will. IV. c. 54, commonly known as Lord Lynd- 
 hurst's Act, provided, as to marriages between persons within the 
 prohibited degrees of affinity, as follows : 1st, that such marriages, 
 celebrated before the passage of the act, should not be annulled, 
 except in a suit alread}' pending in the ecclesiastical courts ; 2d, that 
 such marriages, thereafter celebrated, should be absolutely null and 
 void to all intents and purposes whatever ; 3d, that nothing in this act 
 should be construed to extend to Scotland. 
 
 The marriage of a widower with the sister of his deceased wife, in 
 England, after tliis statute, was held to be within the prohibited 
 degrees and utterly void. The Queen v. Chadwick, 11 Q. B. 173, 234. 
 
 A case afterwards came before the Scotch courts, in which an Eng- 
 lish citizen married his deceased wife's sister in PLngland ; the validity 
 of the marriage was not disputed during her life, and she died before 
 the St. of Will. IV. ; and the question was, whether the children of 
 the marriage could inherit his lands in Scotland. The Scotch courts, 
 in a series of very able opinions, held that they could, upon the ground 
 that by the law of P^ngland, the marriage, not having been cliallenged 
 in the lifetime of both parties, could not in any form be declared invalid 
 in England, and the cliildren were legitimate there, and must therefore
 
 SECT. II.] COMMONWEALTH V. LANE. 315 
 
 be deemed legitimate in Scotland. Fenton v. Livingstone, 16 Ct. of 
 Sess. Cas. (2d Series) 104, and 18 ib. 865. The House of Lords, on 
 appeal, reversed that decision, and held that, although the marriage 
 had, by reason of the peculiar rules governing the English courts of 
 temporal and ecclesiastical jurisdiction, become irrevocable there, yet 
 it was always illegal; and that, those rules not being. applicable in the 
 Scotch courts, the legitimacy of the children in Scotland depended 
 upon the question whether the marriage was illegal b}- the law of 
 Scotland, s. c. 3 Macq. 497. The Scotch court thereupon decided 
 that the marriage was illegal, and that the children were incapable of 
 inheriting lands in Scotland, s. c. 23 Ct. of Sess. Cas. (2d Series) 
 366. 
 
 In Brook v. Brook, t/bi supra, a widower and the sister of his 
 deceased wife, being lawfully domiciled in England, while on a tcm- 
 porar}' visit to Denmark, had a marriage solemnized between them, 
 which was by the laws of Denmark lawful and valid to all intents and 
 purposes whatsoever. In a suit in equity, brought after the death of 
 both parties, to ascertain the rights of the children in their father's 
 property, the House of Lords, in accordance with the opinions of 
 Lords Campbell, Cranworth, St. Leonards, and Wensle3-dale, and 
 affirming a decree rendered by Vice Chancellor Stuart, assisted by Mr. 
 Justice Cresswell, held that the marriage in Denmark was wholly void 
 by the St. of Will. IV., and that the children of that marriage were 
 bastards. 
 
 The decision was put, b}- the learned judges who concurred in it, 
 upon three different grounds. 
 
 The first ground was that the St. of Will. IV. disqualified English 
 subjects everywhere from contracting such a marriage. This ground 
 was taken in the court below, and by Lord St. Leonards in the House 
 of Lords. 3 Sm. & Giff. 522, 525 ; 9 H. L. Cas. 234-238. But it 
 was expressly disclaimed by Lord Campbell, Lord Cranworth, and 
 Lord Wensleydale, the two former of whom expressed opinions that 
 the statute did not extend to all the colonies, and all three declared 
 that they did not think its purpose was to put an end to such mar- 
 riages by British subjects throughout the world. 9 H. L. Cas. 214, 
 222, 240. 
 
 The second ground, which was suggested by Mr. Justice Cresswell 
 and Lord Wensleydale onlj-, and is opposed to all the American 
 authorities, was that the case justl}' fell within the first exception, 
 stated in Story, Confl. § 114, of marriages involving polygamy and 
 incest. 3 Sm. & Giff, 513 ; 9 H. L. Cas. 241, 245. In view of that 
 position, it ma}' be observed that in an earlier case, in which Lord 
 Wenslej-dale himself (then Baron Parke) delivered the opinion, a mar- 
 riage of a widower with his deceased wife's sister, before the St. of 
 Will. IV., was prevented from being made irrevocable by that statute, 
 only b}' the institution, a week before its passage, of a suit for nullity in 
 the Ecclesiastical Court by the father of the supposed wife ; and by the
 
 316 COMMONWEALTH V. LANE. [CHAP. VI 
 
 decision of the Privy Council, that because, if the marriage was not set 
 aside, the birth of a child of the marriage would impose a legal obliga- 
 tion upon the grandfather to maintain the child in the event of its 
 being poor, lame, or impotent, and unable to work, he had, according 
 to the rules of the ecclesiastical courts, a sufficient interest, " although 
 of an extremely minute and contingent character," to support such a 
 suit. Sherwood v. Ray, 1 Moore P. C. 353, 401, 402. 
 
 The third ground, upon which alone all the law lords agreed, was 
 that the St. of Will. IV. made all future marriages of this kind between 
 English subjects, having their domicil in England, absolutely void, 
 because declared by act of Parliament to be contrary to the law of 
 God, and must therefore be deemed to include such marriages, although 
 solemnized out of the British dominions. 
 
 The law of England, as thus declared by its highest legislative and 
 judicial authorities, is certainly presented in a remarkable aspect. 1st. 
 Before the St. of Will. IV., marriages within the prohibited degrees 
 of affinity, if not avoided by a direct suit for the purpose during the 
 lifetime of both parties, had the same effect in England, in every 
 respect, as if wholly valid. 2d. This statute itself made such mar- 
 riages, already solemnized in England, irrevocably valid there, if no 
 suit to annul them was already pending. 3d. It left such marriages in 
 England, even before the statute, to be declared illegal in the Scotch 
 courts, at least so far as rights in real estate in Scotland were con- 
 cerned. 4th. According to the opinion of the majorit}' of the law lords, 
 it did not invalidate marriages of English subjects in English colonies, 
 in which a different law of marriage prevailed. 5th. But it did make 
 future marriages of this kind, contracted either in England or in a 
 foreign country, b}' English subjects domiciled in England, absolutely 
 void, because declared by the British Parliament to be contrary to the 
 law of God. 
 
 The judgment proceeds upon the ground that an act of Parliament 
 is not merel}- an ordinance of man, but a conclusive declaration of the 
 law of God ; and the result is that the law of God, as declared by act 
 of Parliament and expounded by the House of Lords, varies according 
 to time, place, length of life of parties, pecuniary interests of third 
 persons, petitions to human tribunals, and technical rules of statutory 
 construction and judicial procedure. 
 
 The case recalls the saying of Lord Holt, in London v. Wood, 12 
 Mod. 669, 687, 688, that " an act of Parliament can do no wrong, 
 though it may do several things that look pretty odd ; " and illustrates 
 the effect of narrow views of polic}', of the doctrine of " the omnipo- 
 tence of Parliament," and of the consequent uiifamiliarit}' with ques- 
 tions of general jurisprudence, upon judges of the greatest vigor of 
 mind, and of the profoundest learning in the municipal law and in the 
 forms and usages of the judicial system of their own country. 
 
 Such a decision, upon such reasons, from any tribunal, however 
 eminent, can have no weight in inducing a court, not bound by it as 
 authority, to overrule or disregard its own decisions.
 
 SECT. 11.] KINNEY V. COMMONWEALTH. 317 
 
 The provision of the Gen. Sts. c. 107, § 25, forbidding the guilty- 
 party to a divorce to contract another marriage, during the life of the 
 other party, without leave of this court, on pain of being adjudged 
 guilty of polygamy, does not create a permanent incapacity, lil^e one 
 arising from consanguinity or afflnity.^Jl t is rather in the nature of th£ 
 inTjv;>£U!9JlJ[I^ fl. penalt y, to whi jji it^AaaauldJ)e difficult to give-an^- extra- 
 territorial o])eration. West Cambridge v. Lexington, 1 Pick. 506, 510, 
 Tr2 ; Ciarkvn^\rk, 8 Cush. 385, 386. Upon the principles and 
 authorities stated in the earlier part of this opinion, it certainly can- 
 not invalidate a subsequent marriage in another State according to its 
 laws, at least without proof that the parties went into that State and 
 were married there with the intent to evade the provisions of the 
 statutes of this Commonwealth. No such intent being shown in this 
 case, we need not consider its effect, if proved, nor whether the indict- 
 ment is in due form. See Commonwealth v. Putnam, 1 Pick. 136, 
 139 ; Commonwealth v. Hunt, 4 Cush. 49. 
 
 N^ew trial ordered} 
 
 KINNEY V. COMMONWEALTH. 
 
 Court of Appeals of Virginia. 1878. 
 
 [Reported 30 Grattan, 858.] 
 
 Christian, J.^ The plaintiff in error was indicted in the county court 
 of Augusta County for lewdly associating and cohabiting with Mahala 
 Miller. He was found guilty. . . . The Commonwealth, to sustain the 
 issue on her part, proved to the jury that the defendant, Andrew 
 Kinney, and a certain Mahala Miller, on the 1st day of January, 1877, 
 and from that time to the 27th day of August, 1877, in the county of 
 Augusta and State of Virginia, did live and associate together as man 
 and wife ; that said Andrew Kinney is a negro, and said Mahala Miller 
 a white woman, and that in November, 1874, they, as citizens of the 
 State of Virginia, regularly domiciled in the county of Augusta, left 
 their own State for the purpose of being married in the District of 
 Columbia, and in ten days thereafter returned to this State to live, and 
 have since lived together as man and wife in said county of Augusta. 
 The defendant, to sustain the issue on his part, proved that he and the 
 said MahaUi Miller were married in the District of Columbia on the 4th 
 day of November, 1874, in accordance with the laws of said district. 
 
 1 Ace. Scott w. A. G., 11 P. D. 128 ; Poudsford v. Johnson, 2 Blatchf. 51 ; Phillips v. 
 Madrid, 83 Me. 205, 22 Atl. 1 14 ; Van Yoorhis v. Brintnall, 86 N. Y. 18 ; S. v. Sliattuck, 
 69 Vt. 403, 38 Atl. 81. Contra, Williams v. Oates, 5 Ire. L. 535; Stull's Estate, 183 
 Pa. 625, 39 Atl. 16 (but see Van Storch v. Griffin, 71 Pa. 240, not cited in the later 
 case) ; Pennegar v. S , 87 Tenn. 244. And see Succession of Hernandez, 46 La. Ann. 
 962, 15 So. 461. — Ed. 
 
 2 Part of the opinion is omitted. — Ed.
 
 318 * KINNEY V, COMMONWEALTH. [CHAP. VL 
 
 The court . . . instructed the jury as follows : " That the said mar- 
 riage of the defendant and said Mahala Miller was, under the circum- 
 stances proven, but a vain and futile attempt to evade the laws of 
 Virginia, and override her well-known public policy, and is therefore 
 no bar to this prosecution ; to which opinion ... the defendant, by 
 his counsel, excepts." . . . 
 
 The sole question submitted by this bill of exceptions for the adjudi- 
 cation of this court is, Whether the alleged marriage celebrated in the 
 District of Columbia, " in accordance with the laws of said district," 
 as certified in the certificate of facts, is a bar to this prosecution ? It 
 is conceded that a marriage in this State between a white person and a 
 negro is void. It is not only prohibited by the statute law, but pen- 
 alties are imposed for its violation. The first section of chapter 105, 
 Code 1873, provides that " all marriages between a white person and 
 a negro, and all marriages which are prohibited by law on account of 
 either of the parties having a former wife or husband then living, shall 
 be absolutely void without any decree of divorce or other legal process." 
 In the same section other marriages prohibited by law therein men- 
 tioned, are voidable only ; that is, declared to be void only from the 
 time they shall be so declared by decree of divorce or nullity. These 
 are cases of marriages within the prohibited degrees of consanguinity 
 or affinity, or where either party was insane or incapable from physical 
 causes. Such marriages are void when declared to be void by decree 
 of divorce or nullity, or when the parties are convicted under the third 
 section of chapter 192, which denounces certain penalties against mar- 
 riages of parties within the prescribed degrees of consanguinity or 
 aflSnit}'. But marriage between a white person and a negro is declared 
 by statute to be absolutely void without any decree of divorce or other 
 legal process. If, therefore, the marriage had been celebrated in this 
 State between Andrew Kinney, who is a negro, and Mahala Miller, 
 who is a white woman, no matter by what ceremonies or solemnities, 
 such marriage would have been the merest nullit}-, and the parties must 
 have been regarded, under our laws, as lewdl}' associating and coha])it- 
 ing together, and obnoxious to the penalties denounced bv our statute 
 against this gross offence. 
 
 Does the marriage of the parties in the District of Columbia, where 
 marriages between white persons and negroes are not prohibited, present 
 a bar to this prosecution and put the parties on any diftercnt footing 
 when arraigned before our tribunals for a violation of the laws of tliis 
 State? It is admitted that Andrew Kinnc}' and Mahala Miller had 
 their domicil in Augusta County, in this State; that thev remained out 
 of the vState only ten days after their marriage, and returned here, and 
 that this county is still their domicil. 
 
 It is plain to be gathered from the whole record, if not indeed 
 admitted, that these parties, knowing they could enter into no valid 
 marriage contract in this State, went to the city of Washington for 
 the purpose of evading the statute law of this State ; were there
 
 SECT. 11.] KINNEY V. COMMONWEALTH. 319 
 
 married, and in a few daj'S returned to this State. Tliey never changed 
 nor designed to change then' domicil. It was here then ; it is here 
 now. 
 
 The important question, and one of first impression in this State, is : 
 Does the marriage in the District of Columbia, made m fraudem legis 
 of this State, protect the parties in a prosecution in this State for a 
 violation of its penal laws in this most important' and vital branch 
 of criminal jurisprudence, affecting the moral well-being and social 
 order of this State? Must the lex loci contractus or the lex domicilii 
 prevail? 
 
 There can be no doubt as to the power of every country to make 
 laws regulating the marriage of its own subjects ; to declare who ma}' 
 marry, how they may marry, and what shall be the legal consequences 
 of their marrying. The right to regulate the institution of marriage ; 
 to classify the parties and persons who ma^' lawfully marry; to dissolve 
 the relation by divorce ; and to impose such restraints upon the relation 
 as the laws of God, and the laws of propriety, morality, and social 
 order demand, has been exercised by all civilized governments \n all 
 ages of the world. 
 
 It is insisted, however, b\- the learned counsel for the plaintiff in 
 error, in the ingenious and able argument which he addressed to this 
 court, that conceding the power of every State and country to pass 
 such laws, yet thev never act extraterritorial^ but must be confined, 
 with rare exceptions, to such marriages as are contracted and consum- 
 mated within the State where they are prohibited. He invokes for his 
 client in this case the rule laid down b}' jurists and text-writers, that 
 *' a marriage valid where celebrated is good everywhere." 
 
 This is undoubtedl}' the general rule. But there are certain excep- 
 tions to this general rule, and while in its application and the affirm- 
 ance of certain exceptions thereto, there was for a long time much 
 eonfusion in the authorities and conflict in the cases, I think it may 
 now be affirmed that there are exceptions to this general rule as well 
 established and authoritativeh' settled as the rule itself.^ . . . 
 
 Whatever conflict of authority there may have been on this subject, 
 it may now be affirmed, since the decision of Brook v. Brook, 9 H. L. 
 C. 193, (that in England, a marriage prohibited by law in that country, 
 between parties domiciled there, and declared by act of Parliament to 
 be absolutely void, is invalid there no matter where celebrated. >In 
 this country the same doctrine is affirmed in North Carolina, Louisiana, 
 and Tennessee. See WilHams v. Gates' ex'or, 5 Ired. R. 535 ; State 
 V. Kennedy, 76 North Car. 251 ; State v. Ross, 76 North Car. 242 ; 
 10 La. Ann. 411, Dupre v. Boulad's ex'or. 
 
 Whenever the question has arisen in the Southern States, it has been 
 held that a marriage between a white person and a negro, although 
 the marriage be celebrated in a State where such marriages are not 
 
 1 The court here cited Story, Conflict of Laws, § 113 ; Brook v. Brook, 9 H. L. C. 
 193. — Ed.
 
 320 KINNEY V. COMMONWEALTH. [CHAP. YI. 
 
 prohibited, is void in tlie State of the domicil, and wlien they go to 
 another State temporarily, and for the purpose of evading the law, and 
 return to their domicil, such marriage is no bar to a criminal prusecu- 
 tion. And such is the law of this State, it is now so declared by 
 statute. See Sess. Acts of 1877-8. The statute, however, was passed 
 after the marriage of the [jarlies in this case. But without such statute, 
 the marriage was a nullity. It was a marriage prohibited and declared 
 "■ absolutely void." It was contrary to the declared pubHc law, 
 founded upon motives of public policy, — a public policy atiirmed for 
 more than, a century ; and one upon which social order, public morality, 
 and the best interests of both races depend. This unmistakable policy 
 of the legislature, founded, I think, on wisdom and tlie moral develop- 
 ment of both races, has been shown by not only declaring marriage 
 between whites and negroes absolutely void, but b}- prohibiting and 
 punishing such unnatural alliances with severe penalties. The laws 
 enacted to further and u[)hold this declared policy would be futile and 
 a dead letter if in fraud of these salutary enactments, both races might, 
 by stepping across an imaginarj' line, bid defiance to the law, b}' 
 immediately returning and insisting that the marriage celebrated in 
 another State or countrj' should be recognized as lawful, though 
 denounced b}' the public law of the domicil as unlawful and absolutely 
 void. No State will permit its citizens to violate its laws b}- such 
 evasions. But the law of the domicil will govern in such case, and 
 when the}' return, they will be subject to all its penalties, as if such 
 marriage had been celebrated within the State whose public law they 
 have set at defiance. 
 
 There is one American case which is directly opposed to the principles 
 herein declared, the facts of which are precisel}' the same as in the case 
 before us. It is the case of Medway v. Needham, 16 Mass. R. 157, 
 which was strongly relied on by the learned counsel for the plaintiff 
 in error as authorit}- to govern this case. But I think that case is 
 not supported b}' authorit}- nor grounded on an}' sound principles 
 of law. That w'as the case of a marriage between a white person and 
 a negro. The parties were domiciled in INIassachusetts, whose laws 
 at that time prohibited such marriages. They went into Rhode Island, 
 where such marriages were lawful, were there married, and returned 
 to Massachusetts. The Supreme Court of that State held the marriage 
 to be valid, and declared, in an elaborate opinion, that " a marriage 
 which is good by the laws of the country where it is celebrated, is valid 
 in every other country ; and although it should appear that the parties 
 went into another State to contract such marriage, with a view to evade 
 the laws of their own country, the marriage in the foreign country will 
 nevertheless be valid in the country in which the parties live." 
 
 In commenting on this case, the lord chancellor, in Brook v. Brook 
 supra (219), says: ''I cannot think it is entitled to much weight, for 
 the learned judge admitted that he was overruling the doctrine of 
 Huberus and other eminent jurists ; he relied on decisions in which
 
 SECT. II.] KINNEY V. COMMONWEALTH. 321 
 
 the forms only of celebrating the marriage in the eountr}- of celebration 
 and the country of domicil were different ; and he took the distinction 
 between cases where the absolute prohibition of marriage is forbidden 
 on motives of policy, and where the marriage is prohibited as beinw 
 contrary to religion on the ground of incest. I, myself, must deny 
 the distinction. If a marriage is absolutely px-ohibited in any fnnnti- y 
 as beincf contrary to public policy and leading to social evils. T thin k 
 th atthe domiciled in habitants of that countr}- c a nnot be permit.t(^d. by^ 
 pa ssmg the frontier and entering another State in which the marring^ ,, 
 is not prohibite d, to celebrate a marriage forbidden by their own State^ 
 and immediately returning to their own State, to insist on their ^ 
 marriage bei ng recognized as lawfu l." 
 
 Lord Uranworth, referring to the same case, said: "I also concur 
 entirely with my noble and learned friend that the American decision 
 of Medway v. Needham, cannot be treated as proceeding on sound 
 principles of law. 
 
 " The province or State of Massachusetts positively prohibited by its 
 laws, as contraiT to public polic}-, the marriage of a mulatto with 
 a white woman ; and on one of the grounds, pointed out b}' Mr. Stoiy, 
 such a marriage ought certainly to have been held void in Massachu- 
 setts, though celebrated in another province where such marriages were 
 lawful." 
 
 With such condemnation, from so high a source, of this decision 
 as authority, and when it is opposed by the decisions of our sister 
 Southern States above referred to, and contrary to sound principles of 
 law, I think, though a case exactly in point upon its facts, it can have 
 but little weight in forming our judicial determination of the question 
 before us in this case. 
 
 There is another American case also relied on b}' the counsel for the 
 plaintiff in error for the doctrine that " a marriage valid where cele- 
 brated is valid everywhere." It is a Kentucky case, Stevenson v. Gray, 
 reported in 17 B. Monr. R. 193. That was a marriage between a 
 nephew and his uncle's wife. Such a marriage was prohibited in Ken- 
 tuck}', but not in Tennessee. The parties went into Tennessee, and 
 were there married and returned to Kentuck}-. It was held that tlie 
 marriage was valid in Kentucky. But it is to be noted that such 
 marriages are not declared by the Kentucky statute absoluteh' void, but 
 voidable only — that is, to be avoided by judgment of a district court 
 or court of quarterly sessions. The reasoning of the judge who de- 
 livered the opinion of the court in that case, shows that he treats the 
 case of a marriage voidable only, and not ipso facto void. If such 
 marriage has been declared absolutely void by the Kentucky statute, 
 the decision of the court, no doubt, would have been different. 
 
 In the seventh edition of Story's Conflict of Laws, p. 178, the 
 editor adds a section in which he says : The limitation defined bv Lord 
 Campbell, chancellor, in Brook v. Brook, is certainly characterized by 
 great moderation and good sense ; that while the form of the contract, 
 
 21
 
 322 KINNEY V. COMMONWEALTH, [CHAP. VL 
 
 the rites and ceremonies proper or indispensable for its due celebration, 
 are to be governed by the laws of the place of the contract or of cele- 
 bration, the essentials of the contract depend upon the lex domicilii^ 
 the law of the country in which the parties are domiciled at the time of 
 the marriage, and in which the matrimonial residence is contemplated. 
 Hence, if the incapacity of the parties is such that no marriage could 
 be solemnized between them . . . and, without changing their domicil, 
 they go into some other country where no such limitation or restriction 
 exists, and there enter into the formal relation with a vieAjyto return 
 and dwell in the country in which such marriage is prohibited by posi- 
 tive law, it is but proper to say that a proper self-respect (of the State 
 or government in prohibiting such a marriage) would seem to require 
 that the attempted evasion would not be allowed to prevail. 
 
 I have thus considered, at length, the authorities, English and 
 American, on this question, because it is one of first impression in 
 this court, and because it is a question which materially affects public 
 morality, social order, and the best interests of both races. The 
 public policy of this State, in preventing the intercommingling of the 
 races by refusing to legitimate marriages between them, has been illus- 
 trated by its legislature for more than a centur\-. Every well-organized 
 society is essentially interested in the existence and harmony and 
 decorum of all its social relations. Marriage, the most elementary and 
 useful of all, must be regulated and controlled by the sovereign power 
 of the State. The purity of public morals, the moral and physical 
 development of both races, and the highest advancement of our 
 cherished Southern civilization, under which two distinct races are to 
 work out and accomplish the destin}- to which the Almighty has as- 
 signed them on this continent — all require that they should be kept 
 distinct and separate, and that connections and alliances so unnatural 
 that God and nature seem to forbid them, should be prohibited b}' 
 positive law, and be subject to no evasion. 
 
 Upon the whole case, I am of opinion that the marriage celebrated 
 in the District of Columbia between Andrew Kinney and Mahala Miller, 
 though lawful there, being positively prohibited and declared void by 
 the statutes of this State, is invalid here, and that said marriage was 
 a mere evasion of the laws of this State, and cannot be pleaded in bar 
 of a criminal prosecution here. 
 
 If the parties desire to maintain the relations of man and wife, they 
 must change their domicil and go to some State or country where the 
 laws recognize the validity of such marriages. 
 
 Upon the whole case, I am of opinion that there is no eiTor in the 
 judgment of the circuit court aflirming tlie judgment of the county 
 court, and that both be affirmed by this court. 
 
 The other judges concurred in the ojiinion of Christian, J. 
 
 Judgment affirmed. * 
 
 1 Arc. S. V. Tntty. 41 Fed. 7.53; Dupre r. Boulard, 10 La. Ann. 411; S. v. 
 Kennedy, 76 N. C. 251. But see Pearson r. Pearson, 51 Cal. 120. — Ed.
 
 SECT. III.] IN KE GKOVE. 323 
 
 SECTION III. 
 
 LEGITIMACY AND ADOPTION. 
 
 In re grove. 
 
 Court of Appeal. 1888. 
 
 [Reported 40 Chancery Division, 216.] 
 
 Further Consideration. This was an action for the administration 
 of the estate of Caroline Emilia Grove, a domiciled Englishwoman, who 
 died on the 29th of October, 1866, at the age of eighty-eight, a lunatic 
 and intestate, and possessed of considerable personal estate. 
 
 In October, 1867, as no next of kin appeared to claim her estate, 
 letters of administration were granted to the Solicitor to the Treasury ; 
 and the Treasury shortly afterwards took possession of the estate. 
 
 Two sets of persons subsequent!}' set up conflicting claims to the 
 estate as next of kin of the intestate, i. e. the Vaucher family and the 
 Falquet famih', and this action was brought by a member of the former 
 family in 1884. 
 
 In the course of the proceedings an inquir}' was directed as to who 
 were the next of kin of the intestate, and evidence was gone into from 
 which it appeared that both the Vaucher family and the Falquet family 
 claimed through the same man. Marc Thomegay, and the same woman, 
 Martha Powis, under the following circumstances : — 
 
 Marc Thomegay, who was the grandfather of the intestate, was 
 born in Geneva of Swiss parents, in the year 1712, and there was no 
 question that his domicil of origin was Genevese. On the 13th of 
 August, 1728, he was received as a burgess of Geneva. In 1729, his 
 father, who was a watchmaker, died in Geneva. Marc Thomegay was 
 a worker in gold and silver, and in 1734, being then twenty-two years 
 of age, he came to England, where he remained until his death in 1779. 
 In the year 1743 a private Act of Parliament was passed, whereby 
 Peter Thomegay, the brother of Marc Thomegay, and four other 
 foreigners were naturalized as subjects of Great Britian, but this act 
 did not include and made no mention of Marc Thomega}-. 
 
 Some time after the arrival of Marc Thomegay in England, he 
 formed a connection with an Englishwoman named Martha Powis ; he
 
 324 IN HE (JUOVE. [chap. VI. 
 
 cohabited with her, for several years, and had h}- her three illegitimate 
 children, viz., Sarah, who was born on the 5th of February-, 1744, and 
 was baptized on the 24th of the same month by the name of Sarah 
 Thomegay, in the church of St. Mar}-, Whitechapel, where he presented 
 her under his own name and as his daughter; a son, who was born on 
 the lltli of January, 1745, and was baptized on the 16th of February 
 following, in the same church ; and another daughter, who was born 
 on the 14th of November, 1747, and was baptized on the 13th of 
 December following, in the parish church of Barking in Essex. These 
 two children were also baptized under their father's name, and as his 
 children. 
 
 Sarah Thomegay, on the 19th of December, 1768, married M. Delom, 
 a citizen of Vevey, and she was the ancestress of the Vaucher family. 
 
 Elizabeth Thomegay married a M. Courbel, a citizen of Geneva. 
 
 On the 22d of May, 1749, Marc Thomegay was married to an 
 Englishwoman named Elizabeth Woodhouse, in the church of St. 
 Pancras ; of this marriage there was issue one child, viz. Margaret 
 Sarah Thomegay, who was born on the 22d of December, 1749, and 
 was baptized on the 13th of January, 1750, in the church of St. Leon- 
 ard's, Shoreditch. Margaret Sarah Thomegay. on the 13th of June, 
 1788, married an Englishman named William Grove, and she died in 
 London in the year 1792, having had issue one child onh', viz. the 
 intestate Caroline Emilia Grove. 
 
 Elizabeth Woodhouse died on the 26th of March, 1752, and on the 
 2d of February-, 1755, Marc Thomegay married Martha Powis, by 
 whom he had formerl}' had the three illegitimate children above 
 mentioned. 
 
 Of this marriage there was issue four children, one of whom died in 
 infancy. The others were Jean, who was born on the 5th of October, 
 1756, and was baptized on the 29th of the same month in the church of 
 Westham, Essex; Richard, who was born on the 11th of February, 
 1762, and was baptized on the 1st of March following, in the church of 
 St. Leonard's, Shoreditch ; and Sophie INIartha, who was born on the 
 12th of November, 1764, and was baptized on the 7th of December 
 following, in the same church. 
 
 Of these three children, Sophie Martha was the only one who left 
 issue, and she in 1791 married Jean Louis Falquet, and was the an- 
 cestress of the Falquet family. 
 
 Martha Thomegay (nee Powis) died in the year 1772. 
 
 In the year 1774 Marc Thomegay presented a petition to the Council 
 of Geneva, apparently in the interest of his three children by Martha 
 Powis before his marriage with her, in which he stated " that in 1734 
 he went to England, where he now is, that one of the first ties he 
 formed was an attachment for Miss Martha Powis, whom' he intended 
 to marry as soon as fortune would allow him to do so; that thwarted 
 b}' circumstances and encouraged by their intention to marry one 
 another as soon as {\u^<v circumstances would pctinit, they j'ielded and
 
 !SECT. m.] IN RE GKOVE. 325 
 
 lived together for several years as husband and wife ; that of this 
 intercourse they had three children." Then after stating the names 
 and dates of the births and baptisms of these children, as above set 
 forth, he stated " that very extraordinary circumstances thwarted the 
 resolution he had formed to marry ]Martha Powis, and induced him to 
 marrv Miss Elizabeth Woodhouse," and stated the death of his wife 
 Elizabeth and his subsequent marriage with Martha Powis. Then the 
 petition stated, inter alia, that the petitioner, having been informed 
 that in Geneva, his native country, subsequent marriage legitimized 
 illegitimate-born children, made application in order to prove, by the 
 certificates there mentioned, the births of his son Marc, and his 
 daughters Sarah and Elizabeth, praying the Council to grant him 
 record of his proofs and declarations, so that no one might question 
 to his above-mentioned three children,, their condition of legitimate 
 children in Geneva, his native country. An order was made by the 
 Council granting record accordingly, and the births of tliese three 
 children were entered in the register of births of children of Genevese 
 parents born in foreign parts. 
 
 The statements contained in this petition were borne out by the 
 certificates attached thereto, and these certificates were put in evidence 
 in this action. 
 
 Marc Thomegay made his will on the 9th of March, 1779, describing 
 himself as of Tottenham, in the county of Middlesex, and died on the 
 2d of December, 1779. From the will it appeared that he was carry- 
 ing on business in partnership with his son, and was entitled to a 
 leasehold house, workshops, and premises in Moorfields, within the 
 parish of St. Leonard's, Slioreditch. It did not appear when this lease 
 was granted, but in the baptismal certificates of 1744 and 1745 the 
 parents were described as of Ayliffe Street, and Moorfields was not 
 mentioned in any certificate until the year 1750. 
 
 There was evidence that according to the laws of the canton of 
 Geneva illegitimate children are legitimated by the subsequent marriage 
 of their father and mother, notwiihstanding the intervening marriage 
 of their father with another woman. 
 
 The Chief Clerk, by his certificate made in this action, in substance 
 left to the court the question whether under these circumstances Sarah 
 Delom and the other two children born of Marc Thomegay and Martha 
 Powis during their cohabition were to be taken as legitimate or not ; 
 and found that if Sarah Delom ought to be treated as legitimate, tlien 
 the next of kin of the intestate were the descendants of the said Sarah 
 Delom, who were represented by the plaintiff, and that if not, such 
 next of kin was the Falquet famih'. 
 
 The further consideration came on for hearing before Mr. Justice 
 Stirling on the 20th of July, 1887.^ 
 
 The plaintiff appealed [from the judgment of Stirlixg, J]. 
 
 1 The arffumeuts and the decision of Mr. Justice Stirlixg are omitted. —Ed.
 
 326 IN RE GROVE. [CHAP. VI. 
 
 Frt, L. J.^ I agree entirely with the conclusion arrived at by the 
 Lord Justice, and I am glad to say that I also agree in the law which 
 he has laid down, but the facts of the case influence my mind some- 
 what differently, and I pick my way through those facts to the same 
 conclusion by a somewhat different course. I will, therefore, en- 
 deavor to state, as briefly as I can, the view I take of this case. 
 
 The appellant claims through Sarah Thomegay, who was born in 
 1741, in this country, and was an illegitimate child of Marc Thomegay 
 and Martha Powis. At birth that child took the domicil of its mother 
 and it took the status of illegitimacy, according to the law of the domicil 
 of its mother, and it took also the capacity to change that status of 
 illegitimacy for one of legitimacy, provided that according to the law 
 of the domicil of the father, the subsequent marriage would work 
 legitimation. The position of such a child, therefore, is curious, taking 
 domicil and status from the mother, but taking the potentiality of 
 changing its status from the putative father. That I take to be the 
 law applicable to this case, and that gives rise to the first question, 
 what was the domicil of the father in the year 1744? 
 
 It must be taken that the domicil of the father was Genevese at the 
 date of the birth of Sarah in 1744. If his domicil were English, there 
 would be an end of the case ; if the domicil were Genevese, as I hold, 
 then arises the second question, which is this : What was his domicil 
 at the date of the subsequent marriage of the parents in 1755? It 
 appears to me that the domicil governs the effects of the marriage. 
 That I take to be the general law, and it is so laid down by Mr. Justice 
 Story, in the 189th paragraph of his work on Conflict of Laws: " In 
 a general sense the law of the matrimonial domicil is to govern in 
 relation to the incidents and effects of marriage." If, therefore, the 
 subsequent marriage was governed by the English domicil it would 
 seem to follow that no legitimation can take effect. If. on the con- 
 trary, the subsequent marriage is governed by Genevese domicil, it 
 would seem that subsequent legitimation does take effect. It may be, 
 though on this point no evidence has been adduced, that the Genevese 
 law would recognize an P:nglish marriage as legitimating the previously 
 born issue. Whether that be so or not I do not know, but even if it 
 be, ray conclusion is, that we should not follow the Genevese law, if it 
 gave a greater effect to a marriage contract in England when the 
 parents have an English domicil, than the English law gave to it; and 
 for this reason, that the State imposes on all persons domiciled in it, 
 its own conclusions as to the effect of marriage. Here again I would 
 refer to the same paragraph in Mr. Justice Story's Conflict of Laws, 
 where, citing the judgment of Lord Rol)ertson. a Scotch judge, he 
 says: "Marriage is a contract sui generis: and the rights, duties, 
 and obligations which arise out of it are matters of such importance to 
 
 1 Concurring opinions of Cotton ami Loi-kr, L.J.I., are omitted. They differed 
 from FitY, L. J., in holilinij that 'rh<»nio<:!;ay was doiniciled in England af the birth of 
 Sarah. Part of the opinion of Fky, L. J., is omitted. — Ei>.
 
 SECT, m.] SCOTT V. KEY. 327 
 
 the well-being of the State, that they are regulated not by the private 
 contract, but by the public laws of the State, which are imperative on 
 all who are domiciled within its territory." I would remark again, that 
 I entirely agree with what has been said by Lord Justice Cotton, with 
 regard to the effect of the cases of Munro v. Munro, 7 CI. & F. 842, 
 and Udny v. Udny, Law Rep. 1 H. L. Sc. 441, on this question of law, 
 and I think that they very strongly support the conclusion which I 
 have endeavored to express. 
 
 Now, that being so, we come back to the question of fact, where was 
 Marc Thomegay domiciled in 1755 when he contracted marriage with 
 Martha Powis ? In my judgment his domicil was English. . . . and 
 that consequently the English law of marriage must govern the effects 
 of the marriage then contracted, and that EngUsh law would not allow 
 subsequent legitimation. I come, therefore, to the same conclusion, 
 though by a somewhat different course, as that of my learned brother. 
 
 Appeal dismissed with costs.^ 
 
 SCOTT V. KEY. 
 
 SiTPREME Court of Louisiana. 1856. 
 
 [Reported 11 Louisiana Annual, 232.] 
 
 Buchanan, J.^ This cause has already been before this court, and 
 was remanded to make proper parties defendant. See 9 La. Ann. 213. 
 
 Plaintiffs are the surviving brother and sisters of Samuel Estill, 
 deceased, and the children of a deceased brother of said Samuel. They 
 claim to be heirs at law of Samuel Estill. The defendants are the 
 curator, and the half-brothers and sisters, heirs of one William Estill, 
 who was a natural son of Samuel Estill, but legitimated by a statute of 
 the State (then territory) of Arkansas, of which Samuel and William 
 Estill were at the time residents, passed October 27th, 1835, and en- 
 titled "an act to legitimatize the son of Samuel Estill." For a copy of 
 the said statute in full, see the report of this case in 9th La. Annual. 
 
 The question now presented for our decision is, whether the statute 
 in question had an extraterritorial effect, and enabled William Estill 
 to inherit, as the legitimate son of Samuel Estill, the property left by 
 the latter in Louisiana. The solution of this question appertains to a 
 distinction (which has been recognized b}' various decisions of the Su- 
 preme Court of Louisiana) of statutes real and statutes personal. The 
 leading case on this subject is Saul r. His Creditors, 5 Mart. n. s., in 
 which it was decided, that the general law of Virginia, which renders 
 
 1 Ace. Munro v. Monro, 1 Robt. H. L. 492 ; Smith v. Kelly, 23 Miss. 167; MiUel 
 r. Miller, 91 N. Y. 315 ; Dayton v. Adkissou, 45 N. J. Eq. 603, 17 Atl. 964. —Ed. 
 2 The statement of facts, arguments, and dissenting opinion are omitted. — Ed.
 
 328 SCOTT V. KEY. [CHAP. VI, 
 
 propert}' acquired during marriage the propcrt}- of the husband, is a 
 real statute, which did not follow a couple, who had contracted mar- 
 riage iu Virginia, into the State of Louisiana, where they resided many 
 years, and where the wife died ; but that property acquired in Louisiana 
 after their removal thither, entered into the matrimonial partnership of 
 our law, and on the dissolution of the marriage, belonged one-half to the 
 wife's heirs. And in the case of Banna v. Al[)uente, 6 Mart. n. s. (llie 
 same judge, Porter, who had, in the case of Saul, reviewed all the au- 
 thorities, being the organ of the court), it was decided that the laws of 
 domicil of origin govern the state and condition into whatever country 
 the party removes ; in other words, that such laws are personal statutes. 
 And those two decisions are in harmony witli the definition b\- Chief 
 Justice Eustis, of the real and personal statute, in the case of tlie 
 Augusta Lisurance Company v. Morton, in 3 La. Ann. 426: '-Those 
 laws are real," says the learned judge, "in contradistinction to per- 
 sonal statutes which regulate directly property, without reference to the 
 condition or capacity of its possessor."' There are some expressions of 
 Judge Strawbridge, in the case of Brosnahan r. Turner, 16 La. 439, 
 which are relied upon b}- plaintiffs' counsel, and which are scarce!}' 
 consistent with this definition. But the decision in Brosnahan v. Tur- 
 ner turned upon a totally different point, the validity of a sheriff's sale. 
 The remarks in Brosnahan v. Turner, as to the incapacity of the testa- 
 mentary heirs of Villarude to inherit in Louisiana, under a will 
 probated under the authority of a statute of Florida, are at best 
 but obiter dicta, and besides refer to a very different state of facts 
 from that presented in this case. Here, an infant, or minor, son of a 
 resident of Arkansas, born out of wedlock, was, by an act of the legis- 
 lature of the country of his domicil, legitimated, or put upon the same 
 footing as if his parents had been married at the time of his birth. 
 
 It is admitted of record, that William Estill, then a small child, Octo- 
 ber 27, 1835, resided with his natural father, Samuel Estill, in Ar- 
 kansas, who was then a citizen of Arkansas, and resided in Arkansas, 
 and that both of them resided therein for several years before 1835, 
 and also continued to reside in Arkansas until some time between 
 1837 and 1841." Arkansas was then the bona fide domicil of the 
 Estills. at the time of the passage of the act of the legislature in 
 question. William was, by law, tlie legitimate son of Samuel in Arkan- 
 sas. Can it be said that he lost his status by crossing the State line 
 into the frontier parish of Carroll, some years afterwards? We think 
 not. The heritable quality of legitimacy which he had received from 
 the legislature of the State of his residence accompanied him wlicn 
 he changed his domicil. 
 
 The error of the judgment appealed from consists in regarding 
 William Instill as illegitimate, at the time of his father's death. But he 
 was not so. The original taint of illegitimacy had boon removed by 
 the act of tlie legislature. Legitimacy and illegitimacy are the re- 
 sult of positive laws, which differ very materially in different countries.
 
 SECT. III.] SCOTT V. KEY. 329 
 
 To illustrate this idea, suppose William Estill had been born in Louisi- 
 ana, and that after his birth his father and mother had got married in 
 Louisiana, and subsequently to their marriage removed with their child 
 to Arkansas. Their marriage after his birth would have legitimated 
 tlieir oftsprino- by the law of their domicil ; yet by the law of Arkansas 
 a subsequent marriage would have not produced that effect. Neverthe- 
 less, the status of legitimacy being acquired in Louisiana would have 
 accompanied him into Arkansas. There are many precedents, in the 
 legislation of various States of tliis Union, of legitimation by act of the 
 legislature, and particularly in Louisiana. This seems identical with 
 the legitimation per rescriiJtum priiicipis of the Roman law. 
 
 Voet, Commentarius ad Pandectas, lib. 25, tit. 7, §§ 4 and 13. 
 
 If it is true that a general law of the place of domicil, changing the 
 status of its citizens according to circumstances, is a personal statute, 
 accompanying tlie party to every other country, provided the circum- 
 stances which operate such change have occurred before the change of 
 domicil, which we consider to be the doctrine settled in Louisiana, a 
 fortiori, is a special law, removing a disability from a particular citizen 
 by name, such a statute? The constitutional power of the legislature 
 to enact such exceptional enabling statutes was drawn directly in ques- 
 tion, and ruled affirmatively, in the case of Pritchard v. Citizens Bank, 
 8 La. 133. The maxim cited by Story, Conflict of Laws, § .51, from 
 BouUenois, '" Habilis vel inhabilis in loco domicilii, est habilis vel inha- 
 bilis in omni loco," must therefore be deemed law in Louisiana. 
 
 And is it not correct to sa}', that the statute of Arkansas, to legiti- 
 mate WilUam Estill (which is a personal statute), conflicted with tiie 
 statute of distributions of Louisiana (which is a real statute) ; and con- 
 sequently, as was held in Saul's case, is overruled by the latter statute ? 
 By the Louisiana statute of distributions, the legitimate son inherits in 
 preference to the brothers and sisters of the deceased. By the effect 
 of the statute of Arkansas, William Estill was the legitimate sou of 
 Samuel Estill. Upon the demise of Samuel Estill in Louisiana, in 
 1849, fourteen years after that statute, William Estill, as his legitimate 
 son, was his heir, b}' the law of Louisiana. 
 
 In confirmation of this view of the subject, we may quote the lan- 
 guage of the High Court of Errors and Appeals of Mississippi, in the 
 case of Smith v. Kelly, 23 Miss. Rep., 170: "It is a well settled 
 principle, that the status or condition, as to the legitimacy, must be 
 determined by reference to the law of the country where such status or 
 condition had its origin." 
 
 Judgment of the District Court reversed ; and judgment for defend- 
 ants, with costs in both cases. 
 
 Spofford, J. It was competent for the legislature of Arkansas, the 
 domicil of its origin, to fix the status of William Estill. 
 
 In substance and effect, that legislature gave him the status of a 
 legitimate son of Samuel Estill. 
 
 The Arkansas statute, legitimating AVilliam Estill, was a personal 
 statute.
 
 330 BARNUM V. BAENUM. [CIIAP. VI. 
 
 Therefore, the status of a legitimate son of Samuel Estill would ac- 
 company William Estill into whatever country he might go. 
 
 He came hither with the status. He inherited, by our law, from his 
 father, Samuel Estill, because he was to all intents and purposes a 
 legitimate son, having become so by the law of the domicil of his 
 origin, and not in fraud of our law, nor in violation of its policy. 
 
 I, therefore, concur in the opinion and judgment of Mr. Justice 
 Bdchanan. 
 
 Meerick, C. J., dissenting. 
 
 BARNUM V. BARNUM. 
 Court of Appeals of Maryland. 1875. 
 
 [Reported 42 Maryland, 251.] 
 
 This was a bill for the distribution of the property of David Barnum. 
 John R. Barnuni claimed a distributive sliare as grandson of David and 
 son of Richard Barnum. John R. Barnum was born in Arkansas, 
 while his father was domiciled there ; the court, however, decided, that 
 his parents were not married, and that he was illegitimate. He having 
 died during the progress of the suit, his representative appealed. ^ 
 
 Alvey, J. It is contended that notwithstanding there may have been 
 no marriage between Dr. Barnum and Caroline Butler, yet by the opera- 
 tion of the act of the legislature of Arkansas, before referred to, John 
 R. Barnum was rendered legitimate, as if a valid marriage had taken 
 place, and was therefore capable of taking whatever right that would 
 or could devolve on any legitimate child of his father ; that the act was 
 retroactive, and related back to the time of the birth of the child de- 
 clared to be heir. 
 
 In this, however, we do not agree with the counsel of the claimants. 
 As we have seen, the act makes no reference to any marriage, and in 
 no sense could operate to confirm any defective or imperfect marriage. 
 Its operation does not even depend upon the fact that John R. Barnum 
 was the child of Richard Barnum. It simply, by force of the law itself^ 
 and not of the circumstances of birth or relationship, gave to John R. 
 Barnum a personal status, with capacity to inherit from Richard Bar- 
 num as. heir. This act could have no extraterritorial operation what- 
 ever^ except as to any rights that may have been acquired under it, in 
 the State of Arkansas. ^As to such rights they would be respected 
 everywhere. Sto. Confl. L., § § 101, 102. But as to capacity to 
 acquire property beyond the State passing the act, by virtue of the 
 particular status given the party, that the legislature could not confer. 
 Even if the act had professed to legitimate John R. Barnum, without 
 
 1 This short statemeut is substituted for that of tho reportpr. Only so mucli of the 
 opinion as discusses the legitimacy of John R. Barnum is given. — Ed.
 
 SECT. III.] BOSS V. EOSS. 331 
 
 reference to previous marriage, it could have no operation liere, and no 
 rio-hts involved in this case could be affected by it. This would seem 
 to be clear both on reason and authority. 5 Com. Dig. Parliament 
 (K), p. 301 ; Birtwhistle v. Vardill, 5 B. & Cr., 438 ; Houlditch v. Mar- 
 quess of Donegall, 2 Clark & Finn., 476 ; Smith v. Derr's Adm 'rs, 34 
 Penn. St., 126 ; Sto. Confl. L., §§ 87, 87 a. 
 
 The claim, therefore made in the right of John K. Barnum, must be 
 rejected.^ 
 
 ROSS V. ROSS. 
 
 Supreme Judicial Court of Massachusetts. 1880. 
 
 [Reported 129 Massachusetts, 243.] 
 
 Gray, C. J.^ This case presents for adjudication the question which 
 it was attempted to raise in Ross v. Ross, 123 Mass. 212, namely, 
 whether a child adopted, with the sanction of a judicial decree, and 
 with the consent of his father, by another person, in a State where the 
 parties at the time have their domicil, under statutes substantially 
 similar to our own, and which, like ours, give a child so adopted the 
 same rights of succession and inheritance as legitimate offspring in the 
 estate of the person adopting him, is entitled, after the adopting parent 
 and the adopted child have removed their domicil into this Common- 
 wealth, to inherit the real estate of such parent in this Commonwealth 
 upon his dying here intestate. 
 
 The question how far a child, adopted according to law in the State 
 of the domicil, can inherit lands in another State, was mentioned by 
 Lord Brougham in Doe v. Vardill, 7 CI. & Fin, 895, 898, and by Chief 
 Justice Lowrie in Smith v. Derr, 34 Penn. St. 12G, 128, but, so far as 
 we are informed, has never been adjudged. It must therefore be de- 
 termined upon a consideration of general principles of jurisprudence, 
 and of the judicial application of those principles in analogous cases. 
 
 As a general rule, when no rights of creditors intervene, the succes- 
 sion and disposition of personal property are regulated b}' the law of 
 the owner's domicil. It is often said, as in Cutter v. Davenport, 1 
 Pick. 81, 86, cited by the tenent, to be a settled principle, that "the 
 title to and the disposition of real estate must be exclusively regulated 
 b}' the law of the place in which it is situated." But so general a 
 statement, without explanation, is liable to mislead. The question in 
 that case was of the validity of an assignment of a mortgage of real 
 estate ; and there is no doubt that by our law the validity, as well as 
 the form, of an}- instrument of transfer of real estate, whether a deed 
 or a will, is to be determined by the lex rei sitce. Goddard v. Sawyer, 
 
 1 Ace. Lingen v. Lingen, 45 Ala. 410. — Ed. 
 
 2 Part of the opiniou only is given. — Ed.
 
 332 BOSS V. EOBs. [chap. VI. 
 
 9 Allen, 78 ; Sedgwick v. Lafliu, 10 Allen, 430, 433 ; United States 
 V. Crosby, 7 Cranch, 115; Clark v. Graham, 6 Wheat. 577; Kerr v. 
 Moon, 9 Wheat. oQb ; McCormick v. 8ullivant, 10 Wheat. 192. 
 
 It is a general principle, tha t the status or condition of a person 
 the relation in w hich he stands to another perso n^,_and b\' which he Ts 
 quahiied or made capable to take certain rights in that otiier's ijroi)ertv 
 is fixed by the law oX _thejiojBM;i I ; and rliaftlilslstoiivs aiii^ipaclty~are 
 _to_be recognized and upheld in every ot her State^so_ far as they are no t 
 inconsisten t with its ow n laws and policy . Subject to this limitation, 
 upon the death of anyman, the status of those who claim succession or 
 inheritance in his estate is to be ascertained by the law under which that 
 status was acquired ; his personal property is indeed to be distributed 
 according to the law of his domicil at the time of his death, and his real 
 estate descends according to the law of the place in which it is situated ; 
 but, in either case, it is according to those provisions of that law which 
 regulate the succession or the inheritance of persons having such a 
 status. 
 
 The capacity or qualification to inherit or succeed to propert}', which 
 is an incident of the status or condition, requiring no action to give it 
 effect, is to be distinguished from the capacity or competency to enter 
 into contracts that confer rights upon others. A capacit}' to take and 
 have differs from a capacity to do and contract ; in short, a capacity' of 
 holding from a capacity to act. Generally speaking, the validitj- of a 
 personal contract, even as regards the capacity of the party to make it, 
 as in the case of a married woman or an infant, is to be determined by 
 the law of the State in which it is made. Milliken v. Pratt, 125 Mass. 
 374, and authorities cited. "^ 
 
 The legal adoption by one person of the offspring of another, giving 
 him the status of a child and heir of the parent by adoption, was un- 
 known to the law of P^ngland or of Scotland, but was recognized b}- the 
 Roman law, and exists in many countries on the continent of Europe 
 which derive their jurisprudence from that law. Co. Lit. 7 b, 237 b ; 4 
 Phillimore, § 531 ; Mackenzie's Roman Law, 120-124 ; Whart. Confl. 
 § 251. It was long ago introduced, from the law of France or of Spain, 
 into Louisiana and Texas, and more recently, at various times and by 
 different statutes, throughout New England, and in New York, New 
 Jersey, Pennsylvania, and a large proportion of the other States of the 
 Union. Fuselier v. Masse, 4 La. 423 ; Vidal v. Commagere, 13 La. 
 Ann. 516 ; Teal v. Sevier, 26 Tex. 516 ; Miss. St. 1846 ; Hutch. Miss. 
 Code, 501 ; Alabama Code of 1852, § 2011 ; N. Y. St. 1873, e. 830; 
 
 ^ The court, in omitted portions of the opinion, cited and discussed at length the 
 following cases, among others: Doe v. Vardill, 2 CI. & F. 571 ; Shedden v Tatrick, 5 
 Paton, 194, 1 Macq. Mb ; Stratbmore Peerage, 6 Paton, 645 ; Kose v. Ross, 4 Wils. & Sh. 
 289 ; Don's Estate, 4 Drewry, 194 ; Skottowe v. Young, L. R. 11 Ya{. 474 ; Loring i-. 
 Thorndike, 5 All. 257 ; Smith v. Kelly, 23 Miss. 167; Scott v. Key, 11 La. Ann. 232 : 
 Barnnm i;. Ranium, 42 Md. 251 ; Smith v. Derr, 34 Pa. St. 126 ; Harvey v. Ball, 32 
 Ind. 98; Lingen r. Lingen, 45 Ala. 410; Com. v. Nancrede, 32 Pa. St. 389 ; Shafer v. 
 Enea, 54 Pa. St. 304. — Ed.
 
 SECT. III.] ROSS V. ROSS. 333 
 
 N. J. Rev. Sts. of 1877, § 1345 ; Penn St. 1855, e. 456 ; Purd. Dig. 61 ; 
 1 Southern Law Rev. (N. S.) 70, 79 and note, citing statutes of other 
 States. One of the first, if not the very first, of tlie States whose juris- 
 prudence is based exclusively on the common law, to introduce it, was 
 Massachusetts. . . . 
 
 The statute of Pennsylvania of 1855, which is made part of the case 
 stated, and under which the demandant was adopted by the intestate in 
 1871, while both were domiciled in that State, corresponds to these 
 statutes of this Commonwealth in most respects. Like them, it per- 
 mits any inhabitant of the State to petition for leave to adopt a child ; it 
 requires the petition to be presented to a court in the county where the 
 petitioner resides ; it requires the consent of the parents or surviving par- 
 ent of the child ; it authorizes the court, upon being satisfied that it is fit 
 and proper that such adoption should take effect, to decree that the 
 child shall assume the name, and have all the rights and duties of a 
 child and heir, of the adopting parent ; and it makes the record of that 
 decree evidence of that fact. 
 
 JThe statuj^e^f^misyjvania differs from our own only in not requir- 
 ing the^onaent-of-the-pfetitioner's wife, and of the child if more than 
 fourteen yearsof_a ge ; i n omitting the words "as if born in lawful 
 wedlock ^''Tn defining the effect of the adoption ; in also omitting any 
 exception to the adopted child's capacity of inheriting from the adopt- 
 ing parent ; and in expressly providing that, if the adopting parent has 
 other children, the adopted child shall share the inheritance with them 
 in case of intestacy, and he and they shall inherit through each other 
 as if all had been lawful children of the same parent. . . . 
 
 The lq,w of the domicil_ of_th e par ti es_is^ generally the rule which 
 governs_tlie .faieatjoji-Qf-thiL^tatu s of a c hild b^' adoption. Foster v. 
 Waterman, 124 Mass. 592 ; 4 Phillimore, § SSTT WTiart. Confl. § 251. 
 The status of the demandant, as adopted child of the intestate, in the 
 State in which both were domiciled at the time of the adoption, was 
 acquired in substantially the same manner, and was precisely the same 
 so far as concerned his relation to, and his capacity to inherit the estate 
 of, the adopting father, as that which he might have acquired in this 
 Commonwealth had the parties been then domiciled here. In this \\^ 
 respect, there is no conflict between the laws of the two Common- 
 wealths. The difference between them in regard to the consent of the 
 wife of the adopting father, and to the inheritance of estates limited to 
 heirs of the bod}', or inheritance from the kindred, or through the 
 children, of such father, are not material to this case, in which the only 
 Question is whether the adopted child or a brother of the adopting 
 father has the better title to land in the absolute ownership of such 
 father at the time of his death. \ Whatever effect the want of formal 
 consent, on the part of the wife of the intestate, to the adoption of the 
 demandant, might have, if she were claiming any interest in her hus- 
 band's estate, it can have no bearing upon this controversy between the 
 adopted child and a collateral heir.
 
 334 Koss V. ROSS. [chap. yi. 
 
 The tenant in his argument laid much stress on the words of the stat- 
 ute of descents and of the statutes of adoption of this Commonwealth. 
 
 The statute of descents which was in force at the time of the death 
 of the intestate in 1873 enacts that when a person dies intestate, seised 
 of any real estate, it shall descend, subject to his debts, and saving 
 rights of homestead, " in the manner following : First. In equal shares 
 to his children, and to the issue of an}- deceased child by right of rep- 
 resentation ; and if there is no child of the intestate living at his 
 death, then to all his other lineal descendants," etc. "Second. If he 
 leaves no issue, then to his father. Third. If he leaves no issue nor 
 father, then in equal shares to his mother, brothers, and sisters," etc. 
 "Eighth. If the intestate leaves a widow and no kindred, his estate 
 shall descend to his widow ; and if the intestate is a married woman 
 and leaves no kindred, her estate shall descend to her husband. Ninth. 
 If the intestate leaves no kindred, and no widow or husband, his or her 
 estate shall escheat to the Commonwealth." Gen. Sts. c. 91, § 1. See 
 also St. 1876, c. 220. 
 
 But this section must be understood as merely laying down general 
 rules of inheritance, and not as completely and accurately defining how 
 the status is to be created which gives the capacity to inherit. It does 
 not undertake to prescribe who shall be considered a child, or a widow, 
 or a husband, or what is necessary to constitute the legal relation of 
 husband and wife, or of parent and child. Those requisites must be 
 sought elsewhere. The words "children" and "child," for instance, 
 in the first clause, " issue," in the phrase "if he leaves no issue," in 
 subsequent clauses, and "kindred," in the last two clauses of this 
 section, clearly include a child made legitimate by the marriage of its 
 parents and acknowledgment by the father after its birth under § 4 of 
 the same chapter, or a child adopted under the provisions of c. 110 of 
 the General Statutes, or c. 310 of the Statutes of 1871. 
 
 These statutes, after providing how a child may' be adopted in this 
 Commonwealth with the sanction of a decree of the Probate Court in 
 the county in which the adopting parent resides (or, under the St. of 
 1871, in the county where the child resides if the adopting parent is 
 not an inhabitant of this Commonwealth), enact that a child "so 
 adopted " shall be deemed, for the purpose of inheritance, and other 
 legal consequences of the natural relation of parent and child, to be 
 the child of the parent by adoption. St. 1851, c. 324, § 6 ; Gen. Sts. c. 
 110, § 7; St. 1871, c. 310, § 8. It is argued that the words "so 
 adopted " imply that children otherwise adopted are incapable of in- 
 heriting lands in this Commonwealth. But it appears to us that these 
 words, in the connection in which they stand, warrant no such implica- 
 tion ; and that the legislature, throughout these statutes, had solely in 
 view adoption by or of inhabitants of tliis Commonwealth, ^and did not 
 intend either to regulate the manner, or to define the effects, of adop- 
 tion by and of inhabitants of other States according to the law of their 
 douiicil. y
 
 SECT. III.] ELYTHE V. AYKES. 335 
 
 "We are not aware of any case, in England or America, in which a 
 chant^e of status in the country of the domicil, with the fornuilities 
 prescribed lay its laws, has not been allowed full effect, as to the capac- 
 ity thereby created of succeeding to and inheriting property, real as 
 well as personal, in any other country the laws of which allow a like 
 chano-e of status in a like manner with a like effect under like circum- 
 stances. 
 
 "We are therefore of opinion that the legal status of child of the intes- 
 tate, once acquired by the demandant under a statute and by a judicial 
 decree of the State of Pennsylvania, while the parties were domiciled 
 there, continued after their removal into this Commonwealth, and that 
 by virtue thereof the demandant is entitled to maintain this action. 
 
 It is worthy of mention (although it cannot of course affect the rights 
 of inheritance which had absolutely vested on the death of the intes- 
 tate ; Tirrel v. Bacon, 3 Fed. Rep. 62) that by a recent statute of this 
 Commonwealth " any inhabitant of any other State, adopted as a child 
 in accordance with the laws thereof, shall, upon proof of such fact, be 
 entitled in this Commonwealth to the same rights, as regards succes- 
 sion to property, as he would have enjoyed in the State where such 
 act of adoption was executed, except in so far as they conflict with the 
 provisions of this act." St. 1876, c. 213, § 11. 
 
 Judgment /or the demandant.^ 
 
 BLYTHE V. AYRES. 
 SuPREMK Court of California. 1892. 
 
 [Reported 96 California, 532.] 
 
 GARorTTE, J.^ This is an action instituted under section 1664 of 
 
 the Code of Civil Procedure by the plaintiff, a_ mi nor, through ji^er 
 
 guardian, to determine the heirship and title to the estate of Thomas H. 
 BlytHeTdeceased. . . . Plaintiffs claim is based upon sections 230 and 
 1387, respectively, of the Civil Code of California. Section 230 reads 
 as follows : " The father of an illegitimate child, by publicly acknowl- 
 edging it as his own, receiving it as such, with the consent of his wife, 
 if he is married, into his family, and otherwise treating it as if it were 
 a legitimate child, thereby adopts it as such ; and such child is there- 
 upon deemed for all purposes legitimate from the time of its birth. 
 The foregoing provisions of this chapter do not apply to such an 
 adoption." Section 1387, as far as it pertains to the matters involved 
 in this Htigation, provides : " Every illegitimate child is an heir of the 
 
 1 Ace. Van Matre v. Sankey, 148 HI. 536, 36 N. E. 628 ; Gray v. Holmes. 57 Kan. 
 217, 45 Pac. 596 ; Melvin v. Martin, 18 R. I. 650, 30 Atl. 467. And see Estate of Sun- 
 derland, 60 la. 732, 13 N. "W. 655. — Ed. 
 
 2 Part of the opinion is omitted. — Jl.z.
 
 336 BLYTHE V. AYEES, [CHAP. VI, 
 
 person who, in writing, signed in the presence of a competent witness, 
 acknowledges himself to be the father of such child." . . . 
 
 The facts found by the court which face us while we are engaged in 
 a consideration of the first branch of this subject ma}' be succinctly and 
 substantially stated as follows : (1) That plaintiff was born in England, 
 upon December 18, 1873, and was the issue of Thomas H. Blythe and 
 Julia Perry; (2) that Julia Perry was a native of England, domiciled 
 therein, and continued to there reside until one month after the death 
 of said Blythe ; (3) that plaintiff remained in England until after the 
 death of Blythe, when she came to California, and said Blythe was 
 never at any time within any of the countries of Europe after the 29th 
 da}: of August, 1873 ; (4) that said Blythe was a citizen of the United 
 Slates' aiid of the State of California, domiciled in said State, and died 
 intestate therein April 4. 1883, leaving surviving him no wife, no father, 
 no mother, and no child, save and except said Florence Blythe, the 
 plaintiff herein ; (5) that said Thomas H. Blythe and said Julia Perry 
 never were married, ancLsaid plaintiff was begotten while sa]d Jilythe 
 was temporarily sojourning in England, and was born after said Blythe's 
 return to California, and that said Blythe never was married. 
 
 Before passing to the merits of the discussion, we pause a moment to 
 say that the verb '^ adopts," as used in section 230, is used in the sense 
 of "legitimates," and that the acts of the father of an illegitimate child, 
 if filling the measure required by that statute, would result, strictly 
 speaking, in the legitimation of such child, rather than in its adoption. 
 Adoption, properly considered, refers to persons who are strangers in 
 blood ; legitimation, to persons where the blood relation exists. (See 
 law dictionaries, — Bouvier's, Black's, Anderson's, and Rapalje's.) 
 This is the distinguishing feature between adoption and legitimation, as 
 recognized by all the standard law writers of the day who have written 
 upon the subject ; and, for the reason that the text writers and the 
 decisions of courts to which we shall look for light and counsel treat the 
 subject as a question of legitimation, we shall view the matter from that 
 stand})oint. 
 
 The section is broad in its terms. It contains no limitations or con- 
 ditions, and, to the extent of the power vested in the legislature of the 
 State, applies to all illegitimates, wherever located, and wherever born. 
 The legislature has not seen fit to make any exception to its operation, 
 and, as was said by Taney, C. J., in Brewer v. Blougher, 14 Pet. 178, 
 when considering a quite similar provision of a statute: '• In the case 
 before us the words are general, and include all persons who come 
 within the description of illegitimate childnMi ; . . . and when the 
 legislature speaks in general terms of children of that description, with- 
 out making any exceptions, we are bound to sui)pose they design to 
 include tlie wliolc class." Bar, in his work on International Law ([lage 
 434), says: '• Legitimation of bastards, either by subseijuent marriage 
 or by an act of the government {rescHptinn princi/ns), is nothing but 
 a legal equalization of certain children illegitimately begotten with
 
 SECT. III.l BLYTHE V. AYRES. 
 
 337 
 
 
 
 legitimate cliildren." In otlier words, the object and effect of section 
 230 is to change the status and capacity of an illegitimate child to the ^ 
 status and capacity of a child born in lawful wedlock. . . . 
 
 The contention of appellants that the status of a person residing in a 
 foreign country, and a subject thereof, cannot be changed by acts per- 
 formed in California under a provision of the law of our State legisla- 
 ture, cannot be supported as a rule without many exceptions, and to 
 the extent of those exceptions a State law must be held, by its own 
 courts at least, to have extraterritorial operation ; and this principle of 
 the foreign operation of State laws even goes to the extent that in many 
 instances such laws are recognized and given effect by the courts of 
 that particular foreign jurisdiction. The doctrine of extraterritorial 
 operation of State laws is fully exemplified in the case of Hoyt v. 
 Thompson, 5 N. Y. 340. . . . 
 
 Section 215 of the Civil Code is as follows: "A child born before 
 wedlock becomes legitimate by the subsequent marriage of its parents." ^ u) \,^ \rU^^ 
 This section takes a wide range. Its operation is not confined within 
 State lines. It is as general as language can make it. Oceans furnish 
 no obstru ction to the effect of its wi se_and j3eneficent p royisions T it fs __ , 1,1,^ 
 
 ■manna_tojhebastards^^ iFBlythe, subsequent to the birth oiA^ r^^^ 
 
 oTplaintitt; had retlTrned to England, and married Juha Perry, such 
 marriage, under the provision of law just quoted, ipso facto would have 
 resulted in the legitimation of Florence Blythe. Then, in answer to 
 the interrogatory of appellants already noticed, we say that she was so 
 domiciled that by the laws of California she could have been changed 
 from bastardy to legitimacy. Our statute, conjoined with principles of 
 international law, would have changed her bastardy to legitimacy in the 
 world at large ; and regardless of international law, and regardless of 
 all law of foreign countries, our statute law alone would have made her 
 legitimate in the world at large, whenever and however that question 
 should present itself in the courts of California. And we also have 
 here a most striking illustration of the extraterritorial operation of 
 California law. We have the effect of a statute of this State attaching 
 to a state of facts where the mother and child were never in California, 
 but residing and domiciled in England, and the marriage taking place 
 in England ; and California law, as stated, has the effect upon that 
 child to give it a different domicil, and completel}' change its status. 
 Such would not only be the effect of this law upon the child viewed by 
 California courts, but such would be its effect viewed by the courts of 
 England, where the child was domiciled, and that, too, notwithstanding 
 no provisions of law are there found for the legitimation of bastards. 
 This assumption of Blythe's marriage to Julia Perry, in its facts, forms 
 an exact photograph of the celebrated case of Munro v. Munro, found 
 in 1 Rob. App. 492 ; a case crystallizing the judicial thought of the age 
 upon the subject, and commanding the respect of all writers and judges 
 upon the law of domicil. . . . 
 
 Appellants insist that the domicil of the child irrevocably fixes that 
 child's status. In this case, subsequent to the child's birth, Julia Ferry
 
 338 BLYTHE V. AYEES. [CHAP. VI. 
 
 married a domiciled Englishman ; hence her domicil was permanently 
 established in England, and for that reason the child's domicil, being 
 the mother's domicil, was permanentl}' established there. Under 
 appellants' reasoning this state of facts would forever debar the child 
 from legitimation, for even its presence in California would avail noth- 
 ing as against its English domicil. If such be good law, section 226 
 of the Civil Code, expressh' authorizing the adoption of minors of other 
 States, is bad law, for it is squarely in conflict with those views. . . . 
 
 "We have quoted thus extensively from the authorities upon the sub- 
 ject of domicil as specially bearing upon the question of legitimatio 
 per suhsequens matrimonium for the reason that we are unable to 
 perceive any difference in the general principles of law bearing upon 
 that character of legitimation and in those principles bearing upon 
 other forms of legitimation authorized by the same statute. The only 
 distinction claimed by appellants is that legitimation founded upon 
 subsequent marriage is based upon the fiction of law that a previous 
 consent existed, and the marriage related back to that time. Upon 
 this point it would seem all-sufficient to say that our statute does not 
 recognize such a fiction, and its effective operation in no wise depends 
 upon the assumption of its presence. Times are not what they once 
 were, and we live in an age too practical to build our law upon the 
 unstable foundation of fictions. . . . 
 
 Legitimation is the creature of legislation. Its existence is solely 
 dependent upon the law and policy of each particular sovereignty. The 
 law and policy of this State authorize and encourage it, and there is no 
 principle upon which California law and policy, when invoked in Cali- 
 fornia courts, shall be made to surrender to the antagonistic law and 
 policv of Great Britain. . . . 
 
 Plaintiff was the child of Blytho, who was a domiciled citizen of 
 the State of California. She founds her claim upon the statutes of 
 this State, and is now here invoking the jurisdiction of the courts 
 of this State. It is a question of California law, to be construed in 
 California courts, and we see nothing in our constitution or statutory 
 law, or in international law, to have prevented Blythe from making the 
 plaintiff his daughter in every sense that the word implies. In conclu- 
 sion, wc hold that Blythe, being domiciled in the State of California 
 both at the time of the birth of plaintiff and at the time he performed 
 the acts which it is claimed resulted in the legitimation of i)laintiff, and 
 California law authorizing the legitimation of bastards by the doing of 
 certain acts, it follows that Florence Blythe, the plaintiff, at all times 
 was possessed of a capacity for legitimation under section 230 of the 
 Civil Code of this State.^ 
 
 1 Upon an examination of the evidence, the learned judge decided that Blythe had 
 done all things required bv § 230 to legitimate his daughter. Paterson and Sharp. 
 STEIN, JJ., concurred. McFauland and De Haven. JJ., held that the acts required 
 for legitimation under § 230 had not taken place, but concurred in the result on the 
 gronn'd that plaintiff was heir under § 1387. Beattt, C. J., and Habkison, J., did 
 not ait. — Ed.
 
 SECT. I.l CLARK V. GEAHAM. 339 
 
 CHAPTER YIL 
 
 EIGHTS OF PROPEKTY. 
 
 SECTION I. 
 
 IMMOVABLES. 
 
 CLARK V. GRAHAM. 
 Supreme Court of the United States. 1821. 
 
 [Reported 6 Wheaton, 577.] 
 
 Todd, J. This is an action of ejectment brought in the Circuit Court 
 for the District of Ohio. At the trial, the plaintiff proved a title suffi- 
 cient in law, prima facie, to maintain the action. The controversy 
 turned altogether upon the title set up bv the defendants. That title 
 was as follows : A letter of attorney, purporting to be executed by 
 John Graham, bearing date the 23d of September, 1805, authorizing 
 Nathaniel Massie to sell all his estate, etc., in all his lands in Ohio. 
 This power was executed in the presence of two witnesses in Rich- 
 mond, in Virginia, and was there acknowledged by Graham before a 
 notary public. 
 
 Nathaniel Massie, by a deed dated the 7th day of June, 1810, and 
 executed by him in Ohio, in his own right, as well as attorney to John 
 Graham, convej'ed to one Jacob Smith, under whom the defendants 
 claimed the land in controversy. This deed was executed in presence 
 of one witness onl}-, and was duly acknowledged and recorded in the 
 proper county in Ohio. The deed and letter of attorney so executed 
 and acknowledged, were offered in evidence b^- the defendants, and 
 were rejected by the court, upon the ground that they were not suffi- 
 cient to convey lands according to the laws of Ohio. The defendants 
 also offered in evidence a deed from Jacob Smith and wife, to the said 
 Graham, dated the 7th of March, 1811, duly witnessed, acknowledged, 
 and recorded, conveying a certain tract of land in Ohio, and offered 
 further to prove, that the tract of land so conve3'ed was given in ex- 
 change for and in consideration of the lands conveyed by the deed first 
 mentioned to Smith. This evidence, also, was rejected by the court. 
 A bill of exceptions was taken to these proceedings by the defendants ; 
 and the jury found a verdict for the plaintiff, upon which a judgment
 
 340 CLARK V. GRAHAM. [CHAP. VII. 
 
 was entered for the plaintiff, and the present writ of error is brought 
 bj the defendants to revise that judgment. 
 
 The principal question before this court is, whether the deed so ex- 
 ecuted by Massie was sufficient to conve}' lands by the laws of Ohio. 
 If not, it was properly rejected ; if otherwise, the judgment should be 
 reversed. Two objectLon s have be en taken to the execution of this 
 deed ; first,"that thepowerofattorney was not duIy' ^cKno w ieag5ttr« 6 
 -everyL^eed is reqi nrecrto"be^in O hio in orders jo conyeyjands _; and" if 
 ~~so, th en the s ub^a^P"^ conveyance is void, ^oiMt is ageneral pnnfiipifi^^ 
 "TEatX power toconvey lands must possess the same requisi tes, and ob- 
 serve the same solemnities, asaxejiecessajiyjjiii-deed directJy^convey- 
 "Tfiglhe lands. On this objectionTwhich is apparently well founded, it 
 is unnecessary to dwell, as another objection is fatal ; that is, the deed 
 of Massie was executed in the presence of one witness only, whereas 
 the law of Ohio requires all deeds for laud to be executed in the pres- 
 ence of two witnesses. It is perfectly clear, that no title to lands can 
 hpn£^f]^njred nr p n.ssp di nnless acc ord mg to tue law s" of the State~iH~ 
 which they are situate. The act of Ohio regulating the conveyance of 
 lands, passed on the 14th of February, 1805, provides, "that all deeds 
 for the conveyance of lands, tenements, and hereditaments, situate, 
 lying, and being within this State, shall be signed and sealed b^- the 
 grantor in the presence of two witnesses, who shall subscribe the said 
 deed or conveyance, attesting the acknowledgment of the signing and 
 sealing thereof; and if executed within this State, shall be acknowl- 
 edged by the party or parties, or proven by the subscribing witnesses, 
 before a judge of the Court of Common Pleas, or a justice of the peace 
 in any county in this State." Although there are no negative words 
 in this clause, declaring all deeds for the conve3-ance of lands executed 
 in any other manner to be void ; yet this must be necessarily inferred 
 from the clause in the absence of all words indicating a different legis- 
 lative intent, and in point of fact such is understood to be the uniform 
 construction of the act in the courts of Ohio. The deed, then, in this 
 case, not being executed according to the laws of the State, the evi- 
 dence was properly rejected by the Circuit Court. 
 
 The remaining point, as to the rejection of the evidence of the deed 
 from Smith to Graham, and the proof to show that it was given in ex- 
 change for the land in controversy, has not been much relied on in this 
 court. It is, indeed, too plain for argument, that if a deed im[)crfectly 
 executed would not convey any estate or interest in the hind, a parol 
 exchange, or parol proof of an intention to convey the same in ex- 
 change, cannot be permitted to have any such effect. 
 
 Judgment affir?ned, with costs.
 
 SECT. II.l CAMMELL V. SEWELL. 341 
 
 SECTION II. 
 
 MOVABLES. 
 
 CAMMELL y. SEWELL. 
 
 Exchequer Chamber. 1860. 
 
 [Reported 5 Hurlstone ^ Norman, 728] 
 
 Trover for deals, with a count for money had and received. At the 
 trial a verdict was taken for the plaintiffs, subject to a special case, 
 which was substantially as follows. The plaintiffs were underwriters 
 at Hull ; the defendants merchants in London. The action was brought 
 to recover part of a cargo of deals shipped on board the Prussian ship 
 "Augusta Bertha" at Onega, in Russia, by the Onega Wood Com- 
 panj-, for Messrs. Simpson & Whaplate, of Hull, and b}- them insured 
 with the plaintiffs. The plaintiffs had paid Messrs. Simpson & Wha- 
 plate as for a total loss. 
 
 The " Augusta Bertha " having put into Haroe Roads, in Norway, in 
 consequence of the shifting of her deck cargo, drove from her anchor- 
 age on the rocks at Smaage, about tLz-ee miles from Molde. The cargo 
 was discharged and the vessel abandoned, and the master sold the 
 cargo by auction (against the protest of the representative of the con- 
 signees) to one Hans Clausen, who consigned them to the defendants. 
 The cargo was sold by the defendants for an amount greater than the 
 insurance money paid by the plaintiffs. 
 
 By the law of Norway, the sale by auction passed a good title to the 
 purchaser, even if the master, as between himself and the owners, was 
 acting wrongfully. The representative of the consignees instituted a 
 suit in the Superior Diocesan Court of Trondjhem to set aside the sale ; 
 but the court confirmed the sale. 
 
 The Court of Exchequer ordered the verdict for the plaintiffs to be
 
 342 CAMMELL V. SEWELL. [CHAP. VII. 
 
 set aside, and a verdict entered for the defendant ; and the plaintiffs 
 brought the case into the Exchequer Chamber on a writ of error.^ 
 
 Crompton, J. In this case the majority of the court (Cockburn, 
 C. J., WiGHTMAK, Williams, Crompton, and Keating, JJ.) are of 
 opinion that the judgment of the Court of Exchequer should be 
 affirmed. At the same time we are by no means prepared to agree 
 with the Court of Exchequer in thinking the judgment of the Diocesan 
 Court in Norway conclusive as a judgment in rem, nor are we satisfied 
 that the defendants in the present action were estopped by the judg- 
 ment of tliat court, or what was relied on as a judicial proceeding at 
 the auction. It is not, however, necessary for us to express any de- 
 cided opinion on these questions, as we think that the case should be 
 determined on the real merits as to the passing of the property. 
 
 If we are to recognize the Norwegian law, and if according to that 
 law the property passed by the sale in Norway to Clausen as an inno- 
 cent purchaser, we do not think that the subsequent bringing the prop- 
 erty to England can alter the position of the parties. The difficulty 
 which we have felt in the case principally arises from the mode in which 
 the evidence is laid before us in the mass of papers and depositions 
 contained in the appendix. 
 
 We do not see evidence in the case sufficient to enable us to treat 
 the transaction as fraudulent on the part of Clausen, although there are 
 circumstances which would have made it better for him not to have 
 become the purchaser. Treating him, therefore, as an innocent pur- 
 chaser, it appears to us that the questions ai-e, did the property by the 
 law of Norway vest in him as an innocent purchaser? and are we to 
 recognize that law? The question of what is the foreign law is one of 
 fact, and here again there is great difficulty in finding out from the 
 mass of documents what is the exact state of the law. The conclusion 
 which we draw from the evidence is, that by tlie law of Norway the 
 captain, under circumstances such as existed in this case, could not, as 
 between himself and liis owners, or the owners of the cargo, justify the 
 sale, but that he remained liable and responsible to them for a sale not 
 justified under the circumstances ; whilst, on the other hand, an inno- 
 cent purchaser would have a good title to the property bought by him 
 from the agent of the owners. 
 
 It does not appear to us that there is anything so barbarous or mon- 
 strous in this state of the law as that we can say that it should not be 
 recognized by us. Our own law as to market overt is analogous ; and 
 though it is said that much mischief would be done by upholding sales 
 of this nature, not justified by the necessities of the case, it may well 
 
 1 This short statement of facts is substituted for that of the TJeporters in 3 H. & N- 
 617. Arguments of counsel are omitted. In the coarse of tlie argument, Cockburn, 
 C. J., said : " If a person sends goods to a foreign country it may well be that he is 
 bound by the law of that country ; hut here the goods were wrecked on the coast of 
 Norway, and came there without the owner's assent. Could the arrival of the goods 
 there enlarge the captain's authority 1" — Ed.
 
 SECT. II.] CAMMELL V. SEWELL. 343 
 
 be that the mischief would be greater if the vendee were only to have a 
 title in eases where the master was strictly justified in selling as be- 
 tween himself and the owners. If that were so, purchasers, who sel- 
 dom can know the facts of the case, would not be inclined to give the 
 value, and on proper and lawful sales by the master the property would 
 be in great danger of being sacrificed. 
 
 There appears nothing barbarous in saying that the agent of the 
 owners, who is the person to sell, if the circumstances justify the sale, 
 and who must, in point of fact, be the part}' to exercise his judgment 
 as to whether there should be a sale or not, should have the power of 
 giving a good title to the innocent purchaser, and that the latter should 
 not be bound to look to the title of the seller. It appears in the pres- 
 ent case that the one purchaser bought the whole cargo ; but suppose 
 the farmers and persons in the neighborhood at such a sale bu}- several 
 portions of the goods, it would seem extremely inconvenient if they 
 were liable to actions at the suit of the owners, on the ground that 
 there was no necessity for the sale. Could such a purchaser coming 
 to England be sued in our courts for a conversion, and can it alter the 
 case if he resell, and the property comes to this country? 
 
 Many cases were mentioned in the course of the argument, and more 
 might be collected, in which it might seem hard that the goods of for- 
 eigners should be dealt with according to the laws of our own or of 
 other countries. Amongst others our law as to the seizure of a foreign- 
 er's goods for rent due from a tenant, or as to the title gained in them, 
 if stolen, by a sale in market overt, might appear harsh. But we can- 
 not think that the goods of foreigners would be protected against such 
 laws, or that if the property once passed hj virtue of them, it would 
 again be changed by being taken by the new owner into the foreigner's 
 own countr}'. We think that the law on this subject was correctly 
 stated b}- the Lord Chief Baron in the course of the argument in the 
 court below, where he says '"' if personal property is disposed of in a 
 manner binding according to the law of the countr}' where it is, that 
 disposition is binding everywhere." And we do not think that it makes 
 any difference that the goods were wrecked, and not intended to be sent 
 to the countr}' where they were sold. We do not think that the goods 
 which were wrecked here would on that account be the less liable to 
 our laws as to market overt, or as to the landlord's right of distress, 
 because the owner did not foresee that they would come to England. 
 
 Very little authority on the direct question before us has been brought 
 to our notice. The only case which seems at variance with the prin- 
 ciples we have enunciated is the case of the "Eliza Cornish" or 
 " Segredo," before the judge of the Court of Admiralty. 1 Eccl. & 
 Adm. 36. If this case be an authority for the proposition that a law of 
 a foreign country of the nature of the law of Norway, as proved in the 
 present case, is not to be regarded by the courts of this country, and 
 that its effect as to passing property in the foreign country is to be dis- 
 regarded, we cannot agree with the decision ; and, with all the respect
 
 ?,44 CAMMELL V. SEWELL. [CHAP. VII. 
 
 cue to so high an authority in mercantile transactions, we do not I'eel 
 ourselves bound by it when sitting in a court of error. We must re- 
 mark, also, that in the case of Freeman v. The East India Company, 
 5 B. & Aid. 617, the Court of Queen's Bench appear to have assented 
 to the proposition that the Dutch law, as to market overt, might have 
 had the effect of passing the property in such case if the circumstances 
 of the knowledge of the transaction had not taken the case out of the 
 provisions of such law. 
 
 In the present case, which is not like the case of Freeman v. The 
 East India Company, the case of an English subject purchasing in an 
 English colony property which he was taken to know that the vendor 
 had no authority to sell, we do not think that we can assume on the 
 evidence that the purchase was made with the knowledge that the sell- 
 ers had no authority, or under such circumstances as to bring the case 
 within anj' exception to the foreign law, which seems to treat the mas- 
 ter as having sufficient authority to sell, so as to protect the innocent 
 purchaser where there is no representative of tlie real owner. It should 
 be remarked, also, that Lord Stowell, in the passage, cited in the case 
 of Freeman v. The East India Company, from his judgment in the case 
 of the " Gratitudine," states that if the master acts unwisely in his de- 
 cision as to selling, still the foreign purchaser will be safe under his 
 acts. The doctrine of Lord Stowell agrees much more with the prin- 
 ciples on which our judgment proceeds than with those reported to 
 have been approved of in the case of the " Eliza Cornish," as, on the 
 evidence before us, we cannot treat Clausen otherwise than as an inno- 
 cent purchaser, and, as the law of Norway appears to us, on the evi- 
 dence, to give a title to an innocent purchaser, we think that the 
 property vested in him, and in the defendants as sub-purchasers from 
 him, and that, having once so vested, it did not become divested by 
 its being subsequently brought to this countr}', and, therefore, that the 
 judgment of the Court of Exchequer should be affirmed. 
 
 CocKBURN, C. J. Concurring in the judgment delivered by my brother 
 Cromiton, it further appears to me that the case may also be put upon 
 another and a shorter ground. 
 
 Although the goods in question were at one time the property of 
 English owners, the property in them was transferred to others by a 
 sale valid according to the law of Norwa}-, a country in which the goods 
 were at the time of such sale. 
 
 Even if it were admitted, for the purpose of argument, that by the 
 law of the country to which the ship belonged the master would not 
 have had the power to dispose of the ship or cargo in case of wreck, 
 which the law of Norway gives in such a case, and that the law of 
 Norway would be overridden by the law of the nation to which the 
 ship belonged, then it is to be observed that, the ship having been a 
 Prussian ship, and the carriers, the shipowners, Prussians, and the 
 goods having been shipped in Russia, the power of the maslor must 
 depend on the law either of the country to which the ship belonged, or
 
 SECT, n.] LANGWORTHY V. LITTLE, 345 
 
 of the place where the contract to carry was entered into. The law of 
 England, never having attached to the goods, as they never were on 
 board an English vessel or reached British territorj, cannot apply to 
 the case. The law of nations cannot determine the question for the 
 international law is by no means uniform as to the powers of a master 
 as abundantly appeared from the various codes which were brouo-ht 
 to our notice during the argument. But no evidence was adduced to 
 show what was the law of Prussia or that of Russia in the matter in 
 question. 
 
 The case therefore stands nakedly thus, — a good contract of sale to 
 transfer the property in Norway, without anything to show that by the 
 general law of nations, or by the law of any nation which can possibly 
 apply to the present case, the sale valid in Norway can be invalidated 
 elsewhere. 
 
 Byles, J., dissented. Judgment affirmed.^ 
 
 LANGWORTHY v. LITTLE. 
 
 Supreme Judicial Couut of Massachusetts. 1853. 
 
 [Reported 12 Cashing, 109.] 
 
 This was an action of tort for a horse and buggy wagon, attached 
 by the defendant, a deputy-sheriff, as the property of one Charles E. 
 McCart}', September 11, 1849. The plaintiff, an inhabitant of Hills- 
 dale, in the State of New York, claimed title under a prior mortgage 
 from said McCarty, made and dated at said Hillsdale, September 1, 
 1849, at which time the property was at Hillsdale, and in the posses- 
 sion of said IMcCarty. The mortgage was duly filed in the town-clerk's 
 office of Hillsdale, according to the laws of New Y^'ork, which were pro- 
 duced and read at the trial in the Court of Common Pleas. Rev. Sts. 
 of New York, vol. 2, p. 71. The plaintiff also proved a due demand 
 on the defendant for the pa3'ment of the amount due him on said mort- 
 gage, pursuant to Rev. Sts. c. 90, § 79, and that payment was refused. 
 The defendant offered to prove that said McCart\-, the mortgagor, at 
 
 1 The general rule that the passing of title to a chattel is determined by the law of 
 the situs, not by that of the place of making the contract of transfer, nor by that of the 
 domicil of the owner, is well established. Mackey v. Pettyjohn, 6 Kan. App. 57, 49 Pac. 
 636 ; Ames v. McCamber, 124 Mass. 85. (See, however, N. W. Bank v. Poynter [1895], 
 A. C. 56; Fouke v. Fleming, 13 Md. 392.) Thus the requirements as to registration 
 depend upon the law of the situs. Coote v. Jecks, L. R. 13 Eq. 597 ; Gosline v. Dun- 
 bar, 32 N. B. 325. If the title has passed by the law of the situs, the new title is 
 recognized in any State into which the goods may be brought ; and this although by 
 the law of the latter State the title would not have passed. This rule obtains whether 
 the title passed by consent of the parties, Rabun v. Rabun, 15 La. Ann. 471 ; Sleeper 
 V. Pa. R. R., 100 Pa. 259 ; or by operatiou of law, as, for instance, by the statute of 
 limitations. Shelby v. Guy, 11 Wheat. 361 ; Brown v. Brown, 5 Ala. 508; Waters v. 
 Barton, 1 Cold. 450. — Er>.
 
 346 LANGWORTHY V. LITTLE. [CHAP. VIL 
 
 the time of making the mortgage, resided in the town of Mount Wash- 
 ington, in this county, and after the mortgage was made, imracdiatcl}' 
 returned with it to this State, and the same remained here in his pos- 
 session, until it was attached by the defendant, on a writ in favor of 
 citizens of Connecticut, who had no knowledge of the mortgage ; nor 
 was the same recorded in the town of Mount Washington. Mellcn, J., 
 ruled that these facts constituted no defence to the action, and tlie ver- 
 dict being for the plaintiff, the defendant excepted to such ruling. 
 The other facts of the case are stated in the opinion.^ 
 
 Shaw, C. J. Tins mort^age_of i^ersoiLaU^roperty, was made in_Ney 
 York, the property then being there, to a citizen of New Yoi'k, XXvovo^ 
 residing, recorded in the town-clerk's ollice in the town of Hills dale, , 
 New York, and sq made as to be valid, and bind the prop_erty_in that.. 
 §tate."~Being removed into Massachusetts, it was here attached by the 
 'Hefe'ndant, as the property of the mortgagor. The property in question 
 was a horse and buggy wagon, and it appeared that the horse and 
 wagon were sold by the plaintiff at Hillsdale, to McCarty, the mort- 
 o-a<^or, and mortgaged back at the same time, to secure McCarty's note 
 given at the same time, in part payment for said i)urchase. The plain- 
 tiff, by this conveyance, acquired a good qualified title to the property, 
 by the laws of the State of New York, a property sufficient to enable 
 him to maintain trover against a wrongdoer; and an officer attaching 
 the property as the property of the mortgagor, especially without pay- 
 ing, and in fact refusing to pay the debt of the mortgagee, when noti- 
 fied to him and demanded of him, is as to him a wrongdoer. A party 
 who obtain s.^ good title to property, absolute or qualifi ed, bv^the Tirtr& 
 ^f a_siste¥-^t^&r-is^eiltMedTo maintai n and enforce those rights in this 
 Jtaie.^ It is a_case whieii e thelea; loci contrac tus must gojern. 
 '' We think there is no ground for the argument, that by th^e^t. l.S-t3, 
 c. 72, this mortgage should have been recorded by the clerk of the 
 town where the mortgagor resides, and also of the town where he prin- 
 cipally transacts his business, or follows his calling, and that said stat- 
 ute obviously applies only to mortgages made in Massachusetts. 
 
 Exceptions overrnled.^ 
 
 1 Argtiments of counsel are omitted. — En. 
 
 2 Ace. U. S. Bank v. Lee, 13 Pet. 107 ; Alfcritz v. Ingalls, 83 Fed. 964 ; Beall v. 
 Williamson, 14 Ala. 55; Hall v. Pillow, 31 Ark. 32 ; Ballard v. Winter, 39 Conn. 179; 
 Peterson v. Kaigler, 78 Ga. 464, 3 S. E. 655 ; Muniford v. Canty, .50 111. 370 ; Smith 
 p. McLean, 24 la. 322; llandley r. Harris, 48 Kan. 606, 29 Pac. 1145; Keenan v. 
 Stimson, 32 Minn. 377, 20 N. W. 364 ; Barker v. Stacy, 25 Miss. 471 ; Smith v. Hutch- 
 ings, 30 Mo. 380; Offutt v. Flagg, 10 N. H. 46; Hornthal v. Burwell. 109 N. C. 
 10, 13 S. E. 721 ; Wilson v. Rustad, 7 N. D. 330, 75 N. W. 260 ; Kanaga v. Taylor, 
 7 Ohio S. 134; Greenville Nat. Bank i-. Evans-Snydor-Buel Co., 9 ( )kla. 353 ; Cren- 
 shaw i;. Anthony, Mart. & Y. 102 ; Craig v. Williams, 90 Va. 500, 185 E. 899; Mc- 
 Gregor V. Kerr, 29 N. S. 45. 
 
 Contra, Wilson i;. Carson, 12 Md. 54; Corhett v. Littlefield, 84 Mich. 30 (see 
 Vining v. Millar, 109 Mich. 205, 67 N. W. 126) ; Armitagc v. Spahn, 4 Pa. Dist. Ct. 
 270. And sec Jones f. Taylor, 30 Vt. 42.
 
 SECT. II. ■! MAK\aN SAFE CO. V. NOhTON, 347 
 
 MARVIN SAFE COMPANY v. NORTON. 
 
 Supreme Court of New Jersey. 1886. 
 
 [Reported 48 New Jersey Law, 410.] 
 
 On May 1, 1884, one Samuel N. Schwartz, of Hightstown, Mercer 
 county. New Jersey, went to Philadelphia, Pennsylvania, and there, in 
 the office of the prosecutors, executed the following instrument : — 
 
 " May 1st, 1884. 
 '"'• Marvin Safe Company: 
 
 " Please send, as per mark given below, one second-hand safe, for 
 which the undersigned agrees to pay the sum of eighty-four dollars 
 ($84), seven dollars cash, and balance seven dollars per month. 
 Terms cash, delivered on board at Philadelphia or New York, unless 
 otherwise stated in writing. It is agreed that Marvin Safe Company 
 shall not relinquish its title to said safe, but shall remain the sole 
 owners thereof until above sum is fully paid in mone}'. In event of 
 failure to pay any of said instalments or notes, when same shall become 
 due, then all of said instalments or notes remaining unpaid shall immo- 
 diatel}' become due. The Marvin Safe Company may, at their option, 
 remove said safe without legal process. It is expressly understood 
 that there are no conditions whatever not stated in this memorandum, 
 and the undersigned agrees to accept and pay for safe in accordance 
 therewith. Samuel N. Schwartz. 
 
 " Mark — Samuel N. Schwartz, Hightstown, New Jersey. 
 
 " Route — New Jersey. 
 
 ''Not accountable for damages after shipment." 
 
 Schwartz paid the first instalment of %1 Ma}- 1, 1884, and the safe 
 was shipped to him the same da}'. He afterwards paid two instalments, 
 of S7 each, by remittance to Philadelphia by check. Nothing more 
 was paid. 
 
 On July 30, 1884, Schwartz sold and delivered the safe to Norton 
 for $55. Norton paid him the purchase-mone}-. He bought and paid 
 for the safe without notice of Schwartz's agreement with the prosecu- 
 tors. Norton took possession of the safe and removed it to his office. 
 Schwartz fs insolvent and has absconded. 
 
 The prosecutor brought trover against Norton, and in the court be- 
 low the defendant recovered judgment, on the ground that the defendant, 
 having bought and paid for the safe bona fide, the title to the safe, by 
 the law of Pennsylvania, was transferred to him.
 
 348 MARVIN SAFE CO. V. NORTON. [CHAP. VIL 
 
 Depue, J. \The contract expressed in the written order of May 1, 
 1884, signed by Schwartz, is for the sale of the property to him condi- 
 tionally, the vendor reserving the title, notwithstanding delivery, until 
 the contract price should be paidA The courts of Pennsylvania make a 
 distinction between the bailment of a chattel, with power in the bailee 
 to become the owner on payment of the price agreed upon, and tlie 
 sale of a chattel with a stipulation that the title shall not pass to the 
 purchaser until the contract price shall be paid. On this distinction 
 the courts of that State hold that a bailment of chattels, with an option 
 in the bailee to become the owner on payment of the price agreed upon, 
 is valid, and that the right of the bailor to resume possession on non- 
 payment of the contract price is secure against creditors of the bailee 
 and bona fide purchasers from him ^ but that upon the delivery of per- 
 sonal property to a purchaser under a contract of sale, the reservation 
 of title in the vendor until the contract price is paid is void as against 
 creditors of the purchaser or a bona fide purchaser from him.> Clow v. 
 ^Yoods, 5 S. & R. 275 ; Enlow v. Klein, 79 Penn. St. 488 ; Haak v. 
 Linderman, 64 Penn. St. 499 ; Stadfeld v. Huntsman, 92 Penn. St. 53 ; 
 Brunswick r. Hoover, 95 Penn. St. 508; 1 Benj. on Sales (Corbin's ed.), 
 § 446 ; 30 Am. Law Reg. 224, note to Lewis v. McCabe. 
 
 In the most recent case in the Supreme Court of Pennsylvania Mr. 
 Justice Sterrett said : " A present sale and delivery of personal prop- 
 erty to the vendee, coupled with an agreement that the title shall not 
 vest in the latter unless he pays the price agreed upon at the time ap- 
 pointed therefor, and that in default of such payment the vendor may 
 recover possession of the property, is quite different in its effect from 
 a bailment for use, or, as it is sometimes called, a lease of the property, 
 coupled with an agreement whereby the lessee may subsequently be- 
 come owner of the property upon payment of a price agreed upon. 
 As between the parties to such contracts, both are valid and binding ; 
 but as to creditors, the latter is good while the former is invalid." 
 Forest v. Nelson, 19 Rep. 38 ; 108 Penn. St. 481. 
 
 The cases cited show that the Pennsylvania courts hold the same 
 doctrine with respect to bona fide purchasers as to creditors. 
 
 In this State, and in nearly all of our sister States, conditional sales — 
 that is, sales of personal property on credit, with delivery of possession 
 to the purchaser and a stipulation that the title shall remain in the 
 vendor until the contract price is paid — liave been held valid, not only 
 against the immediate purchaser, but also against his creditors and 
 bona fide purchasers from him, unless the vendor has conferred upon 
 his vendee indicia of title beyond mere possession, or has forfeited his 
 right in the proi^erty by conduct which the law regards as fraudulent. 
 The cases are cited in Cole v. Berry, 13 Vrooin, 308 ; Midland R. R. 
 Co. V. Hitchcock, 10 Stew. Eq. 549, 559 ; 1 Benj. on Sales (Corbin's 
 ed.), §§ 437-460; 1 Smith's Lead. Cas. (8th ed.) 33-90; 30 Am. Law 
 Reg. 224, note to Lewis v. McCabe ; 15 Am. Law Rev. 380, tit. " Con- 
 version by Purchase." The doctrine of the courts of Pennsylvania is
 
 SECT. II.] 
 
 MARVIN SAFE CO. V. NORTON. 
 
 349 
 
 founded upon the doctrine of Twyne's Case, 3 Rep. 80, and Edwards 
 V. Harbin, 2 T. R. 587, that the possession of chattels under a contract 
 of sale without title is an indelible badge of fraud — a doctrine repu- 
 diated quite generally by the courts of this country, and especially in 
 this State. Runyon v. Groshon, 1 Beas. 865 Broadwa}' Bank v. 
 McP^lrath, 2 Beas. 24 ; Miller ads. Pancoast, 5 Dutch. 250. The doc- 
 trine of the Pennsylvania courts is disapproved by the American 
 editors of Smith's Leading Cases in the note to Twyne's Case, 1 Sm. 
 Lead Cas. (8th ed.) 33, 34, and by Mr. Landreth in his note to Lewis 
 v. McCabe, 30 Am. Law Reg. 224; but nevertheless the Supreme 
 Court of that State, in the latest case on the subject — Forest v. Nel- 
 son, decided February 16, 1885 — has adhered to the doctrine. It must 
 therefore be regarded as the law of Pennsylvania that upon a sale of 
 personal property with delivery of possession to the purchaser, an 
 agreement that title should not pass until the contract price should be 
 paid is valid as between the original parties, but that creditors of the 
 purchaser, or a purchaser from him bonajide, by a lev}' under execu- 
 tion or a bonajide purchase, will acquire a better title than the original 
 purchaser had — a title superior to that reserved by his vendor. So 
 far as the law of Pennsylvania is applicable to the transaction it must 
 determine tbe rights of these parties. 
 
 me contract of sale between the Marvin Safe Company and Schwartz 
 was made at the company's office in Philadelphia. The contract con- 
 templated performance by the delivery of the safe in Philadelphia to 
 the carrier for transportation to Hightstown, When the terms of sale 
 are agreed upon, and the vendor has done everj'thing that he has to 
 do with the goods, the contract of sale becomes absolute. Leonard v. 
 Davis, 1 Black, 476 ; 1 Benj. on Sales, § 308. Delivery of the safe to 
 the carrier in pursuance of the contract was deliver}- to Schwartz, and 
 was the execution of the contract of sale. His title, such as it was, 
 under the terms of the contract was thereupon complete. 
 
 The validity, construction, and legal effect of a contra ct ma}' depend 
 eit her upon the law of the place where it is made or of the place where 
 it is to be performed, or, if it relate to movable property, upon the law 
 "of the situs of the property, according to circumstances ; but when the 
 place where the contract is m ade is al so the place of performance an ^ 
 of the situs of the property, the law of that place enters into and be-^ 
 c omes part of the contr.act^ and dpfermines the rights of__ thp pfirties tQ> 
 it. Fredericks v. Frazier, 4 Zab. 162 ; Dacosta v. Daviss 4 Zab. 319 ; 
 Bulkley v. Honold, 19 How. 390 ; Scudder v. Union National Bank, 91 
 U. S. 406; Pritchard v. Norton, 106 U. S. 124; Morgan v. N. O., 
 M. &T. R. R. Co., 2 Woods. 244 ; Simpson v. Fogo, 9 Jur. (n. s.) 
 403 ; Whart. Confl. of Law, §§ 341, 345, 401, 403, 418 ; Parr u. Brady, 
 8 Vroom, 201. The contract between Schwartz and the company hav- 
 ing been made, and also executed in Pennsylvania by the delivery of 
 the safe to him, as between him and the company Schwartz's title will 
 be determined by the law of Pennsylvania. By the law of that State 
 
 4i> 
 
 cX
 
 350 - MAEVIN SAFE CO. V. NORTON. [CHAP. VII. 
 
 the condition expressed in the contract of sale that the safe company 
 should not relinquish title until the contract price was paid, and that 
 on the failure to pa}' any of the instalments of the price the company 
 might resume possession of the property, was valid as between Schwartz 
 and the compan}'. B\' his contract Schwartz obtained possession of the 
 safe and a right to acquire title on pa3-ment of the contract price ; but 
 until that condition was performed the title was in the company. In 
 this situation of affairs the safe was brought into this State, and the 
 property became subject to our laws. 
 
 The contract of Norton, the defendant, with Schwartz for the pur- 
 chase of the safe was made at Hightstown in this State. The property 
 was then in this State, and the contract of purchase was executed by 
 delivery of possession in this State. The contract of purchase, the 
 domicil of the parties to it, and the situs of the subject-matter of pur- 
 chase were all within this State. In every respect the transa ction be - 
 tween Norton and Schwartz was a New Jersey' transaction. Under 
 these circumstances, by principles of law which are indisputable, the 
 construction and legal effect of the contract of purchase, and the rights 
 of the purchaser under it, are determined by the law of this State. By 
 thej aw of this State Norton, by his purchase^ acqui red only the title nf 
 
 Jiis vendor, — only such title as^he v endor had when the_property was 
 brought into this Sta te and beca me_su.b.tect to our laws. 
 
 ■ rt is insisted that inasmuch as Norton's purchase, if made in Penn- 
 sj'lvania, would have given hira a title superior to that of the safe 
 company, that therefore his purchase here should have that effect, on 
 the theory that the law of Penns3'lvania, which subjected the title of 
 the safe company to the rights of a bona fide purchaser from Schwartz, 
 was part of the contract between the company and Schwartz. There 
 is no provision in the contract between the safe company and Schwartz 
 that he should have power, under any circumstances, to sell and make 
 title to a purchaser. Schwartz's disposition of the property was not in 
 conformity with his contract, but in violation of it. His contract, as 
 construed by the laws of Pennsylvania, gave him no title which he 
 could lawfully convey. To maintain title against the safe company 
 Norton must build up in himself a better title than Schwartz had. He 
 can accomplish that result only b}' virtue of the law of the jurisdiction 
 in which he acquired his rights. 
 
 The doctrine of the Pennsylvania courts that a reservation of title in 
 the vendor upon a conditional sale is void as against creditors and bona 
 fide purchasers, is not a rule affixing a certain construction and legal 
 effect to a contract made in that State. The legal effect of such a con- 
 tract is conceded to be to leave propert}' in the vendor. The law acts 
 upon the fact of possession by the purchaser under such an arrange- 
 ment, and makes it an indelible badge of fraud and a forfeiture of the 
 vendor's reserved title as in favor of creditors and bona fide purchasers. 
 The doctrine is founded upon considerations of public policy' adopted 
 in that State, and applies to the fact of Dossession and acts of owner-
 
 SECT. II.] MARVIN SAFE CO. V. NORTON. 351 
 
 ship under such a contract, without regard to the place where the con- 
 tract was made, or its legal effect considered as a contract. In McCabe 
 V. Blymjrv, 9 Phila. Rep. 615, the controvers}' was with respect to the 
 rights of a mortgagee under a chattel mortgage. The mortgage had 
 been made and recorded in Maryland, where the chattel was when the 
 mortgage was given, and by the law of Maryland was valid though the 
 mortgagor retained possession. The chattel was afterwards brought 
 into Pennsylvania, and the Pennsylvania court held that the mortgage, 
 though valid in the State where it was made, would not be enforced by 
 the courts of Pennsylvania as against a creditor or purchaser who had 
 acquired rights in the property after it had been brought to that State ; 
 that the mortgagee, by allowing the mortgagor to retain possession of 
 the property and bring it into Pennsylvania, and exercise notorious 
 acts of ownership, lost his right under the mortgage as against an in- 
 tervening Pennsylvania creditor or purchaser, on the ground that the 
 contract was in contravention of the law and policy of that State. 
 Under substantially the same state of facts this court sustained the title 
 of a mortgagee under a mortgage made in another State, as against a 
 bona fide purchaser who had bought the property of the mortgagor in 
 this State, for the reason that the possession of the chattel by the mort- 
 gagor was not in contravention of the public policy of this State. Parr 
 V. Brady, 8 Vroom, 20]. 
 
 The public policv which has given rise to the doctrine of the Pemn; 
 svlva nia courts i^ V('^\ n nd th" lom. whiV-h (Tivpi=i pfft^nt to i t is als o 
 lo cal, and hns no P xtirn^"'^'''''^^''^''^^ ofrnnU. In the ease in hand the safe 
 was removed to this State by Schwartz as soon as he became the pur- 
 chaser. His possession under the contract has been exclusively in this 
 State. That possession violated no public policy, — not the public 
 policy of Pennsylvania, for the possession was not in that State ; nor 
 the public policy of this State, for in this State possession under a con- 
 ditional sale is regarded as lawful, and does not invalidate the vendor's 
 title unless impeached for actual fraud. If the right of a purchaser, 
 under a purchase in this State, to avoid the reserved title in the origi- 
 nal vendor on such grounds be conceded, the same right must be ex- 
 tended to creditors buying under a judgment and execution in this 
 State; for, by the law of Pennsylvania, creditors and bona fide pur- 
 chasers are put upon the same footing. Neither on principle nor on 
 considerations of convenience or public policy can such a right be con- 
 ceded. Jnder such a condition of the law confusion and uncerta inty- 
 jnjii£-title to property wnnid be intrndirfd) P"d ^^^'^ t''nnsmis°'^'i of 
 the title to mova ble property, the s '^ ^ n ^j ^f wb^'"'> ^'^ ^" ^^^^^ Stnt.P wnnld» 
 ^^pj^pt^di ^^^^- upon our laws, b ut upon th e laws_and p ub lic , pnlicy of sist a r 
 States or foreign c ountries T X~purchaser of chattels in this State, 
 ^wETch his vencToT had obtained in Xew York or in most of our sister 
 States under a contract of conditional sale, would take no title ; if ob- 
 tained under a conditional sale in Pennsylvania, his title would be 
 good ; and the same uncertainty would exist in the title of purchasers 
 of property so circumstanced at a sale under judgment and execution.
 
 352 MASURY V. ARKANSAS NATIONAL BANK. [CHAP. VII. 
 
 The title was in the safe company when the propert}- in dispute was 
 removed from the State of Pennsylvania. Whatever might impair that 
 title — the continued possession and exercise of acts of ownership over 
 it by Schwartz and tlie purcliase by Norton — occurred in this State. 
 The legal effect and consequences of those acts must be adjudged by 
 the law of this State. By the law of this State it was not illegal nor 
 contrary to public policy for the company to leave Schwartz in posses- 
 sion as ostensible owner, and no forfeiture of the company's title could 
 result therefrom = By the law of this State Norton, by his purchase, 
 acquired only such title as Schwartz had under his contract with the 
 company. Nothing has occurred which, by our law, will give liim a 
 better title. The judgment should be reversed. 
 
 MASURY V. ARKANSAS NATIONAL BANK. 
 
 Circuit Court of the Uxited States, E. District Arkansas. 1898. 
 [Reported 87 Federal Reporter, 381.] 
 
 Tins is a bill in equitj- by Grace Masury against the Arkansas Na- 
 tional Bank and others to cancel a sheriff's sale of shares in a corpo- 
 ration, and to declare and foreclose a lien on the stock. The cause 
 was heard on demurrer to the bill. 
 
 Williams, District Judge. The only questions involved are whether, 
 under the statutes of Arkansas, a seizure of shares of the capital stock 
 of a corporation existing under *he laws of that State, by virtue of a 
 writ of attachment, or under executnon, cakes precedence over a prior 
 transfer or pledge, not transferred en the books of the corporation, nor 
 filed for record in the office of the county clerk of the count}- in which 
 the corporation transacts its business, and whether the laws of this 
 State govern such a transfer, if made in another State. As to the last 
 proposition, learned counsel for complainant claim that Black v. Zach- 
 arie, 3 How. 483, is conclusive that the laws of New York, where the 
 transfer was made, and not the laws of Arkansas, of which State the 
 company was a corporation, control. The question involved in that 
 suit was not that of a transfer of shares, but an assignment of the 
 equity of redemption in stock previously assigned and delivered as a 
 pledge. The court say : 
 
 " We admit that the validity of this assigtnment to pass the right to 
 Black in the stock attached depends upon the laws of Louisiana [the 
 domicil of the corporation], and not upon that of South Carolina [where 
 the assignment was made]. From the nature of the stock of a corpora- 
 tion, which is created by and under the aulliority of a State, it is necessa- 
 rily, like every otlier attril)ute of the corporation, to be governed bv the 
 local law of that State, and not by the local law of any foreign State." 
 
 Judge Lowell, speaking of the same subject, says :
 
 SECT. II.] MASURY V. ARKANSAS NATIONAL BANK. 353 
 
 " Whatever the general principles of international law in relation to 
 assignments of personal claims may be, the validity' of a transfer of 
 stock is governed by the law of the place where the corporation is 
 created." Lowell, Stocks, § 50 ; Hammond v. Hastings, 134 U. S. 401, 
 10 Slip. Ct. 727 ; Green v. Van Buskirk, 7 Wall. 140. 
 
 I am therefore of the opinion that, unless the transfer of this stock 
 is valid under the laws of Arkansas, the State whicli created the cor- 
 poration, the laws of the State where the transfer was actually made 
 cannot control. 
 
 23
 
 354 EX PARTE POLLARD. IN RE COURTNEY. [CHAP. VH. 
 
 SECTIUN III. 
 
 Ex PARTE POLLARD. Ix ee COURTNEY. 
 
 Chancery. 1840. 
 
 [Reported Montague 4- Chilly's Reports, 239.] 
 
 Lord Cottenham. L. C' The short result of the facts of this case, 
 as stated in the special case by which I am bound, is, that the bank- 
 rupts were absolutely entitled, as part of their partnership property, to 
 some land in Scotland, the legal title being in George Courtney, one of 
 the bankrupts ; that the firm, being indebted to the petitioner, George 
 Pollard, in order to induce him to give them further credit, deposited 
 with him the disposition and instrument of seisin, being the title deeds 
 of such lands, and signed and gave to him a memorandum in writing, 
 dated the 1.3th of March, 1832, declaring that they thereby gave to 
 Pollard a lien upon the land for the general balance of all or any 
 monies that then were or might thereafter become due to him from 
 them to the extent of £2.000, and they agreed that he should stand in 
 the nature of an equitable mortgagee thereof; and. on demand, they 
 further agreed to make, do. and perfect all such acts for the better 
 securing to him of any such monies as aforesaid ; that Pollard, relying 
 upon the security of the hereditaments so charged to him as aforesaid, 
 continued to give credit to the bankrupts to the time of their bank- 
 ruptcy, which took place on the 20th December. 1832, at which time 
 he was a creditor for the sum of £1.027 -is. ^d\ The only other facts 
 stated in the special case, material to the present question, is, that by 
 the law of Scotland no lien or equitable mortgage on the estate in 
 question was created by the deposit of the title deeds, or by the writ- 
 ten memorandum. > The question is. whetlier Pollard is, under the cir- 
 cumstances, entitled to have his debt paid out of that part of the estate 
 of the bankrupts which consists of their property in Scotland, in pref- 
 erence to their general creditors; or. in other words, the assignees 
 being liable to all the equities to which the bankrupt was subject, 
 whether such a deposit and agreement, made and entered into in this 
 country, gave to the creditor such a title as against his debtor to have 
 the agreement performed and the delit paid out of the propert}' in 
 Scotland, the sulyect of such deposit and agreement. The special case 
 also finds that the deposit and agreement does not by the law of .Scot- 
 land create any lien or equitable mortgage upon the estate. By this 
 statement of the law of Scotland, which, sitting here, I must consider 
 
 ^ The opinion only is given. — Ko.
 
 SECT. III.] EX PARTE POLLARD. IN RE COURTNEY. 355 
 
 as a fact, I am bound, but so far only as the statement goes, and that 
 does not find anything contrary to the well-known rule, that obligations 
 to convey, perfected secundum legem domicilii^ are binding in Scot- 
 land, but that by the law of Scotland no lien or equitable mortgage 
 was created by the deposit and agreement ; by which must be under- 
 stood that the law of Scotland does not permit such deposit and agree- 
 ment to operate in rem, and not tliat they may not give a title to relief 
 in personam. It is true that in this country contracts for sale, or 
 (whether expressed or implied) for charging lands, are in certain cases 
 made by the courts of equity to operate in rem; but in contracts 
 respecting lands in countries not within the jurisdiction of these courts 
 they can only be enforced by proceedings in personam, which courts of 
 equity here are constantly in the habit of doing : not thereby in any 
 respect interfering with the lex loci rei sites. If indeed the law of the 
 country where the land is situate should not permit or not enable the 
 defendant to do what the court might otherwise think it right to decree, 
 it would be useless and unjust to direct him to do the act ; but when 
 there is no such impediment the courts of this country-, in the exercise 
 of their jurisdiction over contracts made here, or in administering 
 equities between parties residing here, act upon their own rules, and 
 are not influenced by any consideration of what the effect of such con- 
 tracts might be in the country where the lands are situate, or of the 
 manner in which the courts of such countries might deal with such 
 equities. 
 
 The observations of Lord Hardwicke in Penn v. Baltimore, 1 Yes. 
 454, are founded upon this distinction. In Lord Cranstown v. Johnston, 
 3 Ves. 182, Lord Alvanley, upon principles of equity familiar in this 
 country, set aside a sale in the Island of St. Christopher, by the laws 
 of which country the sale was perfectly good, no such principles of 
 equity being recognized by the courts there, saying, " With regard to 
 any contract made or equity between persons in this country respect- 
 ing lands in a foreign country-, particularly in the British dominions, 
 this court will hold the same jurisdiction as if the}' were situated in 
 England." In Scott v. Nesbitt, 14 Ves. 442, Lord Eldon, in the face of 
 the master's report finding that there was no law or usage in Jamaica 
 for a lien by a consignee in respect of supplies furnished to the estate, 
 directed consignees to be allowed such expenditure in their account 
 with encumbrancers. Bills for specific performance of contracts for 
 the sale of lands, or respecting mortgages of estates, in the colonies 
 and elsewhere out of the jurisdiction of this court, are of familiar occur- 
 rence. VNVhy then, consistently with these principles and these authori- 
 ties, shobld the fact, that by the law of Scotland no lien or equitable 
 mortgage was created by the deposit and memorandum in this case, 
 prevent the courts of this country from giving such effect to the trans- 
 actions between the parties as it would have given if the land had 
 been in England? ]lf the contract had been to sell the lands a specific 
 performance would have been decreed ; and why is all relief to be
 
 356 ACKEK V. PRIEST. [CHAP. VII. 
 
 refused because the contract is to sell, subject to a condition for 
 redemption? The substance of the agreement is to charge the debt 
 upon the estates, and to do and perfect all such acts as ma}- be neces- 
 sary for the purpose ; and if the court would decree specific perform- 
 ance of this contract, and the completion of the securit}- accordhig to 
 the forms of law in Scotland, it will give effect to this equity by paying 
 out of the proceeds of the estate (which being part of the bankrupt's 
 estate must be sold) what is found to be the amount of the debt so 
 agreed to be charged upon it, which is what the creditor asks. ^The 
 special case finds, that the deeds were deposited and the agreement 
 signed by the bankrupts in order to induce the creditor to give them 
 further credit, and that he, relying upon the security of the heredita- 
 ments so charged to him, continued to give credit to the bankrupts to 
 the time of their bankruptcy. * The transaction is in no respect im- 
 peached, and there is no competition with an^- person having obtained 
 a title under the law of Scotland. The only parties resisting the credit- 
 or's claim are the assignees, who are bound by all the equities which 
 affected the bankrupts. To deny to the creditor the benefit of this 
 security would be an injustice which, if unavoidable, would be much 
 to be regretted. In giving effect to it I act upon the well-known rules 
 of equity in this country-, and do not violate or interfere with any law 
 or rule of property in Scotland, as 1 only order that to be done which 
 the parties may by that law lawfully perform. 
 
 I reverse the judgment of the Court of Review, giving to the creditor 
 payment of his debt out of the proceeds of the estate. 
 
 Judgment of the Court of Review reversed. 
 
 ACKER V. PRIEST. 
 Supreme Court of Iowa. 1894. 
 
 [Reported 92 Iowa, 610.] 
 
 Deemer, .7.^ The plaintiffs in the equity suit are the heirs at law of 
 Elizabeth Priest, deceased, and the defendant, Stephen C. Priest, is their 
 father. Mrs. Priest was a daughter of one Joseph Abrams. Joseph 
 Abrams had one son and three daughters, besides Mrs. Priest. In the 
 month of July, 1884, Abrams. who was then living in the State of Kan- 
 sas, concluded to make a partial distribution and advancement of his 
 property to his children. He was then the owner of two farms in Kan- 
 sas, one of which was known as his " Home Farm," and the other 
 was occupied by defendant Priest and his family. Thomas W. King, 
 another son-in-law, owned and occupied another and a third farm in 
 the same county as tlie other two. In order to carry out his purpose, 
 and make an equal distribution of property to his daughters, Abrajns 
 
 1 I'art of the opinion only is given. — Ed.
 
 SECT. III.] ACKER V. PRIEST. 357 
 
 made arrangements with King .0 exchange the home farm, vahied at 
 $8,000, for the King place, at the agreed price of $4,000. Prior thereto, 
 however, Abrams had had a conversation with defendant Priest, in 
 which he told him he intended to give him a farm. After making 
 arrangements with King, Abrams informed defendant that he had an 
 opportunity to trade the home fai-m for King's land, and directed de- 
 fendant to go and look at the farm, and if it suited him he (Abrams) 
 would make the exchange. Defendant, after examining the place, was 
 pleased with it, and so informed Abrams, and Abrams made the con- 
 templated exchange. Abrams deeded the home farm to King, and 
 King, by direction of Abrams, and with the knowledge, direction, and 
 consent of the deceased, Mrs. Priest, made a deed to his place to the 
 defendant Priest. This last deed was a warranty deed, in the usual 
 form, and for the expressed consideration of $4,000. Shortly after the 
 making of these deeds, the defendant moved onto the King farm, and 
 used and occupied it for a year or more, when he sold it, and with tlie 
 proceeds purchased a farm in Cass County, Iowa, from one Isabella 
 G >odale. The deed to the Cass Countj- land was taken in the name of 
 the defendant with the knowledge and consent of his wife. Defendant 
 and his wife immediately took possession of the Cass County land, and 
 occupied and used the same until the death of his wife, in April, 1888. 
 After the death of the wife, and in Ma}-, 1891, the defendant sold the 
 land in Cass County, and at the time of the commencement of this suit 
 was in possession of a large part of the proceeds of the sale. Plaintiffs 
 claim that the defendant at all times had the title to the Kansas land 
 and to the land in Cass County in trust for his wife, Elizabeth V. Priest, 
 and that the}', as her heirs at law, are entitled to have a trust impressed 
 upou the funds now in the hands of the defendant, arising out of the 
 sale of the Cass County land. Defendant Isaac Dickerson was made a 
 party to the suit because of his having possession of some of the funds 
 arising from the sale of the land in this State. . . . 
 
 Plaintiffs do not — nor, indeed, could they, under the statutes of 
 either Kansas or of this State — claim an express trust in the land, or 
 the proceeds thereof. Their claim is that from the transactions between 
 the parties, as proved, there arose an implied, a resulting, or a con- 
 structive trust, which the law will recognize and enforce. We turn then 
 to the evidence, and find that while it was the intention of Abrams to 
 make a partial distribution of his estate among his heirs, 3'et it did not 
 appear to him to be important to whom he made the deeds, — whether 
 to his daughters, in their own names, or to their husbands. The deed 
 to the home farm was made to King, the husband of one of his daugli 
 ters, and the deed to the King farm was made direct to defendant 
 Priest. Abrams had previously' spoken to defendant about giving him 
 a farm, and while the deed was, no doubt, made so as to place all his 
 children on an equalit}', it is quite evident to us that it was wholly 
 immaterial to him to whom the deed should be made. Before hav- 
 ing the deed made to defendant, Abrams spoke to his daughter, Mrs.
 
 358 ACKER V. PRIEST. [CHAP. VIL 
 
 Priest, about how the deed should be made, and " she said to make it 
 to her husband ; it was all the same." Again, Abrams testifies, " My 
 dauo^hter gave no reason [for making the deed to her husband], except 
 that it would be all right, recognizing him as her husband." Even if 
 Abrams intended the deed to be for the benefit of Mrs. Priest and her 
 children, as he says, he did not so state to defendant, and defendant 
 had no knowledge but that he was'to take the beneficial as well as the 
 legal estate. Abrams directed King to make the deed to defendant, 
 and King had no conversation whatever with defendant. 
 
 Applying these facts to the statutes of Kansas, before quoted, with 
 reference to the creation of trusts,^ and it is clear that defendant took 
 an absolute title to the land deeded him by King, unincumbered with 
 any trust. It is contended, however, that the laws of Kansas have no 
 application to this case, that the statutes above quoted relate simply to 
 the remedy, and that the lex fori governs. Without deciding this ques- 
 tion, so far as it relates to the statute of frauds, for it is not necessary 
 to a determination of the case, and passing it with the single remark 
 that where the statute relates simply to the remedy, and does not make 
 the parol contract void, as is the case with the statute in question, there 
 is much force in appellants' position, we are clearly of the opinion, 
 however, that the other statutes with reference to the creation of trust 
 estates are l)inding, for they go to the validity and operation of the con- 
 tract, and of the alleged trust in the land. It is familiar doctrine 
 that the law of the place where the contract is made is to govern as to 
 its nature, validity, obligation, and interpretation, and the law of the 
 forum as to the remedy. Bank v. Donnally, 8 Pet. 316 ; Scudder v. 
 Bank, 91 U. S. 406 ; Burchard v. Dunbar, 82 111. 450. It is also every- 
 where acknowledged that the title and disposition of real property are 
 exclusively subject to the laws of the country where it is situated, which 
 can alone prescribe the mode by which a title to it can pass from one 
 person to another. Kerr v. Moon, 9 Wheat. 565 ; McCormick v. Sul- 
 livant, 10 Wheat. 196. And a title or right in or to real estate can be 
 acquired, enforced, or lost only according to the law of the place where 
 such property is situated. Bentley v. Whittemore, 18 N. J. Eq. 373 ; 
 Hosford r. Nichols, 1 Paige, 220 ; Williams v. Maus, 6 Watts, 278 ; 
 Wills V. Cowper, 2 Ohio, 124. 
 
 If we are correct in otir premises, it necessarily follows, as a conclu- 
 sion, that under the laws of Kansas there was no trust created by law 
 in the Kansas land, even if it be said that Mrs. Priest furnished the 
 consideration paid for the land, because there was no agreement on 
 thr part of the defendant that he should hold the title in trust for his 
 wifu.^ 
 
 1 Gen. St. K.in. 1808, c. 114, § G. When a conveyance for a valuahlc consideration 
 is made to one person, and the consideration tliereof paid by anotlicr, no nse or trust 
 Bliall result in favor of the latter, but the title sliall vest in the former, subject to the 
 provisions of the next two sections. — Ed. 
 
 2 The court further held that apart from the statutes of Kansas there was no trust. 
 Ace. Depas i'. Mayo, 11 Mo. 314 ; I'eufield i-. Tower, 1 N. D. 216. — Ed.
 
 SECT. III.] NORTON V. FLORENCE LAND AND PUBLIC WORKS CO. 359 
 
 NORTON V. FLORENCE LAND AND PUBLIC WORKS 
 COMPANY. 
 
 High Court of Justice, Chancery Division. 1877. 
 
 [Reported 7 Ch. D. 332.] 
 
 This was a motion on behalf of the holders of obligations issued by 
 the Florence Land and Public Works Company to restrain the Anglo- 
 Italian Bank from selling the company's property at Florence, of which 
 they were mortgagees. 
 
 The company, whose property consisted partly of land and houses 
 at Florence, was registered under the Companies Act, 1862, with an 
 office in London. By the articles of association it was empowered to 
 issue " debenture bonds" and "mortgage bonds." 
 
 In 1868 the company, under the powers of the articles, issued obliga- 
 tions in the following form : — 
 
 " The Florence Land and Public Works Company, Limited, in con- 
 sideration of the sum of £100 advanced and lent to them by , 
 do hereby, in pursuance and under the power of their articles of 
 association, bind themselves, their successors, assigns, and all their 
 estate, property, and effects, to pay to the said , or bearer, 
 on presentation of this bond at the registered office of this company in 
 England, the said principal sum of £100 on tiie 24th day of June, 1875, 
 and also interest on the said principal sum of £100 until paid, at the rate 
 of £6 per cent per annum, at the times and places mentioned in the 
 coupons attached hereto : Provided also, and it is hereby declared, that 
 this bond is issued subject to the condition and scale indorsed hereon." 
 
 In March, 1871, the Anglo-Italian Bank, which had an office in Lon- 
 don, entered into an agreement with the company to open a credit in 
 the coini)any' s favor for £50,000, the amount, together with future 
 advances, to be secured by a mortgage upon the property of the com- 
 pany in and near Florence, This was accordingly executed in the 
 Italian form on the 30th of ^March, 1871, and registered at Florence, to 
 secure £50,000, and a further sum of £5000. 
 
 On the 14th of August, 1877, the company was served in Flor- 
 ence with a citation to appear before the Civil and Correctional Tri- 
 bunal of Florence, at an audience to be held on the 29th of August, 
 1877, to hear accorded executive force in the kingdom of Italy to the 
 said mortgage, and to hear authority given to the proper officer for 
 the execution thereof. This citation was issued at the instance of the 
 bank in order to enforce their security, and judgment was obtained 
 thereon giving validity to the deed, and enforcing payment. The bank 
 were about to take steps for the sale of the property. 
 
 The plaintiff, a holder of the said obligations, thereupon brought his 
 action, claiming a declaration that the plaintiff and the other debenture 
 holders were mortgagees of the company's property at Florence in 
 priorit}- to the bank.
 
 360 NORTON V. FLORENCE LAND AND TUBLIC WORKS CO. [CHAP. VII. 
 
 The plaintiff alleged that the bank had notice of the charge on the 
 property created b}' the obligations. No evidence was adduced as to 
 tlie rights of the parties according to the law of Italy. ^ 
 
 Jessel, M. R. I am of opinion that the motion fails, and I think it 
 ought to fail on every ground suggested. In the first instance, I as- 
 sume that the instrument created a charge on property ; it would then 
 be a charge on all the property and effects of the company. It appears 
 that the compan}- had houses and land in Florence, which, of course, is 
 out of my jurisdiction, and would be subject to the law of Florence 
 and to Italian law. It also appears that the defendants, the bank, ad- 
 vanced mone}' to the company, and took a mortgage which was regis- 
 tered according to tlie law of Florence, and as they insist, takes priority 
 over ever}- unregistered charge. That may or may not be so, the 
 Italian law not being proved before me b}'^ the plaintiff, and it is for 
 him to show that he has a charge according to the Italian law. 
 
 Now he has not proved it, because he has not proved the Italian law ; 
 therefore I must for the present purpose assume, as against him, that 
 there is a want of registration, or that otherwise he has no charge. 
 But then he says. Not having a charge according to the Italian law on 
 the houses in Florence, I am still entitled to take them away from 
 those who are entitled to them according to the Italian law, for this 
 reason : I have a contract by the former owner of the houses to convey 
 them to me — I am putting it as strongly as possible in his favor — and 
 the present defendants have obtained a conve^'ance of the house which 
 was more valid, according to the Italian law, with notice of my j^rior 
 contract, and I am entitled to enforce that contract not only against the 
 contracting party, but against every person who had notice of that 
 contract. 
 
 The answer is ver}' simple. It depends on the law of the country 
 where the immovable propert}' is situated. If the contract according 
 to the law of that country binds the immovable property, as it does in 
 this country, when for value, that ma}' be so, but if it does not bind the 
 immovable property, then it is not so. You cannot by reason of notice 
 to a third person of a contract which does not bind the property there- 
 by bind the propert}' if the law of the country in which the immovable 
 property is situate does not so bind it. That would be an answer to 
 the claim so far as regards the notion that mere notice would do. 
 
 But there is another answer to the plaintiff's motion. It seems that 
 these houses being in Florence the bank has taken precedence in the 
 Court of Florence, the proper court having jurisdiction, to establish 
 their title ; and the litigation there to which the plaintiffs are or may be 
 parties being in the court of the country having actual jurisdiction over 
 the subject-matter, and having entertained that jurisdiction by a prior 
 litigation, it is contrary to all the rules of the comity of nations that 
 tliis court should actively interfere between the same litigants. That 
 also appears to me to be an answer to this application. 
 
 1 The statement of fiii't.s lias been slightly condensed. — Ed.
 
 SECT. III.] - IN RE FITZGERALD. 361 
 
 But there is a third, and, in mv opinion, a fatal answer, which is, 
 that if the law of England does apply, still, as I read this docu- 
 ment, the plaintiff has no charge on the houses in Florence. That is, 
 supposing it were property in Lontlon instead of in Florence, I should 
 hold that the plaintiff had no cliarge on it whatever.^ 
 
 The motion must be refused with costs.^ 
 
 In re FITZGERALD. 
 
 High Court of Justice, Chancery Division. 1903. 
 
 Court of Appeal. 1904. 
 
 [Reported 1903, 1 Ch. 933, 1904, 1 Ch. .573.] 
 
 By an indenture of settlement dated September 20, 1862, and made 
 between William Robert Seymour Vese}' Fitzgerald of the first part, the 
 defendant Sir William Gerald Seymour Vese}' Fitzgerald (hereinafter 
 called Sir Gerald Fitzgerald) of the second part, Jane Margaret Matilda 
 Macdonald Lockhart of the third part, and trustees of the fourth part 
 (being a settlement made upon the marriage of Sir Gerald Fitzgerald 
 and Miss Lockhart), W. R. S. V. Fitzgerald covenanted that his heirs, 
 executors, and administrators would, within six months of his death, 
 pay to the trustees the sum of 6000^., to be held bj^ them upon trust 
 for investment as therein mentioned, and to pay the income of the trust 
 fund to Sir Gerald Fitzgerald and his assigns during his life, and 
 after his death to Lady Fitzgerald and her assigns during her life, and 
 after the death of the survivor to stand possessed of the trust fund in 
 trust for the issue of the intended marriage as therein declared. 
 This settlement was in English form, but was executed in Scotland, 
 where the marriage took place. On the same date a marriage contract 
 in Scotch form was executed b}' Sir Gerald and his then intended wife, 
 whereby, after reciting the English settlement, she assigned and con- 
 veyed to the same trustees all and sundry the lands and heritages, 
 goods, gear, debts, and sums of monev, and generally her whole prop- 
 erty (with certain small exceptions), to the uses and purposes therein- 
 after mentioned, namely, first, for payment of the expenses of executing 
 the trust ; secondlj', for payment of the free annual proceeds of the 
 trust estate to the said J. M. M. Lockhart during all the days of her 
 life, and that on her own receipt alone, exclusive of the Jus mnriti 
 and right of administration of the said Sir Gerald Fitzgerald ; thirdh% 
 in case the said Sir Gerald Fitzgerald should be the survivor of the 
 spouses, for pa3'ment of the whole free annual proceeds of the estate 
 to him during all the days of his life after the death of the said J. 
 ]\[. M. Lockhart, declaring that all payments to the said Sir Gerald 
 Fitzgerald should be strictlj' " alimentarj-," and should " not be assign- 
 
 1 The remainder of the opinion, in which this point was discussed, is omitted. — Ed. 
 
 2 See Mercantile I. & G. T. Co. v. River Plate T. L. & A. Co., (1892) 2 Ch.303.— Ed.
 
 362 IN RE FITZGERALD. [CHAP. VII. 
 
 able, nor liable to arrestment, or any other legal diligence at the instance 
 of the creditors." 
 
 Shortl}' after the execution of these instruments the marriage took 
 place. There was on!}' one child of the marriage, the defendant 
 Geraldine Tryphoena Margaret Seymour Vesey Fitzgerald, who was 
 born on June 19, 1863. 
 
 Between the 3'ears 1863 and 1901 numerous deeds were executed in 
 England by Sir Gerald and Lady Fitzgerald, in some of which Miss 
 Fitzgerald joined, creating incumbrances upon their respective inter- 
 ests under the P^nglish and Scotch settlements. Subsequently to 1901 
 Sir Gerald further incumbered his life interest under the settlements. 
 The defendant, Colonel Frederick Henry Harford was the first mortga- 
 gee of Sir Gerald's life interest under the Scotch settlement. 
 
 Lady Fitzgerald died on May 16, 1901. 
 
 This was a summons taken out on October 12, 1901, bj- the trustees, 
 who were all domiciled in England, asking (inter alia) that it might be 
 determined whether Sir Gerald Fitzgerald was entitled for his life to 
 the income of the trust funds comprised in the Scotch contract of 
 marriage free from incumbrance and without power of alienation, or 
 who was now entitled to the said income. 
 
 The trust funds originally comprised in the Scotch contract consisted 
 partly of two bonds of the respective values of 6000^. and 7200/., se- 
 cured upon heritable or immovable property- in Scotland. The whole of 
 the 6000Z. and a portion of the 7200/. still remained so invested. B\- 
 the law of Scotland heritable bonds of this character are real property, 
 except for certain purposes specified in the Titles to Land Consolidation 
 (Scotland) Act, 1868 (31 & 32 Vict. c. 101), s. 117. 
 
 It appeared from an affidavit made by the Lord Advocate of Scot- 
 land that by the law of Scotland a person might create a life interest in 
 favor of another, and b}' declaring it to be " alimentary " might ex- 
 clude (so far as the life interest did not exceed in amount a reasonable 
 provision) the diligence of ordinary creditors, and restrain all power 
 of anticipation. 
 
 It further appeared that by the law of Scotland, if in the case of 
 such an alimentary provision as was in question in the present case, 
 the husband failed to maintain the children of the marriage, they would 
 be entitled to attach the alimentary provision made for him by the 
 contract. 
 
 The principal question arising on the summons was whellier tlie 
 Scotch contract must be construed according to the law of Scotland 
 or that of England. 
 
 Joyce, J. (after stating the facts as to the marriage, and referring 
 to the terms of the Scotcii contract). Under the provisions of this 
 document, which I may call the Scotch settlement, the trustees have 
 from time to time become entitled to receive and had vested in them 
 various funds comprising (inter alia) Scotch mortgages or heritable bonds 
 and sums of Consols and India stock, but not any Scotch real or im-
 
 SECT. III.] IN RE FITZGERALD. 363 
 
 movable estate other than mortgages or heritable securities, if they be, 
 as alleged, real estate and to be treated as immovable property. 
 
 Lady Fitzgerald, the wife, died in 1901. Sir Gerald having previ- 
 ously, as he has also since that date, and in some cases with the con- 
 currence of his wife, executed in England vai'ious assignments of or 
 charges upon his interest under the Scotch settlement, the question 
 has arisen whether the income or alimentary provision to which Sir 
 Gerald Fitzgerald has become entitled under the Scotcli settlement is 
 now payable by the trustees to Sir Gerald or to his assigns and incum- 
 brancers. It is contended on behalf of Sir Gerald and the only child 
 of the marriage that, according to the law of Scotland, which it is said 
 governs the case, the effect of the declaration in the Scotch settlement 
 that all payments to Sir Gerald shall be alimentary and not assignable 
 or liable to arrestment, precluded Sir Gerald from assigning or creating 
 any valid incumbrance upon the income to which he would otherwise 
 be now entitled under the trusts of the Scotch settlement. 
 
 The domicil of Sir Gerald has remained P^nglish all along. His resi- 
 dence is in England. The trustees are all subject to the jurisdiction of 
 the English Court. Indeed, it is they who have involved its aid in 
 order to determine the question that has been raised. In the existing 
 circumstances, even if the construction and legal effect of this Scotch 
 settlement are to be determined by the law of Scotland — In re Bar- 
 nard, 56 L. T. 9 — it appears to me that its validity and operation with re- 
 spect to the matter now in question must be determined by the laws of 
 England : Westlake on International Law, p. 76 ; Vaizey on Settlements, 
 p. 1640, et seq. 
 
 Further, if the question were to be considered as one purely of con- 
 tract between the parties to the Scotch settlement, a contract incon- 
 sistent with the law and policy of this country, or, in other words, 
 which conflicts with what are deemed in England to be essential public 
 interests, could not be enforced here : Westlake on International Law, 
 3rd ed. s. 215. 
 
 But according to the law of England an inalienable trust cannot be 
 created in favor of a man even for his maintenance. A mere prohibi- 
 tion of alienation cannot be effectually imposed except in the case of 
 a married woman's separate property: Brandon v. Robinson, 18 Ves. 
 429; 11 R.R. 226; Graves v. Dolphin, 1 Sim. 66; 27 R. R. 166; 
 Younghusband v. Gisborne (1844), 1 Coll. 400. It is contrary to the 
 policy of the law in this country that property should be so settled 
 as to continue in the enjoyment of a bankrupt notwithstanding bank- 
 ruptcy. In other words, the declaration in the Scotch settlement 
 that all payments to Sir Gerald shall not be assignable or liable to 
 arrestment at the instance of creditors is void and inoperative according 
 to English law, being repugnant and contrary to public policy. 
 
 It can hardly be doubted that, so far as relates to the pure personalty 
 or movable property comprised in the Scotch settlement, the law of Eng- 
 land must govern the case. And upon consideration, having regard to
 
 364 IN RE FITZGERALD. [CIIAP. VII. 
 
 the frame of the settlement, I think there is no difference with respect 
 to such part, if any, of the funds or securities comprised in the settle- 
 ment as ought, according to the law of Scotland, to be treated and 
 considered as real or immovable property. What Sir Gerald has 
 is a personal claim against the trustees for pa3'ment of the residue 
 of the income derived from the several investments for the time 
 being subject to the Scotch settlement, after payment thereout of 
 all the expenses of executing the trusts, 1 think that the decision of 
 the House of Lords in Scott a. Allnutt, 2 Dow & CI. 404, cited in 
 Story on the Conflict of Laws, applies. See also per Lord Notting- 
 ham in Noell v. Robinson (1681), 2 Vent. 358. It is unnecessary, 
 therefore, to consider whether, even if this were not so, the in- 
 come as soon as it came to the hands of Sir Gerald would not be 
 bound in equity bj' the assignments he has made, so as to render 
 him liable to be restrained by injunction from disposing of such in- 
 come otherwise than by payment to his assignees. It is also, I think, 
 unnecessary to consider whether, if it could be shown that as to anj' 
 part of the property comprised in tlie Scotch settlement (e. //., the por- 
 tion consisting, or that did consist, of heritable bonds or Scotch mort- 
 gages) the law applicable was prima facie that of Scotland, such law 
 ought not to be enforced in the courts of this country, upon the 
 ground that it would result in injustice to English creditors or 
 incumbrancers. 
 
 Upon the whole, I am of opinion that in the circumstances of the 
 present case Sir Gerald Fitzgerald is not entitled to require payment to 
 himself of the income of the trust funds as being free from incum- 
 brances or without power of anticipation, but that his assignees or in- 
 cumbrancers are the persons entitled to receive paj'ment from the 
 trustees of the Scotch settlement. 
 
 Sir Gerald appealed. 
 
 Cozens-Hardy, L.J. The first question for consideration on this 
 appeal is whether what I may shortly describe as the Scotch settle- 
 ment is subject to the law of Scotland, or whether it must be governed 
 by English law. Now this Scotch settlement dealt with the property 
 of a domiciled Scotch lady, who was al)out to marry a domiciled 
 Englishman, and there is no doubt but the "matrimonial domicil " 
 was English. It is not .ssuggested that a permanent residence in 
 Scotland after the marriage vvas contemplated. As a general rule the 
 law of the matrimonial domicil is auplicable to a contract in con- 
 sideration of marriage. But this is nnt an absolute rule. It yields 
 to an express stipulation that some other law shall apply. See Van 
 Grutten v. Digby (18G2), 31 Beav. 561, in which case the matrimonial 
 domicil was French, but the contract, though made in France and void 
 by French law, was nevertheless treated by Sir John Romilly as valid 
 so far as it related to property witiiin the jurisdiction. See also 
 Viditz IK O'Hagan (1899), 2 Ch. 5G9. The decision in that case was 
 reversed by the Court of Appeal. ])nt not on the ground in any way
 
 SECT. III.] IN RE FITZGERALD. 365 
 
 affecting this point. It is not necessary that there should be an ex- 
 press stipulation. It is sufficient if the court arrives at the conclusion 
 that the parties in fact contracted with reference to some law other 
 than that of the matrimonial domicil. 
 
 Applying these principles to the Scotch settlement, I find several im- 
 portant indications. (a) The great bulk of the property, namely, 
 13,200/., was invested in heritable bonds. It has been settled by a 
 chain of authorities, which ought not now to be reviewed b}' us, namely, 
 by Grant M.R., in Johnstone v. Baker, 4 Madd. 474, n., by Leach M.R. 
 in Jerningham r. Herliert, 4 Russ. 388; 28 R. R. 136, and by Wig- 
 ram V.-C. in Allen v. Anderson (1846), 5 Hare, 163, that heritable 
 bonds must be regarded in our courts as immovables. If so, it can 
 scarcely be denied that the lex loci — i. e., the law of Scotland — must 
 appl}' to the extent of the 13,200/. I am aware that there has been a 
 change of investment of part of this sum into English securities, but 
 this change cannot alter the law applicable to the settlement. I may 
 add that, as to the 13,200/., the matter does not rest in contract. 
 There is an actual completed assignment of the heritable bonds. (6) 
 There was, however, 500/. cash belonging to the lady, which was paid 
 over to the trustees for investment, and which was, in fact, invested in 
 Consols, although it might have been invested in heritable securities in 
 Scotland. It seems to me that this sum cannot fairly be treated as 
 intended to be subject to a different law from that wliich is applicable 
 to the bulk of the propert}'. (c) The whole frame of the settlement is 
 in Scotch form, and the limitations are of such a nature that they can 
 onl}' take effect if Scotch law is to be applied. I therefore feel bound 
 to treat this as a settlement made in Scotland b\' a domiciled Scotch 
 lady of Scotch propert}', in Scotch form, and subject to Scotch law. 
 The trustees of this Scotch settlement must in Scotland follow the Scotch 
 law, and their residence in England, or their English domicil, is irrelevant. 
 This being so, it follows, in m^' opinion, that we are bound to hold that 
 Sir Gerald Fitzgerald takes such interest, and such interest only, as the 
 courts in Scotland would declare him entitled to : Ansthruther v. Adair, 
 2 My. & K.513 ; 39 R.R. 263. There ought to be no difference in a matter 
 of this kind between the Court of Sessions and the High Court. The na- 
 ture and extent of his interest cannot depend upon his domicil, although 
 his capacity to deal with his interest ma}' perhaps depend upon his 
 domicil. To take the somewhat analogous case of a life interest in 
 English property given b}' the will of a domiciled Englishman for the 
 separate use of a married woman, without power of anticipation, it 
 has never, so far as I am aware, been suggested that the nature 
 and extent of her interest varied according as her domicil was, or was 
 not, English. The trust would be regarded in our courts as valid and 
 operative, even though by the law of her domicil neither the separate 
 use nor the restraint upon anticipation was recognized. And, on gen- 
 eral principles, the same view ought to be adopted by the courts of 
 the country in which the married woman was domiciled. In short, by
 
 366 IN RE FITZGERALD, [CHAP. VII. 
 
 the law of England, it is the Scotch law which must be applied to 
 this Scotch settlement. 
 
 It is, however, strongly urged that a strictly alimentary provision 
 for an adult male is not only unknown to and inconsistent with the 
 provisions of English law, as in general it undoubtedly is, but that it is 
 contrary to public policy, and ought therefore to be wholly disregarded 
 in an English court. I cannot adopt this argument. There is nothing 
 immoral in such a provision. Indeed, there are many instances in 
 which pensions or retiring allowances are by statute made not trans- 
 ferable, or liable to be attached by any legal process. I may refer to 
 the pension allowed to a retiring clergyman under the Incumbents' 
 Resignation Act, 1871, and to the observations of the Court of Appeal 
 on that statute in Gathercole v. Smith (1881), 17 Ch. D. 1. More- 
 over, it has been long settled that at common law, and apart from 
 any statutory enactments prohibiting assignment, certain salaries or 
 pensions are inalienable. For example, the half-pay of an officer. 
 In Flarty v. Odium (1790), 3 P. R. 681, 682; 1 R. R. 791, Lord 
 Kenyon said : " I am clearly of opinion that this half-pay could not be 
 legally assigned by the defendant. . . . Emoluments of this sort are 
 granted for" the dignity of the State, and for the decent support of 
 those persons who are engaged in the service of it. It would therefore 
 be highly impolitic to permit them to be assigned ; for persons, who 
 are liable to be called out in the service of their country, ought not to 
 be taken from a state of poverty. ... It might as well be contended 
 that the salaries of the judges, which are granted to support the dig- 
 nity of the State and the administration of justice, may be assigned." 
 In the following year the same question came up for consideration in 
 Lidderdale v. Duke of Montrose (1791), 4 T. R. 248, 250; 2 R. R. 
 375. This was an action by an otflcer on half-pay against the Pay- 
 masters-General of the army to recover arrears of his half-pay, and the 
 only question was whether an assignment by way of mortgage, of 
 which the defendants had due notice, justified them in withholding the 
 money from the plaintiff. The Court was clearly of opinion that, " on 
 principles of public policy, as well as on account of the interest of the 
 officers themselves, by law such assignments were void." The mort- 
 gagee was not party to this action, but it seems to have been thought 
 that he might obtain equitable relief, and he accordingly filed a bill 
 in the Exchequer: see Stone v. Lidderdale (1795), 2 Anstr. 533; 3 
 R. R. 622. It was argued that the assignment was good in equity, as a 
 transfer of any valuable contingency or possibility, if made for good 
 consideration, is affirmed in equity. But Macdonald, C.B., in a con- 
 sidered judgment, declined to accept this view, and held that the 
 plaintiff was not entitled to any relief in equity in respect of the mort- 
 gage. In short, he declined to affect the conscience of the mortgagor 
 in respect of future instalments of the half-i)ay. 
 
 In my opinion it is impossible to disregard this " alimentary pro- 
 vision " on the ground of public policy. The Scotch court would de-
 
 SECT. III.] IX RE FITZGERALD. 367 
 
 clare that the interest given to Sir Gerald cannot be assigned, and 
 would disregard the claims of his specific mortgagees, and it is our 
 duty to follow and adopt the Scotch law : Anstruther v. Adair, 2 M}'. & 
 K. 513; 39 R. R. 263. 
 
 But then it was urged that Sir Gerald could bind, and did bind, the 
 income, as and when it reaches the hands of the trustees in England, 
 and that, whatever might be the rights of his alimentar}' creditors, he 
 himself ought not to be allowed to claim from the trustees the income 
 which he has, bj- a contract binding on his conscience, charged in favor 
 of his mortgagees. I doubt whether this doctrine, which is explained 
 and illustrated bv Lord Macnaghten in Tailb}' v. Official Receiver (1888), 
 13 App. Cas. 523, 543, has any application to a vested life interest, the 
 assignment of which takes etfect, if at all, for reasons wholly 
 independent of conscience. An assignment of a vested equitable inter- 
 est is complete and operative, though voluntar}'. It in no way depends 
 upon contract, or upon anything further to be done by the assignor. 
 The doctrine applies only where there is no present property- capable of 
 assignment, such as possibilities and expectancies. Stone v. Lid- 
 derdale 2 Anstr. 533 ; 3 R. R. 622, is an authority against the 
 respondent's contention, and I know of no authorit}' in its favor. 
 I may observe that the defendant Lidderdale was a domiciled English- 
 man, whose general capacit}' to contract was undoubted. Moreover, 
 this contention is reall}' only another way of presenting the argument 
 that we ought to disregard the Scotch law. If the life interest is capa- 
 ble of assignment, the Court would grant specific performance of the 
 contract, and would aid the mortgagees by granting an injunction. If, 
 however, as in Stone v. Lidderdale, the interest is non-assignable, I 
 think it follows that no efl'ect can be given to a deed purporting to 
 assign by way of anticipation. The decision of the House of Lords in 
 Scott V. Allnutt, 2 Dow & C. 404, which was relied upon, does not 
 really touch the case. 
 
 In my opinion, the order of Joyce, J., was wrong, in so far as it 
 declared that the whole of the income during the life of Sir Gerald is 
 payable to his assignees or incumbrancers, according to their respec- 
 tive priorities. If the amount of the income were very large, any excess 
 be^'ond a reasonable amount would, according to the Scotch law, pass 
 to the assignees or incumbrancers, but I do not understand that it is 
 suggested that there is an}- excess in the present case. I think the 
 declaration should be to the effect that Sir Gerald is entitled to the 
 whole income during his life, free from the claim of any assignees or 
 incumbrancers, but without prejudice to the rights (if an}-) of his ali- 
 mentary creditors, or of Miss Fitzgerald, and without prejudice to any 
 prior payment in respect of the policy, which is the subject of another 
 appeal by Miss Fitzgerald.^ 
 
 ^ Vaughan Williams, L. J., delivered a concurring opinion; Stirling, L. J., 
 dissented.
 
 368 DE NICOLS V. CURLIER. , [CHAP. VII. 
 
 PURDOM V. PAVEY. 
 
 Supreme Court of Canada. 1896. 
 [Reported 26 Canada, 412.] 
 
 This action was brought by Pavey & Co., creditors of one Ebenezer 
 Davidson. The said Davidson had made a general assignment for the 
 benefit of his creditors ; the assets were insufficient to pay the debts, 
 and a balance was due these plaintiffs. Afterwards Davidson became 
 entitled to land in Oregon ; he conveyed this land to his father, who 
 gave to Purdom a mortgage on the land equal to the amount of the 
 purchase-money named in the deed. The plaintiffs alleged that Purdom 
 took said mortgage as a trustee for Davidson, in pursuance of a fraudu- 
 lent scheme to defraud plaintiffs and other creditors of Davidson ; and 
 prayed that Purdom should be declared a trustee for Davidson, and 
 that the money due on the mortgage note should be ordered paid into 
 court for the benefit of the plaintiffs. The defendants demurred. From 
 a judgment of the Court of Appeal of the Province of Ontario, over- 
 ruling the demurrer, the defendants appealed to this court. ^ 
 
 Strong, C. J. So far as the lands are concerned, the vahdity or 
 invalidity of this transaction must depend on the lex rei sUcb, — the 
 law of the State of Oregon, — and there is no allegation that according 
 to that law a constructive trust by operation of law would arise by reason 
 of the intent to hinder and delay creditors, or that even an express 
 trust must necessarily enure to the benefit of or be available for the 
 satisfaction of creditors. . . . 
 
 Then whether the allegation of a ''trust" of the purchase-money se- 
 cured by the mortgage which the plaintiffs allege is to be considered as 
 an averment of a trust arising by operation of law consequent upon the 
 illegality of the transaction or as an allegation of a conventional express 
 trust, in either case the question would depend on the lex rei sitce, and 
 from this alone it follows that the forum of the situs is the proper forum. 
 
 In this last aspect of the case, Be Hawthorne, Graham v. Massey, 
 23 Ch. Div. 743, and Norris v. Chambres, 29 Beav. 246, appear to me 
 to be authorities. Appeal allowed with costs. 
 
 SECTION IV. — Marital Property. 
 
 DE NICOLS V. CURLIER. 
 House of Lords. 1899. 
 [Reported [1900] Appeal Cases, 21.] 
 Earl of Halsbury, L. C My Lords, it is not necessarj' to state 
 with great minuteness how the question in the present appeal arises. 
 It is enough to say that two French subjt'cts were married according to 
 the laws of France on May 30, 1854. No marriage contract or instru- 
 ment in writing was executed by either of the parties. Tlie parties 
 lived together, and in the year 18G3 they came to England, and in the 
 1 This .short statement is .substituted for that of the Reporter. Part of the opiuion 
 Diilv is iriven. — Ed
 
 SECT. IV.] DE NICOLS V. CURLIEK. 369 
 
 year 1865 t he husband obtained the status of a na turalized British 
 
 The whole dispute turns on th e q uestion ^hpthpi- thp. nhanCTed domicU 
 and natural i zn.ti on o£ tlin hupb aed- affected the wife's ri ghts so as to 
 give the husband the power to dispose of all H'f nmvnblp. prnpp.rtv bv 
 "winjnaf P^rl nf l^PJntr r f°HMr-tpr1 t.n the power of dlsposlng of oulj onc- 
 half of it, as_ be_j3xi£loubtodly w ould have been so restricted by the 
 Pr^njiT^j^^^j^M^r^"''''^ ^^"^ is decisive of the question.^ 
 '^TfthiiTs the law by which the matter is to be governed, it cannot be 
 denied that the appellant here must succeed, and it is a little difficult 
 to understand upon what principle contracts and obligations already 
 existing i/iter ss should be affected by an act of one of the contracting 
 parties over which the other party to the contract has no control what- 
 ever. And indeed, it is not denied that if, instead of the law creating 
 these obligations upon the mere performance of the marriage, the par- 
 ties had themselves by written instrument recited in terms the very con- 
 tract the law makes for them, in that case the change of domicil could 
 not have affected such written contract. X^"3 wholly unable to unde r- 
 stajid ^why the mere puttiog-iate^ jpri ting the v er y sfime ron tract wl i it<h 
 the law r.rpntPfljhpf 3£f n t.liPr Q wJthout any writing at all shoi tl d hwe - th f?. 
 hus band from al tering the contract i-plp.t,i(;)ps bptween hbnself and his 
 wife ; when if the law creates that contract relation, then the husband 
 is not barred from getting rid of the obligation which upon his marriage 
 the law affixed to the transaction. 
 
 A written contract is after all only the evidence of what the parties 
 have agreed to, and it would seem to be of no superior force as evi- 
 dencing the agreement of the parties than a known consequence of 
 entering into the married status. I not only do not understand, but I 
 should decline to assent to any such view, unless I am compelled by 
 authoritative decision or statute to adopt a view which to my mind is 
 so entirely unreasonable. And it does not appear to me that any court 
 before whom this question has come would disagree with me as to its: 
 being unreasonable. 
 
 The Master of the Rolls himself says : " It is not altogether satisfac- 
 tory to hold that a change of domicil cannot affect an express contract 
 embodying the law of the matrimonial domicil, but that a change of 
 domicil does affect the application of that law if not embodied in an 
 express contract." 
 
 My Lords, I should think that, in order to be binding on your Lord- 
 ships, a previous decision must be in principle^ and, as applicable to 
 the same circumstances, identical ; and it appears to me that the case 
 by which the Master of the Rolls thought himself bound (Lashley v. 
 Hog, 4 Paton, 581) is quite distinguishable both in principle and in 
 circumstances. 
 
 To omit other questions, the cardinal distinction between the French 
 and the Scottish law is not, I think, without an important bearing upon 
 
 1 The Lord Chancellor here stated the French law. — Ed. 
 24
 
 370 DE NICOLS V. CURLIEE. [cliAF. VIL 
 
 the very question in debate, and I tliink it may be stated sliortly thus : 
 If the wife by the nuin-iage in Scotland acquired no proprietary rights 
 whatever, but only what is called a hope of a certain distribution upon 
 the husband's death, it is intelligible that that right of distribution, or 
 by whatever name it is called, should be dependent upon the husband's 
 domicil, as following the ordinary rule that the law of a person's domi- 
 cil regulates the succession of his movable property. But if by the mar- 
 riao-e the wife acquires as part of that contract relation a real proprietary 
 rio"ht, it would be quite unintelligible that the husband's act should dis- 
 pose of what was not his; and herein, I think, is to be found the key to 
 Lord Eldon's judgment. He says (4 Paton, 617 ) : " The true point seems 
 to be this, whether there is anything irrational iu saying that as the hus- 
 band, during the whole of his life, has the absolute disposition over the 
 property, that as to him, whom the policy of the law has given the di- 
 rection of the family as to the place of its residence, that he who has 
 therefore this species of command over his own actions, and over the 
 actions and property which is his own, and which is to remain his own, 
 or to become that of his family according to his will — why should it 
 be thought an unreasonable thing, that, where there is no express con- 
 tract, the implied contract shall be taken to be that the wife is to look 
 to the law of the country where the husband dies for the right she is to 
 enjoy in case the husband thinks proper to die intestate?" 
 
 It will be observed that the whole point of what Lord Eldon argues 
 is that the whole of the property, apart from express contract, is abso- 
 lutely and entirely the husband's, and that as by law he can dispose of 
 it ashe will, it is not unreasonable that he should be at liberty to do 
 something which by its legal effect will change wliat I think are inac- 
 curately described as the rights of the wife, but are accurately described 
 as what would have been the rights of the wife if no change had taken 
 place, because in substance she has until the husband's death no rights 
 
 at all. 
 
 Doubtless it is true that, according to the authorities on Scottish law, 
 the right of the wife is no right at all in its strict sense. When siteak- 
 ing of° the jus mariti it is described as a legal assignation to the hus- 
 ba°id, and in commenting on this authority, the late Mr. Fraser, while 
 at the Scottish Bar, in his book on the Law of Husband and Wife, 2d 
 ed. vol. i. p. 677, says : '' At a very early period of our law, the dis- 
 tinction between the two rights was recognized. The right of admin- 
 istration was regarded as being nothing more than its name imi)orts — 
 a riglit of administering the property of the spouses ; while the Jus 
 mariti was sometliing separate and superior, its purpose being to trans- 
 fer the property from one spouse to the other. The distinction is set- 
 tled and taken in a number of cases ranging from an early i)eiiod to 
 the present time, and has not been so clearly marked in some nistitu- 
 tional works, solely from the desire of the writers to reconcile it with 
 the notion of an absolute veritable cunnvniio." . . . "The distinction 
 is thus stated in argument in the Session Papers of Gowau v. Pursell:
 
 SECT. IV.] DE NICOLS V. CURLIER. 371 
 
 ThQJus mariti over the movables is a right during the existence of the 
 marriage of absolute property. The husband may sell, or squander, or 
 wastefully destroy the movables that fall under communion." How 
 different the position of the wife is under the French law is sufficiently 
 indicated, in contrast to the above extract, by section 1443 of Code Civil, 
 which enacts that : " 1443. A separation of property can only be judi- 
 cially sued for by the wife whose dowry is in danger, and when the disorder 
 of the husband's affairs is such that there is reason to fear that his prop- 
 erty will not be sufficient to satisfy the wife's riglits and claims. Any- 
 voluntary separation is void." And if the propositions are put shortly 
 — that the wife acquires no proprietary rights by marriage under the 
 Scotch law at all, but under the French law acquires a real proprietary 
 right — the distinction between the two systems is evident enough. The 
 communio bonorum in Scotland is a mere fiction. In France it is a 
 reality, and in England, as the Master of the Rolls says, the parties to 
 the litigation now being discussed, Mr. and Mrs. Hog, were both Eng- 
 lish, married in England, where her unsettled property, existing and 
 after acquired, became the property of Mr. Hog by the mere fact of 
 the marriage, and gave Mrs. Hog no proprietary right whatever to the 
 movable property in question. 
 
 Once it is admitted that the marriage gives a proprietary right (and 
 therein is the importance of the distinction Lord Eldon took between 
 what was inaccurately argued in that case as a proprietary right con- 
 ferred by the fact of marriage and a real proprietary right conferred by 
 specific contract), the anomaly pointed out by the Master of the Rolls and 
 sought to be explained becomes at once intelligible. It is only material 
 as illustrating what was the prevailing train of thought in the minds 
 of Lord Eldon and Lord Rosslyn. Both of them speak of the words 
 " implied contract," by which I presume they mean implied from the 
 relation of husband and wife, and not unnaturally they deduce the con- 
 clusion that if it is implied from that relation only the husband's 
 change of domicil may bring with it the consequential change from 
 such relation. 
 
 \Here, however, as I have endeavored to point out, the French mar- 
 riage confers not only an implied but an actual binding partnership pro- 
 prietary relation fixed by the law upon the persons of the spouses, the 
 binding nature of which, it appears to me, no act of either of the parties 
 contracting marriage can affect or qualify. > 
 
 I can only account for the absolutely inaccurate use of the Scottish 
 term jus relictm as arising from a reference to a dispute that appears 
 to have existed in the Scottish authors as to whether those rights 
 flowed from the communion, whereas, to quote again from Mr. Eraser's 
 book, p. 671, where he says : " It has been found in accordance with 
 the opinions of the French commentators, of Dirleton, and other law- 
 yers of our own country, that the jus relictm and legitim are in all 
 respects the same ; that they are mere casual contingent rights during 
 the subsistence of the marriage, existing then only in hope, and coming
 
 372 DE NICOLS V. CURLIER. [CHAP. VII. 
 
 into proper rights merely at its dissolution ; tliat they are not rights of 
 divisiou of a fuud ah-eady held in common, but rights of debt against 
 the husband's executors, constituting the widow and the children cred- 
 itors, whose right comes into being by the husband's death, and second- 
 ary creditors too, for all other debts must be paid before theirs." 
 
 It is, therefore, as I understand, that when once Lord Eldou came to 
 the conclusion that the husband and wife had become Scottish domiciled 
 spouses, the property' not affected by a previous complete and irrevo- 
 cable right would properly be distributed according to Scottish law. 
 
 It follows, therefore, if I am right, that that case is not binding on 
 3'our Lordships, and that we are at liberty to decide the question now 
 in dispute, in accordance with reason and common sense. 
 
 I therefore move your Lordships that the order appealed from be 
 reversed, and that in respect of costs, as I understand this is only- 
 one question in the summons which comprehends other questions also 
 in debate, the costs of this appeal should be costs in the summons. 
 
 Lord Macnaghten. My Lords, in 1854 Mr. De Nicols, the testator, 
 and the appellant, who is now his widow, intermarried in Paris. They 
 were both French by birth and both domiciled at the time in France, 
 They married without a contract of marriage, and consequently under 
 the law of France they became subject to the system of community of 
 goods. 
 
 In 1863 Mr. and Mrs. De Nicols left Paris and came to London. 
 They acquired an English domicil, and in 1865 Mr. De Nicols obtained 
 a certificate of naturaUzation in this country. From that time forward 
 their residence in England was continuous. Mr. De Nicols became a 
 restaurant proprietor in London. He was successful in business, and 
 amassed a large fortune, consisting of both movable and immovable 
 property. 
 
 Mr. De Nicols died in February, 1897, having made a will in the 
 English form and language. 
 
 The question for your Lordships' consideration is whether Mr. and 
 Mrs. De Nicols continued subject to the sj'stem of community of goods 
 after they became domiciled in England. On the one hand it is con- 
 tended that the change of domicil from French to English destroyed 
 the community altogether, and, therefore, that the testator's will op- 
 erated upon the whole of the property vested in him which, but for that 
 cbange, would have been common. On the other hand it is said that 
 the community continued notwithstanding the change of domicil, and 
 that Mr. De Nicols remained bound by the article of the Code Civil, 
 Vwhich provides that tlie testamentary donation by the husband cannot 
 exceed his share of the communit}'.^ 
 
 If the case were not embarrassed by tlic judgment of this House in 
 Lashley /;. Hog, which was discussed so fully at the bar, it would not, I 
 think, present much difficulty. 
 
 Putting aside Lasliley r. Hog for the moment, the only question 
 would seem to be what was the effect according to French law of the
 
 SECT. IV.] DE NICOLS V. CUKLIER. 373 
 
 marriage of Mr. and Mrs. De Nicols without a marriage contract ? 
 Upon tliat point there cannot, I think, be any room for doubt. It is 
 proved by the evidence of M. Lax, the expert in French law called on 
 behalf of the appellant, that, aciiordintr to tha Jag of France, a husban d 
 and wife intermarrying without having en t prp.d into gn intpnnptiq] fonn- 
 tract inwrit.in ff n.rp. p lan ed and stand bv th e sole fact of the marriage 
 preci sely in the same position in all respects as if previously to their 
 m arriage they had in due form execute d a written rontrnct. nnd tliprehv 
 adopt ed as spff iil n.nd Q-^py'^-i g cnvpn nnts all and every one of the proj^ 
 v isions contained in articles 1401 to 1496 in Title V. of tITpTindp Civile 
 Teaded ^'OfMarr iage Contracts and the res£e ctive rights of spouses^.' 
 "" In support olTthis conclusion, M. Lax refers to the relevant articles 
 Df the Code and to a decision of the highest authority pronounced by 
 Ihe Cour de Cassation in January, 1854. The case as reported by Sirey 
 presents the argument so clearly and so concisely that I may be par- 
 doned for referring to it more in detail. The summary in Sirey's 
 Reports is as, follows : (Tables Generales [Contrat de Mariage] para- 
 graphe 8.) ("The conjugal association as to property once formed at 
 the time of the marriage by the operation of the law of the domicil or 
 nationality of the husband cannot be altered later on either by a change 
 of nationality or by the acquisition of a new personal domicil subse- 
 quently to the marriage." y The case was this : An Englishman and an 
 EngUshwoman, a Mr. and Mrs. Boyer, were married in England with- 
 out any settlement. Afterwards they went to France and jointly ac- 
 quired immovable property there. The husband became a French citizen. 
 The wife died first. On her death duty was demanded and paid on one- 
 half of the property as having devolved upon her children as her next 
 of kin. An action was brought for the return of the duty. The tribu- 
 nal of Lille ordered repayment, holding that " the matrimonial compact 
 in respect of property is as immutable as the marriage itself, of which 
 it is an accessory." The revenue authorities appealed. The Cour de 
 Cassation aflSrmed the decision. They founded their judgment upon 
 their view of English law, which seems right enough, and upon the fol- 
 lowing considerations : that " the rule of the marriage of the spouses 
 Boyer has followed them to France when the}' went there to settle and 
 there acquired property," and that " the said rule has the same force as 
 if a formal contract had been entered into between the said spouses for 
 the regulation of their fortune." 
 
 Although this reasoning may not seem quite in accordance with the 
 opinion which Lord Eldon expressed in Lashley v. Hog, as to the effect 
 of an English marriage without a settlement, it indicates, I think, the 
 view which, according to French law, would be taken of the compact 
 as to property constituted by a French marriage under the Code Civil 
 without an antenuptial agreement. 
 
 The expert who was called on behalf of the executors does not 
 attempt to contravene this conclusion of law. He endeavors to mini- 
 mize its effect by treating it as a self-evident proposition — as in fact
 
 374 
 
 HAREAL V. HARRAL. 
 
 [chap. vn. 
 
 being nothing more than what the Code declares. He adds, however, 
 that in his opinion the effect of a change of domicil or nationality upon 
 the communit}' sj'stem was never considered by the framers of the 
 Code. That may be so. Uutif there is a va lid compact between 
 sp ouses .is to tlieir p roijertyj whetEeyit be con stituted^ - the law of^ 
 The land or by convention between the parties, itisdifficult to see how 
 t5 at~TOmpact"T ;gn b^llulhiied or blotted out^tHCTelv bv~a changi~of 
 domicil. 
 
 ^ the ul)lm:ition s^of ihem arriat^e law, under which 
 
 the_jiaJlies-^Teontracted iiuUriiuDU}-. e^[ui valent acc ordin g to^ p lawTTf 
 the couji try where the uiairiage was 1 1 le j^rntpd to nn express cnntm pt, 
 losetheij:Jbrce and -eflJeci jyJLuiJuJlui. ^lajliea becom e_dormdUMJhT_another 
 countrvl. As M. Lax points out, change of domicil and naturalization 
 
 in a foreign countr}' are not among the events specified in the Code as 
 having the effect of dissolving or determining the communit}-. Let us 
 suppose a case the converse of the present one. Suppose an English- 
 man and an Englishwoman, having married in England without a set- 
 tlement, go to France and become domiciled there. Suppose that at 
 the time of the acquisition of the French domicil the husband has 
 £10,000 of his own. Wh}' should his ownership of that sum be im- 
 paired or qualified because he settles in France ? There is nothing to 
 be found in French law, nothing in the Code Civil, to effect this altera- 
 tion in his rights. Community of goods in France is constituted by a 
 marriage in France according to French law, not by married people 
 coming to France and settling there. And the communit}' must com- 
 mence from the day of the marriage. It cannot commence from any 
 other time. It appears to me, therefore, that the proposition for which 
 the executors contend cannot be supported on principle. That, I think, 
 was the view of the Court of Appeal. But they considered that the 
 judgment of Lord Eldon in Lashley v. Hog, compelled them to decide 
 in favor of the executors.^ 
 
 It appears to me that the case is not governed by the decision in 
 Lashley v. Hog, and I think the appeal ought to be allowed. 
 
 LoKD Morris, Lord Shand, and Lord Brampton concurred. 
 
 HARRAL V. HARRAL. 
 Court of Eurors and Appeals, New Jersey. 1884. 
 {Reported 39 New Jersey Equity, 279.] 
 
 Frederick F. Harral was born in Connecticut in 1842. He gradu- 
 ated at Yale College in 1863, and at the College of Physicians and 
 
 1 The learned Lord here stated and commented upon the case of Lashlej v. Hog. • 
 —Ed.
 
 SECT. IV.] HAKRAL V. HARRAL. > 375 
 
 Suro-eons in New York City, in 1868. He was married on the 20th of 
 February, 1877, before the deputy mayor, in the city of Paris, to 
 Clarice Marie Le Gars, a Frenchwoman. In May, 1878, he returned 
 to this country, and died at Kirlibride's hospital for the insane, in 
 Philadelphia, July 5, 1881. 
 
 On the 9th of July, 1869, and before his departure for Europe, the 
 decedent duly made and executed a will, devising and bequeathing all 
 his property, real and personal, to his brother and sisters, and appoint- 
 ing William Creighton Peet and Hamilton Wallis executors. This will 
 was admitted to probate in the prerogative court of this State on the 
 31st of July, 1882. 
 
 The widow filed this bill in the Court of Chancery of this State, to 
 which the legatees under the will of her husband and the executors are 
 parties. 
 
 The prayer of the bill is that the personal estate of the decedent, so 
 far as concerns the complainant's interest therein, should be distributed 
 in accordance with the laws of France. 
 
 On final hearing, on bill answer and depositions, the chancellor 
 made a decree in accordance with the prayer of the bill. From that 
 decree the defendants appealed. 
 
 Depue, J. The law of France in relation to the rights of husband 
 and wife in the property of either spouse is established by tlie Code 
 Napoleon. Before the French Revolution, the northern provinces of 
 France were under the customary law, and the community of property 
 governed the nuptial contract ; in the southern provinces the Roman 
 law prevailed, and the contract was governed by the dotal system. 
 The Code Napoleon left the parties to elect the law by which the mar- 
 riage should be governed ; and if no election was made, the commun- 
 ity system was to prevail. 2 Kent, 187, note. Section 1391 of the 
 Code provides that the parties may declare in a general manner that 
 thev intend to marry either under the law of community or under the 
 law'of dowrv. The community is either legal or conventional. Legal 
 community is established either by a simple declaration that the parties 
 marry under the law of community, or by a marriage without any con- 
 tract on the subject. Sections 1400, 1497. There was no marriage 
 contract between these parties with respect to property ; and if dis- 
 position of the personal estate in question is to be made by the French 
 law, it must be disposed of as community property. 
 
 Community is divided by the Code into two classes — active and 
 passive. The former relates to the disposition of property ; the latter, 
 to liability for debts. The property which is comprised in the com- 
 munity consists of (1) All the movable property which the married 
 parties possessed on the day of the celebration of the marriage, and all 
 movable property which falls to them during the marriage, by succes- 
 sion, or even by donation, if the donor has not expressed himself to 
 the contrary ; (2) All the fruits, revenues, interest, and arrears of what 
 nature soever they may be, fallen due or received during the marriage,
 
 376 HAERAL V. HARKAL. [CHAP, VII. 
 
 and arising from property which belonged to the married persons at 
 the time of the celebration of the marriage, or from such as has fallen 
 to them during the marriage by any title whatsoever ; and (3) All im- 
 movable property acquired during the marriage. Section 1401. This 
 communit}', whether it be conventional or legal, commences from the 
 day of the marriage contracted before the officer of the civil power. 
 Section 1399. During the coverture the husband has the custody, 
 control, management, and power of disposition (under some restric- 
 tions) of the community property (sections 1421, 1422) ; and he may 
 make a testamentary disposition of his portion of the community prop- 
 erty, but of no more. Section 1423. After the death of the husband 
 the wife may accept or renounce the communit}-. Section 1453. If 
 she accept it, her share — that is, the one-half part of the community 
 property — is given to her, subject, in the partition, to certain specified 
 deductions and allowances by way of compensation. Sections 1467, 
 1480. 
 
 T^he complainant, in her bill, charges that the legal domicil of tjie 
 decedent, at the time of his death, was in France, and insists that 
 ^om Ihe -time of the celebration of her marr i age with the testator, b y 
 foi-ce and o peration of the laws of France,_a legal community was 
 established bet ween her and her husband as t o alljhe^pe rsonal or mov - 
 able pr operty possessed or _Q»ae4- by either of ihem during the ma r- 
 nage, a nd in all the fruits, revenues^ interest, and in comethereof ; and 
 tn at~upon the death of the testator she was entitled to have alKfreceive , 
 alSsolutely, for her own use and benefit, the one-h alf part of all su ch 
 property s o held in community b_e l3ye£a -heraelf Jt nd her husband, and 
 that it was not in the po^er of her hnshnnd to dispose of^thi?JL-^hnrft 
 OT "ttiterest m sai d pronpTty , whinhj by the- laws,jifJFrance, belonge d 
 
 To her/ 
 
 TEe defendants, in their answer, admit that the testator was married 
 to the complainant on the 20th of February, 1877, at Paris ; but they 
 say that the marriage was void for the reason tliat the testator at that 
 time was of non-sane mind, and incompetent to enter into a contract of 
 mari'iage. The}' admit that the testator lived in Paris for five years 
 before his marriage, but deny that his legal domicil was, at the time of 
 his marriage, or at any time, in France, and insist that distribution of 
 his personal estate should be made under the laws of New Jersey, 
 The\' also say that by the law of France no man can become domiciled 
 in France without he shall have first applied to the French government 
 for permission to do so, and obtained an express autliorizatiou from 
 the government to establish such domicil, and that the testator never 
 obtained an authorization to establish his domicil in France, and never 
 became domiciled there by the laws of that countr}'. 
 
 The chancellor, in his opinion, considered the evidence on the sub- 
 ject of the testator's mental condition at the time of his marriage, and 
 reached the conclusion that the testator was not at that time mentally 
 incapacitated to contract marriage or to change or establish his domi-
 
 SECT. IV.] 
 
 HARRAL V. HARRAL. 
 
 377 
 
 cil. The evidence shows that the decedent, for some time, had been 
 addicted to intemperance, and that his phjsical and mental vigor 
 had been impaired by indulgence in drink ; but it falls short of proof 
 that, at the time of his marriage, his mental faculties had become so 
 impaired as to incapacitate him from entering into a contract of mar- 
 riage, or from deciding upon the place of his domicil. The answer 
 contains no allegation of fraud or imposition upon the decedent in 
 procuring the marriage. The case turns whoU}' upon the applicability 
 of the community law to the testator's personal estate in the hands of 
 his executors. 
 
 When the testator went abroad in 1869, his property consisted of 
 personal estate, and a house and lot in Bridgeport, Connecticut. The 
 personal estate he left in charge of Mr. Wallis, to be invested and 
 cared for, and it remained in charge of the latter during the lifetime of 
 the decedent. This personal estate, amounting to about $50,000, at 
 the testator's death came to the hands of the executors. This contro- 
 versyjielates wholl y to the pi 
 
 rsonal estat e. . . . 
 The complainant's counsel contended that inasmuch as the marriage 
 was celebrated in France, the wife, immediately on her consummation 
 of the marriage, acquired a vested right in her husband's property, 
 independent of any question of domicil, and that her right in the per- 
 sonal proi)erty of the husband was a jus acquired by the marriage by 
 virtue of the French law, which could not be invalidated by any ex- 
 traneous circumstances. This view has had some support in the opin- 
 ions of writers on international law, but is contrary to the course of de- 
 cision in the courts of this countrj-, and, I may add, to the later decisions 
 of the courts elsewhere. The doctrine generally adopted and supported 
 by reason and public policy is, that a marriage celebrated according to 
 rites and ceremonies recognized by the laws of the country where the 
 marriage takes place, is valid everywhere ; and, as a general rule (not 
 without exceptions), by that law the capacity of the parties to contract 
 a marriage is determined. Whart. on Confl. of Laws, §§ 161, 162, 
 164; Story on Confl. of Laws, §§ 113, 113 a, 114, 123 b, 124, 124 a; 
 Bish. on Marr. and Div. §§ 357, 359, 363, 370; Moore y. Hegeman, 92 
 N. Y. 521. But with res pect _t o the propert yjjglxts of h u sljan d-ojuggjija 
 in the personarp!T?peHf]oFeitbfir,-dmi^f^^ t he m armgej^iatioB, 
 th e place"~wBer £_t"he_maj:mg&o;ms--cej£brajedJ^^ 
 rights depend on what is knownjnJawLSS thaJiia^moftt^ Le 
 
 BretoittinSio'ucIIetTTTilart. (La.) 60, 81 ; Ford v. Ford, 2 Mart. (n. s.) 
 574 ; Allen v. Allen, 6 Rob. (La.) 104 ; Kneeland v. Ensley, Meigs 
 (Tenn.) 620 ; Glenn v. Glenn, 47 Ala. 204 ; Mason v. Homer, 105 
 Mass. 116 ; Story on Confl. of Laws, §§ 186, 193 ; 2 Pars, on Cont. 590. 
 Mr. Wharton says that the place of the celebration is not necessarily 
 the place of the performance of the marriage, which, he says, the later 
 jurists have agreed is its true legal site, and_tha t this place of perfo rm^ 
 ance is the matrimonial d omicil to which the husba nd and w if e p roi^osa 
 
 ^ Here follows a discussion on domicil, for which see ante, Vol. I. p. 1 95. — Ed.
 
 378 HARRAL V. HARRAL. [CHAP. VIl 
 
 ta-Fe-paii;^^ Whart. on Confl. of Laws, § 192. On the marriage, the 
 legal presumption is that the wife takes the domicil of her luisband, 
 and her rights are subject to the law of his domicil ; but that presump- 
 tion is overcome, and the legal inference is superseded when, on the 
 marriage, the parties adopt a place for their matrimonial domicil — in 
 which event the matrimonial domicil will control, and will regulate the 
 propert}' rights of the parties in movables. 
 
 The au thorities are quite generally in accord in selecti ng the matrimo- 
 nial domidL-asJ}ie~placJe^Llch sliall furnisti-theJ iLw regulating the in- 
 
 ^teresLs_QfJiii§bancl and wife-jn-the movable prope rty of either, which was 
 irL£Sse w hen the marriag e took plafig. Perplexing questions sometiuies 
 arise as to what place shall be deemed the true matrimonial domicil in 
 the sense of this rule. Mr. Justice Story supposes a case where neither 
 of the parties has a domicil in the place where the marriage was cele- 
 brated, and the parties were there in transitu, or during a temporary 
 residence, or on a journey made for that sole purpose animo rever- 
 tendi^ and says that the principle maintained b}' foreign jurists in such 
 cases would be that the actual or intended domicil of the parties would 
 be deemed to be the true matrimonial domicil ; or, to express the doc- 
 trine in a more general form, that the law of the place where, at the 
 time of the marriage, the parties intended to fix their domicil would 
 govern all the rights resulting from the marriage. He also supposes 
 the case of a man domiciled in one State marrying a lady domiciled in 
 another State, and says that foreign jurists would hold that the matri- 
 monial domicil would be the domicil of the husband if it was the inten- 
 tion of the parties to fix their residence there, or the domicil of the 
 wife if it was tlieir intention to fix their residence there, or in a differ- 
 ent place from the domicil of either the husband or wife if they intended 
 to establish their matrimonial domicil in some other place. He then 
 refers to the decisions of the courts of Louisiana, adopting the same 
 principle, and concludes that, " under these circumstances, where there 
 is such a general consent of foreign jurists to the doctrine thus recog- 
 nized in America, it is not, perhaps, too much to affirm that a contrary 
 doctrine will scarcel}' hereafter be established ; for, in England as well 
 as in America, in the interpretation of other contracts, the laws of the 
 place where they are to be performed has been held to govern. Treated, 
 therefore, as a matter of tacit matrimonial contract (if it can be so 
 treated), there is the rule of analogy to govern it ; and treated as a 
 matter to be governed by the municipal law to which the parties were, 
 or meant to be, subjected b}- their future domicil, the doctrine seems 
 equally capable of a solid vindication." Story's Confl. of Laws, §§ 191- 
 199. All per[)lexity on t his subject is remove d where, as in this ca se, 
 the place where the marriage is c elebrated, the domicil of tlic wif e, and 
 the establishmeni of a home after the marriage, concur. Th e i^lace of 
 
 ^ ^ntract and the p lace of performance being the same, on l egal anal- 
 "^gies there would seem to be no doubt tliat that p lace would be the 
 Tnatrimoniai domicil, and that the incidents of the marriage would be 
 determinen by theiaw of that place. ~~ ~'
 
 SECT. IV.] HARKAL V. HAERAL. \/' 379 
 
 Nor can that question, which has given rise to great diversity of 
 opinion where new property has been acquired after the marriage, and 
 in a new domicil, arise in this case, for the propert}- to which this con- 
 troversy relates was in esse at the time of the marriage, and the matri- 
 monial domicil then established continued until the husband's death ; 
 and it is universally allowed that, when a marriage takes place without 
 settlement, the mutual rights of the husband and wife in each other's 
 movable property are to be regulated by the law of the matrimonial 
 domicil, so long as that remains unchanged. Westlake's Int. Law, 
 § 366. 
 
 The French law recognizes a conjugal domicil analogous to what is 
 known in our law as a matrimonial domicile and is distinguished from 
 that domicil which is required for the purpose of contracting a lawful 
 marriage ; and the law of that country, with respect to the effect of the 
 conjugal domicil upon the rights of husband and wife in the movable 
 property of either spouse, is in accordance with the views above ex- 
 pressed. George Merrell, a witness called by the defendants, who is 
 not an attorney or avocat in the French courts, being a foreigner who 
 studied law in New York City, said that a foreigner cannot acquire a 
 domicil in France without complying with Article 13 of the Code, 
 except it be a matrimonial domicil, which he defines to be the resi- 
 dence necessary to confer jurisdiction on the magistrate for the celebra- 
 tion of the marriage ; and that in the case of an American citizen 
 establishing his residence in France, with intention of making that his 
 permanent home, marrying and living there, not having received the 
 government authorization, according to the Code, his personal prop- 
 erty would be distributed according to the American law. On the 
 other hand, M. Goiraud, a French lawyer called b}- the complainant, 
 testified that the domicil necessary for a foreigner to contract a legal 
 marriage required only a residence, in fact, for six months, and that 
 the domicil which was to govern the marriage relations of the parties 
 would be the conjugal domicil, which he defined to be the domicil 
 which had been chosen by the parties, either at the time of the mar- 
 riage or after the marriage, in order to be finally settled. M. Clunet, 
 avocat of the court of Paris, called by the complainant, testified that 
 French jurisprudence, in order to establish the marriage relation of the 
 parties married without a contract, takes, as a principle, their supposed 
 intention, and finds the expression of that intention in what is called 
 the conjugal domicil, or, in other words, the place where, after the 
 marriage, the parties establish themselves. Both these witnesses agree 
 that government authorization is not required for the establishment of 
 a conjugal domicil in France, which, when the marriage is celebrated 
 in France without a contract, will make the propert}- of a foreign-born 
 husband subject to the community law. 
 
 The decisions of the French courts sustain the opinions given by 
 M. Goiraud and M. Clunet. In Breul's Case, Sirey (1854), 2,105, 
 translated in 4 PhiUim. Int. Law, 226, and more fuUv in Cole on Domi-
 
 380 HAKRAL V. HAKKAL. [CHAP. \il 
 
 cil, 45, 47, Breul was a Hanoverian ; he married a Frencliwoman in 
 France, and died there ; at the time of his marriage, and at his death, 
 he was domiciled in France, but had not obtained a governmental 
 authorization for that purpose. On appeal, the question was whether 
 there was a community of goods between husband and wife. The 
 court held that there was, and that foreigners were capable of entering 
 into all contracts depending on the law of nations, and could, when 
 they marry in France, accept tacitlj- the rule of community, established 
 by law, in the same way as they might have made that rule the subject 
 of express stipulation in a formal contract ; that, to make this princi- 
 ple apply to foreigners, it was not enough that the marriage was cele- 
 brated in France ; but that it was also necessary that the intention of 
 the contracting parties to adopt the community sliould be manifested 
 hy atBrmative acts; that the establishment of a domicil in France had 
 always been regarded as the most positive manifestation of such inten- 
 tion ; that the domicil ought to have an importance to distinguish it 
 from simple residence, but it was not necessary that it should have 
 been authorized by the government under Article 13, for the reason 
 that the object of this authorization was to confer on the foreigner all 
 the civil rights of native-born Frenchmen, and that these rights were 
 not necessar}- in a foreigner in order to enable him to enter into matri- 
 monial conventions, which are ptTfel}' of the jus gentium. 
 
 In Lloyd v. Lloyd, Sirey (1849), 2, 220; in Cole on Domicil, 37, and 
 translated in a note to Whicker v. Hume, 13 Beav. 401, James Lloyd, 
 a foreigner, whose birthplace was unknown, and who was, by presump- 
 tion and residence, an Englishman, came to France, and established 
 himself there permanently. In 1836 he married, at Paris, a French- 
 woman, without a marriage settlement. He had three children by the 
 wife before marriage, and tln-ee afterwards. He continued his resi- 
 dence, and died in Paris, leaving his wife and the six children surviv- 
 ing him. The widow claimed, before the French court, that portion of 
 the property which would belong to her bj' the French law, if she and 
 her husband were married under the regime of the comniunaute des 
 biens. Her right depended on whether, at the time of the marriage, 
 the decedent had a legal domicil in France. He never had applied for 
 or obtained an authorization under Article 13 of the Code. The Tribu- 
 nal of the Seine decided against her claim, but the decree was reversed 
 b}' the Court of Appeal, and the claim of the widow sustained. The 
 court said that "it is fruitless to contend that the domicil of James 
 Lloyd, in France, was not accompanied by the authorization of the 
 government, required by Article 13, and therefore it cannot be taken 
 into consideration as regulating the conjugal domicil, for it is a fixed 
 princii)le of law, as well before as since the Code, that a foreigner, 
 even when he preserves that quality, could acquire a domicil in 
 France; that Article 13 of the Code did not intend to change this 
 state of things ; that it is only when a foreigner wishes to possess such 
 a domicil in France, as will confer upon him all civil rights, that the
 
 SECT, IV.] HARRAL V. HARRAL. 381 
 
 authorization of government is required ; that in the present case it is 
 not a question as to a civil right, exclusivel}- appertaining to a French 
 citizen ; that the tacit agreement as to the community of goods, result- 
 ing from submission to Articles 1393, 1399, 1340, and the succeeding 
 articles, was purely derived from the law of nations." 
 
 In Fraix's Case, Fraix was a Savoyard, and settled in Paris, where 
 he married his second wife, a Frenchwoman. The question was 
 whether he married under the French communaute cles Hens. The 
 court held that although he had not been authorized by the government 
 to establish his domicil in France, a domicil was not necessary to 
 make the communaxite applicable, which is presumed to have been the 
 intention of the parties when they fixed themselves in France. 4 Phil- 
 lim. Int. Law, 231. 
 
 In Ghisla's Case, decided in 1878, Ghisla was a Swiss hy birth. He 
 married a Frenchwoman in France, and before and after his marriage 
 had his domicil in Marseilles, and in that place died. His widow 
 claimed the benefit of the community law, and it was adjudged to her 
 by the court of Aix, the ground of the decision being that, where one 
 of the married couple is French, and the other a foreigner, they are, in 
 the absence of a contract, governed by the law of the conjugal domicil ; 
 that the intention of the parties is to be considered before their nation- 
 alit}', and that to the fixing of the conjugal domicil, government author- 
 ization was not required, for whatever appertains to the marriage 
 belongs rather to the jus gentium than to the civil law, properh' speak- 
 ing. Jour. Int. Law, 1878, 610. In Dages v. Laborde, it was held 
 that the legislation applicable to the civil interests of a marriage was 
 that of the place where the married couple established their domicil 
 immediately after the marriage, and where it appeared that it was their 
 intention to fix the principal place of their business, and to raise their 
 family, and that this domicil was denominated their matrimonial domi* 
 cil. Court of Pau, 1835, affirmed in the Court of Cassation, December, 
 1836, Journal du Palais, 1837, 1, 537. 
 
 Giovanetti v. Orsini, Sirey (1855), 699, is the converse of the cases 
 cited. In that case a Frenchman, while domiciled in Tuscany, married 
 an Italian woman in Florence. They afterwards removed to France. 
 On her death, the question arose in France as to the matrimonial regime 
 governing the estate of the deceased wife. There had been an agree- 
 ment, subsequent to marriage, with respect to property, not valid 
 under the French law. The court held that the marriage having been 
 contracted at Florence, and the parties having, at the epoch of their 
 marriage, fixed their matrimonial domicil in Tuscany, the marriage 
 was necessarily under the influence of the Roman law, which governed 
 such matters in Tuscany, according to which, agreements subsequent 
 to marriage were authorized and valid. Cole on Domicil, 41. 
 
 Morand v. Commune de Mezere, Sirey (1873), pt. II., 148, much 
 relied on b}' the defendants, is not in jjoint. The parties were married 
 iu Sardinia, and then removed to France. The husband settled in
 
 382 FRIERSON V. WILLIAMS. [CHAP. VII. 
 
 Paris, and had his principal establishment there, but did not obtain 
 authorization from the government. His daughter was born in France. 
 He died in 1855, and his widow in 1867, making the commune her 
 residuary legatee. The court held that Morand was a foreigner, and 
 so were his wife and daughter, and therefore the laws of P'rance did 
 not govern the succession. The effect of a French marriage, followed 
 by a conjugal doraicil in France, was in no wise involved. 
 
 I think it is clearly shown, not only by the testimony of the French 
 lawyers, who were witnesses in this case, but also by the F^rench deci- 
 sions, that it is the law of that country that the marriage of a foreigner 
 in France, without any contract, followed by a conjugal domicil in 
 France, will subject the property of the married persons to the com- 
 munity law, and that a government authorization under Article 13 of 
 the Code is not necessary to the establishment of such a domicil. 
 
 The decree of the chancellor should be affirmed. 
 
 Decree unanimously affirmedo 
 
 FRIERSON V. WILLIAMS. 
 
 Supreme Court, Mississippi. 1879* 
 
 [Reported 57 Mississippi, 451.] 
 
 George, C. J.'^ The plaintilT in error filed his bill in the Chancery 
 Court of Coahoma County against John Williams and his wife for the 
 purpose of collecting out of the separate estate of Mrs. Williams a 
 note for six thousand and fifty dollars, made by Williams and wife, 
 in February', 1873, payable to the order of Williams, the husband, and 
 by him indorsed to the plaintiff in error for money then advanced by 
 the latter to said Williams. The note was made at New Orleans, in 
 the State of Louisiana, where Williams and his wife reside. The 
 property sought to be charged with the debt is land situated in Coa- 
 homa County, and is the separate estate of Mrs. Williams, under a 
 devise made to her by her sister, Mrs. McGuire, who died In 1863. 
 By her will she provided as follows: "My whole estate, real and 
 personal, sliall go to my sisters, Pollen Mayes, wife of R. B. INIayes, 
 and Louisa Williams, the wife of John Williams, for and during their 
 natural lives ; and tliis bequest is to their sole and separate use in 
 which their husbands respectively shall have no right or interest." . . . 
 
 It is next insisted that 1)3- the law of Louisiana the promissory note * 
 of the wife, made as surety for her husband, is void for want of the I 
 capacity of the wife to enter into such a contract, and that, being void I 
 by the lex loci co>Uractiis, it is void everywhere. This position is truc>J
 
 SECT. IV.] FRIERSON V. WILLIAMS. 383 
 
 if the giving of tlie note has no other effect than what it purports to 
 have on its face, viz., a personal obligation of the wife. But it is 
 charged in the bill and admitted by the demurrer, that at the time this 
 note'^was made in Louisiana tlie wife had a separate estate in realty, 
 situated in this State, and that she contracted with reference to thisj 
 separate estate, and intended to charge it by the promissory note in 
 controversy. Whether this purpose can be carried out with reference 
 to realty here, notwithstanding the fact that the note is void by the 
 law of Louisiana, is the question presented for our consideration. (The 
 note, if made here, would be equally void by our laws to bind the wife 
 personally ; yet, notwithstanding this, it would be held, if made with 
 the intent and purpose alleged in the bill, to be a valid charge against 
 her separate estate situated here. V 
 
 It is generally true that the capacity of a married woman to make a 
 contract will be determined by the law of her domicil ; but this is not 
 the rule when her contract relates to her estate in realty, situated in 
 another jurisdiction. Judge Story says : " The general principle of 
 the common law is that the laws of the place where such [immovable] 
 property is situate exclusively govern in respect to the rights of the 
 parties, the modes of transfer, and the solemnities which should ac- 
 company them. The title, therefore, to real property can be acquired, 
 passed, and lost only according to the lex rei sitce." Story, Confl. 
 Laws, § 424. And quoting from Sir William Grant: " The validity of 
 every disposition of real estate must depend upon the law of the country 
 in which that estate is situated ; " he saj's : "• The same rule would also 
 seem equally to apply to express liens and to implied liens upon im- 
 movable estate." Mr. Burge, as quoted by Judge Stor}-, in a note to 
 section 445 of the same work, says : " The power to alienate immovable 
 property by contract was a quality impressed on the property ; that the 
 law from which it was derived, or by which it is regulated, was a real 
 law; and that the existence of this power and the validity of its exer- 
 cise must be decided by the law of the country in which the property 
 was situated." And it is said by a learned author: '' No sovereignty- 
 can permit the intrusion on its soil of a foreign law. Such a law 
 ma}' be accepted by comity in cases in which a contested issue, the 
 law applicable to which is foreign, comes up for determination in 
 a home court. But the imposition of any other law than the lex 
 rei sitce as to property, would be to give foreign subjects and foreign 
 laws an absolute control, unchecked by any discretion of the home 
 courts, over a subject-matter essential not merely to the independence, 
 but the vitality of the State. . . . The mischief is cured by the adop- 
 tion of the rule lex rei sitce regit; whoever ma}- be the owner, or 
 wherever the contract was made, the law of the land reigns. No 
 other law, either as to the transfer or control of the property, is to 
 intrude." Wharton, Confl. Laws, §§ 278, 280. V These rules apply 
 to marital rights in realty, yjudge Story, after speaking of the rights 
 of husband and wife as to personal property situated beyond the mat-
 
 384 rrjEKsoN v. williams. |]chap. vil 
 
 rimonial domicil, saj'S : "But real or immovable properly uugliL to 
 be left to be adjudged by the lex rei sitce as not wilbiu the reach 
 of aii3' extraterritorial law ; " and in Vertuer v. Humphre} s, 14 S. «& 
 M. 130, 14:3, this court said tliat,^"'As to immovable propertv, the 
 law of the place where it is situated fixes the rights of husband and 
 wife in it.'V 
 
 The application of these principles will furnish a safe solution of the 
 question under consideration. \ The capacity of Mrs. Williams to take 
 this property, and her rights and powers over it, are derived from and 
 regulated by the law of this State. / Her power of disposition and deal- 
 ing with it are, by our laws, impressed on the property itself. I As to 
 none of these things has the law of Louisana the slightest influence. 
 If she had made a contract expressly disposing of this property, it will 
 not be denied that, though void by the laws of Louisiana, either for 
 her want of capacity to act, or the want of the observances of the forms 
 and solemnities prescribed by those laws, yet, if valid by the law of 
 this State, it would have been good. The contract here is not strictly 
 of that character, yet the making of it is the exercise of the power of 
 the wife to dispose of her estate ; for whenever that power is denied, 
 the power to charge it with her debts is denied also, and the charge 
 can only be made effectual b}' the actual or threatened alienation of 
 the estate, under a decree of the Chancery Court. \ The charging of her 
 separate estate for the payment of money does not pass any actual 
 interest in the land, but it is the first and essential step for a judicial 
 disposition of tlie estate to satisfy the charge, and the exercise of a 
 power of administration and control over it, which, as we have seen, is 
 governed solelj- bv the lex rei sitce. \ To show that this is its true na- 
 ture, we have onl}' to suppose that, by the law of Louisiana, the note 
 was a charge on her realty situated there, and was not by our law 
 a charge on the realty situated here. In such a case, it would be 
 evident that an attempt to enforce it here against her real estate could 
 not succeed. If success could attend such an effort, then the several 
 rights and powers of husband and wife, as to realtj', would not be fixed 
 and governed by the laws of the situs ; and the act of a wife, done in 
 a foreign State, would have the effect of disposing of her realty here, 
 contrarv to our laws. 
 
 But tliere is no real conflict between the laws of Louisiana and Mis- 
 sissippi in reference to the contract. \ B}' both laws the note is void for 
 what it purports to be on its face, — a personal ol)ligation of the wife ; 
 and it is void for the same reason in both, viz., the personal incapacity 
 of tiie wife. ^ The difference between the two laws is as to the effect 
 on the real property of the wife in the respective jurisdictions of the 
 two States, and as to which, as we have above seen, the law of the 
 State in which the realt}' is situated is the cxchisive test. If the note 
 had not been void by our laws, as the personal obligation of the wife, 
 ■we should nevertlielcss, out of comity to a sister State, adjudgt! it void 
 to tliat extent, if attempted to be enforced here ; but the principle of
 
 SECT. IV.] LA SELLE V. ^YOOLEKY. 385 
 
 comitj- does not require a State to regard the laws of any other State, 
 so far as they may affect contracts in relation to real estate situated in 
 the former State. 
 
 Decree reversed, demurrer overruled, and cause remanded. 
 
 LA SELLE V. WOOLERY. 
 Supreme Court of Washington. 1895, 1896. 
 {Reported \\ Washington, 337 ; 14 Waski7igt on, 70.'] 
 
 HoTT, C. J. Appellant, William F. Collins, in a suit brought in 
 King County against the respondent, William La Selle, duly recovered 
 judgment. To this action and judgment the respondent, Marian E. La 
 Selle, wife of said William La Selle, was not a party. Execution 
 issued on said judgment, which was placed in the hands of J. H. 
 Woolery, sheriff of King County, the other appellant. He made a 
 levy upon a piece of real estate situated in King Count}', of which the 
 paper title was in the name of said Marian E. La Selle. This suit was 
 then brought by the respondents, and thereby they sought to enjoin 
 the sale of the property levied upon, and to have it decreed that such 
 property was not subject to the lien of the judgment. 
 
 It was conceded that the property, though standing in the name of 
 the wife, Marian E. La Selle, was the community property of herself 
 and her husband, William La Selle. It was, therefore, under the rule 
 established by numerous decisions of this court, subject to the lien of 
 the judgment against the husband alone if the debt upon which such 
 judgment was rendered was that of the community. It is equally well 
 established by the adjudications of this court tliat such property was 
 not subject to the lien of such judgment if the debt for which it was 
 rendered was the separate debt of the husband. It must follow that 
 the nature of the debt which was the foundation of the judgment is the 
 material question to be determined upon this appeal. If it was that of 
 the community, the sheriff should have been allowed to proceed to 
 satisfy the judgment by a sale of the property. If it was the debt of 
 the husband alone, the appellants were rightfully restrained from pro- 
 ceeding further against the property in question. The foundation of 
 this judgment was one against the husband alone, made and entered in 
 the State of Wisconsin, and the foundation of that one was a liability 
 incurred by the husband to the appellant Collins in the prosecution of 
 his business as a contractor and builder and proprietor of a sash and 
 door factory, and was for materials sold to him to be used in the con- 
 
 z5
 
 8S6 LA SEI.LE V. WOOLERY. [CHAP. TH. 
 
 struction of houses and to supply his factory. At the time this liability 
 was incurred, and the judgment in Wisconsin rendered, the respond- 
 ents were living together as husband and wife in the State of Wisconsin. 
 Afterward they removed from said State, and, from a time preceding 
 the date of the judgment rendered in King County, had been living 
 together as husband and wife in this State. . . . 
 
 The substantial question presented by the facts is as to the status of 
 the debt which was the foundation of the judgment in AVisconsin in 
 reference to the property (;f the husband or husband and wife situated 
 in that State. It appears from the statutes set out in the answer that 
 in that State there is no such thing as community property as understood 
 here, nor is there any such thing as separate property of the husband as 
 defined by our laws. The wife alone could own separate property, and 
 the provisions in relation to its acquisition were substantially the same 
 as in this State. All other property was that of the husband, whether 
 it was acquired in such a manner as to make it under our laws his 
 separate property or that of the community. ' And all of his property 
 under the laws of that State could be subjected to the payment of debts 
 incurred by him alone. >It will be seen from these provisions that 
 a debt incurred by the husband could there be enforced against all of 
 the property acquired by the husband and wife either before or after 
 marriage excepting such as under the laws of that State would be the 
 separate properly of the wife. This is substantially the result of the ' 
 laws of this State as interpreted by former decisions of this court. 
 
 In our opinion the comity which one State owes to another goes to 
 the substance rather than the form of things. If a certain right is 
 given in one Slate as to property of a certain nature, comity would 
 require that those rights should be enforced in another State as to 
 property of the same nature though it might be called by a different 
 name. ( In the State of Wisconsin property which was acquired by the 
 joint labors of the husband and wife, though called the property of the 
 husband, was subject to the payment of debts incurred by the husband 
 in the prosecution of business for the support of the family.V Property 
 acquired in the same manner in this State belongs to the community, 
 but is subject to a liability incurred by the husband alone in the prose- 
 cution of business for the same object T Hence, under the rule above 
 suggested, comity requires that a debt which under the laws of that 
 Stat^could be enforced against property whicli from the nature of its 
 acquisition would be that of the community in this Stale, should be here 
 enforced against property belonging to the community. 
 
 There is nothing in the policy of our legislation which will prevent 
 *he application of the rule above stated to the facts of this case. On 
 Mie contrary, the general policy of this State upon the question of the 
 liability of property of the community and of the respective spouses for 
 debts incurred by the husband alone in tlie prosecution of any business 
 is in substantially the same line as that of the State of Wisconsin. 
 But whether it is or not, so long as the rights of the parties are adjudi*
 
 SECT. lY.J LA SELLE V. WOOLERY. 387 
 
 cated under the laws of this State, its citizens have no ground of com- 
 plaint, whatever may be the result as to those of other States. And 
 since what we have said has been founded upon our statute, and the 
 rights adjudicated thereunder liave been in the light of the facts shown 
 b}' the record, the respondents cainiot complain. 
 
 The judgment will be reversed, and the cause remanded with in- 
 structions to overrule the demurrer to the affirmative defences pleaded 
 in the amended answer. 
 
 Rehearing granted. 
 
 Gordon, J. A majority of the court are of the opinion that a wrong 
 conclusion was reached at the former hearing. 
 
 The case is fully stated in the former opinion, in the course of 
 which opinion the court said: "■ If a certain right is given in one 
 State as to property of a certain nature, comity would require that 
 those rights sl)ould be enforced in another State as to property of 
 the same nature." 
 
 Upon further consideration, we think that this is extending the 
 doctrine of comity too fixr. While comity might require that rights 
 so acquired, against personal property merely, should be enforced in 
 this State as against such property (Harrison v. Sterry, 5 Cranch, 289 ; 
 Wharton, Conflict of Laws, § 324), we do not think it ought to be 
 extended to property subsequently acquired in this State, although of 
 the "same nature," and this principle is wholly inapplicable to real 
 property. The law of the place where the real property is situated 
 must be held to control its disposition, whether by voluntary or forced 
 sale, i McCormick v. Sullivant, 10 Wheat. 192. 
 
 Upon this subject no less a writer than Story has said: *'A11 the '^ 
 authorities in both countries [England and America], so far as they ' 
 go, recognize the principle in its fullest import, that real estate, or im- , 
 movable property, is exclusively subject to the laws of the government '/- 
 within whose territory it is situate." Stor}-, Conflict of Laws, § 428. 
 "Any title or interest in land or in other real estate can onl}- be 
 acquired or lost agreeabl}' to the law of the place where the same 
 is situate." Id. § 365. 
 
 ( The character of the property, as regards the question of its being 
 the separate propert}' of either of the spouses, or the property of the 
 community consisting of both spouses or otherwise, is fixed by the law 
 of the State where such propertj-, if real propert}', is situated. * So, 
 too, the character of the debt is determined b}' the law of the place 
 where it arose. If In* the law of Wisconsin it was the sole individual 
 debt of the husband, it retained that character here. Its status was 
 fixed b}- the law of the place of its creation. The debt which the 
 appellants are here seeking to enforce, being by the law of Wisconsin 
 where it arose merely the separate individual debt of the husband, 
 enforceable only against his separate individual property, it follows 
 that the judgment rendered upon that debt cannot be satisfied out of
 
 388 LA SELLE V. WOOLEKY. [CHAP. VII. 
 
 the real property of the community acquired in this State long after 
 the debt arose and judgment was rendered upon it. 
 
 The doctrine of the common law is that: " In regard to the merits 
 and rights involved in actions, the law of the place where the}' origi- 
 nated is to govern. . . . But the form of remedies and the order of 
 judicial proceedings are to be according to the law of the place where 
 the action is instituted, without an}' regard to the domicil of the par- 
 ties, the origin of the right, or the country of the act." Story, Conflict 
 of Laws (8th ed.), § 558. 
 
 The settled rule is that the law of the place where the contract was 
 made must govern in determining the character, construction, and valid- 
 ity of such contract ; while the law of the place where suit is instituted 
 upon the contract governs as to " the nature, extent, and form of the 
 remed}', . . • whether arrest of the person or attachment of the prop- 
 erty ma}' be allowed ; whether a debt is or is not discharged by oper- 
 ation of law, as insolvent laws, or barred by statutes of limitation ; 
 rights of set-off ; the admissibility and effect of evidence ; the modes 
 of proceeding and the forms of judgment and execution." 2 Abbott's 
 Law Dictionary, p. 36. 
 
 In the case of Rlanchard v. Russell, 13 Mass, 1 (7 Am. Dec. 106), 
 the Supreme Court of Massachusetts, speaking by Chief Justice Parker, 
 say: — 
 
 *'But the courtesy, comity, or mutual convenience of nations, among 
 which commerce has introduced so great an intercourse, has sanctioned 
 the admission and operation of foreign laws relative to contracts ; so 
 that is now a principle generally received, that contracts are to be con- 
 strued and interpreted according to the laws of the State in which they 
 are made, unless from their tenor it is perceived that they were entered 
 into with a view to the laws of some other State. . . . The rule does 
 not apply, however, to the process by which a creditor shall attempt to 
 enforce his demand in the courts of a State other than that in which 
 the contract was made. For the remedy must be pursuant to the laws 
 of the State where it is sought ; otherwise great irregularity and con- 
 fusion would be introduced into the form of judicial proceedings." 
 
 The rule has long been established in this court thatithe community 
 real property is not liable for the separate or individual debt of the 
 husband. Brotton v. Langert, 1 Wash. 73 (23 Pac. 688) ; Stockand 
 V. Bartlett, 4 Wash. 730 (31 Pac. 24). And it would be productive 
 merely of confusion and disorder to limit the application of this rule to 
 those debts only which are contracted within tliis State. 
 
 One result of such limitation would be that the court would be 
 required in every case to resort to the law of the State where the 
 debt arose in order to determine what property in that State would be 
 liable for such debt, and then to permit such judgment creditor to have 
 bis judgment satisfied out of like property of the judgment debtor in 
 this State, without regard to our own law ui)on the subject. And it 
 would follow logically from such a rule that property of a judgment
 
 SECT. IV.] LA SELLE V. WOOLERY. 389 
 
 debtor wliich is b}- our law exempt from lev}- and sale on execution 
 could be subjected to the payment of a judgment for a debt incurred 
 in some sister State where the exemption laws were different from 
 our own. All these questions relate to the character and extent of the 
 remed}', and not to the construction or validity of the contract, and 
 they are governed and controlled by the lex fori, and not b}- the lex 
 loci contractus ;\si\\(\. to avoid interminable confusion the distinction 
 must be observed. 
 
 For these reasons the order and judgment of the Superior Court will 
 be affirmed. 
 
 Scott, Dunbar, and Anders, JJ., concur. 
 
 HoTT, C. J. {dissenting). The results which will flow from the rule 
 announced in the foregoing opinion are su(;h as to satisfy me that it 
 cannot be the one required by coniit}*. A husband residing in a sister 
 State, possessed of ever so much propert}- which, though the title is 
 vested in him, is held for the benefit of himself and wife, and would from 
 the manner of its acquisition be here lield to be communit}' property, and 
 was there subject to debts for the benefit of the famil}', which would 
 here be held to be community debts, can escape the payment of all the 
 debts which may have been contracted on the faith of the propertv which 
 he owned by converting such property into cash and removing to this 
 State and investing it in real estate. That the laws of one State slunild 
 be so construed as to allow a debtor in another, possessed of abundant 
 means with which to pay all of his creditors, to evade the payment of 
 just debts in this way, does not correspond with my ideas of comity. 
 In my opinion the conclusion reached upon the former hearing was the 
 correct one and should be adhered to.
 
 390 LAWRENCE V. KITTEKIDGE. [CHAP. VIII. 
 
 CHAPTER VIII. 
 
 INHERITANCE. 
 
 SECTION I. 
 
 INTESTATE SUCCESSION. 
 
 LAWRENCE v. KITTERIDGE. 
 
 Supreme Court of Errors, Connecticut. 1852. 
 
 [Reported 21 Connecticut, 576.] 
 
 Church, C. J.^ The first decree of the Court of Probate appealed 
 from was predicated upon facts essentially as follows, viz., Cephas 
 Pettibone, the intestate, at the time of his death, wa.s an inhabitant of, 
 and had his domicil in, the State of Vermont, and was possessed of an 
 estate there ; and there was due to him here, from a citizen of this 
 State, a debt of about one thousand dollars. Original administration 
 upon his estate was granted in the State of Vermont, and was in 
 progress when an ancillary administration was granted in this State. 
 When the decree appealed from was made, there were no unsatisfied 
 debts due from the estate here, or in Vermont, and nothing but a dis- 
 tribution of the estate remained to be done. 
 
 The intestate died, leaving brothers and sisters of the whole and 
 half blood ; all, excepting the late Augustus Pettibone, Esq., of Nor- 
 folk, who was a brother of the whole blood, residing in Vermont, or 
 elsewhere, out of this State ; and he had no other heirs at law. By the 
 laws of Vermont, the brothers and sisters of an intestate of the whole 
 and half blood are entitled equally to the estate, under the statute of 
 distribution. 
 
 Upon the foregoing state of facts, the Court of Probate for the Dis- 
 trict of Norfolk was of oi)inion that the personal estate of Cephas 
 Pettibone — the chose in action of one thousand dollars — should be 
 distributed according to the laws of tiie State of Vermont; and that 
 this could better be done, and without injury to any citizen of this 
 State, by transmitting the money to the administrator there, and to 
 the jurisdiction of the Court of Principal Administration, than to order 
 
 ^ Part of the opinion only is given. — Ed.
 
 SECT. I.] LAWKENCE V. KITTEKIDGE. 391 
 
 a distribution of it here. And therefore the decree appealed from was 
 made. 
 
 The appellant, who is the representative of Augustus Pettibone, the 
 brother of the whole blood residing in the District of Norfolk, objects 
 to this decree, and appeals from it. He claims that the assets or 
 money in the hands of the administrator here should have been dis- 
 tributed here, and according to the laws of this State, which prefer a 
 brother or sister of the whole blood to one of the half blood. 
 
 1. "We had supposed that the law of the countr}- of the domicil of an 
 intestate governed and regulated the distribution of his personal estate ; 
 and that this was a principle of international law, long ago recognized 
 b}- jurists in all enlightened governments, and especially recognized by 
 this court in the recent case of Holcomb v. Phelps, 16 Conn. R. 127, 
 133, in which we say that "It certainly is now a settled principle of 
 international law, that personal property shall be subject to that law 
 which governs the person of the owner, and that the distribution of 
 and succession to personal property, wherever situated, is to be gov- 
 erned by the laws of that country where the owner or intestate had his 
 domicil at the time of his death." Sto. Conf. Laws, 403, in notis, 
 §§ 480, 465 ; 2 Kent's Com., Lect. 37 ; 2 Kaine's Prin. Eq., 312, 826 ; 
 Potter r. Brown, 5 East, 124 ; Balfour r. Scott, 6 Bro. Pari. Cas. 550 
 (Toml. ed.) ; Bempde v. Johnstone, 2 Ves. 198 ; Pepon v. Pepon, Amb. 
 25, 415; Guier v. O'Daniel, 1 Binn. 349, in notis ; Harvey v. Rich- 
 ards, 1 Mason, 381. 
 
 It is not necessary that we should now examine the reasons, whether 
 of public policy or legal propriety, which have led the tribunals of civil- 
 ized nations to relax from antiquated notions on this subject ; some of 
 these are well considered by Judge Story, in the case of Harvey v. 
 Richards, 1 Mason, 381, and by Chancellor Kent, in his Commentaries, 
 vol. 2, Lect. 37. 
 
 It is true that it is in the power of every sovereignty, and within the 
 constitutional powers of the States of this Union, to repudiate this sal- 
 utary doctrine in its application to themselves, or to modify it for what 
 tliey may suppose to be the protection of their own citizens ; but with- 
 out some pecuUar necessity, it cannot be supposed that any well-regu- 
 lated government will do it. It was claimed in argument, in this case, 
 that this had been done in this State, and by the provision of the 49th 
 section of our statute for the settlement of estates (Stat. 357), "by de- 
 claring that when there are no children, etc., of an intestate, his "real 
 and personal estate shall be set off equally to the brothers and sisters 
 of the whole blood." But it was not the purpose of this provision to 
 disregard the universal and salutary doctrines of the law to which we 
 have referred, but only to regulate the descent and distribution of the 
 estate of our own citizens. This provision of our statute is not peculiar 
 to ourselves ; a similar one, we presume, may be found in the codes of 
 other States ; at least, imperative enactments exist in every State, 
 directing the distribution of estates ; but none of them are intended to
 
 392 LYNCH V. GOVERNMENT OF PARAGUAY. [CHAP. VIII. 
 
 repeal the law of the domicil in its effect upon the personal estate of 
 the owner. The controversy in the case of Holcomb v. Phelps arose 
 under the same section of our law as does the one now under consid- 
 eration, and the result of that case must settle this question, if it be 
 one. 
 
 There are cases in which the law of the domicil has been modified or 
 restrained, in its full operation, for what courts have supposed to be 
 the proper protection of the rights of the citizens of their own States ; 
 but these are generally confined to cases in which creditors are in some 
 way interested under insolvent proceedings, assignments, or bankrupt 
 laws, and never, we believe, are extended to mere cases of distribution, 
 as here claimed. Sto. Conf. L,, 277, § 337.^ 
 
 LYNCH V. PROVISIONAL GOVERNMENT OF PARAGUAY. 
 
 CouKT OF Probate. 1871. 
 
 [Reported Law Reports, 2 Probate and Divorce, 268.] 
 
 The plaintiff claimed probate (as universal legatee) of the will of 
 Francisco Solano Lopez, who died at Paraguay on the 1st of March, 
 1870. A caveat having been entered by the defendants, they were 
 called upon to propound their interest, and they accordingly filed the 
 following declaration : — » 
 
 "1. That Francisco Solano Lopez, the deceased in this cause, was 
 a native of Paraguay, and at the time of his death, which took place 
 in Paraguay, on or about the 1st day of March, 1870, was domiciled 
 there. 
 
 "2. That by the law of nations, and by the law of England, the 
 succession to the personal estate and effects of the said deceased, 
 wheresoever situate, and also the right to administer to the said estate, 
 is to be governed by the law of Paraguay. 
 
 " 3. That by a decree of the Government of Paraguay, dated the 
 4th day of May, 1870, all the property of said deceased, wheresoever 
 situate, is declared to be the property of the nation of Paraguay, and 
 that such decree is valid and now binding and operative by the law of 
 Paragua}'. 
 
 - Ace. Somerville v. Lord Somerrille, 5 Ves. 749, 786 ; Doglioni ;•. Crispin, L. R. 
 . H. L. .301 ; Hewitt v. Cox, 55 Ark. 225, 17 S. W. 873 ; Estate of Apple. 66 Cal. 432 ; 
 In re Afflick, 3 McArth. 95: Kussoll v. Madden, 95 111. 485; Lewis's Estate, 32 La. 
 Ann. 385; Hairston v. Ilairston. 27 Miss. 704: White v. Tcnnant. 31 W. Va. 790, 
 8 S. E. 596. But see Succession of Petit. 49 La. Ann. 625, 21 So. 717. Contra, by 
 statute, Cooper v. Beers, 143 111. 25, 33 \. E. 61. 
 
 So the widow's allowance is to be governed by the law of her husband's domicil at 
 death. Mitchell v. Ward. 64 Ga. 208. — Ed.
 
 SECT. I.] LYNCH V. GOVERNxMENT OF PARAGUAY. 393 
 
 "4. That by the now existing law of Paragua}', no will or testamen- 
 taiT paper whatsoever of the said Francisco Solano Lopez is entitled to 
 probate, or has any validit}' whatsoever in England or elsewhere. 
 
 '•5. That by the now existing law of Paraguay, the said Government 
 of Paraguay, or their officer, or attorney, is entitled to become the sole 
 personal representative in England of the said deceased, and to take 
 the grant of letters of administration in England of his personal estate 
 and effects situate in England. 
 
 "6. That Richard Lees, the defendant, is by a power of attorney, 
 duly executed b}' the President of the Republic of Paragua}' on behalf 
 of the said republic, dated the 22d daj' of December, 1870, duly author- 
 ized to oppose the grant of probate of an}' testamentary document of 
 the said deceased, and the grant of any letters of administration of the 
 estate of the said deceased, to any other person, and to apply for letters 
 of administration of all the personal estate and effects of the said de- 
 ceased situate in England, to be granted to him under such power of 
 attorney, and that he is by reason of the premises the only person enti- 
 tled to be constituted the personal representative of the said deceased 
 in England." 
 
 To this declaration the plaintiff demurred, and the demurrer came on 
 for argument on the 4th of May, 1871.^ 
 
 Lord Penzance, having stated the declaration, said : To this decla- 
 ration the plaintiff has demurred, and the ground of demurrer relied 
 upon is, that the decree upon which the defendants' claim is based is 
 not alleged to have been in force at the date of the testator's death. 
 Some other points were taken in argument raising a discussion of 
 con^^iderable interest ; but, on reflection, I am satisfied that the date 
 of the decree relied upon by the defendants is fatal to their claim in 
 this suit. The general proposition that the succession to personal 
 property in England of a person dying domiciled abroad is governed 
 exclusively by the law of the actual domicil of the deceased was not 
 denied ; but it was affirmed by the plaintiff that this proposition had 
 relation only to the law of the domicil as it existed at the time of the 
 death of the individual in question, and that no changes made in that 
 law after the date of the death can by the law of this country be recog- 
 nized as affecting the distribution of personal property in England. 
 This contention appears to me well founded. A general statement of 
 the rule of law on this head is to be found in § 481 of Story's Conflict 
 of Laws. He says: "The universal doctrine now recognized by the 
 common law, although formerly much contested, is, that the succession 
 to personal property is governed exclusively by the law of the actual 
 domicil of the intestate at the time of his death." The words "at the 
 time of his death" are here carefully inserted as part of the principal 
 proposition, and a long list of authorities is cited in support of that 
 proposition, in none of which is any passage to be found indicating that 
 those words are not a necessary part of it. But it was ingeniously 
 
 1 Arguments of counsel are omitted. — Ed.
 
 394 LYNCH V. GOVERNMENT OF PARAGUAY. [CHAP. VIII. 
 
 argued that the decree in question has b}- the law of Paragua}' a retro- 
 spective operation, and that, though the decree was, in fact, made since 
 the death, it has by the law of Paraguay become part of that law at the 
 time of the death. In illustration of this view it was suggested, that 
 if the question were to arise in a court of Paraguay such court would 
 be bound by the decree, and therefore bound to declare the provisions 
 of the decree to be effective at and from the time of the death. This 
 may be so ; but the question is, whether the English courts are bound 
 in like manner ; or, more properly speaking, the question is, in what 
 sense does the English law adopt the law of the domicil? Does it adopt 
 the law of the doraicil as it stands at the time of the death, or does it 
 undertake to adopt and give effect to all retrospective changes that the 
 legislative authority of the foreign country may make in that law? No 
 authority has been cited for this latter proposition, and in principle it 
 appears both inconvenient and unjust. Inconvenient, for letters of 
 administration or probate might be granted in this country which this 
 court might afterwards be called upon, in conformity with the change 
 of law in the foreign countrj-, to revoke. Unjust, for those entitled to 
 the succession might, before any change, have acted directly or indi- 
 rectly upon the existing state of things, and find their interests seriously 
 compromised by the altered law. As, therefore, I can find no warrant 
 in authority or principle for a more extended proposition, I must hold 
 myself limited to the adoption and application of this proposition, that 
 the law of the place of domicil as it existed at the time of the death 
 ought to regulate the succession to the deceased in this case. Under 
 that law the present defendants have no locus standi to oppose any will 
 the testator may have made, and no concern with his estate. The 
 demurrer must therefore prevail. 
 
 I will onl}' further observe, that if the decree upon which the defend- 
 ants rely is one entitled to be recognized and enforced in this country- 
 in regard to the personal property of the deceased, the defendants' claim 
 under it will be equally good, whether there is a will or not. It does 
 not devolve upon this court to adjudicate upon the property of the de- 
 ceased, but only to ascertain whether he has made a good will ; and, if 
 not, to grant administration of his effects. The defendants would, in 
 any event, therefore, have to establish their claim under the decree 
 in the proper courts of this country- before they can obtain the right 
 to appropriate the property of which the deceased died possessed in 
 England. 
 
 If it should there be held that this decree in Paraguay, penal in its 
 character, and made after the death of the person to be affected l)y it, 
 is one which the English courts will not enforce upon his personal prop- 
 erty in this country, this court will have done well in not permitting 
 those who have no interest in the estate to provoke a litigation upon 
 the validity of any will the deceased may have made. If a contrary 
 conclusion should be arrived at, and the personal property of whii'h the 
 deceased died possessed shall be determined to have passed to the de-
 
 SECT. II.] IN RE MAKTIN. 395 
 
 fendants by virtue of the decree upon which this decision arises, no 
 will, however made, can operate upon it, and the proceedings in this 
 court can neither prevent nor retard the defendants in the acquisition 
 of their rights. 
 
 The court accordingly pronounced for the demurrer, with costs. 
 
 SECTION II. 
 
 TESTAMENTARY SUCCESSION. 
 
 In re martin. 
 Court of Appeal. 1900. 
 [Reported [1900] Probate, 211.] 
 
 Appeal from the judgment of Sir F. Jeune, President, allowing 
 probate of a will.^ 
 
 LiNDLEY, M. R.^ The will which is in question in this case was made 
 in this country by a Frenchwoman before her marriage, and was not 
 attested as required by English law. By English law, by which I mean 
 English law irrespective of all foreign law, the will is therefore clearly 
 invalid. But foreign law must be taken into account. Those principles 
 of private international law which are recognized in this country are 
 part of the law of England ; and on those principles the validity of the 
 will, so far as it affects movable property, depends on the law of the 
 domicil of the testatrix when she died. The domicil of the testatrix 
 must be determined by the English Court of Probate according to those 
 legal principles applicable to domicil which are recognized in this coun- 
 try and are part of its law. Until the question of the domicil of the 
 testatrix at the time of her death is determined, the Court of Probate 
 cannot tell what law of what country has to be applied. The testatrix 
 was a Frenchwoman, but it would be contrary to sound principle to 
 determine her domicil at her death by the evidence of French legal ex- 
 perts. The preliminary question, by what law is the will to be governed, 
 must depend in an English court on the view that court takes of the 
 domicil of the testatrix when she died. If authority for these state- 
 ments is wanted, it will be found in Bremer v. Freeman, 10 Moo. P. C. 
 306 ; see pp. 359 et seq. ; Doglioni v. Crisi>in (1866), L. R. 1 H. L. 301 ; 
 and In re Trufort (1887), 36 Ch. D. 600. In each of the last two cases 
 a foreign court had determined the domicil, and the English court had 
 also to determine it, and did determine it to be the same as that deter- 
 mined by the foreign court. But, as I understand those cases, the 
 
 1 The statement of facts, and the judgment of Sir F. Jeune, are omitted. — Ed. 
 * Part of the opiuion is omitted. — Ed.
 
 396 IN KE MARTIN. [chap. VIII. 
 
 English court satisfied itself as to the domicil in the English sense of 
 the'term, and did not simply adopt the foreign decisions. The course 
 universally followed when domicil has to be decided by the courts of 
 this country proceeds upon the principles to which I have alluded. 
 
 But, further, the validity of a will of movables made by a person 
 domiciled in a foreign country at the time of such person's death not 
 onlv may, but must, depend on the view its courts take of the validity 
 of the will when made, and on its subsequent revocation if that question 
 arises. These questions may or may not turn on the domicil of the tes- 
 tator as understood in this country. For example, in tliis case it is 
 agreed on all hands that by the law of France the will in question, being 
 a°holograph will made by a French subject, was valid when made, what- 
 ever her domicil may have been when she made it. It is also agreed on 
 all hands that by French law marriage does not revoke the prior wills 
 of the spouses. But the testatrix married a Frenchman in this country 
 after she made her will, and the question whether her will was thereby 
 revoked as to her movables is the real question on which this case 
 
 turns. 
 
 By whatever court this question is to be decided, the English law of 
 marriage, which in such a case involves and, indeed, turns on English 
 views of domicil, must be considered. If this view be ignored, the effect 
 of the marriage will be inadequately and, indeed, erroneously ascer- 
 tained. If the domicil of the testatrix is to be treated as English, 
 when she became a married woman her will was revoked by her raar- 
 riao-e, for such is the law of England w^hatever the intentions of the 
 parties may be : 1 Jarman on Wills, c. 7 ; but if her domicil was French, 
 her will would not be revoked by English law, and still less by French 
 law. Both laws are alike in regarding her domicil as that of her hus- 
 band as soon as she married him. The effect of her marriage must, 
 therefore, depend on the English view of his domicil. It would be 
 useless, and, indeed, entirely misleading, to ask a French expert what 
 effect the French law would give to an English marriage, without ex- 
 plaining the English law to him, and no explanation of that law would 
 be adequate or correct if it excluded the English view of the domicil of 
 the parties. 
 
 Having thus stated the principles which, in my opinion, ought to be 
 applied to the case, I proceed to consider the facts and the evidence of 
 the experts called at the trial. As already stated, the will was made in 
 England by a Frenchwoman in tlie French language, and was a holo- 
 graph will valid by the law of France whether she was then domiciled 
 in England or France. It was made in 1870. She was in service in 
 England, and this by French law rendered her domicil (in the Fre-nch 
 sense) English at that time. She afterwards set up a laimdry business in 
 London. Iler principal establishment was therefore here, and, according 
 to French law. she was clearly domiciled fin tlie French sense) in Eng- 
 land. In ]\r:iv, 1874, she married a French rofniroe known by the name 
 of Martin. He came over to this country in 18G8, and made a living by
 
 SECT. II.] IN KE MARTIN. 397 
 
 teaching French. There was no settlement, or an3'thmg in the nature 
 of a settlement. The marriage was celebrated by a French Roman 
 Catholic priest in a Roman Catholic church in the presence of a regis- 
 trar. At the time of the marriage both the man and the woman signed 
 a declaration stating that they were both domicilies in London. They 
 lived together in London for some years and carried on the laundr}'. 
 In 1881, 1884, and 1888, leases of the laundry house were granted to 
 the husband. In 1890 tlie husband and wife separated; he assigned 
 the leases to her and returned to France, where he has ever since lived 
 and lives now. His wife remained here and continued to carry on the 
 laundry business until her death in January, 1895. It was believed 
 that she had died intestate, and her brother obtained letters of adminis- 
 tration to her estate. The will, which had been sent to France in 1870 
 and had been deposited with a notary, was brought forward recently 
 by the testatrix's sister, who was constituted by it her residuary legatee. 
 At her instance the letters of administration have been revoked, and 
 probate of the will has been granted. The will has been judicially rec- 
 ognized as valid in France. But as the proceedings there were ex 
 parte, I attach little importance to this fact, although no appeal has yet 
 been made to set aside the order so obtained. 
 
 The learned President decided, and, in my opinion, rightly decided, 
 that the domicil of the testatrix in the English sense was French when 
 she died. It became necessary, therefore, to determine whether by the 
 law of France her will was valid when she died. Experts were called 
 and examined and cross-examined at great length on a number of points, 
 many of which are not now, at all events, material or in controversy. 
 The experts all agreed that the will was valid when made. They also 
 all agreed that according to French law the testatrix was domiciled (in 
 the French sense) in England when she made her will and when she 
 married. They also all agreed that, according to French law and in the 
 French sense, her husband was domiciled in England when he married. 
 Treating the husband and wife as domiciled in England when they mar- 
 ried, they differed as to the consequences. MM. Gaustalla, Gorostarzu, 
 and Mesnil think that the marriage revoked the will. M. Mesnil is 
 quite clear upon the point ; the others are less so, but they, I think, 
 take the same view. M. Astoul. when first called, stated that the 
 marriage did not revoke the will ; that it depended on nationality, not 
 domicil in the French sense. When recalled he apparently adhered to 
 his opinion, but considered that the revocation might depend on the 
 intention of the parties and on the adoption of the matrimonial regime 
 by the spouses. 
 
 " All these experts based their opinion on their view that at the time 
 of the marriage the parties were domiciled in England, and they ap- 
 plied the English law of marriage to that state of things. But, as I 
 have already pointed out, the English law of marriage, when considered 
 with reference to its effect on property, involves, and in a case like this 
 cannot be severed from, English views of domicil. The learned Presi-
 
 398 IN RE MAKTIN. [CHAP. VIII. 
 
 dent came to the conclusion that the domicil of the husband at the time 
 of the marriage was in France, not in England. But he also came to 
 the conclusion that both husband and wife intended to marr}- according 
 to English law, and that the English matrimonial law should and would 
 govern their future propert}'. He further considered that the law by 
 which wills are revoked b}' marriage was not part of the English matri- 
 monial law, but part of the English testamentary- law, and that this law 
 did not appl}- to the case. I confess I have great difficulty in adopting 
 this view of the case. If, as the President considered, the parties were 
 (according to English views) domiciled in France when they married, 
 their marriage would not revoke their previous wills ; and the French 
 experts should have been told so, and should have been directed that 
 their assumption of an English domicil was inadmissible. It is plain 
 from their evidence that, according to French law, the domicil (in the 
 French sense) of both husband and wife was in England and not in 
 France, both when the marriage took place and when the testatrix died. 
 I have no doubt that this conclusion was quite correct ; but for the 
 reasons I have already given I consider it necessar}' to examine the 
 effect of the marriage according to English views of domicil. 
 
 I proceed, therefore, to inquire whether the President was right in 
 his view that the husband was domiciled (in the English sense) in France 
 and not in England when he married. We start with the fact that the 
 husband had a domicil of origin in France. According to English law, 
 the burden of proving that he lost that domicil and acquired an English 
 domicil is on those who assert that he did so. Further, the domicil to 
 be acquired must be domicil, not in the French sense, but in the Eng- 
 lish sense. The experts all tell us that he lost his French domicil, in 
 the French sense, by coming to England and setting himself up as a 
 teacher of languages here. But to acquire an English domicil in the 
 English sense, not only is a change of residence and place of business 
 required, but there must be an intention to adopt the new residence 
 permanentl}-, or for an indefinite period : see the authorities collected 
 in Dicey 's Conflict of Laws, pp. 104 et seq. I cannot come to the con- 
 clusion that this intention is proved. . . . 
 
 The domicil of the testatrix being French when she made her will 
 and when she died, it became necessary to ascertain the effect of her 
 will on her movable property according to French law. The husband 
 being, in my opinion, domiciled in France when she married, it became 
 necessary to ascertain the effect of such marriage by French law upon 
 her will ; and if, in order to ascertain this, it became necessary for the 
 French experts to be told what the English law was, they shoidd have 
 been told that it depended on the view which an English court would 
 take of the domicil, in the English sense, of the husband ; and if I am 
 right in m}- view of iiis domicil, the experts should have been told that 
 by I^nglish law the marriage in tliis case did not revoke the wife's will. 
 It was not necessary or, indeed, proper on this occasion to pursue the 
 inquiry further and to see what matrimonial regime the parties intended
 
 SECT. II.J MOULTRIE V. HUNT. 399 
 
 to adopt. It is not necessary' to cite authorities to sliow tliat it is now 
 settled that, according to international law as understood and adminis- 
 tered in England, the effect of marriage on the movable propert}- of 
 spouses depends (in the absence of an}- contract) on the domicil of the 
 husband in the English sense. The authorities will be found collected 
 in Footers International Law, 2d ed., pp. 315-321, and Dicey's Conflict 
 of Laws, pp. 648 et seq. This being clear the will was not revoked ; 
 and not revoked it was clearl}' valid as regards the wife's movable 
 property-. Section 18 of the Wills Act does not apply to the wills of 
 foreigners who die domiciled abroad (Deane's Wills Act, note to § 18, 
 cites an authorit}- for this), and the effect of the marriage was not to 
 vest the wife's property in the husband. French law did not so vest it, 
 neither did international law as understood and administered in tliis 
 country. The Englisli law applicalile to English people, and according 
 to which a woman's personal property formerly vested in her husband 
 on marriage, and according to which her will was revoked by marriage 
 even before the Wills Act, could not, on principle, apply to French 
 spouses married in England, but (according to English views) domiciled 
 in France when they married. 
 
 In my opinion the will has been properly admitted to probate ; but it 
 will not apply to leasehold property, for that is not regarded as mov- 
 able property, to which the lex domicilii is applicable. Dicey, p. 72. 
 A great quantity of expert evidence was taken on the difficult question 
 whether the French law of commimaute des biens was to be applied to 
 the property of these persons. As I understand the expert evidence, 
 the question turns not only on the marriage, but on the effect of what the 
 husband and wife did afterwards. This question may arise liereafter, 
 but it does not arise now, and I purposely, therefore, say nothing more 
 about it. 
 
 Vaughan Williams, L. J.^ I agree in the conclusion of Sir F. 
 Jeuxe that the husband and wife intended to keep an establishment in 
 England, and that they intended to marry under Englisli law, and to 
 adoi)t it as their matrimonial law ; but I base this conclusion on the fact, 
 whicli Sir F. Jeuxe does not accept, that at the date of the marriage the 
 husband had an English domicil. 
 
 MOULTRIE V. HUNT. 
 Court of Appeals, New York. 1861. 
 
 [Reported 23 New York, 394.] 
 
 Denio, J.^ One of the requisites to a valid will of real or personal 
 property, according to the Revised Statutes, is, that the testator should, 
 
 1 Part of this opinion, and the coni'urriug upiuiou of Rigby, L. J., are omitted. 
 — Ed. 
 
 2 Part of this opinion, and the dissenting opinion, are omitted. — Ed.
 
 400 MOULTRIE V. HUNT. [CHAP. Vni. 
 
 at the time of subscribing it, or at the time of acknowledging it, declare, 
 in the presence of at least two attesting witnesses, that it is his last 
 will and testament. 2 R. S. p. 63, § 40. The will which the Surrogate 
 of New York admitted to probate, bj- the order under review, was 
 defectively executed in this particular — the onlj- statement which the 
 alleged testator made to the witnesses being that it was his signature 
 and seal which was affixed to it. It was correctly assumed b}' the 
 Surrogate in his opinion, and b}' the Supreme Court in pronouncing its 
 judgment of affirmance, that the instrument could not be sustained as a 
 will under the provisions of tlie Revised Statutes, but that, if it could be 
 upheld at all, it must be as a will executed in another State, according 
 to the law prevailing there ; and, upon that view, it was established by 
 both these tribunals as a valid testament. In point of fact the instru- 
 ment was drawn, signed, and attested at Charleston, in South Carolina, 
 where such a declaration of the testator to the witnesses, as has been 
 mentioned, is not required to constitute a valid execution of a will. 
 Mr. Hunt, the alleged testator, resided at that time in Charleston ; but, 
 some time before his death, he removed to the cit}' of New York, and 
 he continued to reside in that cit}' from that time until his death. The 
 will was validl}- executed, according to the laws of South Carolina. 
 
 Although the language of our statute, to which reference has been 
 made, includes, in its generality, all testamentary' dispositions, it is, 
 nevertheless, true, that wills, dul}' executed and taking effect in other 
 States and countries according to the laws in force there, are recognized 
 in our courts as valid acts, so far as concerns the disposition of personal 
 propertj'. Parsons v. Lyman, 20 N. Y. 103. This is according to the 
 law of international corait}'. Every countrj' enacts such laws as it sees 
 fit as to the disposition of personal propert}' by its own citizens, either 
 inter vivos or testamentary; but these laws are of no inherent obligation 
 in an}- other countr}'. Still, all civilized nations agree, as a general 
 rule, to recognize titles to movable property created in other States or 
 countries in pursuance of the laws existing there, and b}- parties domi- 
 ciled in such States or countries. This law of comity is parcel of the 
 municipal law of the respective countries in which it is recognized, the 
 evidence of which, in the absence of domestic legislation or judicial 
 decisions, is frequently sought in the treatises of writers on interna- 
 tional law, and in certain commentaries upon the civil law which treat 
 more or less copiously upon sul)jects of this nature. 
 
 If the alleged testator in the present case had continued to be an 
 inhabitant of South Carolina until his death, we should, according to 
 this principle, have regarded the will as a valid instrument, and it would 
 have been the duty of our probate courts to have granted letters testa- 
 mentary to the executors named in it. The statute contemplates such a 
 case wlicn it provides for the proving of such wills upon a commission 
 to be issued by the Chancellor, and for granting letters upon a will 
 admitted to probate in another State. 2 R. S. p. 67, §§ 68, 69. These 
 provisions do not profess to define under what circumstances a will
 
 SSCT. II.] MOULTKIE a HUNT. 401 
 
 made in a foreign jurisdiction, not in conformity with our laws, shall 
 be valid. It only assumes that such wills may exist, and provides for 
 their proof. 
 
 The question in the present case is, whether, inasmuch as the testa- 
 tor changed his domicile after the instrument was signed and attested, 
 and was, at the time of his deatli, ah-esident citizen of this State, he 
 can, within the sejise of the law of comity, be said to have made his 
 will in South Carolina. The paper which was signed at Charleston 
 had no effect upon the testator's property while he remained in that 
 State, or during his lifetime. It is of the essence of a will that, until 
 the testator's death, it is ambulatory and revocable. No rights of 
 property, or powers over property, were conferred upon any one by the 
 execution of this instrument ; nor were the estate, interest, or rights of 
 the testator in his property in any way abridged or qualified by that 
 act. The transaction was, in its nature, inchoate and provisional. It 
 prescribed the rules by which his succession should be governed, pro- 
 vided he did not change his determination in his lifetime. I think 
 sufficient consideration was not given to this peculiarity of testamentary 
 dispositions, in the view which the learned Surrogate took of the case. 
 According to his opinion, a will, when signed and attested in conformity 
 with the law of the testator's domicil, is a " consummate and perfect 
 transaction." In one sense it is, no doubt a finished affair ; but I think 
 it is no more consummate than a bond would be which the obligor had 
 prepared for use by signing and sealing, but had kept in his own pos- 
 session for future use. The cases, I concede, are not entirely parallel ; 
 for a will, if not revoked, takes effect b}' the death of the testator, 
 which must inevitably happen at some time, without the performance 
 of any other act on his part, or the will of any other party ; while the 
 uttering of a written obligation, intended to operate inter vivos, requires 
 a further volition of the part}- to be bound, and the intervention of 
 another party to accept a delivery, to give it vitality. But, until one 
 or the other of these circumstances — namely, the death, in the case of 
 a will, or the deliver}', where the instrument is an obligation — occurs, 
 the instrument is of no legal significanc}'. In the case of a will it 
 requires the death of the part}', and in that of a bond a delivery of the 
 instrument, to indue it with any legal operation or effect. The exist- 
 ence of a will, duly executed and attested, at one period during a 
 testator's lifetime, is a circumstance of no legal importance. He must 
 die leaving such a will, or the case is one of intestacy. Betts v. 
 Jackson, 6 Wend. 173-181. The provisions of a will made before the 
 enactment of the Revised Statutes, and in entire conformity with the 
 law as it then existed, but which took effect by the death of the testator 
 afterwards, were held to be annulled by certain enactments of these 
 statutes respecting future estates, notwithstanding the saving contained 
 in the repealing act, to the effect that the repeal of any statutory pro- 
 vision shall not affect any act done, &c., previous to the time of the 
 repeal. De Peyster v. Clendiaiug, 8 Paige, 295 ; 2 R. S. p. 779, § 5^ 
 
 26
 
 402 MOULTEIE V. HUNT. [CHAP. VIIL 
 
 Bishop V. Bishop, 4 Hill, 138. The Chancellor declared that the 
 trusts and provisions of the will must depend upon the law as it was 
 when it took effect by the death of the testator ; and the Supreme 
 Court affirmed that doctrine. There is no distinction, in principle, 
 between general acts bearing upon testamentary provisions, like the 
 statute of uses and trusts, and particular directions regarding the 
 formalities to be observed in authenticating the instrument ; and I do 
 not doubt that all the wills executed under the former law, and which 
 failed to conform to the new one, where the testator survived the enact- 
 ment of the Revised Statutes, would have been avoided, but for the 
 saving in the 70th section, b}' which the new statute was not to impair 
 the validity of the execution of a will made before it took effect. 2 R. S. 
 p. 68. If, as has been suggested, a will was a consummated and perfect 
 transaction before the death of a testator, no change in the law subse- 
 quently made would affect it — the rule being, that what has been 
 validly done and perfected respecting private riglits under an existing 
 statute is not affected by a repeal of the law. Reg. v. The Inhabitants 
 of Denton, 14 Eng. L. & Eq. 124, per Lord Campbell, C. J. 
 
 If then a will legally executed under a law of this State, would be 
 avoided by a subsequent change made in the law, before the testator's 
 death, which should require different or additional formalities, it would 
 seem that we could not give effect to one dul}' made in a foreign State 
 or countr}-, but which failed to conform to the laws of this State, where, 
 at the time of its taking effect by the testator's death, he was no longer 
 subject to the foreign law, but was fully under the intluence of our own 
 legal institutions. The question in each case is, whether there has 
 been an act done and perfected under the law governing the transaction. 
 If there has been, a subsequent change of residence would not impair 
 the validity of the act. We should be bound to recognize it by the law 
 of comity, just as we would recognize and give validity to a bond 
 reserving eight per cent interest, executed in a State where that rate is 
 allowed, or a transfer of property which was required to be under seal, 
 but which had in fact been executed by adding a scroll to the signer's 
 name in a State where that stood for a seal or the like. An act done 
 in another State, in order to create rights which our courts ought to 
 enforce on the ground of comity, must be of such a character that if 
 done in this State, in conformity with our laws, it could not be con- 
 stitutionally impaired by subsequent legislation. An executed transfer 
 of property, real or personal, is a contract within the protection of the 
 Constitution of the United States, and it creates rights of property 
 which our own Constitution guarantees against legislative confiscation. 
 Yet I presume no one would suppose that a law prescribing new 
 qualifications to the right of devising or bequeathing real or personal 
 proi)erty, or new regulations as to the manner of doing it, and making 
 the law applicable in terms to all cases where wills had not already 
 taken effect by the death of the testator, would be constitutionall3' 
 objectionable.
 
 SECT. IL] MOULTKIE V. HUNT. 
 
 403 
 
 I am of opinion that a will has never been considered, and that it is 
 not by the law of this State, or the law of England, a perfected trans- 
 action, so as to create rights which the courts can recognize or enforce, 
 until it has become operative by the death of the testator. As to all 
 such acts which remain thus inchoate, they are in the nature of unexe- 
 cuted intentions. The author of them may change his mind, or the State 
 may determine that it is inexpedient to allow them to take effect, and 
 require them to be done in another manner. If the law-making power 
 may do this by an act operating upon wills already executed, in this 
 State, it would seem reasonable that a general act, like the statute of 
 wills, contained in the Revised Statutes, would apply itself to all wills 
 thereafter to take effect by the death of the testator in this State, wher- 
 ever they might be made ; and that the law of comit}-, which has been 
 spoken of, would not operate to give validity to a will executed in 
 another State, but which had no legal effect there until after the testa- 
 tor, by coming to reside here, had fully subjected himself to our laws ; 
 nor then, until his testamentary act had taken effect b}' his death. 
 
 It may be that this conclusion would not, in all cases, conform to 
 the expectations of testators. It is quite possible that a person coming 
 here from another State, who had executed his will before his removal, 
 according to the law of his former residence, might rely upon the 
 validity of that act ; and would die intestate, contrary to his intention, 
 in consequence of our laws exacting additional formalities with which 
 he was unacquainted. But it may be also that a well-informed man, 
 coming here under the same circumstances, would omit to republish, 
 according to our laws, his will, made at his former domicil, because he 
 had concluded not to give legal effect, in this jurisdiction, to the views 
 as to the disposition of his property which he entertained when it was 
 executed. The only practical rule is, that every one must be supposed 
 to know the law under which he lives, and conform his acts to it. 
 This is the rule of law upon all other subjects, and I do not see any 
 reason why it should not be in respect to the execution of wills. 
 
 In looking for precedents and juridical opinions upon such a question, 
 we ought, before searching elsewhere, to resort to those of the country 
 from which we derive our legal system, and to those furnished by the 
 courts and jurists of our own country. It is only after we have 
 exhausted these sources of instruction, without success, that we can 
 profitably seek for light in the works of the jurists of the continent of 
 Europe. 
 
 The principle adopted by the Surrogate is that, as to the formal re- 
 quirements in the execution of a will, the law of the country where it was 
 in fact signed and attested is to govern, provided the testator was then 
 domiciled in such country, though he may have afterwards changed 
 his domicil, and have been at his death a domiciled resident of a country 
 whose laws required different formalities. Upon an attentive examina- 
 tion of the cases which liave been adjudged in the English and American 
 courts, I do not find anything to countenance this doctrine ; but much
 
 404 MOULTRIE V. HUNT. [CHAP. VIII. 
 
 authority, of quite a different tendenc}'. The result of the cases, I 
 think, is, that the jurisdiction in which the instrument was signed and 
 attested, is of no consequence, but that its validity must be determined 
 according to the domicil of the testator at the time of his death. Thus, 
 in Grattan v. Appleton, 3 Story's R. 755, the alleged testamentarj' 
 papers were signed in Boston, where the assets were, and the testator 
 died there, but he was domiciled in the British province of New Bruns- 
 wick. The provincial statute required two attesting witnesses, but the 
 alleged will was unattested. The court declared the papers invalid, 
 Judge Stor}' stating the rule to be firmh' established, that the law of 
 the testator's domicil was to govern in relation to his personal property*, 
 though the will might have been executed in another State or country 
 where a different rule prevailed. The judge referred, approvingly, to 
 Desesbats v. Berquier, 1 Bin. 336, decided as long ago as 1808. That 
 was the case of a will executed in St. Domingo by a person domiciled 
 there, and sought to be enforced in Pennsylvania, where the effects of 
 the deceased were. It appeared not to have been executed according 
 to the laws of St. Domingo, though it was conceded that it would have 
 been a good will if executed by a citizen of Pennsylvania. The alleged 
 will was held to be invalid. In the opinion delivered by Chief Justice 
 Tilghman, the cases in the English ecclesiastical courts, and the 
 authorities of the writers on the law of nations, were carefully examined. 
 It was declared to be settled, that the succession to the personal estate 
 of an intestate was to be regulated according to the law of the country 
 in which he was a domiciliated inhabitant at the time of his death, and 
 that the same rule prevailed with respect to last wills. I have referred 
 to these cases from respectable courts in the United States, because 
 their judgments are more familiar to the bar than the reports of the 
 spiritual courts in England. But these decisions are fully sustained 
 by a series of well-considered judgments of these courts. De Bonneval 
 V. De Bonneval, 1 Curt. 856 ; Curling v. Thornton, 2 Addaras, 6 ; 
 Stanley v. Bernes, 3 Hag. 373 ; Countess Ferraris v. Hertford, 3 Curt. 
 468. It was for a time attempted to qualify the doctrine, in cases 
 where the testator was a British subject who had taken up his resi- 
 dence and actual domicil in a foreign country, by the principle that it 
 was legally impossible for one to abjure the country of his birth, and 
 that therefore such a person could not change his domicil ; but the 
 judgment of the High Court of Delegates, in Stanley >\ Bernes, finally 
 put the question at rest. In that case an Englishman, domiciled in 
 Portugal and resident in the Portuguese Island of Maderia, made a will 
 and four codicils, all of which were executed according to the Portu- 
 guese law, except the two last codicils, and they were all executed so as 
 to be vaUd wills by the law of England, if it governed the case. Letters 
 were granted upon the will and two first codicils, but the other codicils 
 were finally pronounced against. The Reporter's note expresses the 
 result in these words: "If a testator (though a British subject) be 
 domiciled abroad, he must conform, in his testamentary acts, to the
 
 SECT. II.] MOULTRIE V. HUNT. 405 
 
 formalities required by the lex domicilii.'" See, also, Somerville Vr 
 Somerville, 5 Ves. 750 ; and Price v. Dewhurst, 8 Simons, 279, in the 
 English Court of Chancery. 
 
 It is true that none of these decisions present the case of a change 
 of domicil, after the signing and attesting of a will. The}' are, not- 
 withstanding, fully in point, if I have taken a correct view of the 
 nature and effect of a will during the lifetime of the testator. But 
 the remarks of judges in deciding the cases, and the understanding of 
 the Reporters clearly show, that it is the domicil of the testator at the 
 time of his death which is to be considered in seeking for the law 
 which is to determine the validity of the will. Thus, in De Bonneval 
 V. De Bonneval, the question was upon the validity of the will executed 
 in England, of a French nobleman who emigrated in 1792, and died in 
 England in 1836. Sir Herbert Jenner states it to have been settled by 
 the case of Stanley v. Bernes, that the law of the place of the domicil, 
 and not the lex loci rei sitce, governed ''the distribution of, and succes- 
 sion, to personal property in testacy or intestacy." The Reporters' 
 note is, that the validity of a will " is to be determined by the law of 
 the countr}- where the deceased was domiciled at his death." 
 
 Nothing is more clear than that it is the law of the countrj^ where 
 the deceased was domiciled at the time of his death, which is to regulate 
 the succession of his personalty in the case of intestacy. Judge Story 
 sa^'s, that the universal doctrine now recognized by the common law, 
 is, that the succession to personal propert}-, ab intestate, is governed 
 exclusively by the law of the actual domicil of the intestate at the time 
 of his death. Conf. Laws, § 481. It would be plainly absurd to fix 
 upon an}' prior domicil in another country*. The one which attaches to 
 him at the instant when the devolution of property takes place, is 
 manifestl}' the only one which can have anything to do with the ques- 
 tion. Sir Richard Pepper Arden, Master of the Rolls, declared, in 
 Somerville v. Somervnlle, that the rule was that the succession to the 
 pei'sonal estate of an intestate was to be regulated by the law of the 
 country in which he was domiciled at the time of his death, without 
 any regard whatever to the place of nativit}', or the place where his 
 actual death happened, or the local situation of his effects. 
 
 Now, if the legal rules which prevail in the country where the 
 deceased was domiciled at his death are those which are to be resorted 
 to in case of an intestacy, it would seem reasonable that the laws of the 
 same country ought to determine whether in a given case there is an 
 intestacy or not, and such we have seen was the view of Chief Justice 
 Tilghman. Sir Lancelot Shadwell, Vice-Chancellor, in Price v. 
 Dewhurst, also expressed the same view. He said, " I apprehend that 
 it is now clearh' established by a great variety of cases, which it is not 
 necessary to go through in detail, that the rule of law is this : that 
 when a person dies intestate, his personal estate is to be administered 
 according to the law of the country in which he was domiciled at 
 the time of his death, whether he was a British subject or not ; and the
 
 406 MOULTRIE V. HUNT. [CHAP VIIL 
 
 question whether he died intestate or not must be determined by the 
 law of the same country." The method of arriving at a determination 
 in the present case, according to this rule, is, to compare the evidence 
 of the execution of his will with the requirements of the Revised Stat- 
 utes. Such a comparison would show that the deceased did not leave 
 a valid will, and consequently that he died intestate. 
 
 Being perfectly convinced that according to the principles of the 
 common law, touching the nature of last wills, and according to the 
 result of the cases in England and in this country which have been 
 referred to, the will under consideration cannot be sustained, I have not 
 thought it profitable to spend time in collecting the sense of the foreign 
 jurists, many of whose opinions have been referred to and copiously ex- 
 tracted in the able opinion of the learned Surrogate, if I had convenient 
 access to the necessary books, which is not the case. I understand it 
 to be conceded that there is a diversity of opinion upon the point under 
 consideration among these writers ; but it is said that the authors who 
 assert the doctrine on which I have been insisting, are not those of the 
 highest character, and that their opinions have been criticised with 
 success by M. Felix, himself a systematic writer of reputation on the 
 conflict of laws. Judge Story, however, who has wrought in this mine 
 of learning with a degree of intelligence and industry which has excited 
 the admiration of English and American judges, has come to a different 
 conclusion. His language is : " But it may be asked, what will be the 
 effect of a change of domicil after a will or testament is made, of per- 
 sonal or movable property, if it is valid by the law of the place where the 
 party was domiciled when it was made, and not valid by the law of his 
 domicil at the time of his death ? The terms in which the general rule 
 is laid down would seem sufficiently to establish the principle that in 
 such a case the will and testament is void ; for it is the law of his actual 
 domicil at the time of his death, and not the law of his domicil at the 
 time of his making his will and testament of personal property, which 
 is to govern." Section 473. He then quotes at length the language of 
 John Voet to the same general effect. It must, however, be admitted 
 that the examples put by that author, and quoted by Judge Story, 
 relate to testamentary capacity as determined by ago, and to the legal 
 ability of the legatees to take, and not to the form of executing the 
 instrument. And the Surrogate has shown, by an extract from the same 
 author, that a will executed in one country according to the solemnities 
 there required, is not to be broken solely by a change of domicil to a 
 place whose laws demand other solemnities. Of the other jurists 
 quoted by the Surrogate, several of them lay down rules diametrically 
 opposite' to those which confessedly prevail in this country and in 
 England. Thus, Tollier, a writer on the civil law of France, declares 
 that the form of testaments does not depend upon the law of the 
 domicil of the testator, but upon the place where the instrument is in 
 fact executed ; and Felix, :Malin, and Pothicr are quoted as laying down 
 the same principle. But nothing is more clear, upon the English and
 
 SECT. II.] ROBERTSON V. PICKRELL, 407 
 
 American cases, than that the place of executing the will, if it is 
 different from the testator's domicil, has nothing to do with determining 
 the proper form of executing and attesting. In the case referred to 
 from Story's Reports, the will was executed in Boston, but was held to 
 be invalid because it was not attested as required by a provincial stat- 
 ute of New Brunswick, which was the place of the testator's domicil. 
 If the present appeal was to be determined according to the civil law, 
 I should desire to examine the authorities more fully than I have been 
 able to do; but considering it to depend upon the law as administered 
 in the English and American courts, and that according to the judg- 
 ment of these tribunals it is the law of the domicil of the testator at 
 the time of his death that is to govern, and not that of the place where 
 the paper happened to be signed and attested, where that is different 
 from his domicil at the time of his decease, I cannot doubt that the 
 Surrogate and Supreme Court fell into an error in establishing the 
 
 will. . , . 
 
 The will under immediate consideration was not, we think, legally 
 executed ; and the determination of the Surrogate and of the Supreme 
 Court, which gave it effect, must be reversed. 
 
 CoMSTOCK, C. J., LoTT, James, and Hoyt, JJ., concurred. 
 
 Davies, Selden, and Mason, JJ., dissented. 
 
 Judgment reversed.^ 
 
 ROBERTSON v. PICKRELL. 
 Supreme Court of the United States, 1883. 
 
 [Reported 109 United States, 608.] 
 
 Field, J.^ This was an action of ejectment for a parcel of land in 
 the city of Washington, District of Columbia. On the trial the plain- 
 tiffs gave in evidence a conveyance of the premises from the United 
 States to one Robert Moore, executed in June, 1800 ; and then endeav- 
 ored to trace title from the grantee through a devise in his last will and 
 testament, bearing date in July, 1803. For this purpose they produced 
 and offered a transcript of proceedings in the Hustings Court of Peters- 
 burg, in the State of Virginia, containing a copy of the will and of its 
 probate in that court in December, 1804. 
 
 By the law of Virginia then in force, that court was authorized to 
 take the probate of wills, as well of real as of personal estate ; and 
 
 1 Ace. Nat V. Coons, 10 Mo. 543 (semhle). The general principle that the validity 
 of a will of personalty depends upon the law of the domicil is well established. Euohin 
 V. Wylie, 10 H. L. c' 1 ; Macdonald v Macdonald, L. R. 14 Eq. 60 ; Desesbats v. Ber- 
 quier, 1 Binn. 336. The validity of a bequest is judged by the same law. Jones v. 
 Habersham, 107 U. S. 174 ; Fellows v. Miner, 119 Mass. 541 ; Chamberlain v. Cham- 
 berlain, 43 N. Y. 424 ; Daramert v. Osburn, 141 N. Y. 564, 35 N. E. 1088. — Ed. 
 
 2 Part of the opinion is omitted. — Ed.
 
 408 ROBEKTSON V. PICKRELL. [CHAP. VIII. 
 
 when a will was exhibited to be proved, it could proceed immediately 
 to receive proofs, and to grant a certificate of its probate. Within 
 seven years afterwards its validity' was open to contestation in chan- 
 cerj' by any person interested ; but, if not contested within that period, 
 the probate was to be deemed conclusive, except as to parties laboring 
 at the time under certain disabilities, who were to have a like period to 
 contest its validity after the removal of their disabilities. 
 
 The transcript was offered not merely as an exemplified cop}- of the 
 record of the last will and testament of Robert Moore, and of its pro- 
 bate in the Hustings Court, but also as conclusive proof of the validity 
 of the will, and of all matters involved in its probate. Upon objection 
 of the defendants' counsel, it was excluded, and an exception was 
 taken to the exclusion. The ruling of the court constitutes the prin- 
 cipal error assigned for a reversal of the judgment. 
 
 We think the ruling was correct. Looking at the transcript pre- 
 sented, we find that it shows onh' that a paper purporting to be the 
 last will and testament of the deceased was admitted to record upon 
 proof that the instrument and the signature to it were in his hand- 
 writing. No witnesses to its execution were called, no proof was 
 offered of the genuineness of the signatures of the parties whose 
 names are attached to it as witnesses, and no notice was given to 
 parties interested of the proceedings in the Hustings Court. As a 
 record it furnishes no proof of an instrument executed as a last will 
 and testament in a form to pass real estate in the District of Columbia. 
 The execution of such a will must be attested by at least three wit- 
 nesses. It matters not how effective the instrument may be to pass 
 real property in Virginia ; it must be executed in the manner prescribed 
 bj- the law in force in the district to pass real property situated there, 
 and its validity must be established in the manner required by that law. 
 It is familiar doctrine that the law of the place governs as to the for- 
 malities necessary to the transfer of real propert}', whether testamen- 
 tary or i?7ter vivos. In most of the States in the Union a will of real 
 propert}' must be admitted to probate in some one of their courts 
 before it can be received elsewhere as a conveyance of such property. 
 But by the law of Maryland, which governs in the District of Columbia, 
 wills, so far as real property is concerned, are not admitted to such 
 probate. The common-law rule prevails on that subject. The Oiphans' 
 court there ma}-, it is true, take the probate of wills, though they affect 
 lands, provided they atfect chattels also ; but the probate is evidence of 
 the validity of the will only so far as the personal property is concerned. 
 As an instrument conveying real proportv the probate is not evidence 
 of its execution. Tliat must be shown Ijy a production of the instru- 
 ment itself and proof by the subscribing witnesses ; or, if the}' be not 
 living, by proof of their handwriting. 
 
 So it matters not that the same effect is to be given in the courts of 
 this district to the record of the Hustings Court, which, by the law of 
 Virginia, can be given to it there ; that is, that it is to be received as
 
 SECT. II.] ROBERTSON V. PICKRELL. 409 
 
 sufficient to pass the title to real propei't}' situated in that State. The 
 question still remains — is the instrument sufficient to pass title to real 
 property in the District of Columbia? If so, it should have been pro- 
 duced and proved in the manner mentioned. If, as stated b}' counsel, 
 it is on file in the Hustings Court, and by the law of Virginia cannot be 
 removed, then it should have been proved under a commission, as other 
 instruments out of the State are proved, when it is impossible to com- 
 pel their production in court. 
 
 The act of Congress declaring the effect to be given in any court 
 within the United States to the records and judicial proceedings of the 
 several States, does not require that the}' shall have any greater force 
 and efficacy in other courts than in the courts of the States from 
 which they are taken, but only such faith and credit as by law or usage 
 they have there. Any other rule would be repugnant to all principle, 
 and, as we said on a former occasion, would contravene the policy of 
 the provisions of the Constitution and laws of the United States on 
 that subject. Board of Public Works v. Columbia College, 17 Wall. 
 521, 529. 
 
 It does not appear that the validity of the will of Moore, as pro- 
 bated in 1804 in the Hustings Court of Petersburg, was ever after- 
 wards contested in a Court of Chancery in Virginia. Its probate 
 must, therefore, be deemed conclusive, so far as that State is con- 
 cerned, and the will held sufficient to pass all property which can be 
 there transferred by a valid instrument of that kind. But no greater 
 effect can be given out of Virginia to the proceeding in the Hustings 
 Court. The probate establishes nothing beyond the validity of the will 
 there. It does not lake the place of provisions necessary to its valid- 
 ity as a will of real property in other States, if they are wanting. Its 
 validit}' as such will, in other States, depends on its execution in con- 
 formity with their laws ; and if probate there be also required, such 
 probate must be had before it can be received as evidence. 
 
 Authority for these views is found in the cases of McCormack v. 
 Sullivant. io Wheat. 192, and of Darby v. Mayer, 10 Wheat. 465. In 
 the first of them it appeared that by the law of Ohio, before a will 
 devising real propertv can be considered as valid, it must be presented 
 to the court of common pleas of the count}' where the land lies, for 
 probate, and be proved by at least two of the subscribing witnesses, 
 unless it has been proved and recorded in another State according to 
 its laws ; in which case an authenticated coi)}' can be offei'ed for pro- 
 bate without proof by the witnesses. A will devising real property- in 
 that State was admitted to probate in the State of Pennsylvania, and 
 this court held that such probate gave no validit}' to the will in respect 
 to the real propert}' in Ohio, as to which the deceased was to be con- 
 sidered as having died intestate. McCormack v. Sullivant, 10 Wheat, 
 at 202, 203. In the second case, which was an action of ejectment for 
 land in Tennessee, the defendant endeavored to trace title to the prem- 
 ises through the will of one Kitts. For that purpose a copj' and pro-
 
 410 ROBERTSON V. PICKRELL. [CHAP. VIII. 
 
 bate of the will devising the property were produced in evidence, 
 certified from the Orphans' Court of Baltimore County, Maryland, and 
 admitted against the objection of the plaintiff. This court held the 
 record inadmissible, and in its opinion explained the common-law 
 doctrine as to what was legal evidence in an action of ejectment to 
 establish a devise of real property. It stated that the ordinary's 
 probate was no evidence of the execution of the will in ejectment ; 
 that where the will itself was in existence and could be produced, it 
 was necessary to produce it ; and that when the will was lost or could 
 not be produced, secondary evidence was necessarily resorted to ; but 
 that, whatever the proof, it was required to be made before tlie court 
 which tried the cause, the proof before the ordinary being ex parte, the 
 heir at law having no opportunity to cross-examine the witnesses, and 
 the same solemnities not being required to admit the will to probate, 
 which are indispensable to give it validity as a devise of real property. 
 And the court added that the law of Maryland, with regard to the evi- 
 dence of a devise in ejectment, was the common law of England, and 
 had been so recognized in decisions of the courts of that State. Darby 
 V. Mayer, 10 Wheat, at 468, 469. 
 
 The first of these cases shows that the probate of a will of real prop- 
 erty in one State is of no force in establishing the validity of the will 
 in another State. That must be determined by the laws of the State 
 where the property is situated. The second case shows that the proof 
 of a devise of land in ejectment in Maryland — and its law obtains in 
 this district — must be made by the production of the will in court, 
 and evidence of its execution by the subscribing witnesses ; or, if the 
 will be lost, or cannot be produced, the proof must be made by second- 
 ary evidence of its execution and contents. 
 
 The plaintiffs contend that they can use the record of the Hustings 
 Court in Virginia as proof of the genuineness of the instrument, and 
 then supplement that proof by parol evidence that the original was exe- 
 cuted by three witnesses, and thus establish it as a will suflficient to 
 pass real estate in the District of Columbia. But in this contention 
 they overlook a material circumstance. It is not sufHcient to give 
 effect to an instrument as a will of real property that its genuine- 
 ness merely be established. Its genuineness must be shown by tlie 
 witnesses, if they are living, who attested its execution and heard 
 tlic declaration of the testator as to its character, and, if dead, their 
 handwriting must be proved, as already stated. No other proof will 
 answer ; certainly not the probate of the will on ex parte testimony 
 by a tribunal of another State or country.^ 
 
 1 The rnle here laid down is of general application. The law of the situs of the 
 land coverns the methods of executing, proving, and recording a will, so far as it de- 
 vises land. Callawav... Doe, 1 Blackf. .372: Keith r. Keith. 97 Mo. 22.3. 10 8. W. 
 .597 • Lapham v. ( )lnev, .5 R. I. 413. The same law governs the validity of the devise . 
 Ilobson V Hale 95 n' Y. .588; Lewis r. Doerle, 28 Ont. 412; the nature of the title 
 conveyed : Pratt v. Douglas, 38 N. J. Eq. 516 ; the right of devising as against heirs:
 
 SECT. II.J CANTERBURY V. WYBURN. 411 
 
 CARPENTER v. BELL. 
 
 Supreme Court of Tennessee. 1896. 
 [Reported 96 Tennessee, 294.] 
 
 Beard, J. The will which is the subject of this litigation was exe- 
 cuted by a yeme covert, who was, at tlie date of its execution as well 
 as at the time of her death, a resident of the State of Kentucky, and 
 by it the testatrix undertakes to dispose of real property in this State. 
 Notwithstanding all the formalities required by our statutes to validate 
 such a will have been observed in this case, yet it is insisted that, as 
 the law of Kentucky incapacitates a married woman from making a 
 disposition of such property by last will and testament, this incapacity 
 follows the instrument into this State and defeats the devise of realty 
 located here. The bill in this cause is filed on this theory. 
 
 This contention is unsound, as is well settled by the authorities. As 
 to immovable property, the rule is that the lex rei sitce governs as to 
 the capacity or incapacit}' of the testator, the extent of his power of 
 disposition, and the forms and solemnities necessarj^ to give the will its 
 due authority and effect. Pritchard on Wills, § 53 ; Williams v. Saun- 
 ders, 5 Cold. 60 ; Rorer on Int. Law, 288, note ; Story on Con. of Laves, 
 § 474 ; White v. Howard, 46 N. Y. 144 ; Ford v. Ford, 70 Wis. 19. 
 
 The result is, that the decree of the Chancellor dismissing complain- 
 ant's bill will be affirmed with costs. ^ 
 
 MAYOR, ALDERMEN, AND CITIZENS OF CANTERBURY 
 
 V. WYBURN. 
 
 Judicial Committee of the Privy Council. 1894. 
 [Reported [1895] Appeal Cases, 89.] 
 
 Lord Hobhouse.^ On the 13th of June, 1891, J. G. Beane}', an 
 inhabitant of Melbourne, and a domiciled Victorian, died, having by a 
 codicil to his will bequeathed legacies to the appellants in the following 
 terms : — 
 
 " I direct my said trustee to pa}' to the mayor and corporation of the 
 said city of Canterbur}' for the time being the sum of ten thousand 
 
 Eyre v. Storer, .37 N. H. 114; the effect of the will upon after-acquired land : Frazier 
 V. Boggs, 37 Fla. 307, 20 So. 245 ; Wynne r. Wynne, 23 Miss. 251. 
 
 In several States, by statute, a will good where made will pass land. Irwin's Ap- 
 peal, 33 Conn. 128 ; Lyon v. Ogden, 85 Me. 374, 27 Atl. 258. 
 
 A chattel real is to be treated like land in this respect. Pepin v. Bruyere, [1900] 
 2 Ch. 504 ; De Fogassieras ;;. Duport, 11 L. R. Ir. 123. — Ed. 
 
 1 Ace. Holman v. Hoi)kins, 27 Tex. 38. —Ed. 
 
 * The opinion only is given. — Ed.
 
 412 CANTERBURY V. WYBUEN. [CHAP. VIII 
 
 pounds, for the purpose of their buying a suitable piece of ground at 
 Canterbury aforesaid and erecting thereon with as little delay as pos- 
 sible a free library and reading-room for the working classes ; such 
 building when erected to be called ' The Beaney Institute for the Edu- 
 cation of Working Men.' And I also bequeath to the said mayor and 
 coiporation of the said cit}' of Canterbury all my medical diplomas 
 and military commissions for the purpose of their being hung up and 
 exhibited in the principal hall of the said building so to be erected as 
 aforesaid." 
 
 By another codicil he bequeathed some more articles of a like kind 
 in a like way. His residuary legatees are certain charitable institu- 
 tions in Melbourne, of whom the respondents, the Melbourne Hospital, 
 have been selected to defend the interests of all. The}' contend here 
 that the gift of £10,000 to the appellants must fail by reason of the 
 English statute law which restricts gifts to charitable uses. 
 
 The case was argued before A'Beckett, J., upon certain questions 
 propounded for the court to answer ; and by his answers that learned 
 judge maintained the validity of the gifts, and directed the executors 
 to compl}' with the directions of the testator. He finds that there is 
 nothing in tlie law of Victoria to prevent such a testamentary gift. He 
 adds : — 
 
 "If it had been shown that under the law as it stands in England 
 the corporation of Canterbur}' could not lawfully spend £10,000 in 
 buying knd and erecting a building as contemplated by the testator, 
 and therefore that the object of the testator could not lawfully be 
 accomplished, I should not direct the executors to pay the legacy to 
 the corporation. This has not been shown. It appears that the cor- 
 poration could lawfully have expended £10,000 in this manner if the 
 testator had sent the money to them in his lifetime, and that they will 
 have the right to spend it in this manner if sent them by his executors 
 as directed by his will." 
 
 The residuary legatees appealed, and the full court varied the deci- 
 sion of the first court by holding that tlie bequest of money was invalid, 
 and, the residuary legatees consenting, that the bequests of chattels 
 were valid. The reasons of the three learned judges are in substance 
 identical. They consider that as the £10,000 is given for the purchase 
 of land in p:ngland the case is the same as if the testator had actually 
 devised land of his own in England, and they argue, justly enough, that 
 nobod}' can so operate on English land. 
 
 From their order, holding the bequest of money invalid, the present 
 appeal is brought ; and their Lordships have to consider whether it is 
 right. Of course, there is no doubt of the competency of the English 
 legislature to for])id such gifts. The question is whether it has done 
 so. It would scorn that this is the first occasion on which sucli a ques- 
 tion has come into court for decision. 
 
 It appears to their Lordships that the arguments relied on by the full 
 court, and by the respondents' counsel at this bar, err in exaggerating
 
 SECT. II. J CANTERBURY V. WYBURN. 413 
 
 the amount of prohibition imposed by the English statutes, and in 
 ascribing to it a more absolute effect than it really has. The Attorney- 
 General indeed, in his argument for the residuary legatees, insisted on 
 the title of the Act of 9 Geo. II. c. 36, passed in the year 1736 : "An 
 act to restrain the disposition of lands, whereby the same become 
 unalienable." That title correctly expresses the object of the act; 
 but it is manifest from the preamble and the operative parts of the act 
 that it does not purport to restrain every such disposition, nor does the 
 title say that it does. If there were an absolute prohibition of all gifts 
 of land for charitable uses, Mr. Beaney's gift could not take effect. 
 But as in fact the English statutes leave all persons as free as they 
 were by common law to give or to receive any amount of land for those 
 purposes, provided only that they observe the positive rules prescribed 
 for them, the question in each case is whether the mode of acquiring 
 land is a lawful or a forbidden one. 
 
 The statute which now governs this question was passed in the 3ear 
 1888 (51 & 52 Vict. c. 42), and according to a recent practice, it has 
 no preamble to give the key to its polic}'. But it is mainl}' an act of 
 consolidation ; if it effects any alteration in the previous law, the differ- 
 ence does not concern the question now to be decided ; and it must be 
 taken that its provisions rest upon precisely the same policy as those of 
 the statute 9 Geo. II. c. 36. 
 
 The preamble of that statute refers to the older statutes passed to 
 restrain the mischiefs of gifts in mortmain. Then it proceeds : " Never- 
 theless this publick mischief has of late greatly increased by many 
 large and improvident alienations or dispositions made by languishing 
 or dying persons, or b}' other persons, to uses called charitable uses, 
 to take place after their deaths, to the disherision of their lawful heirs ; 
 for remed}' whereof be it enacted." This, then, was the mischief which 
 the legislature desired to abate : the increase of land held in mortmain 
 by gifts which ma}- for brevity, and somewhat loosely, be termed 
 death-bed gifts. The mode taken to restrain this mischief was to enact 
 that no land, nor any money to be laid out in the purchase of land, 
 should be given to any person for the benefit of an}' charitable use, 
 unless the gift be made by deed executed twelve calendar months at 
 least before the death of the donor, and enrolled in Chancery within 
 six calendar months of its execution, and unless the gift be made to 
 take immediate effect. Another section extends the prohibition to 
 charges affecting land, which is a large class — at that date a much 
 larger relative class than now — of personal estate ; and it declares 
 that the prohibited gifts shall be absolutely null and void. Therefore, 
 in all cases of wills to which the statute applies, such gifts are prohib- 
 ited by its express terms. 
 
 It is expressly enacted that the statute shall not extend to the grant 
 of any estate in Scotland. After a time came the question whether it 
 extends to the Colonies, and that question was settled in the negative 
 in the case of Attorney-General v. Stewart, 2 Mer. 148, decided by Sir
 
 414 CANTERBURY V. WYBURN. [CHAP. VIII. 
 
 William Grant in the j-ear 1817. He considered that both the mischief 
 struck at by the act, and the methods prescribed for lawful gifts, were 
 of a local character peculiar to England. Therefore, he held that the 
 act did not extend to Grenada, though it is in general terras, and 
 though the laws of England had been extended in general terms to the 
 island when first ceded in 1763, and again when recovered in 1784. 
 That opinion has ever since prevailed, and in the case of the Gilchrist 
 foundation, Whicker v. Hume, 7 H. L. Rep., 124, it was applied to a 
 gift of land in New South Wales. 
 
 In that state of the law the present act of 1888 was passed. By 
 sect. 4, sub-sect. 1, it is enacted thus: — 
 
 " Subject to the savings and exceptions contained in this act, every 
 assurance of land to or for the benefit of any charitable uses, and ever}' 
 assurancn of personal estate to be laid out in the purchase of land to or 
 for the benefit of any charitable uses, shall be made in accordance 
 with the requirements of this act, and unless so made shall be void." 
 
 The requirements of the act are substantially those of the act of 
 1736. If the assurance is of personal estate not being stock in the 
 public funds, it must be made by deed enrolled within six months of 
 the execution, and, if it is not made for full valuable consideration, 
 executed twelve months before the death of the assurors. By the inter- 
 pretation clause the term "assurance" includes a will. This act 
 therefore, subject to some special exemptions, prohibits " death-bed " 
 gifts as strictly as does the earlier act. But it is impossible to sup- 
 pose that the English legislature intended to affect a will subject to the 
 law of Victoria. All the reasons against such a construction which 
 were apphed to the earlier enactment applv to the later one. It is 
 expressly declared that the act does not extend to Scotland or Ireland. 
 To declare that a bequest made by a colonial will shall be void on the 
 ground that it contravenes the local law of England may not be be3-ond 
 the competence of the Imperial Parliament, but is quite beyond its 
 ordinary scope, and such an intention ought not to be imputed to it 
 without very clear grounds. Seeing, indeed, that the repealed and 
 consolidated statutes did not apply to the Colonies, and that Scotland 
 and Ireland are expressly excepted from the new statute, it is impos- 
 sible without express words to suppose that there was an}' intention of 
 affecting the Colonies by the new statute. Moreover, Sir Wm. Grant's 
 other reasons apply exactly to the present question. It cannot have 
 been intended that methods of a local character prescribed for making 
 a lawful gift should be adopted in a distant colony, or, if not, that the 
 gift should be invalid. 
 
 Indeed, the case for the residuary legatees is not rested on any such 
 broad ground as this. The courts below are agreed that the Victorian 
 testator is quite free to make such a gift as he has made ; nor has the 
 contrary been contended here. But for that conclusion the word 
 " assurance" in the act must receive the qualification that it means 
 something which is governed by English law.
 
 SECT. 11.] CANTERBURY V. WYBURN. 415 
 
 Of course it is a different thing to sa}- that English law must decide 
 whether Eno^lish land can be bought with money coming from such a 
 source as a foreign will ; and that, if it decides in the negative, the 
 bequest must fail, not because it is illegal, but because it is impossible 
 of execution. The Attorne}'- General stated broadh* that the prohibi- 
 tions of the Statutes of Mortmain are an integral part of the English 
 law of real propei-ty. So they are ; but the question is, how far they 
 operate. The suggestion is that they operate to invalidate gifts of 
 money coupled with an obligation to lay them out in land, if they 
 have their origin in a will, though a perfectly valid will. Tlieir Lord- 
 ships cannot find such a prohibition in the act. They have reached 
 the conclusion that this will is not invalidated by sub-sect. 1. At what 
 point, then, of the transactions does the English law come in ? Is ot 
 between the Victorian testator and his Victorian executor. In their 
 Lordships' view the English law will operate whenever a purchase of 
 land for the charitable uses is effected, but no earlier. The assurance 
 of that land must be made in accordance with the provisions of the 
 act. Anybody may give money for such a purpose in the permitted 
 mode. The testator might himself have bought land in Canterbury 
 and have devoted it to charitable uses quite lawfull}*. What he might 
 do himself he might do through trustees, by giving money to trustees 
 for tlie purpose of acquiring land in a lawful wa}'. Is there anything 
 to prevent him from ordering his executors to do the same thing? The 
 answer is that his will is not affected by English law. It is a valid 
 will binding on his executors ; and a Victorian court of justice should 
 direct them to perform their obligation. 
 
 It has been contended verv earnestly that the point is settled b}- the 
 decision in Attorney- General v. Mill, 2 Dow & CI. 393. In that case 
 the testator was a native of Montrose. He spent man}- years in the 
 island of Cariacou, where he owned land and amassed a large fortune. 
 He returned to Montrose, and stayed there about five years. Then he 
 came to England, and resided first in London and afterwards in Bath, 
 up to his death in 1805, fourteen ^-ears afterwards. In 1791 he ex- 
 ecuted a will and a deed, by which he gave money to be invested im 
 the purchase of land, ordering the income to be paid to certain Scot- 
 tish trustees for the benefit of indigent ladies in Montrose. His will, 
 with four codicils, all in English form, was proved in England. In his 
 will and contemporaneous deed he described himself as of the island of 
 Cariacou, now residing in Marylebone. His codicils, it was stated at 
 the bar, contained similar descriptions. His foreign assets were trans- 
 mitted to England, and were administered under the direction of the 
 Court of Chancery and were the subject of a decree which paid no 
 regard to the charitable gift. Subsequently an information was filed 
 by the Attorney-General for the establishment of the charity by pur- 
 chase of land in Scotland. It was held by Lord Lyndhurst, first in 
 Chancery, and afterwards in the House of Lords, that the testator 
 must be taken to have directed the purchase of land in England, and 
 that his gift contravened the mortmain laws and was void.
 
 416 CANTERBURY V. WYBURN, [CHAP. VIIL 
 
 It is now argued that the testator was a domiciled Scotsman, and 
 that the case decides that a bequest of money in a Scottish will direct- 
 ing the purchase of land in England for a charit}- is avoid bequest. But 
 the assumption that the testator had a Scottish domicil is not warranted 
 by anything to be found in the reports. In the meagre history of his 
 life there is much to suggest arguments for an Englisli domicil, and the 
 counsel for the Attorney-General who was contending for the validity 
 of the gift did not suggest any other domicil. The word "domicil" 
 occurs onl}' twice in the reports of the case. In one of them, 2 Dow & 
 CI. 394, the reporter uses a casual expression to the effect that on 
 leaving Cariacou the testator resumed his domicil in Montrose ; an 
 expression which Lord St. Leonards, writing many years afterwards, 
 repeated. But the Scottish origin of the testator, and his connection 
 with Montrose, were only used as arguments to show that he contem- 
 plated the purchase of land in Scotland — a conclusion which one of 
 the reasons appended to the appellant's case urged the House to adopt 
 "even if he were domiciled in England." For some reason, doubtless 
 a sufficient one, it was the common ground of argument that the will 
 was governed from first to last by English law. There is not a trace 
 in the reported statements, arguments, or judgments that anybody 
 asked what would be the effect of a will not governed b}' English law, 
 ■which is the question now propounded to their Lordships. 
 
 It is true that Story, J. (Conflict of Laws, § 446), and Mr. Westlake 
 (Private International Law, § 1G5) both treat the decision as covering 
 the case of a foreign will. But on examining the case that appears to 
 their Lordships to be a misapprehension of the point really decided. 
 So far as they know, the present question is wholl}' untouched by 
 authority. 
 
 Tlie Attorney-General dwelt on the amount of land which might be 
 brought into mortmain if such bequests as these were allowed to take 
 effect. Such considerations can hardly influence the construction of a 
 statute except so far as they may appear to have been present to the 
 minds of its framcrs. Their Lordships can hardly suppose that any 
 one would feel alarm at the idea of foreigners giving large sums of 
 money to English purposes ; and if it be true that this is the first case 
 of its kind to come into court, the experience of a century and a half 
 tends to prove the futility of any such alarm. But, however that may 
 be, their Lordships must construe tlie words of the statute according to 
 their plain meaning, and leave it to the legislature to enact further 
 prohibitions, if found expedient. 
 
 The result is that their Lordships will humbly advise Her Majesty 
 to discharge the order of the full court, except so far as it deals with 
 the specific chattels and with costs. This will in effect restore the 
 judgment of Mr. Justice A'Beckett. It has seemed right to both the 
 courts below that the costs of all parties to the litigation should be paid 
 out of the testator's estate, those of the plaintiffs, who are the execu- 
 tors, being taxed as between solicitor and client. Their Lordships
 
 SECT. II.] IN RE PIERCY. 417 
 
 have been asked to follow the same course in disposing of the costs of 
 this appeal ; and the residuary' legatees raise no objection. Their 
 Lordships will order accordingly.^ 
 
 In re PIERCY. 
 
 Chancery Division. 1894. 
 [Reported [189.5] 1 Chancery, 83.] 
 
 Benjamin Piercy b}- his will, dated December 5, 1883, devised and 
 bequeathed all his real and personal estate wheresoever to trustees to 
 sell and convert into money all such estates, to invest the proceeds in 
 English securities or land, and to appl}' the income for the benefit of 
 persons named, and for charity. 
 
 An order for administration was made, which, among other things, 
 directed " an inquir}- what was the testator's estate and interest in 
 lands situate elsewhere than in England, and whether such estates 
 passed b}' the testator's will and were validly devised on the trusts 
 thereof, and, if not, who are entitled to such lands, and for what 
 estates and interests." 
 
 The testator was the absolute owner of a large extent of land in 
 Sardinia. The opinions of a number of Italian advocates were taken 
 as to the validit}* and effect under Italian law of the devise contained 
 in the will as regarded land in Italy. 
 
 The following provisions of the Italian Civil Code were the most 
 material : 
 
 " i. Preliminary directions as to the interpretation and 
 application of the law in general. 
 
 " Art. 8. Successions by law or under testamentary disposition, 
 whether as regards the order of succession, or as to the measure of the 
 rights of succession, or the intrinsic validity of the disposition, are 
 regulated b}' the national law of the person whose estate is in question, 
 whatever may be the nature of the property, or in whatever country it 
 ma}' be situated. 
 
 " Art. 9. . • . The substance and effect of testamentarj' dispositions 
 are regulated by the national law of the persons making them. . . . 
 
 " Art. 12. Notwithstanding the provisions of the preceding articles, 
 in no case shall the laws, acts, or judgments of a foreign country, nor 
 private dispositions or agreements, derogate from the prohibitive laws 
 of the kingdom concerning either the persons, the property, or the 
 acts ; nor from the laws in anj* way concerning public order and 
 moralit}- (il huon costume). 
 
 1 Ace. Cram v. Bli.ss, 47 Conn. 592 ; Healey v. Reed, 153 Mass. 197, 26 N. E. 404. 
 — Ed. 
 
 27
 
 418 IN RE PIERCY. [chap. VIII. 
 
 " ii. Civil Code. 
 
 " Art. 899. Any condition imposed upon an heir or legatee, no mat- 
 ter how expressed, that he is to retain the property, and hand it over 
 to a third part}-, is a trust substitution. SucU substitution is torliidend. 
 
 "Art. 900. The invalidity of the trust substitution does ncjt aflect 
 the validity- of the institution of the heir or legatee to which it is at- 
 tached ; but it invalidates all the substitutions, even those of the first 
 degree." 
 
 This code came into operation in 186G, and made verv considerable 
 changes in the laws of Italj' previously in force as to land. 
 
 In 1889 the executors mortgaged a part of the testator's land in 
 Sardinia to an Italian bank for £20,000. They afterwards sold other 
 portions of the land. Proceedings were also taken in the Italian court 
 with reference to the registration of the testator's propert}' in Italy, for 
 the purpose of ascertaining the duty to be paid thereon according to 
 Italian law. 
 
 At the time when this summons was heard, the testator's brother 
 and sister were both dead.^ 
 
 North, J. (after stating the provisions of the will, as to which he 
 said no difficulty could arise with respect to the testator's English 
 property, or propert}' which was to be dealt with according to English 
 law, referred to some of the clauses of the Italian Code and tlie opin- 
 ions of the Italian advocates and to the facts, and continued) : 
 
 The question is, What is the position of matters as regards the real 
 estate in Sardinia? It is not necessary for me to decide the question 
 whether, under Italian law, the trustees take " as heirs," or whether 
 the testator's children and brother and sister take " as heirs," because 
 quucdnque via the will is good. If the trustees take as heirs, then 
 everything beyond is 'Hrust substitution," which would not be good 
 according to Italian law, but the gift to the heirs would stand. If, on 
 the other hand, as I think, the trustees are not the heirs, but the testa- 
 tor's children and brother and sister are the heirs, then, in my judg- 
 ment, according to the preponderating weight of opinion, coupled with 
 the evidence derived from what has actually taken place, the trustees 
 have, according to Italian law, a clear power to sell the testator's real 
 estate in .Sardinia without any interference on the part of the persons 
 beneficially interested in it. Tlierefore the direction given by the will 
 to the trustees to sell the estate is perfectly good according to Italian 
 law. 
 
 Then the next question is as to the application of the proceeds of 
 sale. With respect to that, in my opinion, the will is perfectly good, 
 because the application of the proceeds is not in any way inconsistent 
 with tlie Italian law. The Italian law relates to the land ; it deter- 
 mines how the land is to go, and regulates the rights of the various 
 persons interested in il. When an absolute sale has taken i)lace, the 
 
 1 Tlip statomont of facts is coudensed from that of tlie Reporter, and arguiiients of 
 counsel are omitted. — Ed.
 
 SECT. II.] IN KE PIEECY. 419 
 
 Italian law still applies to the land in the hands of the then owner or 
 owners ; but it has nothing whatever to do with the proceeds of sale, 
 after the land has been placed outside the scope of the will by a dispo- 
 sition which is valid according to Italian law. 
 
 Then, as regards the proceeds of sale, is there anything in Italian 
 law which renders it illegal for the testator to do what he has done ? 
 The testator has directed that the proceeds of the sale of the land 
 
 that is, money to be obtained by the English trustees — is to be 
 
 received by them, lo be invested upon English securities, and then to' 
 be held by the trustees upon the trusts declared by an English will in 
 favor of English beneficiaries. No one suggests that there is anything 
 in Italian law forbidding this. It is, indeed, said by one of the Italian 
 advocates that the land is the " patrimony," and that, when the land is 
 sold, the proceeds of sale — the money — is still the ^^ patrimony." 
 What is the law as to that? It depends altogether upon the person to 
 whom the money belongs. No doubt, if the money belongs to an 
 owner who is subject to Italian law, whatever the Italian law forbids 
 as to trusts must be observed, and if any person owning this property 
 is subject to Italian law, and attempts to create a trust which the 
 Italian law forbids, then, according to Italian law, the trust would be 
 void. But when there is an English owner of money arising from the 
 sale of land which belongs to other persons, and is subject in their 
 hands to Italian law, there is nothing in Italian law to make that 
 money itself subject to Italian law ; and therefore, in my opinion, the 
 proceeds of sale, when received by the trustees in pursuance of the 
 valid exercise of the power of sale which they have according to 
 the Italian law, pass entirely by the testator's will, because the dispo- 
 sition is good according to English law, and is in no way at variance 
 with Italian law, — meaning now by "-Italian law" not merely any- 
 thing which is expressed in the Italian Code, but anything contrary to 
 " good custom " (whatever that may mean), — for the Italian law does 
 not profess to regulate the disposition of English securities passing 
 under the will of an Englishman to English legatees. In my opinion, 
 therefore, the trust for sale being valid, the application of the proceeds 
 of sale directed by the will is valid also. 
 
 Then the only question remaining is this. The trust has not yet 
 been entirely executed, and at the present moment a part of the testa- 
 tor's Italian land remains unsold, and is, therefore, subject to the law 
 of Italy. The enjoyment of that land in the meantime, until it has 
 been sold, is not in any way affected by the trust for sale, which has 
 not yet been executed. We must look, therefore, to the Italian law to 
 say what is the right to enjoy the land in the meantime, before the sale 
 has actually taken place. I will take, first, the case of the testator's 
 widow. It seems to me clear that, according to Italian law, she is a 
 " usufructuary," in the sense that the disposition in her favor for life 
 is perfectly good, and that the gift to the testator's children and brother 
 and sister, subject to that usufruct, is a good disposition.
 
 420 IN RE PIERCY. [chap. VIII. 
 
 Then comes the question of the " trust substitution " ; and as to that, 
 I come to the conclusion upon the evidence that the propert}' is uncon- 
 verted during that limited period. The Italian law applying, there can 
 be no " trust substitution," and, that being so, the attempt to settle the 
 shares on the children and the brother is not valid. As regards the 
 sister, there is no question, because slie takes absolutely' in any case. 
 As regards the children, to the extent of one moiet}' of their shares, and 
 the brother as to the whole of his share, there is an attempt to settle. 
 With the exception of the heir at law, Robert Charles Piercy, and the 
 brother (who is dead), none of these persons raise an}' question. Ac- 
 cording to the Italian law they take absolutel}', and the trusts over are 
 ineffectual ; but with those two exceptions they all say, " We wish to 
 give effect to the testator's will in this respect ; we are desirous that 
 the income of the property until conversion shall, so far as our interests 
 go, be applied in the same wa}' as our shares of the income to arise 
 from the proceeds of the conversion directed by the will will go after 
 the conversion has taken place." There is nothing, in my view, con- 
 trary to Italian law in their saying that the}' wisli iheir shares of the 
 income of the unsold land to be applied in the same way as if they were 
 shares of the income arising from the proceeds of sale after the con- 
 version had taken place. Tlie heir at law, however, does not elect or 
 waive any right which he may have, and it is unnecessary for me to 
 decide anything as to his share at present. So long as he lives, and 
 the land remains unsold, he will, of course, be entitled to receive the 
 income of his share, whether the trusts in favor of his children are good 
 or bad, and no question between him and his children, or any other 
 person, can possibly arise. It may be that all the land will be sold 
 during his lifetime, and tlie question will never arise as between him 
 and his children. But it is possible that he may die while part of the 
 land remains unsold, and the question may then arise between him 
 and his children. Any directions, therefore, which I now give must 
 be without prejudice to any question between Robert Charles Piercy 
 on the one hand, and, on the other hand, any person who may claim 
 upon his death to be entitled to his one-eleventh of tlie income to arise 
 from any part of the Italian property then remaining unsold, until the 
 conversion thereof. 
 
 The question as to the brother's share of the income of the unsold 
 land must he left open in the same way ; as he has died recently, and 
 although his representatives are before the court, and bound by my 
 decision on the main questions, they are not prepared to consider or 
 discuss this subordinate question at present ; and possibly it may never 
 be raised.^ 
 
 1 Ace. Ford v. Ford, 80 Mich. 42; Jenkins v. G. T. & S. D. Co., 53 N. J. Eq. 194, 
 32 Atl. 208 ; I'enfield v. Tower, 1 N. D. 21§, 46 N. W. 413 ; Ford v. Ford, 70 Wis. 19. 
 
 So of a hequpst to be .sent into another State and there hehi in tni.st. Sickles v. 
 New Orlean.s, 80 Fed. 868; Vausant v. Roberts, 3 Md. 119; Chamberlain v. Chamber- 
 lain, 43 N. Y. 424. — Ed.
 
 CHAP. IX.] PHILLIPS V. EYRE. 421 
 
 CHAPTER IX. 
 
 OBLIGATIOXS EX DELICTO. 
 
 PHILLIPS V. EYRE. 
 
 Exchequer Chamber. 1S70. 
 
 [Heported Law Reports, 6 Queen's Bench, 1.] 
 
 WiLLES, J.^ This is au action complaining of false imprisonment 
 and other injuries to the plaintiff by the defendant in the island of 
 Jamaica. The plea states in effect that the defendant was governor of 
 the island ; that a rebellion broke out there which the governor and 
 others acting under his authoritj' had arrested by force of arras ; that 
 an act was afterwards duly passed by the legislature of the island, and 
 received the royal assent, by which, after reciting the rebellion, a proc- 
 lamation of martial law within certain local limits by the governor 
 with the advice of a council of war : that the rebellion had been sui> 
 pressed and imminent general sacrifice of life thereby averted ; that 
 the militar}', naval, or civil authorities might, according to the law of 
 ordinary peace, be responsible in person or purse for acts done in 
 good faith for the purpose of restoring public peace and quelling the 
 rebellion ; and that all persons who in good faith and royal resolve had 
 acted for the crushing of the rebellious outbreak ought to be indemni- 
 fied and kept harmless for such their acts of loyalty, — it was enacted 
 by the governor, legislative council, and assembh' of the island, amongst 
 other things, that the defendant and all officers and other persons who 
 had acted under his authority, or had acted bona fide for the purpose 
 and during the existence of martial law, whether done in any district 
 in which martial law was proclaimed or not, were thereby indemnified 
 in respect of all acts, matters, and things done in order to put an end 
 to the rebellion, and all such acts were "thereby made and declared 
 lawful, and were confirmed." The plea further states that the griev- 
 ances complained of in this action were measures used in the sup- 
 pression of the rebellion, and were reasonably and in good faith 
 considered by the defendant to be proper for the purpose of putting 
 an end to,^and hoita fide done in order to put an end to, the rebellion, 
 and so were included in the indemnity. To this plea the plaintiff de- 
 murred, and also replied that the defendant as governor was, by the 
 
 1 Part of the opinion is omitted. — Ed.
 
 422 PHILLIPS V. EYKE. [CHAP. IX. 
 
 law of Jamaica, a necessary part}' to the making of tlie act. The 
 defendant demurred to that replication, and issues in law were raised 
 upon the validity' of the plea and replication, upon which issues the 
 Court of Queen's Bench gave judgment for the defendant, whereupon 
 the plaintiff has assigned error. . 
 
 The last objection to the plea of the colonial act was of a more 
 technical character ; that assuming the colonial act to be valid in 
 Jamaica and a defence there, it could not have the extraterritorial 
 effect of taking away the right of action in an English court. This 
 objection is founded upon a misconception of the true character of 
 a civil or legal obligation and the corresponding right of action. The 
 obligation is the principal to which a right of action in whatever court 
 is onl}' an accessory, and such accessor}', according to the maxim of 
 law, follows the principal, and must stand or fall therewith. " Quae 
 accessorium locum obtinent extinguuntur cum principales res perempt^e 
 sunt." A right of action, whether it arise from contract governed b}- 
 the law of the place or wrong, is equalh' the creature of the law of the 
 place and subordinate thereto. The terms of the contract or the char- 
 acter of the subject-matter may show that the parties intended their 
 bargain to be governed b}- some other law ; but, p7'ima fdcie^ it falls 
 under the law of the place where it was made. And in like manner the 
 civil liability arising out of a wrong derives its birth from tlie law of 
 the place, and its character is determined by that law. Therefore, an 
 act committed abroad, if valid and unquestionable by the law of the 
 place, cannot, so far as civil liability is concerned, be drawn in question 
 elsewhere unless by force of some distinct exceptional legislation, 
 su[)eradding a liabilit}' other than and besides that incident to the act 
 itself In this respect no sound distinction can be suggested between 
 the civil liability in respect of a contract governed by the law of the 
 place and a wrong. 
 
 Our courts are said to be more open to admit actions founded upon 
 foreign transactions than those of any other European country" ; but 
 there are restrictions in respect of locality which exclude some foreign 
 causes of action altogether, nameh', those wliich would be local if the}' 
 arose in England, such as trespass to land : Doulson v. JNIatthews, 
 4 T. R. 503 ; and even with respect to those not falling within that 
 description our courts d(^ not undertake univiM-sal jurisdiction. As 
 a general rule, m order to found a suit in England for a wrong alleged 
 to have been committed al)road, two conditions must be fulfilled. 
 Firs t, the wron;r must be of such a cliaraftor . tha_t it would have be en 
 actionable if committed in England; tlierefore, in The Hallej', Law 
 
 ^ejx ^ P. 0. 193, tTieJudicial Committee pronounced against a suitTa 
 the Admiralty founded upon a liability by the law of Belgium for collision 
 caused by the act of a pilot wiioin the shipowner was compelled by that 
 law to employ, and for wiiom, therefore, as not being his agent, he 
 was not responsible by English law. Se condly. , the act must not have 
 been justifiable b y the Jaw o f the place where itjwasdDiie. Therefore,
 
 CHAP. IX.] PHILLIPS V. EYRE. 423 
 
 in Blad's Case, 3 Swan. 603, and Blad v. Bamfiold, 3 Swan. 604, Lord 
 Nottingham held that a seizure in Iceland, authorized by the Danish 
 Government and valid by the law of the place, could not be questioned 
 by civil action in England, although the plaintiff, an Englishman, in- 
 sisted that the seizure was in violation of a treaty between this country 
 and Denmark — a matter proper for remonstrance, not litigation. And 
 in Dobree v. Napier, 2 Bing. N. C. 781, Admiral Napier having, when 
 in the service of the Queen of Portugal, captured in Portuguese water 
 an English ship breaking blockade, was held by the Court of Common 
 Pleas to be justified, by the law of Portugal and of nations, though 
 his serving under a foreign prince was contrary to English law, and 
 subjected him to penalties under the Foreign Enlistment Act. And 
 in Reg. V. Lesley, Bell C. C. 220; 29 L. J. (M. C.) 97, an imprison- 
 ment in Chili on board a British ship lawful there, was held bv Erie, 
 C. J., and the Court for Crown Cases Reserved, to be no ground for an 
 indictment here, there being no independent law of this country mak- 
 ing the act wrongful or criminal. As to foreign laws affecting the 
 liability of parties in respect of bygone transactions, the law is clear 
 that, if the foreign law touches only the remedy or procedure for enforc- 
 ing the obligation, as in the case of an ordinary statute of limitations, 
 such law is no bar to an action in this country ; but if the foi'eigu law 
 extinguishes the right it is a bar in this country equally as if the ex- 
 tinguishment had been by a release of the party, or an act of our own 
 legislature. This distinction is well illustrated on the one hand bv 
 Huber v. Steiner, 2 Bing. N. C. 202, where the French law of five 
 years' prescription was held by the Court of Common Pleas to be no 
 answer in this country to an action upon a French promissory note, 
 because that law dealt onh' with procedure, and the time and manner 
 of suit (tempus et inodum actionis institiiendce)^ and did not affect to 
 destroy the obligation of the contract {valorem contractus) ; and on 
 the other hand by Potter r. Brown, 5 East, 124, where the drawer of 
 a bill at Baltimore upon England was held discharged from his liability 
 for the non-acceptance of the hill here hy a certificate in bankruptcy, 
 under the law of the United States of America, the Court of Queen's 
 Bench adopting the general rule laid down by Lord Mansfield in Bal- 
 lantine ?'. Golding, Cooke's Bankrupt Law, 487, and ever since recog- 
 nized that 'twhat is a discharge of a debt in the country where it is 
 contracted is a discharge of it everywhere.' So that where an obli- 
 gation by contract to pay a debt or damages is discharged and avoided 
 by the law of the place where it was made, the accessory right of action 
 in every court open to the creditor unquestionably falls to the ground. 
 And b}- strict parity of reasoning, where an obligation, ex delicto, to 
 pay damages is discharged and avoided by the law of the country 
 where it was made, the accessor}' right of action is in like manner 
 discharged and avoided. Cases may possibh' arise in which distinct 
 and independent rights or liabilities or defences are created by positive 
 and specific laws of this country in respect of foreign transactions ; but
 
 424 MACHADO V. FONTES. [CHAP. IX. 
 
 there is no such law (unless it be the Governors Act already discussed 
 and disposed of) applicable to the present case. 
 
 It ma}' be proper to remark, before quitting this part of the subject, 
 that the colonial act could not be overruled upon either of these two 
 latter grounds of objection(without laying down that no foreign legis- 
 lation could avail to take away civil liability here in respect of acts 
 done abroad ^so that, for instance, if a foreign country after a rebellion 
 or civil war were to pass a general act of oblivion and indemnity, 
 bur3-ing in one grave all legal memory alike of the hostilities, and even 
 the private retaliations which are the sure results of anarchy and 
 violence, it would, if the argument for the plaintiff prevailed, be com- 
 petent for a municipal court of any other country to condemn and 
 disregard, as naturally unjust or technically ineffectual, the law of 
 a sovereign State, disposing, upon the same constitutional principles as 
 have actuated our own legislature, of matters arising within its terri- 
 tory — a course which to adopt would be an unprecedented and mis- 
 chievous violation of the comity of nations. 
 
 We have thus discussed the validity of the defence upon the only 
 question argued by counsel, touching the effect of the colonial act, but 
 we are not to be understood as thereby intimating any opinion that the 
 plea might not be sustained upon more general grounds as showing 
 that the acts complained of were incident to the enforcement of martial 
 law. It is, however, unnecessary to discuss this further question, be- 
 cause we are of opinion with the court below^hat the colonial Act of 
 Inderanit}', even upon the assumption that the acts complained of were 
 originally actionable, furnishes an answer to the action^ 
 
 The judgment of the Court of Queen's Bench for the defendant was 
 right, and is affirmed. Judgment affirmed. 
 
 MACHADO r. FONTES. 
 
 Court of Appp:al. 1S97. 
 
 [Reported [1897] 2 Queen's Bench, 231.] 
 
 Appeal from Kennedy, J., at chambers. 
 
 The plaintiff brought this action to recover damages from the de- 
 fendant for an alleged libel upon the plaintiff' contained in a pamphlet 
 in the Portuguese language alleged to have been published by the de- 
 fendant in r>razil. 
 
 The (lef(!ndant delivered a statement of defence (in which, amongst 
 other defences, he denied the alleged libel), and he afterwards took 
 out a summons for leave to amend his defence by adding the following 
 plea: "Further the defendant will contend that if (contrary to the 
 defendant's contention) the said pamphlet has boiMi published in Brazil, 
 by the Brazilian law the publication of the said pamphlet in Brazil
 
 CHAP. IX.] MACHADO V. FONTES. 425 
 
 cannot be the ground of legal proceedings against the defendant in 
 Brazil in which damages can be recovered, or (alternativelj-) cannot be 
 the ground of legal proceedings against the defendant in Brazil in 
 which the plaintift' can recover general damages for anv injury to his 
 credit, character, or feelings." 
 
 The summons came before Kennedy, J., in chambers, who allowed 
 the plea to be added, but expressed some doubt as to the propriety of 
 so doing, and gave leave to plaintiff to bring the present appeal.^ 
 
 Lopes, L. J. I am of opinion that this appeal ought to be allowed. 
 [The Lord Justice then referred to the facts, and, after reading the 
 plea, continued :] 
 
 Now that plea, as it stands, appears to me merely to go to the 
 remedy. It saj-s, in effect, that in this case no action in which dam- 
 ages could be recovered would lie in Brazil, and, assuming that any 
 damages could be recovered in Brazil, they would be special damages 
 only. Mr. Walton contends that that is not the meaning of the plea ; 
 that the _plea is intended to raise a larger question than that, and to 
 say that libel cannot be made the subject of any civil proceedings at all 
 in Brazil, but is only the subject-matter of criminal proceedings ; and, 
 for the purposes of what I am about to say, I will assume that to 
 be so. 
 
 Now the principle applicable in the present case appears to me to be 
 this : where the words have been published outside the jurisdiction, 
 then, in order to maintain an action here on the gi-ound of a tort com- 
 mitted outside the jurisdiction, the act complained of must be wrongful 
 — I use the word "wrongful" deliberately — both by the law of this 
 country and also by the law of the country where it was committed ; 
 and the first thing we have to consider is whether those conditions are 
 complied with. 
 
 In the case of Phillips v. Eyre, L. R. 6 Q. B. 1, Willes, J., lays down 
 very distinctly what the requisites are in order to found such an action. 
 He says this (at p. 28) : " As a general rule, in order to found a suit 
 in England for a wrong alleged to have been committed abroad, two 
 conditions must be fulfilled : First, the wrong must be of such a char- 
 acter that it would have been actionable if committed in England. . . . 
 Secondly, the act must not have been justifiable by the law of the place 
 where it was dont." Then in The M. Moxham, 1 P. D. 107, James, 
 L. J., in the course of his judgment, uses these words (at p. Ill) : " It 
 is settled that if by the law of the foreign country the act is lawful or 
 is excusable, or even if it has been legitimized by a subsequent act of 
 the Legislature, then this court will take into consideration that state 
 of the law, — that is to say, if liy the law of the foreign country a par- 
 ticular person is justified, or is excused, or has been justified or excused 
 for the thing done, he will not be answerable here." 
 
 Both those cases seem to me to go this length : that, in order to 
 constitute a good defence to an action brought in this country in re- 
 
 1 Arffuments of counsel are omitted. — Ed.
 
 42G MACHADO {'. FONTKS. fCHAP. IX. 
 
 spect of an act done in a foreign country, the act relied on must be 
 one which is innocent in the country wliere it was committed. In the 
 present case there can be no doubt tliat tlie action lies, for it comphes 
 with both of tlie requirements which are hiid down b}- Willes, J. Tlie 
 aet was committed abroad, and was actionable liere, and not justifiable 
 l)y the law of the i)lace where it was committed. Both those conditions 
 are complied with ; and, therefore, the publication in Brazil is action- 
 able hero. 
 
 It then follows, directly the right of action is established in this 
 country, that the ordinary incidents of that action and the appropriate 
 remedies ensue. 
 
 Therefore, in this case, in mj' opinion, damages would (low from the 
 wrong connuitted just as they would in any action brought in respect 
 of a libel published in this country. 
 
 It is contended that it would be much better that this question 
 should not be decided at the present time, but that a commission 
 should go to Brazil, and that the Brazilian law should be inquired into. 
 If our viev/ is correct, it seems to me that that would be a great waste 
 of time and money, because, having regard to the authorities I have 
 mentioned, this plea is absolutely bad, and ought to be struck out. 
 
 KuiHY, L. J. I am of the same opinion. I do not propose to de- 
 cide this case on any technical consideration as to what may be the 
 precise meaning of the allegation that is proi)osed to be introduced 
 into the defence ; I give it the widest possible construction it can rea- 
 sonably bear; and 1 will assume it to involve that no action for dam- 
 ages, or even no civil ai-tion at all, can be maintained in Brazil in 
 respect of a libel pul)lishcd there. But it does not follow from that 
 that the libel is not actionable in this country under the present con- 
 ditions, and having regaril to the fact that the plaintiff and defendant 
 are here. 
 
 Willes, J., in Phillips v. Eyre, was laying down a rule which he ex- 
 pressed without the slightest modification, and without the slightest 
 doubt as to its correctness ; and when you consider the care with 
 wiiich the learned Judge prepared the propositions that he was about 
 to enuirciate, I cannot doubt that the change from "actionable" in 
 the first branch oi' the rule to "justifiable" in the second branch 
 of it was deliberate. The first requisite is that the wrong must bo 
 of such a character that it would be actionable in England. It was 
 long ago settled that an action will lie by a plaintilf hero against a de- 
 feiulant hero, upon a transaction in a place outside this country. But 
 though such action may be brought here, it does not follow that it will 
 succeed here, for, when it is committed in a foreign country, it may 
 turn out to be a perfectly innocent act according to tiie law of tliat 
 country; and if the act is shown by the law of that country to bo an 
 innocent act, wc pa}* such respect to the law of other countries that we 
 will not allow an action to be brought upon it here. Tlie innocency oF 
 the act in tlie foreign countrv is an answer to the action. That is what
 
 CHAP. IX.] MACHAUO V. FONTES. 427 
 
 is im-ant wb.cn it is said that the act must be •* justifiable " by the law 
 of the plate where it was done. 
 
 It is nut reall}- a matter of an}- importance wliat the nature of the 
 remedy for a wrong in a foreign country may be. 
 
 The remedy must be according to the law of the country which en- 
 tertains the action. Of course, the plea means that no action can be 
 brought in this country in respect of the libel (if any) in Brazil. But I 
 think the rule is clear. It was very carefully laid down by Willes, J., 
 in Phillips ii. Eyre; and in the case of The M. jNIoxham, all the learned 
 judges of the Court of Appeal in their judgments laid down the law 
 without hesitation and in a uniform manner : and first one judge and 
 then another gave, in different language but exactly to the same pur- 
 port and effect, the rule enunciated by Willes, J. So that if authority 
 were wanting there is a decision clearly binding upon us, although I 
 think the principle is sufficient to decide the case. 
 
 I think there is no doubt at all that an action for a libel published 
 abroad is maintainable here, unless it can be shown to be justified or 
 excused in the country where it was published. James, L. J., states, in 
 The M. Moxham, what the settled law is. Mellish, L. J., is quite as 
 clear upon that point as James, L. J., in laying down the general 
 rule; and Baggallay, L. J., also takes the same view. We start, 
 then, from this : that the act in question is prima facie actionable 
 here, and the only thing we have to do is to see whether there is 
 any peremptory bar to our jin-isdiction arising from the fact that the 
 act we are dealing with is authorized, or innocent or excusable, in the 
 country where it was committed. If we cannot see that, we must act 
 according to our own rules in the damages (if any) which we may 
 choose to give. Here w^e cannot see it, and this appeal must be allowed 
 with costs. Appeal allowed.'^ 
 
 1 In Scott V. Seymour, 1 H. & C. 219, 234, in the Exchequer Chamber, Wight- i 
 MAN, J., said obiter : " I am not aware of any rule of law which would disable a Brit- j 
 ish subject from maintaining an action in this country for damages against another 
 British subject for an assault and battery committed by him in a foreign country, 
 merely because no damages for such trespasses were recoverable by the law of the 
 foreign country, and without any allegation that such trespasses were lawful or justi- 
 fiable in that country. By the law of England, an action to recover damages for an 
 assault and battery is transitory, and whatever might be the case as between two Nea- 
 politan subjects, or between a Neapolitan and an Englishman, I find no autliority for 
 holding that, even if the Neapolitan law gives no remedy for an assault and battery, 
 however violent and unprovoked, by recovery of damages, that tlierefore a British 
 subject is deprived of his right to damages given by the Pmglish law against another 
 British subject." Blackburn, J., said : " If, indeed, the plea had averred that by the 
 law of Naples no damages are recoverable for an assault however violent, that would 
 have raised a question upon which I have not at present made up my mind. I doubt 
 whether it would be a good bar but, supposing it would, I am disposed to think that 
 the fact of the parties being British subjects would make no difference. As at present 
 advised, I think that when two British subjects go into a foreign country, they owe local 
 allegiance to tlie law of that country, and are as much governed by that law as for- 
 eigners." Williams, .1., said, as to the dictum of Wightman, " as at present advised, 
 I am not prepared to assent to it." The other judges declined to express an opinion 
 on the point. — Ed.
 
 428 
 
 LE FOREST V. TOLMAN. 
 
 [chap. IX. 
 
 LE FOREST v. TOLMAN. 
 
 Supreme Judicial Court of Massachusetts. 1875. 
 
 [Reported, 117 Massachusetts, 109.] 
 
 Gray, C.J. In order tojnaiatain-au ae t i oii xt £ tort, fom ukd-upon 
 an injur}- to persoii_Qrj2ro[>erty, and not upona breach of contract, tEe , 
 
 action 
 
 ict whieti is the ca use of the inju 
 
 faL^lt^at least be _actioTnrtjg -T7r--p 
 
 \^TCfa-Trrs"^ne7if not also"Bx_tbeJaw of the ^4ftee4n wJikJi redress is 
 soiigTitr 'Smith y.Condr}-, 1 How. 28 ; s. c. 17 Pet. 20; The China, 
 7 "\ValI. 53, 64 ; Blad's Case, 3 Swanst. 603 ; Blad v. Bamfield, 3 Swanst. 
 604 ; General Steam Navigation Co. v. Guillou, 11 M. & W. 877 ; Phillips 
 V. Eyre, L. R. 4 Q. B. 225, 239, and L. R. 6 Q. B. 1 ; The Halley, L. R. 
 2 Ad m. 3, and L. R. 2 P. C. 193 ; Stout v. Wood, 1 Blackf. 71 ; Wall 
 V. Hoskins, 5 Ired. 177; Mahler v. Norwich & New York Transporta- 
 tion Co., 35 N. Y. 352 ; Needham v. Grand Trunk Railway, 38 Vt. 
 294 ; Richardson r. New York Central Railroad, 98 Mass. 85. 
 
 In the case at bar, the injury sued for was done to the plaintiff in 
 New Hampshire by a dog owned and kept by the defendant in Massa- 
 chusetts. Such an action could not be maintained at common law, 
 witliout proof that the defendant knew that his dog was accustomed to 
 attack and bite mankind. Popplewell v. Pierce, 10 Cush. 509 ; Pressed 
 V. Wirth, 3 Allen, 191. No evidence of such knowledge, or of the law 
 of New Hampshire, was introduced at the trial. Nor is it contended 
 that the defendant would be liable to any action or indictment by the 
 laws of that State. 
 
 The plaintiff relies upon the statute of this Commonwealth, which 
 provides 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." Gen. Sts. c. 88, § 59. This 
 statute is not a penal, but a remedial statute, giving all the damages to 
 the person injured. Mitchell v. Clapp, 12 Cush. 278. It does not de- 
 clare the owning or keeping of a dog to be unlawful, but that if the dog 
 injures another person, the owner or keeper shall be liable, without 
 regard to the question whether he had or had not a license to keep the 
 dog. The wrong done to the person injured consists not in the act of 
 the master in owning or keeping, or neglecting to restrain, the dog, but 
 in the act of the dog for which the master is responsible. 
 
 The defendant having done no wrongful act in this Commonwealth, 
 and the injury for which the plaintiff seeks to recover damages having 
 taken place in New Hampshire, and not being the subject of action or 
 indictment by the laws of that State, this action cannot be maintained. 
 
 Exceptions sustained.^ 
 
 1 Arc. The Laininc:ton, 87 Fed. 752 ; Carter v. Goode, .50 Ark. 15.5, 6 S. W. 719 ; 
 "Whitford v. Panama \i !{., 23 N. Y. 405 ; Holland i-. Pack, Peck, 151 ; McLeodv. B. R, 
 58 Vt. 727 ; 16 Cluuet, 664 (Freuch Cass. 16 May, '88). — Ed.
 
 CHAl'. IX.] DAVIS V. NEW YORK AND NEW ENGLAND RAILROAD 429 
 
 DAVIS V. NEW YORK AND NEW ENGLAND RAILROAD. 
 
 Supreme Judicial Court of Massachusetts. 1887. 
 [Reported 143 Massachusetts, 301.] 
 
 Devens, J. The defendant is a railroad corporation, operating a 
 railroad through Massachusetts and Connecticut, as a continuous line, 
 by virtue of the St. of 1873, c. 289, and exists as a corporation by the 
 laws of each of these States. This action is brought by the plaintiff, as 
 administrator of the estate of Mrs. Ruth L. Brown, for alleged injury to 
 her, which finally resulted in her death, by reason of the carelessness 
 of the defendant and that of its servants, while she was being convej-ed 
 as a passenger over its railroad in Connecticut, the intestate being 
 herself at the time in the exercise of due care. 
 
 The law of the State of Connecticut has been properly determined as 
 a fact b}' the judge presiding at the trial, and his finding in regard to it 
 is conclusive. Ames r. McCamber, 124 ^lass. 85, 91. From tliis it 
 appears " that, by the common law in Connecticut, an action for 
 personal injuries does not survive to the administrator of the person 
 injured ; that there is no statute or law in Connecticut b}- virtue of 
 which a common-law action for personal injuries is revived, or made to 
 survive to an administrator of tiie person injured." The facts, as they 
 are alleged, " do not constitute a cause of action under the laws of the 
 State of Connecticut b}- the administrator in behalf of the intestate's 
 estate, and this aiction could not be maintained in that State, if duly 
 brought by an administrator there." The administrator may there 
 maintain, upon these facts, a special action, penal in its nature, created 
 by the statutes of Connecticut, by which the damages recoverable are 
 limited to not more than $5,000, and under which the damages recovered 
 do not become assets of the estate, but are recovered in behalf of 
 certain persons not thus entitled to the same according to the laws of 
 distribution, and are to be paid over in specified proportions to them. 
 
 The plaintiff does not contend that he mav maintain this action as 
 the special one provided b}' the statute of Connecticut, nor under the 
 laws of that State. Richardson v. New York Central Railroad, 98 
 jMass. 85. We are aware that the correctness of this decision has been 
 called in question by the Supreme Court of the United States in Dennick 
 V. Railroad, 103 U. S. 11 ; but it is unnecessary to reconsider our own 
 decision, as the plaintiff seeks only to maintain liis action under our 
 statute, which provides that, in case of damage to the person, the action 
 shall survive, and may thus be prosecuted bv an administrator. Pub. 
 Sts. c. 165, § 1 ; Hollenbeck r. Berkshire Railroad, 9 Cush. 478. The 
 inquir}' is therefore presented, whether a cause of action at common 
 law, which dies with the person in the State where it accrued, not having 
 boon made there to survive by any statute, will survive under and by
 
 430 DAVIS V. NEW YORK AND NEW ENGLAND KAILROAD. [CKAP. IX, 
 
 virtue of the statutes of survivorship of another State, so that, if juris- 
 diction is there obtained over the person or propertj' of the defendant, 
 judgment may properly be rendered against him or his property. That 
 our statute would furnish a remedy, where the cause of action was one 
 recognized by the law of this State as the foundation of an action at 
 common law, although it accrued without the State, it being there recog- 
 nized as existing, and not discharged or extinguished, will be conceded. 
 It must certainl}- be the right of each State to determine by its laws 
 under what circumstances an injury to the person will afford a cause of 
 action. If this is not so, a person who is not a citizen of the State, or 
 who resorts to another State for his remed}', if jurisdiction can be 
 obtained, ma}' subject the defendant in an action of tort to entirely 
 different rules and liabilities from those which would control the con- 
 troversy were it carried on where the injury occurred ; and, as b\' the 
 law of Massachusetts it is required that a person injured while travel- 
 ling upon a railroad must prove, not onl}- the negligence of the defend- 
 ant, but also that he himself was in the exercise of due care, and as 
 jurisdiction may be obtained by an attachment of property of the 
 defendant in another State, the plaintiff" might relieve himself of the 
 necessity of proving his own due care, if, b}' the law of the State to 
 which he may resort, such proof is not required, and thus put upon the 
 railroad company a higher responsibility than is imposed by the State 
 in which it was performing its business. In a similar way, if a traveller 
 upon a steam or horse railroad could not recover in this State for an 
 injur}' done by carelessness in transporting him, because he was 
 travelling upon Sunday, in violation of the laws of the State, he might, 
 unless the law prescribed in this State is to govern, recover in any 
 State where laws forbidding travelling on Sunday did not exist, if juris- 
 diction could there be obtained over the defendant or its property. 
 ( Where an injur}' occurs in another State, which would be the founda- 
 tion of an action at common law, and it is known that the general law 
 of that State is the common law, it may be inferred that the ti'ansaetion 
 is governed by its rules as here applied, in the absence of evidence to 
 the contrary; but, when it is shown to be otherwise, the law of the 
 State where the injury occurs is to be regarded. j[t is a general prin- 
 ciple, that, in order to maintain an action of tort founded upon an 
 injury to person and property, the act wliich is the cause of the injury 
 and the foundation of the action must at least be actionable by the 
 law of the place where it is done, if not also by that of the place in 
 which redress is sought."^ Le Forest '-. Tolman, 117 Mass. 109. and 
 cases cited. It must be for the State of Connecticut to prescribe when, 
 and under what circumstances, a cause of action shall arise against a 
 corporation which operates a railway within its limits, by reason of an 
 act done by it. It may provide that, for an injury done by its careless- 
 ness, there shall be no cause of action on behalf of the injured party, 
 but punisliment by indictment only, or it may give to such injured 
 person a cause of action, and for the same injury make the corporation
 
 CHAP. IX.] DAVIS V. NEW YORK AND NEW ENGLAND RAILROAD. 431 
 
 responsible, by indictment or other proceeding, for a fine or damages 
 wliich shall go to the State, to relatives of the injured party, or to any 
 other persons named. Commonwealth v. Metropolitan Railroad, 107 
 Mass. 236. 
 
 ^The intestate did, by the common law of Connecticut, have a right 
 of action during her lifetime, but for this has been substituted in that 
 State, she having deceased, the penal action created by the statute^ 
 
 It is the contention of the plaintiff, that the cause of action may be 
 held to survive by virtue of our statute, notwithstanding no cause of 
 action now exists in Connecticut. Pub. Sts. c. 165, § 1. That the 
 special action in Connecticut can now be maintained is not controverted. 
 If, therefore, this contention of the plaintiff is correct, the defendant 
 continues liable for its act or neglect in Connecticut by the law of 
 Massachusetts, while it is also liable by reason of the penalty imposed 
 upon it by the law of Connecticut as a substitute for its original lia- 
 bility, such penalty being still capable of enforcement, ^^he design of 
 our statutes of survivorship is primarily to provide for survival of 
 those actions of tort the causes of which occur in this State.* If similar 
 statutes existed in another State, where the original cause of action 
 accrued, it would not be difficult to hold that our own applied to such 
 causes, upon the same principle by which we hold that the intestate 
 herself might originally have brought her action here. When no such 
 cause of action now exists in the State where the injury occurred, it is 
 not easy to see how it can exist here, especially when, in such State, 
 another cause of action, growing out of the same facts, has been 
 substituted for it. This would be to subject the defendant to two 
 liabilities, one existing by the law of the State in which jurisdiction 
 over person or property was obtained, but in which the accident did not 
 occur ; and the other imposed by the law of the State where it did 
 occur, and where the defendant had its residence ; while in either State 
 the liability there imposed would be the only one to which the defendant 
 could by its law be subjected. 
 
 It may be suggested, that the law of Connecticut, in failing to pro- 
 vide that an action for a personal injury shall survive to the adminis- 
 trator, has, negativel}', only the same effect as a statute of limitations, 
 which operates merely to take away the remedy of a plaintiff, while his 
 cause of action still exists. 
 
 By the ancient common law, as it existed before the St. of 4 Edw. 
 III. c. 7, which was adopted and practised on in this State before the 
 Constitution, 6 Dane Abr. 607, no action ex delicto survived to the 
 personal representative, the maxim Actio personalis moritur oan 
 •persona being of universal appUcation. Wilbur v. Gilmore, 21 Pick. 
 250. Subsequently to that statute, which was liberally construed, an 
 action for a tort, by which the personal property of one was injured or 
 destroyed, survived to his administrator, such tort being an injury to 
 the property which otherwise would have descended to him. But the 
 theory that a personal injury to an individual was limited to him onh',
 
 432 DAVIS v. NEW YORK AND NEW ENGLAND RAILROAD. [CHAP. IX. 
 
 that no one else suffered thereby, and that therefore by his decease the 
 cause of action itself ceased to exist, continued. 
 
 While the action for personal injury is spoken of as surviving, as 
 there previously was no responsibility to the estate, the statute creates 
 a new cause of action. It imposes a new liabilit}', and does not merely 
 remove a bar to a remed}' such as is interposed by the statute of limi 
 tations, which, if withdrawn b}' the repeal of the statute, would allow 
 an action to be maintained for the original cause. What the new 
 liabilit}- shall be, by what conditions it shall be controlled, and whether 
 the original liability shall be destro^xd, must be determined bj- the law 
 of the State where the injury occurs, unless the legislation of other 
 States is to have extraterritorial force, and govern transactions 
 beyond their limits. We perceive no intention to invest it with such 
 force, even if it were possible so to do. 
 
 B3' the decease of the intestate, the cause of action at common law 
 which she once had in Connecticut has there ceased to exist. (It is 
 for that State to determine what provision, b}- action or indictment, 
 if an}-, shall be made in order to indemnify the estate of the intestate,^ 
 or her relatives, or to punish the party causing the injury to her. Our 
 statute, permitting the survival of similar actions in this State, does 
 not therefore applj'. 
 
 The question considered in the case at bar was full}' and ably dis- 
 cussed in Needham v. Grand Trunk Railway, 38 Vt. 294, and the same 
 result reached as that at which we have arrived. To the same effect 
 also is State /'. Pittsburgh & Connellsville Railroad, 45 Md. 41. 
 
 The plaintiff, in his argument, attaches importance to the St. of 1873, 
 c. 289, by virtue of which the defendant's railroad is operated in the 
 several States through which it runs as a continuous line ; but the fact 
 that it is a corporation b}' the law of Massachusetts as well as by that 
 of Connecticut cannot make its liabilities different or greater in this 
 State on account of transactions occurring entirely in Connecticut ; nor 
 are the rights of the plaintiff greater because his intestate, who was 
 injured in tliis transaction, was a citizen of this Commonwealth. 
 Whitford v. Panama Railroad, 23 N. Y. 465, 472 ; Richardson v. New 
 York Central Railroad, ubi supra. 
 
 The ruling that the action could be maintained was therefore 
 erroneous. Except ions snstaiiifd} 
 
 1 Ace. Davidow ?•. PiMinsylvaiiia R. K., 85 Fed 943 : Do [lam v. Mex. Nat. Ky., 86 
 Tex. 68, 23 S. W. 381 ; Needham v. li. li., 38 Vt. 294. — Eu.
 
 CHAP. IX.j NORTHERN PACIFIC KAILROAD V. BABCOCK, 
 
 433 
 
 NORTHERN PACIFIC RAILROAD v. BABCOCK. 
 
 Supreme Court of the United States. 1894. 
 
 [Reported 154 United States, 190.] 
 
 The plaintiff below, who was the administrator of the estate of Hugh 
 M. Munro, sued in the District Court of the Fourth Judicial District of 
 Minne sotat o rec over $25,000 damages for the killing of Munro on tte 
 lOth day of Januar}', 1888, at or near a station known as Gray Cliff on 
 the Northern Pacific Railway in the Territory- of Montana. 
 
 There was a verdict and judgment below in favor of the plaintiff for 
 $10,000. To review that judgment this writ of error was sued out. 
 The errors assigned were as follows : 
 
 "Third. The court erred further in charging the jur\'as follows: 
 ' Many States have different laws. The law in this State until recently 
 was that only $5,000 could be given in a case of death. It has lately 
 been increased to $10,000.' 
 
 ''Fourth. The court erred further in charging the jury as follows: 
 ' If you believe from all the evidence in the case that the plaintiff is 
 entitled to recover, then it is for you to determine what compensation 
 you will give for the death of the plaintiffs intestate. The law of 
 Montana limits it to such an amount as you think it would be proper 
 under all circumstances of the case, and that is the law which will 
 govern in this case.' 
 
 " Sixth. The court erred further in refusing to give to the jury the 
 following request tendered by defendant's counsel : ' The laws of Min- 
 nesota limit the amount of damages to be recovered in this case to five 
 thousand dollars.' " ^ 
 
 White, J. The third, fourth, and sixth assignments involve the 
 same question, and may be decided upon together. 
 
 ^ Only so much of the case as deals with these assignments of error is given. — Ed. 
 
 28
 
 434- NORTHERN PACIFIC RAILROAD V. BABCOCK. [CHAP. IX. 
 
 The plaintitTs intestate was an engineer in the employ of the defend- 
 ant corporation in the Territor}' of Montana, and the accident b}- which 
 he lost his life occurred there. The law of the Territory of Montana 
 at the time provided as follows : 
 
 " Where the death of a person not being a minor is caused by the 
 wrongful act or neglect of another, his heirs or personal representatives 
 mav maintain an action for damages against the person causing the 
 death, or if such person be employed by another person who is respon- 
 sible for his action, then also against such other person. In every 
 action under this and the preceding section such damages may be given 
 as under all the circumstances of the case may be just." (Section 14, 
 title II., chapter I., first division of the Code of Civil Procedure of the 
 Territory of Montana.) 
 
 Under the law of Minnesota, when the death occurred, the limit of 
 recovery in case of death was $5,000, but at the time of the trial of the 
 case in the court below this limit had been increased to 810,000 by 
 amendment of the Minnesota statutes. 
 
 The question which those assignments of errors present is, was the 
 amount of damage to be controlled by the law of the place of employ- 1 ^ 
 ment and where the accident occurred, or by the law of the forum in 
 which the suit was pending? In the case of Herrick v. Minneapolis & 
 St. Louis Railway Co., reported in 31 Minnesota, 11, which involved 
 the question of whether the courts of Minnesota would enforce and 
 apply to a suit in that State for a cause of action originating in Iowa 
 a law of the State of Iowa making railroad corporations liable for 
 damages sustained by its employees in consequence of the neglect of 
 fellow-servants, the court said: 
 
 • • The statute of another State Jias. of course, no extraterritorial 
 
 force, but rights acquiTed imcler it will ul\v:iy>. in c(jinUy, be enforced, 
 
 1f not against the public policy ofthe la ws of th e former. Insuchcases 
 
 the^law^of the place where the righf was acquTredTor the liabilitx zgg. 
 
 incurred, v?ill govern as to the right of action: while all that pertain s 
 
 merely to the remedy will be controTledb^ the law of the State where 
 
 _the act ion is brought. And we think the principle is th e samc^, whether 
 
 ~the ri ght of action be ex contractu or ex delict o. 
 
 '^ ''The defendant admits the general rule to be as thus stated, but 
 contends that as to statutory actions like the present, it is subject to 
 the qualification that, to sustain the action, the law of the forum and 
 the law of the place where the right of action accrued must concur in 
 holding that the act done gives a right of action. We admit that some 
 text-writers — notably, Rorer on Interstate Law — seem to lay down 
 this rule, but the authorities cited generally fail to sustain it. 
 
 " But it by no means follows that, because the statute of one State 
 differs from the law of another State, therefore it would be held con- 
 trary to the policy of the laws of the latter State. E:very day our 
 courts are enforcing rights under foreign contracts where the lex loci
 
 CHAP. IX.] THE " HALLEY." 435 
 
 contractus and the lex fori are altogether different, and yet we construe 
 these contracts and enforce i-ights under them according to their force 
 and effect under the laws of the State where made. To justify a court 
 in refusing to enforce a right of action which accrued under the law of 
 another .^tate, because agajjist the policy oj" our laws^,^ it must apj^ear 
 that it is against good mo rals o r natural Justice,_oi- that, for some other 
 sucli reason, tliu enforcement oL it w ould be prejudicial to the^generat- 
 inteiests of our own citizens. If the State of Iowa sees fit to impose 
 this obligation upon those o\:»erating railroads within her bounds, and 
 to make it a condition of the employment of those who enter their ser- 
 vice, we see nothing in such a law repugnant either to good morals or 
 natural justice, or prejudicial to the interests of our own citizens." J 
 
 This opinion of the Supreme Court of JMinnesota is in accorTTwith 
 the rule announced by Chief Justice Marshall in The Antelope, 10 
 Wheat, 66. In referring to that case in Texas &, Pacific Railway v. 
 Cox, 145 U. S. 593, the court said : " the courts of no country execute 
 the penal laws of another. But we have held that that rule cannot be 
 invoked as applied to a statute of this kind, which merely authorizes a 
 civil action to recover damages for a civil injury." The rule thus enun- 
 ciated had been adopted in previous cases, and has since been approved 
 bv this court. Smith v. Condry, 1 How. 28 ; The China, 7 Wall. 53, 
 64; Dennick v. Railroad Co., 103 U. S. 11 ; The Scotland, 105 U. S. 
 24, 29 ; Huntington v. Attrill, 146 U. S. 657, 670. Indeed, in Texas 
 & Pacific Railway Co. v. Cox, supra, Mr. Chief Justice Fuller, speak- 
 ing for the court, said : " The question, however, is one of general law, 
 and we regard it as settled in Uennick v. Railroad Co." 
 
 The contract of employment was made in Montana, and the accident 
 occurred in that State, while the suit was brought in Minnesota. We 
 think there was no error in holding that the right to recover was 
 governed b}' the lex loci, and not by the lex fori. 
 
 THE "HALLEY." 
 
 Judicial Committee of the Privy Council. 1868. 
 [Reported Law Reports, 2 Privy Council, 193.] 
 
 Selwtn, L. J. This is an appeal from an order by the judge of the 
 High Court of Admiralty, dated the 26th of November. 1867. and ad- 
 mitting the third article of the reply filed bj* the plaintiffs in the court 
 below, who are the present respondents. 
 
 The cause is a cause of damage promoted by the respondents as 
 owners of a Norwegian barque called the " Napoleon," against a 
 British steamship called the " Halley," and her owners, for the re- 
 covery of damages occasioned to the respondents by reason of a
 
 436 THE " HALLEY." [CHAP. IX. 
 
 collision which took place on the 8th of January, 1867, in Flushing 
 Roads, between the " Napoleon " and the '^ Halley." 
 
 In their petition the respondents state that the collision was caused 
 by the negligent and improper navigation of the '' Halley." 
 
 The appellants, in their answer to that petition, state that the 
 "Halley" is a steamship belonging to the port of Liverpool, and 
 that " by the Belgian or Dutch laws which prevail in and over the 
 river Scheldt, and to which the said river is subject, from the place 
 where the said river pilot came on board the ' Halley,' and thence 
 up to and beyond the place of the aforesaid collision, it was compulsory 
 on the said steamer to take on board and be navigated under the di- 
 rection and in charge of a pilot duly appointed or licensed according to 
 the said laws ; and it was by virtue of such laws that the ' Halley ' 
 was compelled to take on board and to be given in charge, and until 
 the time of tlie said collision, as aforesaid, to remain in charge of, and 
 did take on board, and was given in charge, and up to the time of the 
 said collision remained in charge of the said river pilot, who was duly 
 appointed or licensed according to the said laws, and whom the defend- 
 ants or their agents did not select and had no power of selecting ; " 
 and " that the collision was not caused by the negligence, default, 
 want of skill, or improper conduct of any person on board the ' Halley,' 
 except the said river pilot." 
 
 In reply to this answer, the respondents pleaded the following, being 
 the third article in their reply: ^' Rv the Belgian __or^ Dutch laws in^ 
 f orce at the time and place of the said collis jon, the owners of a sTiip 
 wlijph has done damage to anothe r shipln^oUision, are liable to pay 
 anc rmagego o ct to €Ee7?WTg rr ofTuch ^astly^mentioned"~sTlip~^ ioss'es 
 occasioned to them by reason of such collision, notwithstanding that 
 the ship which has done such damage was, at the time of the doing 
 thereof, being navigated under the direction and in charge of a pilot 
 duly appointed or licensed according to the said laws^and^ notwith- 
 standing that such damage was solely occasioned b^- the negligence, 
 default, or want of skill of "such pTTot, without any contributory negli- 
 gence on the parTofTHiT master or crow of such lastl^v mentioned shi[), 
 and notwithstandliTg^hatlrTvas at the tirae-imd 4jUu:e of the collision, 
 by the said laws, compulsory oii^uch lastly meiit-ionetV^hip-to be navi- 
 gated under the direction amfin charge pi such i>ii«t-; and the defend-, 
 ants, the owners of the ' Halley,' are by virtue^ the said laws, liable 
 to pay and make goodH:o tfrej>laintiffsjill losses- occasioned to tliem by 
 the said collision, iverTiI^ the statements cont ained in the eleventh 
 article of the said answer be true." 
 
 The ai)pellants liaving moVecT the court below to reject the third 
 article of the reply, on the ground that, even if tlic third article were 
 true, the appellants would not be liable in the Court of Admiralty in 
 Enirland, the learned judge of that court has made the order now under 
 appeal, by wliich he has refused the motion of the appellants, and has 
 sustained the third article of the reply.
 
 CHAP. IX.] THE "HALLEY." 437 
 
 The claim of the respondents is stated by the learned judge to be 
 founded upon a tort committed by the defendants in the territory of a 
 foreign State, and we are not called upon to pronounce any opinion 
 as to the rights which the respondents might have obtained, either 
 against the appellants as the owners of the " Halley," or as against 
 the ship, if the respondents had instituted proceedings and obtained 
 a judgment in the foreign court. For this cause is a cause for damage 
 instituted by petition in the High Court of Admiralty in England ; and 
 it is admitted by the counsel for the respondents that the question be- 
 fore us must be decided upon the same principles as would be applicable 
 to an action for damages for the collision in question if commenced in 
 the Court of Queen's Bench or Common Pleas. But it is contended on 
 their part, and has been held by the learned judge in the court below, 
 that the respondents are entitled to plead that the law of Belgium, 
 within whose territorial jurisdiction the collision took place, renders 
 the owners of the " Halley," although compelled to take a pilot on 
 board, liable to make reparation for the injury which slie has done. 
 
 Their Lordships agree with the learned judge in his statement of the 
 common law of England, with respect to the liability of the owner of a 
 vessel for 'injuries occasioned by the unskilful navigation of his vessel, 
 while under the control of a pilot, whom the owner was compelled to 
 take on board, and in whose selection he had no voice ; and that this 
 law holds that the responsibility of the owner for the acts of his servant 
 is founded upon the presumption that the owner chooses his servant 
 and gives him orders which he is bound to obey, and that the acts of 
 the servant, so far as the interests of third persons are concerned, must 
 always be considered as the acts of the owner. 
 
 This exemption of the owner from liability when the ship is under 
 the control of what has been termed a "compulsory pilot" has also 
 been declared by express statutory enactments. Vide Merchant Ship- 
 ping Act, 1854, "l 7 & 18 Vict. c. 104, § 388. 
 
 In cases like the present, when damages are claimed for tortious 
 collisions, a chattel, such as a ship or carriage, may be, and frequently 
 is, figuratively spoken of as the wrongdoer ; but it is obvious, that 
 although redress ma}' sometimes be obtained by means of the seizure 
 and sale of the ship or carriage, the chattel itself is onl}- the instru- 
 ment by the improper use of which the injury is inflicted by the real 
 wrongdoer. 
 
 Assuming, as, for the purposes of this appeal, their lordships are 
 bound to assume, the truth of the facts stated in the pleadings, and 
 applying the principles of the common law and statute law of England 
 to those facts, it appears that the tort for which damages are sought to 
 be recovered in this cause was a tort occasioned solely bv the negli- 
 gence or unskilfulness of a person who was in no sense the servant 
 of the appellants, a person whom they were compelled to receive on 
 board their ship, in whose selection they had no voice, whom they had 
 no power to remove or displace, and who, so far from being bound
 
 438 THE " II ALLEY," [CHAP. IX. 
 
 to receive or obe^' their orders, was entitled to supersede, and had, 
 in fact, at the time of the collision, superseded, the authority of the 
 master appointed by them ; and their lordships think that the maxim, 
 '■'• qui facit 1)6)' aliuia^ fac'd per se," cannot by the law of England 
 be applied, as against the appellants, to an injury occasioned under 
 such circumstances ; and that the tort upon which this cause is founded 
 is one which would not be recognized by the law of England as creat- 
 ing any liability in, or cause of action against, the appellants. 
 I It follows, therefore, that the liability of the appellants, and the right 
 of the respondents to recover damages from them, as the owners of the 
 "Halley," if such liability or right exists in the present case, must be 
 the creature of the Belgian law ; and the question is, whether an Eng- 
 lish court of justice is bound to appl}' and enforce that law in a case, 
 when, according to its own principles, no wrong has been committed by 
 the defendants, and no right of action against them exists. 
 
 The counsel for the respondents, when challenged to produce any 
 instance in which such a course had been taken by any English court of 
 justice, admitted his inabilit}' to do so, and the absence of an}' such 
 precedent is the more important, since the right of all persons, whether 
 British subjects or aliens, to sue in the English courts for damages in 
 respect of torts committed in foreign countries has long since been 
 established ; and, as is observed in the note to Mostj-n v. Fabrigas, 
 in Smith's Leading Cases, vol. i. p. 65G, there seems to be no reason 
 why aliens should not sue in England for personal injuries done to 
 them b}' other aliens abroad, when such injuries are actionable both by 
 the law of England and also by that of the countr}' where they are com- 
 mitted, and the impression which had prevailed to the contrary seems 
 to be erroneous. 
 
 In the case of " The Amalia," 1 Moore's P. C. Cases (n. s.) 484, Lord 
 Chelmsford, in delivering the opinion of the judicial committee, said : 
 " Suppose the foreigner, instead of proceeding in rem against the ves- 
 sel, chooses to bring an action for damages in a court of law against 
 the owners of the vessel occasioning the injury, the argument arising 
 out of the acquired lien would be at once swept away, and the rights 
 and liabilities of the parties be determined by the law which the court 
 would be bound to administer." 
 
 As Mr. Justice Story has observed in his Conflict of Laws, p. 32, 
 '^it is difficu lt to conceive upon w hat_ffroujldjj_claiui can be^cstcd^o 
 give to an v municipal laws an extraterritorial eff ect, when thos e laws 
 ^ i-e preiu Sici al to the li ghts uP the pttn;r jiaJlQ&s-e^--tCLjjj Ose of their ; 
 subjectsT^^ And even in the case of a foreign judgment, which is 
 usually conclusive inter parte!^, it is observed in the same work, at 
 § 618a, that the courts of England may disregard such judgment 
 inter partes if it appears on the record to be manifestly contrary to 
 public justice, or to be based on domesticJcgislation not-Feeosrnizcii iji^ 
 England or other foreign countries, ^r i& fniuulf>d " pon a mis apprehen- 
 sion of wTTal'ts the law of Eugland_^ Simpson v. Fogo, 1 H. «& M. 195.
 
 CHAP. IX.] THE " HALLEY." 439 
 
 It is true that in many cases the courts of England inquire into and 
 act upon the law of foreign countries, as in the ease of a contract 
 entered into in a foreign country, where, by express reference, or by 
 necessary implication, the foreign law is incorporated with the contract, 
 and proof and consideration of the foreign law therefore become nec- 
 essary to the construction of the contract itself. And as in the case of 
 a collision on an ordinary road in a foreign country, where the rule of 
 the road in force at the place of collision may be a necessary ingredient 
 in the determination of the question by whose fault or negligence the 
 alleged tort was committed. But in these and similar cases the English 
 court admits the proof of the foreign law as part of the circumstances 
 attending the execution of the contract, or as one of the facts upon 
 which the existence of the tort, or the right to damages, may depend, 
 and it then applies and enforces its own law so far as it is applicable to 
 the case thus established ; but it is, in their lordships' opinion, alike 
 contrary to principle and to authority to hold, that an English court 
 of justice will enforce a foreign municipal law, and will give a remedy 
 in the shape of damages in respect of an act which, according to its 
 own principles, imposes no liability on the person from whom the 
 damages are claimed. 
 
 The case of Smith v. Condr\-, 1 Howard's Kep. (U. S.) 28, in the 
 Supreme Court of the United Slates, appears at first sight to have 
 an important bearing upon this case ; but, upon an investigation of 
 the report, it does not appear that any question as to a conflict 
 between the English law and the American law was discussed in that 
 case, or that the precise point now under consideration was noticed in 
 the judgment, nor is it specifically mentioned in any of the three ex- 
 ceptions which were taken to the decision of the inferior court, and 
 there is no report of the arguments. 
 
 Their lordships think, therefore, that that case cannot be treated as 
 an authority suflflcient to support the contention of the respondents ; 
 and, on the whole, the}' think it their duty humbly to advise Her 
 Majest}^ to allow this appeal, and to order that the third article of 
 the plaintiff's reply be rejected, and that there should be no costs of 
 this appeal.
 
 440 BAEING V. INLAUD KEVENUE COMMlBiSiONEBS. |_CHAP. X. 
 
 CHAPTER X. 
 
 OBLIGATIONS EX CONTRACTU. 
 
 SECTION I. 
 
 PLACE OF CONTRACTING, 
 
 BARING V. INLAND REVENUE COMMISSIONERS. 
 
 Court of Appeal. 1897. 
 
 [Reported [1898] 1 Queen's Bench, 78.] 
 
 The question raised was whether an unregistered bond, of which 
 the appellant, the Honourable J. Baring, was the holder, whereby the 
 Atchison, Topeka and Santa Fe Railway Company, a corporation 
 organized under the laws of Kansas, in the United States (hereinafter 
 called the new company), promised to pay to bearer, or, if the bond 
 should be registered as thereinafter provided, to the registered holder 
 thereof, the sum of 1,000 dollars with interest thereon at the rate of 4 
 per cent per annum until the principal became due, was subject to 
 duty under the Stamp Act, 1891, as being a marketable security by or 
 on behalf of a foreign company made or issued in the United Kingdom 
 within s. 82, sub-s. (6), (1), of that act.^ 
 
 A. L. Smith, L.J. I am of opinion that this appeal should be dis- 
 missed. It is not necessary for me to state the facts in detail. They 
 may be summarized as follows. There was a company called the 
 Atchison, Topeka and Santa Fe Railway Company, incorporated under 
 the law of Kansas. In 1895 that company was in difficulties, and a 
 reorganization scheme was set on foot. By that scheme there was to 
 be a foreclosure suit against the old company, which was to be wound 
 up, a new com|)any was to come into existence in its stead, and the 
 bondholders of the old company were to become bondholders of the 
 new company. The scheme was carried out in 1896. The new com- 
 pany, in pursuance of the scheme, issued bonds, the form of which is 
 very material. There is an exi)ress stipulation on the face of the bond 
 thai it shall not Iw valid for any purpose unless authenticated by the 
 certificate thereon indorsed of the trustee under the mortgage .oi- deed 
 
 1 The statement of facts and arguments of counsel are omitted. — Ed.
 
 SECT. I.] BAKING V. INLAND EEVENUE COMMISSIONERS. 441 
 
 of trust. The document seems to me on the face of it not really to be 
 a bond, but a mere piece of paper till tliat certificate is signed. What 
 happened in this case was this. One of these documents was sent from 
 New York to London in order tliat it might be handed over to the ap- 
 pellant, who, as having been a bondholder of the old companv, was 
 entitled to a bond of the new company. Instead, however, of con- 
 verting the document into a bond in New Yorli, in order to avoid tlie 
 pa3ment of a heavy premium for insurance, it was sent over here as an 
 inchoate instrument, and not a bond at all, and the vice-president of 
 the trust company also came over to this country to sign the requisite 
 certificate here and so convert the document into a bond. The certifi- 
 cate having been thus signed, tlie bond was delivered to Messrs. Baring 
 Brothers & Co., and by them handed over to the appellant. The ques- 
 tion which arises is, where was this bond issued? It was contended 
 that it was issued in New York when the piece of paper was given to 
 the trust company. I say certainly not. It is true that a piece of 
 paper was then handed to the trustee, but it cannot be said that a bond 
 was then issued, for it was not. I do not think there can be an issue of 
 an instrument within the statute until it is an actual, valid, subsisting 
 instrument. I think that this bond was first issued in this country after 
 it became a valid instrument by the signing of the indorsed certificate 
 thereon, until which time it was a mere piece of paper and not a bond. 
 I cannot understand how it can be said that a bond has been issued be- 
 fore it is a bond. It became a marketable security when the certificate 
 was signed, and not till then. For these reasons I think that the ap- 
 peal should be dismissed. 
 
 RiGBY, L. J.^ I am of the same opinion. The sole question really 
 appears to me to be whether this instrument, which came into the hands 
 of the appellant as the person entitled to it under the scheme of reor- 
 ganization, was issued in this country or not, and I cannot entertain 
 any doubt that it was so issued. What is the meaning in any fair sense 
 of the word ''issued" in the section? Of course a document is not 
 issued if, when sealed, it is put away in a box and kept there. Nor do 
 I consider that a document even if it were complete when signed, could 
 be said to be issued, if it were handed over to an agent with instruc- 
 tions that he was not to part with it or make it an instrument on which 
 any one could sue until some consideration was received, as in the case 
 of an ordinary mortgage deed which is sealed but is not to be handed 
 over to the mortgagee or to become an effective mortgage deed until 
 the mortgage money is paid. It seems to me impossible to argue that 
 in such cases there could be said to be an issue in America, even if the 
 document were complete when signed, if it were only to be handed over 
 to the person who was to sue upon it upon something being done, as, for 
 example, on paying the consideration money. An instrument can only^ 
 be said to be issued in my opinion when it gets into the hands of a 
 
 1 Part of this opinion and the concurring opinion of Collins, Jj. J., are omitted. 
 — Ed.
 
 442 NORTHAMPTON MUT. LIVE STOCK INS. CO. V. TUTTLE. [CHAP. X. 
 
 p erson wbn r-nn nvnil liimsplf of it. It seems to me that that is the 
 ordinary meaning of the word '' issued," and at an}- rate its meaning in 
 the act which we have to construe. When this document was executed 
 b}- the corapan}- in America, had everything been done that was neces- 
 sary to make it an available instrument? Certainly not. On the 
 contrary, it was guarded by a condition on the face of the document 
 that it should have no validity until certified by the trust company. 
 It was argued that, as the trust company were dealing with the mat- 
 ter under the orders and directions of the joint executive committee, 
 the bond had gone beyond the control of the railway company, and 
 that constituted the test as to whether it had been issued. I cannot 
 accede to that view. In the instance which I gave of an instrument 
 beino- sent to an agent with instructions to deliver it to a person on 
 payment of the consideration money, the instrument would be be- 
 vond the control of the sender in the sense in which this bond was 
 beyond the control of the railway company. The company had a 
 bargain winch was to be fulfilled, and, unless it were fulfilled, they 
 could not get the advantages for which they had bargained. During 
 the transmission of the document from New York, and until the 
 certificate was signed, no one could sue on it. Until the certifica- 
 tion tliere could be no issue. I do not say that there was an issue 
 upon the certification ; but when the certified bond, being then a 
 complete instrument, which might be sued upon if banded over to 
 a person who was entitled to it, was handed over to such a person, I 
 do not doubt there was an issue. There can be only one issue within 
 the meaning of the act, and that is when the instrument first gets into 
 the hands of some one who can make it available for his benefit.^ 
 
 NORTHAMPTON MUTUAL LIVE STOCK INSURANCE 
 CO. V. TUTTLE. 
 
 Supreme Court, New Jersey. 1878, 
 
 [Reported 40 New Jerseij Law^ 476.] 
 
 Van Syckel, J.^ The plaintiff brought suit before a justice of the 
 peace of the county of Warren, to recover the amount of an assessment 
 made against the defendant upon a policy of insurance issued to him 
 by the plaintilf company. The phiinlitr recovered a judgment before 
 the justice, which was reversed in the Warren Common Pleas, on the 
 ground that the insurance company, plaintiff, was a foreign insurance 
 
 1 Aec. Aultman v. Holder, 68 Fed. 467. The place of delivery of a boud or negoti- 
 able instrument is the place of contracting, not tlie ]ilace wlicrc the instrument is 
 written or signed. Young v. Harris, 14 li. Mon. 5.-)() ; Watson v. Laue, 52 N. J.L. 550, 
 20 Atl. 894 ; I 'ugh r. Cameron, 1 1 W. Va. 52.3. — Ed. 
 
 •^ Part of the opinion is omitted. — Ed.
 
 SECT. I.J NORTHAMPTON MUT. LIVE STOCK INS. CO. V. TUTTLE. 443 
 
 company, and that the contract was a New Jersey contract, negotiated 
 by an agent in New Jersey, contrary to our statute. Nix. Dig. 435, 
 § 66 ; lb. 436, § 73. 
 
 The policy was dated Maj- 27, 1872, and insured defendant for the 
 term of one year. An assessment was made July 2, 1872, which i)aid 
 the company's losses to that date. The losses from July 2, 1872, to 
 January 14, 1873, amounted to about $12,000, and this sum was the 
 basis of the assessment for which the defendant was sued. 
 
 The property insured was in this State, where the defendant and 
 Thatcher, one of the directors of the insurance company, resided when 
 the polic}' was issued. 
 
 The application was signed b}- the defendant in this State, where 
 Thatcher gave him a receipt, of which the following is a copy : 
 
 *' Northampton Mutual Live Stock Insurance Company-, of Northamp- 
 ton Count}-, Pa. 
 
 " Received of Wm. Tuttle, for an insurance by the Northampton 
 Mutual Live Stock Insurance Company against loss by death upon the 
 animals described in application, the sum of one dollar and thirty- cents, 
 being the amount paid for membership for the term of one year from 
 the 27th day of May, 1872, for which said company agrees to issue a 
 polic}' to said applicant when the application is approved, and if not 
 approved, the above amount to be refunded to the said applicant. 
 
 "J. B. Thatcher, 
 
 " Dated May 27, 1872. Agtnt:* 
 
 Article VI. of the by-laws of the company provided that the agent of 
 the company should give a receipt for the premium paid, and that the 
 insurance should take effect from that time, provided the application 
 was approved b}' the board of directors, or its executive committee, 
 after which the policy would be issued ; and if not approved, the money 
 would be refunded. 
 
 In this case the application for insurance was taken hy Thatcher to 
 Easton, in the State of Pennsylvania, where it was approved by the 
 directors of the company, and the policy was there issued and sent bj' 
 mail to the defendant, in New Jersey. 
 
 If the contract of insurance was made in the State of Pennsylvania, 
 and was valid there, comity requires us to enforce it here. Columbia 
 Ins. Co. V. Kinyon, 8 Vroom, 33. 
 
 This case, therefore, turns upon the question whether it was made in 
 this State. 
 
 Thatcher acted as the agent of the company, with authorit}- to re- 
 ceive applications. He received the defendant's application, with the 
 premium, which he transmitted to the company at its place of business 
 in Pennsylvania. By the express terms of the receipt given by the 
 agent to the defendant, the company- had the option to approve the 
 application and issue a policy, or To reject it and refund the premium.
 
 44-4 EQUITABLE LIFE ASSURANCE SOCIETY V. CLEMENTS. [CHAP. X 
 
 It was a mere proposition, from which the parties might have receded, 
 and not a contract. Approval by the company was necessary to ripen 
 it into a contract. Not until then did the minds of the parties come 
 together, and invest the transaction with the attributes of a valid 
 agreement. The contract of insurance must be regarded as having 
 been made when the company approved the defendant's application, 
 and issued and transmitted to him their policy. Hyde v. Goodnow, 
 3 N. Y. 266 ; Huntley v. Merrill, 32 Barb. 626. 
 
 The contract must be held to have been m ade where the last act 
 
 TiPf^Pgtjqry tr>-pr>mp1f^j-,P it vy.is domv! 
 
 Although there is some conflict in the cases, I think the weight of 
 authorit}' is, that when the offer of the insured was accepted, and the 
 polic}' deposited in the post office bj- the company, properly addressed 
 to the insured, the contract was made. It did not remain incomplete 
 until the insured, by receiving the polic}", was notified of the acceptance 
 of his proposal. . . . 
 
 It being conceded that the approval of the application was given in 
 Pennsylvania, and the policy mailed there, the contract must be ad- 
 judged to have been made in that State, and not in New Jersey. The 
 contract, therefore, is valid, and comity requires its enforcement here. 
 Columbia Fire Insurance Co. v. Kinyon, 8 Vroom, 33. . . . 
 
 The judgment of the Warren Pleas, that the contract was void under 
 the statute law of this State, was erroneous, and should be set aside. ^ 
 
 EQUITABLE LIFE ASSURANCE SOCIETY v. CLEMENTS. 
 SuPRKME Court of the United States. 1S91. 
 [Reported 140 United States, 226.] 
 
 This was an action brought by Alice L. Wall, a citizen of Missouri 
 and widow of Samuel E. Wall, and prosecuted by Benjamin F. Pettus, 
 her administrator, against the Equitable Life Assurance Society of the 
 United States, a corporation of New York and doing business in 
 Missouri, on a policy of insurance executed by the defendant at its 
 office in the city of New York on December 23, 1880, upon the life of 
 Samuel E. Wall, by which, in consideration of the payment of $136.25 
 by him, and of the pa^'ment of a like sum on or before December 15 
 in each year during the continuance of the contract, it promised to pay 
 to Alice L. Wall, his wife, $5,000 at its office in the city of New York, 
 within sixty days after satisfactory' proofs of his death. •^ . . . 
 
 1 Ace. Com. Mut. Fire Ins. Co. i-. Wm. Knabe Mfg. Co., 171 Mass. 265, 50 N. E. 
 516; Hyde v. Gooduow, 3 N. Y 266. See V^oorheis v. Peoples' Mut. Ben. Soc, 91 
 Mich. 469, 51 N. W. 1109 ; Davis v. Ins. Co., 67 N. H. 218, 34 Atl. 464 ; Galloway v. 
 Staudanl Fire Ins. Co., 45 W. Va. 237, 31 S. E. 969. — Ed. 
 
 - The statement of facts and part of the opinion are omitted. — Fd.
 
 SECT. I.] EQUITABLE LIFE ASSURANCE SOCIETY V. CLEMENTS. 445 
 
 Gray, J. Upon the question whether the contract sued on was made 
 in New York or in Missouri, there is nothing in the record, except the 
 policy and application, the petition and answer, b}- which the facts ap- 
 pear to have been as follows : The assured was a resident of Missouri, 
 and the application for the polic}' was signed in Missouri. The policy, 
 executed at the defendant's office in Kew York, provides that " the 
 contract between the parties hereto is completel}' set forth in this policy 
 and the application therefor, taken together." The application declares 
 that the contract "■ shall not take effect until the first premium shall 
 have been actuall}' paid during the life of the person herein proposed 
 for assurance." The petition alleges that that premium and two annual 
 premiums were paid in Missouri. The answer expressh* admits the 
 payment of the three premiums, and, b}- not controverting that they 
 were paid in Missouri, admits that fact also, if material. Missouri 
 Rev. Stat. 1879, § 3545. The petition further alleges that the policy 
 was delivered in Missouri ; and the answer admits that the polic}' was, 
 '' at the request of the said Wall, transmitted to the State of Missouri 
 and was delivered to said Wall in said State." If this form of admis- 
 sion does not imph' that the polic}' was at the request of Wall trans- 
 mitted to another person, perhaps the company's agent, in Missouri, 
 and b}' him there delivered to Wall, it is quite consistent with such a 
 state of facts ; and there is no evidence whatever, or even averment, 
 that the policj' was transmitted by mail directly to Wall, or that the 
 company signified to Wall its acceptance of his application in an}' other 
 way than In* the delivery of the policy to him in Missouri. Upon this 
 record, the conclusion is inevitable that the policy never became a com- 
 pleted contract, binding either part}' to it, until the deliver}' of the policy 
 and the payment of the first premium in Missouri ; and consequently 
 that the policy is a Missouri contract and governed by the laws of 
 Missouri. . . . 
 
 It follows that the insertion, in the policy, of a provision for a differ- 
 ent rule of commutation from that prescribed by the statute, in case of 
 default of payment of premium after three premiums have been paid, 
 as well as the insertion, in the application, of a clause by which the 
 beneficiary purports to " waive and relinquish all right or claim to any 
 other surrender value than that so provided, whether required by a 
 statute of any State, or not," is an ineffectual attempt to evade and 
 nullify the clear words of the statute. 
 
 Judgment affirmed} 
 
 1 Ace. Hicks V. Ins. Co., 60 Fed. 690; Ford v. Ins. Co., 6 Bush, 133; Cromwell 
 V. Ins. Co., 49 Md. 366 ; Fidelity Mut. L. Ass. v. Ficklin, 74 Md. 172, 21 Atl. 680; Ins. 
 Co. V. Sawyer, 160 Mass. 413, 36 N. E. 59; Estate of Breitung, 78 Wis. 33, 46 N. W. 
 891.— Ed.
 
 446 STAPLES V. NOTT. [CHAP. X. 
 
 STAPLES V. NOTT. 
 Court of Appeals, New York. 1891. 
 
 [Reported 128 New York, 403.] 
 
 Gray, J. The promissory note in suit bears date at "Washington, 
 D. C, April 5, 1889 ; was made payable at a bank in Watertown, 
 N. Y., and carried interest at the rate of seven per cent per annum. 
 The appellant was indorser upon it, and defends on the ground of 
 usur}'. If the contract of the parties, wbich is evidenced bv this note, 
 was governed b}- the laws of this State, the defence should have pre- 
 vailed ; but if made under the laws of the District of Columbia the 
 judgment was right and should be sustained. 
 
 The note was given in renewal of a balance due upon a prior note, 
 made by and between the same parties, which bore date at Washington, 
 D. C, April 5, 1888 ; was payable one year after date at a bank in 
 Washington ; bore the same rate of interest and was similarly indorsed. 
 Some payments were made on account of the principal, but, before its 
 maturity, the maker requested of plaintiff, a resident of Washington, by 
 letter, to renew for the balance remaining due. Failing to receive any 
 reply, he went on to Washington and there prevailed upon the plaintiff 
 to agree to take a new note for his debt. This note was then drawn by 
 the plaintiff and handed to the maker for execution, who took it back 
 to his home in S^'racuse, N. Y., where his and the appellant's signatures 
 were affixed, as maker and indorser respectiveh^. It had been agreed 
 with the plaintiff that, upon this new note being returned to him, he 
 would send back the original note, and the appellant himself mailed the 
 renewal note to the plaintiff in Washington. 
 
 These facts, which were not disputed, should make it perfectly ob- 
 vious that there was here every essential to a valid contract under the 
 laws of the plaintiffs domicil, and the only accompaniment lacking to 
 a full local coloring was tire foreign place named for payment. For the 
 affixing of the signatures to the note by the maker and the indorser, 
 however important as acts, was yet but a detail in the performance 
 and execution of the contract which had been agreed upon with the 
 plaintiff. But naming a Xew York bank as the place where the maker 
 would provide for the payment of the note did not characterize the con- 
 tract in one way or the other. That arrangement was one simply for 
 the convenience of the maker. It could have no peculiar effect. The 
 transactions, wliich resulted in an agreement to extend the time for the 
 payment of the debt and to accept a new note, took place whollv in 
 the District of Columbia, and what else was enacted in the matter 
 elsewhere neither added to nor altered the agreement of the parties, 
 'riiou ffh the enp ;.i q;ement of the indorser, in a sens e, was independent of 
 tha t of the maker, that proposition is one which d oes not affect the local 
 character of tlie contract, but which simply concerns the question of the
 
 SECT f.J STAPLES V. NOTT,, 447 
 
 enforcement of th e indorser's liabilit} '. Whatever the previous knowl- 
 edge of the appellant, as to the negotiations and the agreement for a 
 renewal of the promise to pa}* between the maker of the old note and 
 the plaintiff, the question is without importance. When he indorsed 
 the note, which had been prepared and was brought to him, and sen t ft ^ 
 through the mail to the plaintiff, his engagement was with respect t o a^ 
 
 contract valuTly ma de accord ing to the laws of the District of Columbia^ 
 
 and' when the note^as receivud by the i)laintitf the transaction was_ 
 then consummate d in that place . In Lee o. Sellcck, 33 N. Y. G15, it 
 "'^ ^libi Balc tJ with respect to an indorsement in Illinois of a note made in 
 New York, that the fact of the indorser writing his name elsewhere 
 was of no moment. Upon delivery by his agent to the plaintiffs in New 
 Y'ork, it became operative as a mutual contract. 
 
 The agreement, which was made in Washington for the giving of the 
 promissory note in question, was the forbearance of a debt already due, 
 upon which the appellant was liable ; and the renewal of his engage- 
 ment as indorser upon the note, without an}' qualification of his con- 
 tract of indorsement, was in fact an act in ratification and execution of 
 the previous agreement. That agreement between the plaintiflf and the 
 maker in Washington took its concrete legal form in a note, prepared 
 there by the plaintiflf, with a rate of interest sanctioned by the laws of his 
 domicil, adopted by the appellant by indorsement in blank, and made 
 operative as a mutual contract by delivery to plaintiff in Washington 
 through the mails. 
 
 For the court to hold, because the note was not actually signed and 
 indorsed in the District of Columbia, where the agreement, it evidenced, 
 ■was made, or because it was made payable in another State, that the 
 contract was void as contravening the usur}- laws of the place of 
 signature and of payment, would be intolerable and against decisions 
 of this court. Wayne Co. Sav. Bank v. Low, 81 N. Y. 566 ; Western 
 T. & C. Co. V. Ki'lderhouse, 87 N. Y. 430 ; Sheldon v. Haxtuu, 91 
 N. Y. 124. 
 
 I think the plaintiff was entitled to recover, as upon a contract made 
 tinder the government of the laws of the District of Columbia, and., 
 therefore, valid and enforceable in an}' State. 
 
 The judgment should be affirmed, with costs. 
 
 All concur. Judgment affirtned} 
 
 1 Ace. Findlay v. Hall, 12 Oh. S. 610. See Bascom v. Zediker, 48 Neb. 380, 67 
 N. W. 148; Rowland v. B. & L. Ass., 115 N. C. 825, 18 S. E. 965; Mills v. Wilson, 
 88 Pa. 118. 
 
 In an ordinarv case, where a note is sent by mail by the maker to the payee, the 
 contract is made at the place of mailing. William Glenny Glass Co. v. Taylor, 99 Ky. 
 24, 34 S. W. 711 ; Barret v. Dodge, 16 R. I. 740, 19 Atl. 530. 
 
 A contract to guaranty a debt is made where the debt is created. Alexandria, A. 
 & F. S. R. R. V. Johnson,"61 Kau. 417, 59 Pac. 1063; Milliken v. Pratt, 125 Mass. 374, 
 supra, p. 11 ; John A. Tolman Co. o. Reed, 115 Mich. 71, 72 N. W. 1104; and see S. 
 V. Williams. 46 La. Ann. 922, 15 So. 290. — Ed.
 
 448 MACK V. LEE. [chap. X 
 
 MACK V. LEE. 
 
 Supreme Court of Rhode Island. 1881. 
 
 [Reported 13 Rhode Island, 293.] 
 
 DURFEE, C. J. This is assumpsit to recover $312.50 for five barrels 
 of wliiskey sold by tlie plaintiff, a trader in New York, to the defend- 
 ant, a retail dealer in Woonsocket, in this State. The sale was made 
 in pursuance of an order addressed by the defendant to the plaintiff in 
 New York for the whiskey to be sent to the defendant by the Stoning- 
 ton Line on three mouths' credit. The whiskey was delivered in New 
 York for transportation by the Stouington Line to the defendant in 
 Woonsocket, he paying the freight. It appeared, on cross-examination 
 of the plaintifTs witnesses, that the order for the whiskey was obtained 
 by one Levy, a travelling agent for the plaintiff, who visited the de- 
 fendant at "his place of business in Woonsocket, having samples of 
 liquors with him, and there solicited the order. There was also some 
 evidence that Levy offered to sell the whiskey to the defendant, at 
 Woonsocket, though the plaintiff and Levy also testified that Levy had 
 no authority to negotiate sales for the plaintiff, but only to obtain or- 
 ders, which the defendant would fill or not, according to his own judg- 
 ment. After the introduction of the plaintiff's testimony, the defendant 
 moved that the plaintiff be nonsuited, on the ground that an offer in 
 Rhode Island to sell the whiskey was in violation of Pub. Laws R. I. cap. 
 508, § 18, of June 25, 1875, and that therefore under § 44 of this chapter 
 the plaintiff could not recover. The court granted the motion. The 
 plaintiff excepted and petitions for a new trial for error in the ruling. 
 
 We think the court erred. The sale was consummated in New York 
 when the plaintiff delivered the whiskey there to the Stouington Line 
 in execution of the defendant's order. Schlesinger & Bluraeuthal r. 
 Stratton, 9 R. I. 578. The sale therefore, independently of Levy's 
 offer, if he made any offer, was clearly valid. In what way did Levy's 
 offer, if he made any offer, make it invalid? If the offer was an offer 
 to sell in New York, it was not a violation of cap. 508, § 18, for § 18 
 onlv prohibits an offer to sell by sample or otherwise when it is an 
 offer to sell " in violation of the preceding sections ; " i. e., when it is 
 an offer to sell in Rliode Island. But if tlie offer was an offer to sell 
 in Rhode Island, then the offer was neither accepted by the defendant 
 nor carried out by the plaintiff, for the order given by the defendant 
 and executed by the plaintiff was an order for whiskey to be sold and 
 delivered in New York, and we do not see, therefore, how the offer, 
 though in itself it may have been criminal, can be held to have infected 
 the sale with criminality or to have prejudiced the plaintiff's right to 
 recover on it. Exceptions sustained} 
 
 1 Arc. Atlantic Phosphate Co. v. Ely, 82 Ga. 438 ; S. v. Colby, 92 la. 463. 61 N. W. 
 187 ; Claflin r. Mayer, 41 La. Ann. 1048; Boothby v. Haisted, 51 N. H. 436. Seo 
 Riudskopf !•. DeKuytcr, 39 Mich. 1. — Ki>.
 
 SECT. I.] HILL V. CHASE. 449 
 
 HILL V. CHASE. 
 
 Supreme Judicial Court of ^Massaccusetts. 1886. 
 
 [Reported 143 Massachusetts, 129.] 
 
 Morton, C. J. The only question presented In- this bill of excep- 
 tions is whether the presiding justice of the Superior Court, who tried 
 the case without a jury, was justified in finding that the contract sued 
 on was made in this State. 
 
 It appeared in evidence that the defendant, a married woman living 
 in Salem in the State of New Hampsliire, in the summer of the year 
 1864, employed her sister, Mrs. Shirley, to borrow for her fifty dollars 
 of Mr. Hill, her brother, living in Salem in the State of Massachusetts. 
 Mr. Hill declined to lend the money, but the plaintiff, his wife, out of 
 her own money, delivered to Mrs. Shirley fifty dollars, together with a 
 paper, of which the following is a cop^v : 
 
 '' Salem, July 1, 1864. Borrowed and received from Nancy D. Hill 
 the sum of fifty dollars. 
 
 " Sign this and return it." 
 
 Mrs. Shirley carried the money and paper to the defendant, who took 
 and kept the money, signed the paper, knowing its contents, and returned 
 it to the plaintiff at Salem in this State. 
 
 The presiding justice was justified in finding that, according to the 
 understanding and purpose of the parties, the plaintitT lent to the de- 
 fendant, through her agent, Mrs. Shirley, the sum of fift\- dollars at 
 Salem in Massachusetts ; and that the defendant ratified the acts of 
 her agent". There is no evidence which shows that the plaintiff em- 
 ployed Mrs. Shirley as her agent to lend raonev for her in New Hamp- 
 shire. The justifiable inference from all the evidence is, that the parties 
 intended that the transaction should be in form, what it was in sub- 
 stance, a loan by the plaintiff to the defendant, the plaintiff assuming, 
 what the evidence shows to have been true, that tlie defendant had no 
 choice as to the person of whom she borrowed, and that she would 
 ratify the act of her agent. 
 
 This being so, the fact that the paper was signed in New Hampshire 
 is immaterial. The contract of loan being made in this State, upon the 
 condition that the paper should be signed and returned to the plaintiff 
 in this State, the paper became operative as evidence of the contract 
 when it was delivered to the plaintiff in this State. Lawrence v. Bassett, 
 5 Allen, 140 ; Milliken v. Pratt, 125 Mass. 374. 
 
 We are therefore of opinion, that the Superior Court was justified in 
 refusing to rule that the contract sued on was made in New Hampshire, 
 and in the finding that it was made and to be performed in Massachu- 
 setts, and therefore is to be governed by the laws of this State. 
 
 Exceptions overruled. 
 
 29
 
 450 PERRY V. MOUNT HOPE IKON GO. [CHAP. X. 
 
 PERRY V. MOUNT HOPE IRON COMPANY. 
 
 Supreme Court of Rhode Island. 18SG. 
 
 {Reported 15 Rhode Island, 380] 
 
 DuRFEE, C. J.^ This is an action to recover damages of the defend- 
 ant corporation for refusing to receive a cargo of " bolt and nut scrap 
 and boiler-plate " iron, so called, which the plaintiff claims the defend- 
 ant agreed to buy at the rate of 87i cents per hundred, delivered at its 
 works in Somerset, Mass. Upon trial in the Court of Common Pleas, 
 the jury found a verdict for the plaintiflF. The case is before us on the 
 defendant's petition for a new trial for alleged misrulings, and on the 
 ground that the verdict was against the evidence and the weight 
 thereof. The plaintiff lives and does business in Providence. The 
 defendant is a Massachusetts corporation, having its business estab- 
 lishment in Somei'set, Mass. Job M. Leonard is treasurer, and has an 
 office in Boston. He makes purchases for the defendant. On the trial 
 in the court below, the plaintiff put in testimony to show that his agent 
 visited Leonard April 30, 1885, and informed him that the plaintiff had 
 the *'nut and bolt shop scrap," and solicited an offer for it; that 
 Leonard offered 87^ cents per hundred, delivered at the companj-'s 
 wharf, and the agent asked him to let the offer stand until the next 
 day, wliich Leonard agreed to do ; and that the next day the plaintiff 
 telegraphed from Providence to Leonard in Boston, accepting the 
 offer. The defendant did not admit that the of!er was made as stated, 
 and made the point that, if it was so made, the contract was not com- 
 pleted b}' the acceptance until the acceptance reached him in. Boston, 
 and that consequently the alleged contract was a Massachusetts con- 
 tract, and, not being in writing, was invalid under the Massachusetts 
 Statute of Frauds, which was put in proof. The court below ruled the 
 point against the defendant, holding that the contract was completed 
 in Rhode Island by sending the telegram. The defendant cites a few 
 cases which support its position. McCullough v. Eagle Insurance Co., 
 1 Pick. 278 ; British and American Telegraph Co. v. Colson, L. R. 6 
 Exch. 108 : Langdell's Cases on Contracts, §$ 1-18; Langdell's Sum- 
 mary of Contracts, §§ 14-16. But the weight of authority strongly 
 supports the instruction given by the court. 1 Addison on Contracts, 
 *18. note 1, and cases there cited; IMaclay r. Harvey, 32 Am. Rep. 
 note on p. 40. This note contains a full report of the recent English 
 case, Household Fire and Carriage Accident Insurance Co. v. Grant, 
 L. R. 4 Exch. Div. 216. The case was decided in the Court of Appeal 
 July K 1870. by Thessiger and Bagallay, L.JJ., Bramwell. L. J., dis- 
 senting. ( Its doctrine is, tliat the contract is liinding on tlie proposer 
 as soon as a letter accepting the proposal, properly directed to him, is 
 
 * Part of the opinion is omitted. — Ed.
 
 SECT. II-] CLEGG V. LEVY. 451 
 
 posted by the recipient, whether it reaches the proposer or not, if 
 posted without unreasonable dela}', and the post is the ordinary and 
 natural mode of transmitting the acceptance. ) In that case the letter 
 did not reach the proposer, and Bramwell, L. J., who dissented, con- 
 ceded that, '' where a posted letter arrives, the contract is complete on 
 posting." In the case at bar the arrival of the telegram is not disputed. 
 We are of opinion that the contract, if made, was completed in Rhode 
 Island and is a Rhode Island contract, notwithstanding it was to be 
 performed in Massachusetts. Hunt v. Jones, 12 R. I. 265. If there 
 be any question that the telegraph is a natural and ordinary mode of 
 transmitting such an acceptance, that is a question of fact for the jury ; 
 but we are of opinion that, if it be shown that the acceptance duly 
 reached the defendant, the question of the mode, no mode having been 
 specified, is immaterial. 
 
 SECTION II. 
 
 FORMALITIES. 
 
 CLEGG V. LEVY. 
 
 Nisi Prius. 1812. 
 \_Reported 3 Campbell, 166. J 
 
 To an action for goods sold and delivered, the principal defence set 
 up was a partnership between the plaintiff and defendant in respect to 
 the goods in question. To prove this, an unstamped agreement was 
 put in, which had been signed by the parties at Surinam. The witness 
 who proved the plaintiff's signatui'e to it, had resided as a merchant in 
 Surinam, and stated that in that colon\' all agreements must be stamped 
 to be of any validit}-, and that there is a written law of the colony to this 
 effect. 
 
 Lord Ellenborough. I should clearly hold, that if a stamp was 
 necessaiy to render this agreement valid in Surinam, it cannot be re- 
 ceived in evidence without that stamp here. A contract must be avail- 
 able b}' the law of the place where it is entered into, or it is void all the 
 world over. But I must have more distinct evidence of the law of 
 Surinam upon this subject than the parol examination of a merchant. 
 The law being in writing, an authenticated cop}- of it ought to be pro- 
 duced. Although this gentleman supposes that it applies to all agree- 
 ments, it ma}' possibly contain an exception, like our own stamp act, as 
 to agreements for the sale of goods, wares, and merchandises. In the 
 case of Bohtlingk v. Inglis, 3 East, 381, and see 1 East, 515, respect- 
 ing the right to stop in transitu iu Russia, Lord Kenyon required the
 
 452 BCUDDER V. UNION NATIONAL BANK. [CHAP. X. 
 
 written law of Russia upon this subject to be given in evidence. I 
 will therefore admit this agreement to be read, unless you prove in the 
 same way that by the law of Surinam a stamp was necessary to give it 
 validity. 
 
 The agreement was read accordingly, but did not apply to the goods 
 in question ; and the plaintiff had a verdict.-^ 
 
 SCUDDER V. UNION NATIONAL BANK. 
 
 Supreme Court of the United States. 1875. 
 
 [Reported 91 United States, 406.] 
 
 Hunt, J.'^ Upon the merits, the case is this : The plaintiff below 
 
 sought to recover from the firm of Henry Ames & Co., of St, Louis, 
 
 Mo., the amount of a bill of exchange, of which the following is a copj', 
 
 viz. : — 
 
 " Chicago, July 7, 1871. 
 
 " $8,125.00. 
 
 " Pay to the order of Union National Bank eight thousand one hun- 
 dred and twenty-five dollars, value received, and charge to account of 
 
 " Leland & Harbach. 
 
 " To Messrs. Henry Ames & Co., St. Louis, Mo." 
 
 By the direction of Ames & Co., Leland & Harbach had bought for 
 them, and on the seventh day of July, 1871, shipped to them at St. 
 Louis, five hundred barrels of pork, and gave their check on the Union 
 Bank to Hancock, the seller of the same, for $8,000. 
 
 Leland & Harbach then drew the bill in question, and sent the same 
 by their clerk to the Union Bank (the plaintiff below) to be placed to 
 their credit. The bank declined to receive the bill, unless accompanied 
 by the bill of lading or other security. The clerk returned, and re- 
 ported accordingly to Leland & Harbach. One of the firm then directed 
 the clerk to return to the bank, and sa}' that Mr. Scudder, one of the 
 firm of Ames & Co. (the drawees), was then in Cliicago, and had au- 
 thorized the drawing of the draft ; that it was drawn against five luin- 
 dred barrels of pork that day bought by Leland & Harbach for them, 
 
 1 If tlie law of the place nf contrartini^ makes an unstamped agreement void, suit 
 cannot be hrought upon it in any jurisdiction. Alves v. Hodgson, 7 T. II. 241 ; Satter- 
 thwaite i;. Doughty, Bushee, 314; Fant v. Miller, 17 Gratt. 47 (semble). But if the 
 agreement by the law of the place of contracting cannot bo received in evidence, but 
 is otherwise valid, suit may be brought upon it elsewhere. Bristow v. Sequeville, 5 
 Ex. 275; Fant v. Miller, 17 Grat. 47; Kennels v. Dearslay, P.-\sic. Beige, 1877, 2, 146. 
 The requirement cjf registration at the place of contracting is treated in the same 
 way. Ex parte Melbourn, L. R. 6 Ch. 64. See Gucpratte v. Young, 4 De G. & Sm. 
 217. — Ed. 
 
 2 Part of the opinion only is given. — Ed.
 
 SECT. II.] SCUDDER V. UNION NATIONAL BANK. 453 
 
 and duly shipped to them. The clerk returned to the bank, and made 
 this statement to its vice-president ; who thereupon, on the faith of the 
 statement that the bill was authorized b}- the defendants, discounted 
 the same, and the proceeds were placed to the credit of Leland & 
 Harbach. Out of the proceeds the check given to Hancock for 
 the pork was paid b}- the bank. 
 
 The direction to inform the bank that Mr. Scudder was in Chicago 
 and had authorized the drawing of the draft was made in the presence 
 and in the hearing of Scudder, and without objection by him. 
 
 The point was raised in various forms upon the admission of evi- 
 dence, and by the charge of the judge, whether, upon thi§^ state of 
 facts, the firm of Ames & Co., the defendants, were liable to the bank 
 for the amount of the bill. The jury, under the charge of the judge, 
 held them to be liable ; and it is from the judgment entered upon that 
 verdict that the present writ of error is brought. 
 
 The question is discussed in the appellant's brief, and properly, as if 
 the direction to the clerk had been given by Scudder in person. The 
 jury were authorized to consider the direction in his name, in his pres- 
 ence and hearing, without objection by him, as made by himself. 
 I The objection relied on is, that the transaction amounted at most to 
 a parol promise to accept a bill of exchange then in existence. It is 
 insisted that such a promise does not bind the defendants. 
 
 The suit to recover upon the alleged acceptance, or upon the refusal 
 to accept, being in the State of Illinois, and the contract having been 
 made in that State, the judgment is to be given according to the law of 
 that State. The law of the expected place of performance, should there 
 be a difference, yields to the lex fori and the lex loci contractus. 
 
 In Wharton on Conflict of Laws, § 401 ;j>, the rule is thus laid 
 down : — 
 
 "Obligations, in respect to the mode of their solemnization, are sub- 
 ject to the rule locus regit action ; in respect to their interpretation, to 
 the lex loci contractus ; in respect to the mode of their performance, 
 to the law of the place of their performance. But the lex fori deter- 
 mines when and how such laws, when foreign, are to be adopted, and, 
 in all cases not specified above, supplies the applicatory law." 
 
 Miller v. Tiffany, 1 Wall. 310 ; Chapman v. Robertson, 6 Paige, 634 ; 
 Andrews v. Pond, 13 Pet. 78 ; Lamesse v. Baker, 3 Wheat. 147 ; Adams 
 V. Robertson, 37 111. 59 ; Ferguson v. Fuffe, 8 C. & F. 121 ; Bain v. 
 Whitehaven and Furness Junction Ry. Co., 3 H. L. Cas. 1 ; Scott v. 
 Pilkinton, 15 Abb. Pr. 280 ; Story, Confl. Laws, 203 ; 10 Wheat. 383. 
 
 The rule is often laid down, that the law of the place of performance 
 governs the contract. 
 
 Mr. Parsons, in his "Treatise on Notes and Bills," uses this lan- 
 guage : " If a note or bill be made payable in a particular place, it is 
 to be treated as if made there, without reference to the place at which 
 it is written or signed or dated." P. 324. 
 
 For the purposes of payment, and the incidents of payment, this is
 
 454 , SCUDDER V. UNION NATIONAL BANK. [CHAP. X- 
 
 a sound proposition. Tlius the bill in question is directed to parties re- 
 siding in 8t. Louis, Mo., and contains no statement wlietlaer it is payable 
 on time or at sight. It is, in law, a sight draft. Whether a sight draft 
 is payable immediately upon presentation, or whether days of grace are 
 allowed, and to what extent, is differently held in different States. The 
 law of Missouri, where this draft is payable, determines that question 
 in the present instance. 
 
 The time, manner, and circumstances of presentation for acceptance, 
 or "protest, the rate of interest when this is not specified in tliH hill 
 (Young V. Harris, 14 B. Men. 556 ; Parry v. Ainsworth, 22 Barb. 118), 
 are points conne cted with the payme nt of the b ill ; and are also instan ces 
 to illustrate the meaning of the rule, that the place of perfoi'mance go v- 
 erns the bill;__ 
 
 The same author, however, lays down the rule, that the place of 
 m aking the cont ract governs as to the formalities necessar>^ to the 
 vididity of the co.n.tijiiLt- P. 317. Thus, whether a contract shall be in 
 ■writing, or ma\' be made by parol, is a formality to be deterniined by" 
 the law of the place where it is made. If valid there, the contract is 
 binding, although the l aw of the i)lace of performance may require the 
 contract io bt; in wiiti ng. Dacosta v. Hatch, 4 Zab. 319. 
 
 So when a note was indorsed in New York, although drawn and made 
 payable in France, the indorsee may recover against the payee and in- 
 dorser upon a failure to accept, although by the laws of France such 
 suit cannot be maintained until after default in paj'ment. Aymar 
 V. Shelden, 12 Wend. 439. 
 
 So if a note, payable in New York, be given in the State of Illinois 
 for money there lent, reserving ten per cent interest, which is legal in 
 that State, the note is valid, although but seven per cent interest is 
 allowed by the laws of the former State. Miller v. Tiffany, 1 Wall. 
 310 ; Depeau v. Humphr}-, 20 Mart. 1 ; Chapman v. Robertson, 6 Paige, 
 634 ; Andrews c. Pond, 13 Pet. Go. 
 
 Matters l^earing upon the execution, the interpretation, and the valid- 
 ity of a contract are determined by the law of the place where the con- 
 tract is made. Matters connected with its performance are regulated 
 b}' the law prevailing at the place of performance. Matters respecting 
 the remedy, such as the bringing of suits, admissibility of evidence, 
 statutes of limitation, depend upon the law of the place where the suit 
 is brought. 
 
 A careful examination of tlie well-considered decisions of this country 
 and of England will sustain these jjositions. 
 
 There is no statute of the State of Illinois that requires an acceptance 
 of a bill of exchange to be in writing, or that prohibits a parul promise 
 to accept a l)ill of exchange : on the contrary, a parol acceptance and a 
 parol promise to accept are valid in that State, and the decisions of its 
 highest court hold that a parol promise to accept a bill is an acceptance 
 thereof. If this be so, no question of jurisdiction or of conflict of laws 
 arises. The contract to accept was not only made in Illinois, but the
 
 SECT. II.] HUNT V. JONES. 455 
 
 bill was then and there actually accepted in Illinois, as perfectly as if 
 Mr. 8cudder had written an acceptance across its face, and signed 
 thereto the name of his firm. The contract to accept the bill was not 
 to be performed in Missouri. It had already, by the promise, been 
 performed in Illinois. The contract to pay was, indeed, to be per- 
 formed in Missouri ; but that was a different contract from that of 
 acceptance. Kelson v. First Nat. Bank, 48 111. 39 ; Mason v. Dousay, 
 35 111. 424 ; Jones v. Bank, 34 111. 319. 
 
 Unless forbidden by statute, it is the rule of law generally, that a 
 promise to accept an existing bill is an acceptance thereof, whether the 
 promise be in writing or b}- parol. Wynne v. Raikes, 5 East, 514; 
 Bank of Ireland v. Archer, 11 M. & W. 383 ; How v. Loring, 24 Pick. 
 254 ; Ward v. Allen, 2 Met. 53 ; Bank v. Woodruff, 34 Vt. 92 ; Spald- 
 ing V. Andrews, 12 Wright, 411 ; Williams v. Winans, 2 Green (N. J.), 
 309 ; Storer v. Logan, 9 Mass. 56 ; Byles on Bills, § 149 ; Barney 
 V. Withington, 37 N. Y. 112. See the Illinois cases cited, supra. . . . 
 
 These principles settle the present case against the appellants. 
 
 It certainly does not aid their case, that after assuring the l)ank, 
 through the message of Leland & Harbach, that the draft was drawn 
 against produce that day shipped to the drawees, and that it was 
 drawn b}- the authority of the firm (while, in fact, the produce was 
 shipped to and received and sold b}' them), and that the bank in reli- 
 ance upon this assurance discounted the bill, Mr. Scudder should at 
 once have telegraphed his firm in St. Louis to dela}- payment of the 
 draft, and, by a subsequent telegram, should have directed them not to 
 pay it. The judgment must he affirmed.^ 
 
 HUNT V. JONES. 
 
 Supreme Court of Rhode Island. 1379. 
 
 [Reported 12 Rhode Island, 265.] 
 
 DuRFEE, C. J. This is assumpsit for damages for breach of con- 
 tract. On trial to the jury the plaintiff submitted testimony- to show 
 that on 20th of July, 1876, at Providence, in Rhode Island, he sold to 
 the defendant, or entered into an oral agreement with the defendant to 
 sell him, two hundred barrels of Canaan Hme at $1.60 per barrel, 
 to be dehvered at the foot of Spring Street in the city of New York, 
 the lime then being in process of manufacture in Canaan, Conn., and 
 that subsequently, in pursuance of the contract, the lime was shipped 
 to and delivei-ed at the foot of Spring Street in New York City, and 
 notice given of its delivery to the defendant, but that the defendant 
 refused to accept it. The lime was afterwards sold at a loss and this 
 action brought to recover damages. 
 
 I Ace. Matthews v. Murchison, 17 Fed. 760; Mason v. Dousay, 35 111. 424. —Ed.
 
 456 HUNT V. JONES. [chap. X. 
 
 The defendant submitted in evidence a statute of the State of New 
 York, which provides that "every contract for the sale of any goods, 
 chattels, or thing in action, for the price of fifty dollars or more, shall 
 be void, unless a note or memorandum of such contract be in writing 
 and be subscribed by the parties to be charged thereby, or unless the 
 buyer shall accept and receive part of such goods or the evidences, or 
 some of them, of such things in action, or unless the buyer shall at 
 the time pay some part of the purchase-money." 
 
 The defendant thereupon requested the court to charge the jury, that 
 as the contract was to be performed in the State of New York, its 
 validity and construction were to be judge<l by the law of the place of 
 performance, to wit. New York, and that therefore, the contract being 
 void in New York, the plaintiff could not recover. The court refused 
 to charge as requested, but did charge that the plaintiff could recover 
 upon the contract, if otherwise entitled, notwithstanding the contract 
 was not in writing, the contract being valid in Rhode Island, the place 
 where it was made. To this charge the defendant excepted, and now 
 petitions for a new trial, the jury having returned a verdict against him. 
 
 The case presents the question whether the validity of a contract, in 
 respect of the form or mode of contracting, depends on the law of the 
 place where it is made or on the law of the place where it is to be per- 
 formed ; or, indeed, whether the contract, if it conforms to either law, 
 may not be enforced. No question is made but that the contract in 
 suit is valid in Rhode Island, if resort may be had to the law of Rhode 
 Island to determine its validity. 
 
 There is some conflict and confusion of authority on the question, 
 but in the recent decision of Scudder v. Union National Hank, 1 Otto, 
 406, Mr. Justice Hunt, in delivering the unanimous judgment of the 
 Supreme Court of the United States, holds the following language, to 
 wit: " Matters bearing upon tho. execu t.inp, the, interpretation, and the 
 vaUdlty of a contra ct, are detect; mined by the la w of the place where 
 the co iitract is made. ^Matters connected wfth its performance are_ 
 reguTated by the law prevailing at the place of performance. Matters" 
 rfisp-ecTmg the^r emedv, such as the bringing of suits, admissibility of 
 evidence, statutes of limitati on^depend upon the law of the place where" 
 the suitTrbfought2^ccc)rdingly, in Scudder v. Union National Kank 
 the couTtlTeTinh'at a bill of exchange drawn in Illinois upon a firm in 
 Missouri, and orally accepted in Illinois, where such an acceptance is 
 valid, was binding upon the drawees, though an acceptance in Mis- 
 souri woidd not have been binding unless made in writing. 
 
 Where a contract is ^ered j^ nto in one State to be per fg rmed in 
 anottTCTTTHcrc arcntTias been said, twoj oci contn ictus^,\hc locus cele- 
 'l^aiLcQJiimsh^s and"tE"e locus' so lutioms ; and the~ law of Lhc f ormer 
 governs the iiiterp relation. n7iture,"and validity of tfte_coniract,-that of 
 --the laffcFTts ijerfomiaiMc. A t:cmfa^mj-HTmrCverrmav be valid by the 
 law of both places, and yet failpraHieaTlyrifthe lex fori does not per- 
 mit its TJnTorceme'nt. teruii.v rrTTFown, UiXJ. B^. 801.
 
 SECT. n.J HUNT V. JONES. ^^'^ 
 
 The rule thus laid down, considered as a rule for personal contracts, 
 though it is at variance with many dicta and decisions, is well sup- 
 ported on authority. Dacosta v. Davis, 24 N. J. Law, 319 ; Cooper 
 V. Waldegrave, 2 Beav. 282; Vidal v. Thompson, 11 Mart. La. 23; 
 Aymar v. Sheldon, 12 Wend. 439 ; Chapman v. Robertson, 6 Paige, 
 627, 634 ; Bain v. Whitehaven, &c. Railway Co., 3 H. L. 1 ; Van Reims- 
 dyk V. Kane, 1 Gall. 371 ; Wharton, Conflict of Laws, § 401, p. 676 ; 
 Story, Conflict of Laws, § 234, seq. 
 
 There are cases which go farther and hold that a contract made in 
 good faith in one State to be performed in another, will be upheld if it 
 conforms to the law of either State. In making such contracts, it is 
 argued, the parties may have in view either the law of the State where 
 the contract is made or the law of the State where it is to be performed ; 
 and therefore the contract, if made in good faith without any design to 
 evade the law, ought to be allowed and enforced according to its pre- 
 sumable intent, ut res magis valeat quam 2->ereaL This rule has been 
 applied especially to stipulations for interest on contracts for the pay- 
 ment of money, and is commended by Professor Parsons as reasonable 
 and just. Fislier i\ Otis, 3 Chand. 83 ; Depeau v. Humphreys, 8 Mart. 
 N. s. La. 1 ; Cromwell v. County of Sac, 6 Otto, 51 ; Bolton v. Street, 
 3 Cold. 31 ; 2 Parsons, Contracts, 583 ; Wharton, Conflict of Laws, 
 § 507. 
 
 The case at bar, however, involves the validity of the contract in 
 matter of form rather than of substance, and seems to fall more appro- 
 priately under the former rule than the latter; but it is immaterial 
 whether the former or the latter is applied, for the contract in suit is 
 valid under either of them. 
 
 We think the charge of the court should be sustained and a new trial 
 denied. Petition dismissed.^ 
 
 1 Ace. Hubbard v. Exchange Bank, 72 Fed. 234 ; Park Brothers & Co. v. Kelly Axe 
 Mfg. Co., 49 Fed. 618 ; Houghtaliug r. Bell, 19 Mo. 84 ; Dacosta r. Davis, 4 Zab. 319 ; 
 7 Clunet, 480 (French Cass. 24 Aug. '80). So of a contract for the sale of real estate, 
 valid where made. Wolf v. Burke, 18 Col. 264, 32 Pac. 427 ; Miller v. "Wilson, 146 111. 
 523, 34 N. E. 1111. 
 
 Conversely, if the statute of frauds at the place of contracting deprives the con- 
 tract of validity, it cannot be enforced in another State. Denny v. Williams, 5 All. 1 ; 
 AUshouse r. Ramsay, 6 Whart. 331. 
 
 On the other hand, if the statute of frauds of the forum goes to the remedy, it will 
 be applied to contracts made elsewhere and valid where made. Leroux v. Brown, 12 
 C. B. 801 ; Heaton v. Eldridge, 56 Oh. S. 87, 46 N. E. 638. — Ed.
 
 458 HALL V. COKDELL. [CHAP. X. 
 
 HALL V. CORDELL. 
 
 Supreme Court of the United States. 1891. 
 [Reported 142 United States, 116.] 
 
 The case was stated by the court as follows : — 
 
 This was an action of assumpsit. It was based upon an alleged 
 verbal agreement made on or about April 1, 1886, at Marshall, Mis- 
 souri, between the defendants in error, plaintiffs below, doing business 
 at that place as bankers, under the name of Cordell & Dunnica, and 
 the plaintiffs in error, doing business at the Union Stock Yards, Chicago, 
 Illinois, under the name of Hall Bros. & Co. There was a verdict and 
 judgment in favor of the plaintiff's for $5,785.79. 
 
 The alleged agreement was in substance that Hall Bros. & Co. would 
 accept and pay, or pay on presentation, all drafts made upon them by 
 one George Farlow, in favor of Cordell & Dunnica, for the cost of any 
 live stock bought by Farlow and shipped b}- him from ^Missouri to Hall 
 Bros. & Co. at the Union Stock Yards at Chicago. 
 
 There was proof before the jury tending to show that, on or about 
 Jul}' 13, 1886, Farlow shipped from jVIissouri nine car-loads of cattle 
 and one car-load of hogs, consigned to Hall Bros. & Co. at the Union 
 Stock Yards, Chicago ; that such cattle and hogs were received by 
 the consignees, and by them were sold for account of Farlow ; that 
 out of the proceeds they retained the amount of the freight on the ship- 
 ment, the expenses of feeding the stock on the wa}- and at the stock 
 yards, the charges at the yards and of the persons who came to Chicago 
 with the stock, the commissions of the consignees on the sale, the 
 amount Farlow owed them for moneys paid on other drafts over and 
 above the net proceeds of live stock received and sold for him on the 
 market, and two thousand dollars due from Farlow to Hall Bros. & Co. 
 on certain past-due promissor}' notes given for money loaned to him ; 
 that at the time of the above shipment Farlow, at Marshall, Missouri, 
 the place of agreement, made his draft, of date July 13, 1880, upon 
 Hall Bros. & Co., at the Union Stock Yards. Chicago, in favor of 
 Cordell & Dunnica for $11,274, the draft stating that it was for the 
 nine car-loads of cattle and one car-load of hogs ; that this draft was 
 discounted by Cordell & Dunnica, and the proceeds placed to Farlow's 
 credit on their liooks ; that tlie proceeds were paid out bv the plaintiffs 
 on his checks in favor of the parties from wiiom he purchased the 
 stock mentioned in the draft, and for the expenses incurred in the 
 shipment ; that the draft covered only the cost of the stock to Farlow ; 
 that upon its presentation to Hall Bros. & Co. the}- refused to pay it, 
 and tlie same was protested for non-payment ; and that, subsequently, 
 Cordell & Duiinicu received from Hall I»ros. & Co. only the sum of 
 S5.03G.55, tlie balance of the proceeds of the sale of the above cattle 
 and hogs, consigned to them as stated, after deducting the amounts
 
 SECT. II.] HALL V. CORDELL. 459 
 
 retained by the consignees, out of such proceeds, on the several a\,count3 
 above mentioned. 
 
 The contract sued upon, having been made in Missouri, the defend- 
 ant contended that it was invalid under the statutes of that State, whlcK' 
 ^re'cited in the' opinion of tne court, infra., and could not be made th^ 
 basis for a recover}- in Illinoisr This contention being overruled, the 
 defendant excepted, and (judgment having been given for the plaintiff) 
 sued out this writ of error. ^ 
 
 Harlax, J. Our examination must be restricted to the questions 
 of law involved in the rulings of the court below. And the only one 
 which, in our judgment, it is necessary to notice is that arising upon 
 the instructions asked by the defendant, and wliich the court refused to 
 wive, to the effect that the agreement in question, having been made in 
 Missouri, and not having been reduced to writing, was invalid under 
 the statutes of that State, and could not be recognized in Illinois as the 
 basis of an action there against the defendants. . . . 
 
 The contention of the plaintiffs in error is that the rights of the 
 parties are to be determined by the law of the place where the al- 
 leged agreement was made. If this be so, it may be that the judgment 
 could not be sustained; for the statute of Missouri expressly declares 
 that no person, within that State, shall be charged as an acceptor of a 
 bill of exchange, unless his acceptance be in writing. And the stat- 
 ute, as construed by the highest court of Missouri, equally embraces, 
 within its inhibitions, an action upon a parol promise to accept a bill, 
 except as provided in section 537. Flato v. Mulhall, 72 Mo. 522, 
 526 ; Rousch v. Duff, 35 Mo. 312, 314. But if the law of Missouri 
 governs, this action could not be maintained under that section ; be- 
 cause, as held in Flato v. Mulhall, above cited, the plaintiffs, being the 
 payees in the bill drawn by Farlow upon Hall Bros. & Co., could not, 
 within the meaning of the statute, be said to have '"'negotiated"' it. 
 The Missouri statute is a copy of a New York statute, in respcct to 
 which Judge Duer, in Blakeston r. Dudley, 5 Duer, 373, 377, said: 
 " We think, that to negotiate a bill can only mean to transfer it for 
 value, and that it is a solecism to say that a bill has I)een negotiated 
 by a pa3-ee, who has never parted with its ownership or possession. 
 The fact that the plaintiffs had given value for the bill when they re- 
 ceived it, only proves its negotiation by the drawer — its negotiation 
 to, and not by them. . . . Their putting their names upon the back of 
 the bill was not an indorsement, but a mere authority to the agent whom 
 they employed, to demand its acceptance and payment. The manifest 
 intention of the legislature in § 10 [similar to § 537 of the Missouri 
 statutes] was to create an exception in favor of those who, having 
 transferred a bill for value, on the faith of the promise of the drawee to 
 accept it, have, in consequence of Ids refusal to accept, been rendered 
 liable and been subjected to damages, as drawers or indorsers." The 
 plaintiffs in error, therefore, cannot rest their case upon section 537. 
 
 ^ Arguments uf counsel and part of the opinion are omitted. — Ed.
 
 460 HALL V. CORDELL. [CHAP. X. 
 
 We are, however, of opinion that, upon principle and authorit}-, the 
 rights of the parties are not to be determined by the law of Missouri. 
 The statute of that State can have no application to an action brought 
 to charge a person in Illinois, upon a parol promise, to accept and pa}[_^ 
 a bill of exchange payable in Illinois. The agreement to acce^jt a_nd 
 pay, or to pay upon presentation, was to be entirely performed in lUi-^ 
 nois, which was the State of the residence and place of business of the 
 defendants. They were not bound to accept or pay elsewhere than at 
 the place to which, by the terms of the agreement, the stock was to be 
 shipped. Nothing in the case shows that the parties had in view, in 
 respect to the execution of the contract, any other law than the law of 
 the place of performance. That law, consequently, must determine the 
 rights of the parties. Coghlan v. South Carolina Railroad Co., 142 U. S. 
 101, and the authorities there cited. In this connection it is well to 
 state that in New York & Virginia State Stock Bank y. Gibson, 5 Duer, 
 574, 583, a case arising under the statute of New York, above referred 
 to, the court said: "Those provisions manifestly embrace all bills, 
 wherever drawn, that are to be accepted and paid within this State, and 
 were the terms of the statute less explicit than they are, the general 
 rule of law would lead us to the same conclusion: tjiat the validity, of 
 a promise to accept a bill of exchange depends upon the law of the 
 place where the bill is to be accepted and paid," citing Boyce v. 
 Edwards, 4 Pet. 111. 
 
 Looking, then, at the law of Illinois, there is no difficulty in holding 
 that the defendants were liable for a breach of their parol agreement, 
 made in Missouri, to accept and pay, or to pay upon presentation, in 
 Illinois, the bills drawn by Farlow, i)ursuant to that agreement, in favor 
 of the plaintiffs. It was held in Scudder v. Union National Bank, 91 
 U. S. 406, 413, that, in Illinois, a parol acceptance of, or a parol prom- 
 ise to accept, upon a sufficient consideration, a bill of exchange, was 
 binding on the acceptor. Mason v. Donsay, 35 III. 424, 433 ; Nelson 
 V. First Nat. Bank of Chicago, 48 111. 36, 40; Sturgis v. Fourth 
 National Bank of Chicago, 75 III. 595 ; St. Louis National Stock 
 Yards v. O'Reilly, 85 III. 546, 551. 
 
 The views we have expressed were substantially those upon which 
 the court below proceeded in its refusal of the defendants' requests for 
 instructions, as well as in its charge to the jury. The suggestion that 
 there was a material variance between the averments of the original 
 and amended declaration, and the proof adduced by the plaintiffs, is 
 without foundation. The real issue was fairly submitted to the jury, 
 and their verdict niust stand. Judgment affirjned. 
 
 Mr. Justice Gray was not present at the argument and did not par- 
 ticipate in the decision.^ 
 
 1 Ace. Wilsou V. Lewistoii Mill Co., 150 N. Y. 3U. 44 N. E. 959. —Ed.
 
 SECT. III. J EOBtNSON V. BLAND. 461 
 
 SECTION III. 
 
 OBLIGATION. 
 
 ROBINSON V. BLAND. 
 King's Bench. 1760. 
 [Reported 2 Burrow, 1077.] 
 
 This was a case reserved at Nisi Prius at Westminster Hall, before 
 Lord Mansfield, 22d May, 1760. 
 
 The action was an action upon tlie case upon several promises, and 
 the declaration contained three counts. The first count was upon a 
 bill of exchange, drawn at Paris by the intestate, Sir John Bland, on 
 the 31st of August, 1755, and bearing that same date, on himself, in 
 England, for the sum of £672 sterling, payable to the order of the plain- 
 tiff ten days after sight, value received and accepted by the said Sir 
 John Bland. The second count was for £700, moneys lent and ad- 
 vanced by the said plaintiff to the said Sir John Bland, at his request. 
 The third count was for £700, moneys had and received b}' the said Sir 
 John Bland, to and for the use of the plaintiff. And the plaintiff's 
 damage is laid at £800. 
 
 The defendant pleaded the general issue, " That Sir John Bland did 
 not undertake and promise," etc., and issue was joined thereon. 
 
 The verdict was found for the plaintiff, and £672 given for damages, 
 subject to the following case stated for the opinion of the court, on the 
 following facts proved and admitted, viz. : 
 
 That the bill of exchange was given at Paris for £300 there lent by 
 the plaintiff to Sir John Bland, at the time and place of play ; and for 
 £372 more lost at the same time and place, by Sir John Bland, to the 
 plaintiff, at play. 
 
 That the play was very fair ; and there is not any imputation whatso- 
 ever on the plaintiff's behavior. 
 
 That there were several gentlemen and persons of fashion then and 
 there at play, besides the plaintiff and Sir John Bland. 
 
 That in France, mone}- lost at play, between gentlemen, may be re- 
 covered, as a debt of honor, before the marshals of France, who can 
 enforce obedience to their sentences by imprisonment ; though such 
 money is not recoverable in the ordinary course of justice. 
 
 That money lent to play with, or at the time and place of play, may 
 be recovered there, as a debt, in the ordinary course of justice, there 
 being no positive law against it. 
 
 That Sir John Bland was, and the plaintiff is, a gentleman.
 
 462 ROBINSON V. BLAND. [CHAP. X 
 
 The question was, Whether, under these circumstances, the plaintifiC 
 is entitled to recover anything, and wliat, against the defendant? 
 
 It was first argued on Tuesday, 17th June last, by Mr. Serj, Heioitt 
 for the plaintiff, and Mr, Blackstone for the defendant ; and again, 
 yesterday- and to-day, b}' Mr. Wedderburn for the plaintiff, and Mr. 
 Coxe for the defendant. 
 
 Upon the conclusion of this second argument, 
 
 Lord Mansfield said, that in the present case, the facts stated scarce 
 leave room for any question ; because the law of France and of Eng- 
 land is the same. 
 
 The first question is. Whether the plaintiff is entitled to recover upon 
 this bill of exchange, by force of the writing. 
 
 The second question is. Whether he is entitled to recover upon the 
 original consideration and contract, by the justice and equit}- of his 
 case, exclusive of any assistance from the bill of exchange, and taking 
 that to be a void security. 
 
 As to the first question, the defendant has objected : "That the con- 
 sideration of the bill of exchange is whoU}' mone}' won and lent at 
 play. Therefore, by force of the writing, the plaintiff cannot by the 
 law of England recover, such securitv being utterly void." And, no 
 doubt, the law of England is so. 
 
 There are three reasons why the plaintiff cannot recover here, upon 
 this bill of exchange. 
 
 First, The parties had a view to the laws of England. The law of 
 the place can never be the rule, where the transaction is entered into 
 with an express view to the law of another country, as the rule by 
 which it is to be governed. Huberi Pr.ielectiones, lib. 1, tit. 3, p. 34, 
 is clear and distinct : " Veruntamen, etc. locus in quo contractus, etc. 
 potius considerand', etc. se obligavit." Voet speaks to the same effect. 
 
 Now here, the paj-ment is to be in England ; it is an English security, 
 and so intended b}- the parties. 
 
 Second reason : Mr. Coxe has argued ver}- rightl}' : " That Sir 
 John Bland could never be called upon abroad for pa3'ment of tliis 
 bill, till there had been a wilful default of payment in P^ngland." The 
 bill was drawn b}' Sir John Bland, on himself, in England, payable ten 
 days after sight. 
 
 In every disposition or contract where the subject-matter relates 
 locally to England, the law of England must govern, and must liave 
 been intended to govern. Thus, a conveyance or will of lands, a mort- 
 gage, a contract concerning stocks, must be all sued upon in England ; 
 and the local nature of the thing requires them to be carried into exe- 
 cution according to the law here. 
 
 Tliird reason : The case don't leave room for a question. For the 
 law ot both countries is the same. The consideration of the Inll of 
 exchange might, in an action upon it, be gone into there as well as 
 here. And as to the money won at ['lay, it could not be recovered in 
 any court of justice there, notwithstantling the bill of exchange.
 
 SECT. III.] ROBINSON V. BLAND. 463 
 
 This writing is, as a security, void (being for a gaming debt), 
 both in France and in England. We naay tliei-efore lay the bill of ex- 
 change out of the case : it is very clear the plaintiflF cannot recover 
 upon that count. 
 
 Second question. Then as to the other counts, for money had and 
 received to the plaintiflTs use, and for money lent and advanced to him. 
 — Consider it distinctly, as to each part: the mone}' won, and the 
 mone}- lent. 
 
 'First, As to the mone}' won. B}' the rule of the law of England, no 
 action can be maintained for it. 
 
 f To this it has been objected, '' That the contract was made in France. 
 Therefore, ex comitate, the law of France must prevail, and be the rule 
 of determination." 
 
 I admit, that there are many cases where the law of the place of the 
 transaction shall be the rule ; and the law of England is as liberal in 
 this respect as other laws are. This is a large field, and not neces- 
 sar}' now to be gone into. 
 
 It has been laid down at the bar, " That a marriage in a foreign 
 country must be governed b}- the law of that countr}' where the mar- 
 riage was had ; " which, in general, is true. But the marriages in 
 Scotland, of persons going from hence for that purpose, were instanced 
 by way of example. They may come under a very different considera- 
 tion, according to the opinion of Huberus, p. 33, and other writers. 
 
 No such case has 3'et been litigated in England, except one, of a 
 marriage at Ostend, which came before Lord Hardwicke, who ordered 
 it to be tried in the Ecclesiastical Court ; but the young man came of 
 age, and the parties were married over again ; and so the matter was 
 never brought to a trial. 
 
 The point that the plaintiff must rest upon in the present case is 
 this: "The money was won in France ; therefore it ought to be gov- 
 erned by the law of France ; and it is recoverable there before the 
 marshals of France, who can enforce obedience to their sentence." 
 
 The Parliament of Paris would pay no regard to their judgment, nor 
 carry it into execution. The marshals of France proceed personally 
 against gentlemen, as to points of honor, with a view to prevent 
 duelling. 
 
 They could not have taken cognizance of the present matter. It was 
 not within their jurisdiction. It was no breach of honor in France, for 
 the money was payable in England ; and Sir John Bland could not be 
 said to have forfeited his honor till the ten days were out, and till the 
 money had been demanded in England, and payment I'efused there. 
 Sir John Bland was actually dead in a very short time after he gave 
 the note. The marshals of France can only proceed personalh' against 
 the gentleman who loses the money, but have no power over his estate 
 or representatives, after his death. 
 
 Therefore, as to the monej* won, the contract is to be considered as 
 void by the law of France, as well as by the law of England ; which
 
 464 
 
 ROBINSON V. BLANU. [CHAP. X. 
 
 makes it unnecessar}^ to consider " how far the law of France ought to 
 be regarded." 
 
 Next, as to the money lent. The sense of the legislature seems to 
 me to be agreeable to the cases that have been cited. 
 
 The act of 16 C. 2, c. 7, § 3, does not meddle with money lent at 
 play. But, as to money (exceeding £100), lost, and not paid down at 
 the time of losing it, it says, " That the loser shall not be compellable 
 to make it good ; but the contract and contracts for the same and for 
 every part thereof, and all securities, shall be utterly void, etc." The 
 words " contract and contracts for the same" are not in 9 Anne, and 
 I dare say were designedly left out: it only says, "That all notes, 
 bills, bonds, judgments, mortgages, or other securities, etc., for money 
 won or lent at play, shall be utterly void," etc. 
 
 Here the money was fairly lent, without any imputation whatsoever. 
 Sir John Bland, the borrower of it, being in a foreign country, might 
 very naturally have been distressed, under his then situation amongst 
 foreigners, for want of having ready money, or knowing how to procure 
 it ; and it might be even a kind and generous and commendable act 
 to lend it to him at that time, to extricate him from his difficulties, as 
 he was then circumstanced. The jury have left it quite open to the 
 court to determine "whether anything, and what, is recoverable." 
 As to the money won, we think it cannot be recovered ; as to the 
 money lent, the plaintiff is entitled to it, both by the law of England 
 and by the law of France. 
 
 Interest will be payable upon this bill after the expiration of the ten 
 days. The question will be, "How far the interest ought to be carried 
 down." It is generally said, " to the day of the writ brought; " i. e. of 
 commencing the action. But I do not see why it should not be car- 
 ried further ; it is equally reasonable, it is the right of the party, to 
 have it to the last act of the court ascertaining the sura due. 
 
 I have long wished for an opportunity to have this point considered 
 by the court ; because I would not take it upon myself at Nisi Prius, 
 to change what has commonly been the practice. 
 
 But, as to this last point, we will think of it for a day or two. 
 
 Mr. Justice Denison gave no opinion now, on this last point. As to 
 the rest, he said, it is a plain, clear, short case ; it is determinable by 
 the rules of the common law, and no other law. 
 
 The money is made payable in England. As it is a foreign bill of 
 exchange, it must of course be dated abroad ; but it is to be paid here 
 at home. And the plaintiff has appealed to the laws of England by 
 bringing his action here, and ought to be determined by them. 
 
 But, by the laws of England, the security is void ; which might have 
 been pleaded, as well as it might be given in evidence; and the de- 
 fendant needed not, in his plea, to have said where it was won at pla}-. 
 And being a transitory action, it must then have been tried where the 
 action was brought ; and so it must have been, if the plea liad been 
 local. Indeed, in many cases that might be put, the determination
 
 SECT. III.] ROBINSON V. BLAND. 465 
 
 must have been according to the laws of the place where the fact arose. 
 But the present case is not so ; here, the security is void by the laws 
 of the country w'here he brings his action upon it. And this security 
 is one entire security both for the money won at play, and the money 
 lent at play. 
 
 There is a distinction between the contract and the security. If part 
 of the contract arises upon a good consideration, and part of it upon a 
 bad one, it is divisible. But it is otherwise as to tlie security ; that 
 being entire, is bad for the whole. 
 
 Therefore the plaintiff ouglit to be barred of this action upon this bill 
 of exchange, as being a void securit}- by the laws of this country where 
 he brings his action. But still the contract remains ; and he has a 
 right to maintain his action for so much of his demand as is legal, 
 which is the mone}' lent. 
 
 As to the time of carrying down the interest, it may be proper to 
 consider of it a little while. 
 
 Mr. Justice Wiljiot. Here are two sums demanded, which are 
 blended together in one bill of exchange, but are divisible in their 
 nature. 
 
 As to the money lent. The cases that have been cited are in point 
 " that it is recoverable." But if there were none, yet I should be clear 
 that the plaintiff may maintain an action for that. 
 
 As to contracts being good, and the security void : The contract 
 ma}" certainly be good, though the security be void ; and I think that 
 this contract is good, though the security is void, bv the statute of 
 9 Anne. This is not stated to be mone}- lent to play with, or for the 
 purpose of pla}' ; but " lent at the time and place of play " only ; noth- 
 ing appears upon this case to induce any suspicion that it was lent for 
 any bad purpose. 
 
 The statutes meant to prevent excessive gaming, and to vacate all 
 securities whatsoever for mone}- won at play ; and the genuine, true, and 
 sound construction of 9 Anne is to understand it as intended to prevent 
 any securities being taken for money won at play, or lent to play with, 
 when the borrower had lost all his ready cash ; but not to make the 
 contract itself void, where the mone3'is fairly and bona fide lent, though 
 at the time and place of play. 
 
 As to the interest that shall be given to the plaintiff upon the sum 
 lent, in the assessment of the damages : This is an action that sounds 
 in damages; and the true measure undoubtedly is the damage which 
 the plaintiff sustains by the non-performance of the contract ; and that 
 damage is the whole interest due upon the sum lent ; viz. from the 
 time of its being payable, up to the time of signing the judgment. Nay, 
 even then he may suffer ; he may still be kept out of his money, by writ 
 of error, for a still further time. According to my memory, Lord Coke's 
 exposition of the statute is, that the " costs of the writ " shall extend 
 to all the legal costs of the suit. 
 
 The present case, notwithstanding the questions that have been agi- 
 
 :30
 
 466 EOBINSON V. BLAND. [CHAP. X. 
 
 tated in arguing it, comes out to be no case at all, no point at all, no 
 law at all. 
 
 Indeed, '' Whether an action can be supported in England, on a con- 
 tract which is void by the law of England, but valid by the law of 
 tlie country where the matter was transacted," is a great question 
 (though I should have no great doubt about that). But that case does 
 not exist here: for it is not here stated, " that such a debt as this, 
 for money won at play in France, is recoverable in the ordinary 
 courts of justice there," but quite the contrary. So that the laws of 
 France and of England are the same as to the money won : tiifi-cQU- 
 4ract is void as to that, by the laws of both countries. 
 
 And as to this wild, illegal, fantastical court of honor, the court of 
 the marshals of France, acting only in persoiumi, contrary to the uni- 
 versal and general laws even of the country where the transaction hap- 
 pened, and contrary to the genius and spirit of our own law too ; it 
 would be absurd to suppose that the bare possible accidental chance 
 of a recovery in that court should be a foundation for maintaining an 
 action here, upon a matter prohibited by the laws of both countries. 
 
 Besides, Sir John Bland himself, as it seems, was not, and the 
 present defendant, the person now before this court, could never have 
 been the object of the jurisdiction of that court. The remedy there, in 
 its utmost extent, was only i/t jMrsonam ; and this defendant is an 
 administratrix only. 
 
 A strong reason for the plaintiff's recovering in this action the money 
 lent is, that the bill of exchange is payable in England ; and therefore 
 it sliall be determined according to the laws of England, where it is 
 payable. As in the case of Sir John Champant v. Ld. Ranelagh, Mich. 
 1700, in Chancery (i-eported in Precedents in Chancery, 128). A bond 
 was made in England, and sent over to Ireland, and the money to be 
 paid there ; but it was not mentioned what interest should be paid : 
 my Lord Keeper was of opinion, '• that it should carry Irish interest." 
 Therefore, as this money was payable in England, the law of England 
 must be the rule of recovering it. 
 
 1 give no opinion as to the other point : yet I cannot help thinking, 
 that where a person appeals to the law of England, he must take his 
 remedy according to the law of England, to wliich he has appealed. 
 
 There is no difference, in this case, between the statute law and the 
 common law of England ; a contract cannot be maintained upon the 
 one that is void by the other. 
 
 The law of the*^ place where the thing happens does not always pre- 
 vail. In many countries, a contract may be maintained by a courtesan 
 for the i)rice of her prostitution ; and one may suppose an action to be 
 brought here, upon such a contract which arose in such a country : but 
 Hint would never be allowed in this country. Therefore the lex loci 
 cannot in all cases govern and direct. 
 
 The sentences of foreign courts have always some degree of regard 
 paid to them i)y the courts of justice here ; and it is very right that
 
 SECT. III.] IN RE MISSOURI STEAMSHIP CO. 467 
 
 an attention should be paid to them, as far as they ought to have 
 weight in the case depending. 
 
 But if a man originally appeals to the law of England for redress, he 
 must take his redress according to that law to which he has appealed 
 for such redress. Therefore, if this rule of determination was different, 
 by the law of France, from our rule here, yet I should incline, that the 
 law of England, where the action was brought, should prevail against 
 the law of France, if they did really clash with each other ; because the 
 party seeking redress has chosen to apply here. But I give no opinion 
 at all on this point. 
 
 As to the money lent : There can be no doubt ; because there is 
 no law either in England or France that hinders the plaintiff from 
 maintaining his action for it. 
 
 In ee MISSOURI STEAIMSHIP COMPANY. 
 
 Chancery Division : Court of Appeal. 1888 : 1889. 
 
 [Reported 42 Chancery Division, 321.] 
 
 Chittt, J. This is a claim by Mr. Munroe against the Missouri 
 Steamship Compan}*, Limited, for damages for loss of his cattle. Mr. 
 Munroe is a citizen of the United States domiciled there. The com- 
 pany is an English company incorporated according to English law, 
 domiciled in England, and now in voluntary liquidation. The _coji=_- 
 tractswere_made.;it Boston, JIassachusfitts, where the company had an 
 agentTy whom the contracts were entered into on their part. The 
 ship on which the goods were to be carried was the Missouri, a British 
 ship, and one of a line of steamships trading regularly between Boston 
 aTTd~Liverpool. Tlie contracts were for the carriage of the cattle from 
 Boston to Liverpool, and theyj3ontained express stipulations exempt- 
 ing the shipowners from liability for loss or damage arising, from neg- 
 ligence of the master or crew, and they provided that bills of lading 
 should be given containing stipulations to the same effect. . The com- 
 pany's agent had no authority to bind the company by any contract 
 not containing such stipulations as those which were actually inserted. 
 The cattle were shipped on board at Boston, and bills of lading were 
 given and accepted there in conformity with the contracts. The 
 ship sailed and was stranded on the Welsh coast. It is admitted for 
 the purposes of the present case that the stranding occurred through the 
 negligence of the master and crew. In these circumstances it is clear, 
 as "admitted by the claimant's counsel, that he is not entitled to recover 
 if these stipulations, exempting the shipowners from liability arising 
 from the negligence of their servants, are valid. But it is contended 
 for the claimant that the stipulations are invalid according to the law
 
 468 IN RE MISSOURI STEAMSHIP CO. [CHAP. X. 
 
 of the State of Massachusetts, where the contracts were in fact made 
 and the bills of lading given and accepted. 
 
 There was no substantial contest before me as to the present state 
 of the law in Massachusetts on the subject. According to that law the 
 stipulations are invalid. The ground upon which the decision at 
 present stands is that the stipul ations by which a common carrier 
 endeavors to exempt himself from 'the consequences of the negligence 
 of himself and his servants are considered to be extorted by the 
 carrier without any real assent on the part of the person sending 
 the goods, and are v9^1 as being co ntrary to p^ib lic p^lia'- I" the 
 Brentford City, 29 Fed. Rep. 373, these principleswere held to 
 apply in favor of the shipper at Boston of cattle on board a British 
 vessel for carriage to England, where the facts were substantially the 
 same as those in the present case. The law in the United States on 
 this subject, however, appears not to be finally settled. The question is 
 apparently pending in the Supreme Court in the case of " The Montana" 
 on appeal from the Circuit Court. Tlie Supreme Court has given leave 
 to the appellants to adduce evidence to show what is the English law 
 on the subject. The arguments have been concluded and the judgment 
 has been reserved. But as after inquiry I am unable to ascertain that 
 some considerable time may not elapse before the judgment is given, 
 and as it is not clear that the judgment will determine the point, I have 
 not thought it right to postpone any longer my decision. Should the 
 judgment of the Supreme Court be in favor of the shipowner on the 
 validity of the stipulation, Mr. Munroe's claim must fail. 
 
 I proceed, then, to consider the question on the assumption that 
 according to the law of Massachusetts the stipulations are void. The 
 question to be determined is whether the law of England or the law of 
 Massachusetts ought to be applied to the stipulations which purport to 
 exempt the shipowners from liability for negligence. 
 
 For the claimant it is argued that the question, being a question as 
 to the validity of the terms of the contracts, ought to be determined 
 according to the law where the contracts were made. For the ship- 
 owners, on the other hand, it is argued that the question ought to 
 be determined according to the law of the country to which the ship 
 belongs. As the stipulations in the contracts and the bills of lading 
 are identical there is no occasion to treat these documents separately. 
 
 Now the question does not relate to Jlie foriiial validity of the con-^ 
 tracts, and the question raised by the claimant does not go to the 
 validity in matters of substance of the contract as a whole. So far as 
 relates to all matters of form the contracts are valid according to the 
 law of both countries. So far as relates to all matters of substance 
 the rest of the contracts would, if tlie stipulations attached had not 
 been inserted, stand valid according to the law of both countries. 
 Further, the stipulations are not impeached on the ground that they 
 are of a criminal or wicked or immoral nature, or such as ought not to 
 be permitted according to the law of civilized countries ; they are im-
 
 SECT. III.] IN KE MISSOURI STEAMSHIP CO. 469 
 
 peached solely on the ground that they are void, as being disallowed 
 b}' the law of the place where the contracts were made, which law 
 considers them contrary to its own views of the public policy that 
 ought to prevail within the limits of its own territorial jurisdiction. 
 Although the law of Massachusetts would in the case of a contract 
 made in Massachusetts by a common carrier for the carriage of goods 
 wholl}' within the territories of the State hold these stipulations void, 
 I cannot find an}' sufficient reason for saying it would hold them void 
 in the case of a contract made within the State for the carriage of 
 goods where the performance of the contract was (as in the case before 
 me) to take place mainly outside the State, if it were declared ex- 
 pressly on the face of the contract that for all purposes the contract 
 was to be governed by the law of the country to which the ship 
 belonged, and the law of such country allowed the stipulations to be 
 valid. In other words, I apprehend that the law of Massachusetts 
 would not prohibit the parties to such a contract from contracting ex- 
 pressly with a view to the law of England. See Lord Mansfield's 
 judgment in Robinson v. Bland, 2 Burr. 1078, and Story's Conflict of 
 Laws, pp. 280, 28L 
 
 The contracts before me do not contain any such express declaration- 
 But I have examined and endeavored to ascertain the precise nature of 
 the objections raised, with this result, as it appears to me, that it was 
 within the competence of the parties according to the law of joth_c oun-. 
 tries Jo enter into the contracts. 
 
 Two cases of high authority were relied upon by the company's 
 counsel in support of their contention : Lloyd v. Guibert, Law. Rep. 
 1 Q. B. 115, and Peninsular and Oriental Steam Navigation Company 
 V. Shand, 3 Moo. P. C. (x.s.) 272. The actual decisions in those cases 
 may not precisely govern the present case, but the question is whether 
 the principle upon which those decisions are based does not apply. 
 
 It is generally agreed that the law of the place where the contract is 
 made is j^rimd facie that which the parties intended or ought to be 
 presumed to have adopted as the footing upon which they dealt, and 
 that such law ought therefore to prevail in the absence of circum- 
 stances indicating a diflJerent intention. 
 
 Numerous instances of the exceptions are to be found in the 
 books. A different intention, that is an intention to be bound by 
 some other law than the law of the place where the contract is made, 
 may be inferred from the subject-matter of the contract and from the 
 surrounding circumstances, so far as they are relevant to determine 
 the character of the contract. See the judgment of Mr. Justice Willes 
 in Lloyd v. Guibert, Law Rep. 1 Q. B. 122, 123. The terms and stip- 
 ulations found in the contract itself are matters of importance to be 
 taken into consideration as to the true inference to be drawn. The 
 general principle by which the Court of Exchequer was guided in 
 the solution of the question as to what law ought to prevail was that 
 the rights of the parties to a contract are to be judged of by that law
 
 470 IN RE MISSOURI STEAMSHIP CO. [CHAP. X. 
 
 by which they intended, or rather by which they may justly be pre- 
 sumed to have intended, to bind themselves, and by the steady appli- 
 cation of that principle the court arrived at the conclusion that where 
 the contract of affreightment does not provide otherwise than as 
 between the parties to such contract in respect of sea-damage and 
 its incidents, the law of the ship should govern. In that case the ship 
 was a French ship, the contract was made at a Danish West-Indian 
 port, and the goods were shipped to Hayti to be delivered at Havre, 
 London, or Liverpool, at the charterer's option. The court held that 
 the law of France applied, whereby the shipowners on abandonment of 
 the ship and freight were exempt from any liabiUty to the owner of 
 the cargo, and rejected the law of Denmark and the various other coun- 
 tries put forward on behalf of the owners of the cargo. In the course 
 of the judgment the various places in which the contract was to be 
 performed were pointed out ; but in adopting the French law the court 
 relied on the subject-matter of the contract, the employment of a sea- 
 going vessel for a service the greater and more onerous part of which 
 was to be rendered on the high seas, where for all purposes of jurisdic- 
 tion, criminal and civil, with respect to all persons, things, and trans- 
 actions on board, she was, as it were, a floating island, over which 
 France had as absolute, and for all purposes of peace as exclusive, a 
 sovereignt}' as over her dominions b}- land, and which even when in a 
 foreign port was never completely removed from French jurisdiction. 
 These practical considerations formed the main ground of the judg- 
 ment. The court declined to enter into any question as to the policy 
 of the French law. 
 
 I have referred somewhat fully to this judgment in order to show 
 that the principle upon which it proceeds is not confined to the par- 
 ticular facts of that case, but is applicable and ought to be applied not 
 merely to questions of construction and the rights incidental to, or 
 arising out of, the contract of affreightment, but to questions as to the 
 validity of stipulations in the contract itself. Any distinctions founded 
 on the difference of these questions were not rested on substantial 
 ground, and would lead to uncertaintv and confusion in mercantile 
 transactions of this character. It is just to presume that in reference 
 to all such questions the parties have submitted themselves to the law 
 of one country onl}', namely, that of the flag ; and so to hold is to 
 adopt a simple, natural, and consistent rule. "Westlake's Private 
 International Law, 2d ed. p. 20L 
 
 In Lloyd v. Guibert, Law Rep. 1 Q. B. 115, there were no express 
 stipulations pointing to the law of the country rather than to the law 
 of some other country, but in Peninsular and. Oriental Steam Naviga- 
 tion Company r. Shand, 3 Moo. P. C. (n. s.) 272, where also it was 
 held that the contract was governed by the law of the flag, there were 
 such stipulations, and Lord Justice Turner, in delivering tlie judguient 
 of the Privy Council, inquired into the actual intention of the contract- 
 ing parties as disclosed on tlie face of the contract. In that case the
 
 SECT. III.] IN KE MISSOUEI STEAMSHIP CO. 471 
 
 contract was made between British subjects in England substantial!}' 
 for safe carriage from Southampton to Mauritius. The performance 
 was to commence in an English vessel in an English port, to be con- 
 tinued in vessels which, for this purpose, carried their country with 
 them, to be fuUj- completed in Mauritius, but liable to breach, partial 
 or entire, in several other countries in which the vessel might be in the 
 course of the voyage. Into this contract there was introduced a stipu- 
 lation professing to limit the liability of the shipowner, which stipula- 
 tion was valid according to the law of England, but invalid according 
 to the law of Mauritius. In discussing the intention of the parties the 
 Lord Justice asked, in substance, whether it was contended that the 
 stipulation should be construed according to the English law, which 
 would give effect to it, or according to the French law, or some other 
 law, which would give no effect to it, and he held that the actual in- 
 tention of the parties must be taken clearl}- to have been to treat the 
 contract as an English contract, to be interpreted according to English 
 law, and that there was no rule of general law or polic}- setting up 
 a contrary presumption, and consequenth' that the court below was 
 wrong in not governing itself according to those rules. Now the differ- 
 ence in fact between that case and the present is that in that case the 
 parties were both British subjects, and the contract was made in Eng- 
 land, whereas in the present case one onl}- of the parties is English, 
 and the contract was made in Boston, But these differences, though 
 proper to be taken into consideration on the general question, have 
 little or no bearing on the question of the intention of the parties to be 
 inferred from the particular stipulations. 
 
 In determining a question between contracting parties (to quote from 
 the judgment in Lloyd v. Guibert, Law Rep. 1 Q. B. 120), recourse 
 must first be had to the language of the contract itself, and, force, 
 fraud, and mistake apart, the true construction of the language of the 
 contract is the touchstone of legal right. The circumstance that the 
 stipulations which the claimant asks to have struck out of the con- 
 tracts are allowed by the law of one country and disallowed b\' the law 
 of the other country, affords a cogent reason for holding that the par- 
 ties were contracting with reference to the law of the countr}' which 
 allowed and not to the law which disallowed the stipulations. It is 
 unreasonable to presume that the parties inserted in the contracts 
 stipulations which they intended should be nugatory and void. But 
 on the facts of this case a more limited proposition may be adopted. 
 The loss occurred through the negligence of the shipowner's servants 
 within the territorial waters, not of Massachusetts, but of Wales, that 
 is, of a countrj' where English law prevails. Conceding that it would 
 be possible (without saying it would be reasonable) to presume that 
 the parties contracted with reference to the law of Massachusetts in 
 respect of an}- loss b}' negligence occurring within the territorial waters 
 of that State, it appears to me that it would be unreasonable to pre- 
 sume that they contracted with reference to the law of that State in
 
 472 IN EE MISSOURI STEAMSHIP CO. j^CHAP. X. 
 
 respect of a loss by negligence occurring outside the limits of that 
 State. 
 
 I hold, then, that the stipulations are valid, first, on the general 
 ground that the contracts are governed by the law of the flag, and 
 secondl}', on the particular ground that from the special provisions of 
 the contracts themselves it appears the parties were contracting with a 
 view to the law of England. 
 
 Prom this judgment the claimant appealed. 
 
 The appeal came on to be heard on the 20th of June, 1888, but the 
 hearing stood over to await the decision of the Montana Case in the 
 Supreme Court of the United States. 
 
 The case came on again on the 1st of May, 1889, when a printed 
 copy of the judgment in the Montana Case was produced to the court, 
 from which it appeared that the stipulation in question was held b}' the 
 Supreme Court to be void as being contrary to public polic}-.^ 
 
 Fry, L. J. The principles on which this case has to be decided 
 have been familiar to the courts at any rate since the time of Lord 
 Mansfield, who in the case of Robinson r. Bland, 2 Burr. 1077, ex- 
 pounded those principles of law, and the}- have been clearlj- stated 
 since in many cases, among others in the well-known case of Llo3'd v. 
 Guibert, Law Rep. 1 Q. B. 115, 122, where the learned Judge, who 
 delivered the judgment of the Exchequer Chamber, said: "It is, 
 how ever, generally agreed tliat the law of the place where the contract 
 is made is jynind/acie that which the parties intended, or ought to be 
 presum ed to have adopted as the tooting upon whic h they dea lt, and 
 ^ that such law ougut there tore to prevail in the absence of circumstance s 
 indicating a different intention, as, for insta nce ," — and he goes on to 
 enumerate instances from which the courts have gleaned a diffei-ent 
 intention. That view of the law was fully adopted in the case of 
 Jacobs V. Credit L3'onnais, 12 Q. B. D. 589, in this court. 
 
 I think, therefore, the general principle on which we have to proceed 
 is one which admits of no doubt; and the inquiry, thereforft^ is thjg : 
 looking at the subject-matter of tliis contract, the place wberft it wns 
 made, the contracting parties, aiy l fho. fhj no-s to be done , wha t ough t 
 t ? b? P '' ^snr"^'^ ^'^ hr,^rn hr>nn tiin ^ntr>nti"n of tlil^ contracting parties 
 Mojfh rotT^ffl in Hio Iqvy whic.li was to govcm this contract ? By that I' 
 me aii to dei f"^in^ ^'^'^ y^H'm-y f^ nd its interpretation . 
 
 Now, in the first place, the ship was an English ship ; the owners 
 were an English compan}- ; England was the place to which the goods 
 were to be brought and the place at which the final completion of the 
 contract was to take place ; and, what is still more important, the 
 forms of the contract and the bills of lading were English forms. 
 According to the law of England, the contract would be good in tlic 
 terms in which it stood ; whereas according to the law of the United 
 
 ^ Arguments of coun.sel and the coucurriiii;: opiniuus uf Lurd IIalsblky, L. C, aud 
 Cotton, L. J., .ire omitted. — Ed.
 
 SECT. III.] IN RE MISSOUEI STEAMSHIP CO. 473 
 
 States important terms of the contract would be excluded from it 
 That is, to my mind, a very cogent consideration to show that what, 
 must be presumed to have been the intent of the parties was tliis : 
 that the law which would make the contract valid in all particulars waa, 
 the l aw to re gulate the conduct of the pjirtjes. Looking at all the cir- 
 cumstances of the case, I have no doubt that that is the conclusion 
 which we ought to arrive at. 
 
 In coming to that conclusion, and in stating those principles, 1 am 
 glad to find that I am in entire accordance with the law laid down in 
 the American courts. It appears to me that the passages cited from 
 Mr. Justice Story are strong in favor of the principle to which I have 
 referred, and in the case of " The Montana " that rule was adopted in 
 express terms by the Supreme Court of the United States. Lord Jus- 
 tice Cotton has read one passage from that judgment, and I will read 
 another: '■'■ T his court has not heretofore had occasion to consider by 
 what law contracts like those now before us should be evpnnnded. 
 But it has often affirmed and acted on the general ru l e, that contracts 
 are to be governed, as to their nature, their validity, and their inter- 
 pretation, bv tlie law of the place where thev were made, unless the 
 contracting parties clearlv appear to have had some other law in 
 view ; " and in that very case, in accordance with the principle so laid 
 down, the Supreme Court proceeded to inquire whether there were any 
 circumstances from which they ought to presume any other law than 
 that of the place where the contract was made to have been presumed 
 by the parties. Therefore, it is obvious in adopting the principles 
 which I have stated we are proceeding not only according to the Eng- 
 lish law, but also according to the law of America. It is very desirable, 
 if possible, tliat the law relating to the interchange of comity between 
 nations should be the same. 
 
 There was only one other argument put forward to which I need 
 refer, and it seemed to me to be a little halting between two state- 
 ments. Sir Walter Phillimore laid down a proposition to this etfect, 
 that whenever the law of the place where the contract is made pro- 
 hibits a particular stipulation in a contract no other country can treat 
 that stipulation as valid. If by the word "prohibit "he means that 
 the law of the United States has in terms prohibited or has rendered 
 illegal or criminal the introduction of this stipulation, it appears to me 
 that the decision in the Montana Case shows that that is not the law 
 of the United States. That decision, I think, when fairly read, shows 
 what one would expect to be the case, namely, that the courts have 
 held that this stipulation being obnoxious to their public policy is void, 
 not illegal, exactly in the same way as in this country we hold that 
 stipulations which are in restraint of trade are not illegal, and that the 
 entering into them does not constitute an illegal" conspiracy, but they 
 are void. If, on the other hand, it be argued that where the law of 
 the place of the contract refuses to enforce a stipulation, then no other 
 country will enforce that stipulation, we have a proposition which on
 
 474 PRITCHARD V. NORTON. [CHAP. X. 
 
 ;i;he face of it appears to me to be untenalilo. Tlicroforo. whichever is 
 the alternative of the proposition which Sir Walter Phillimore adopts, 
 neithar oi ihem wUl support his case. 
 
 I tliink, therefore, the decision of Mr. Justice Chitty was correct, 
 and that this appeal fails.^ 
 
 PRIlCflARD V. NORTON. 
 
 Supreme Court of the United States. 1882. 
 
 [Reported 106 United States, 124.] 
 
 Error to the Circuit Court of the United States for the District of 
 Louisiana. This action was brought by Eliza D. Pritchard^ a citj zen 
 of Louisiana, executrix of Ricliard Pritchard, deceased, against Nor- 
 ton, a citizen of New York, hpcn a bond made in New York, by sajd 
 Norton and another, conditioned to indemnify Pritchard against loss 
 arising from his liability on an ajjpeal bond already given by them as 
 principals and sigjaed by Pritchard as suret}' in Louisiana. Pritchard 
 was called upon to pay money upon the appeal bond. The defendant 
 set up by way of defence, that the bond sued on was executed and 
 delivered by him to Pritchard in the State of New York, and without 
 any consideration therefor, and that by the laws of that State it was 
 void, by reason thereof. The court so ruled ; the plaintiff excepted to 
 the ruling, and now assigns the exception as error.^ 
 
 Mattiikws, J. It is claimed on liehalf of the plaintiff that by the 
 law of Louisiana the pre-existing liability of Pritchard as surety for 
 the railroad company would be a valid consideration to support the 
 promise of indcmriity, notwithstanding his liabilit\' had been incurred 
 without any previous request from the defendant. This claim is not 
 controverted, and is fully supported by the citations from the Civil 
 Code of Louisiana of 1870, art. 1893-1960, and the decisions of the 
 Supreme Court of that State. Flood v. Thomas, 5 Mart. N. s. (La.) 
 560 ; N. O. Gas. Co. v. Paulding, 12 Rob. (La.) 378 ; N. O. & Carrollton 
 Railroad Co. r. Cha|)man, 8 La. Ann. 97; Keane r. Goldsmith, TIaber 
 & Co.. 12 La. Ann. 560. In the case last mentioned it is said that " the 
 contract is, in its nature, one of personal warranty, recognized by arti- 
 cles 378 and 379 of the Code of Practice." And it was there held that 
 a riglit of action upon the bond of indemnity accrued to the obligee, 
 when his liability became fixed as surety by a final judgment, without 
 payment on iiis part, it being the obligation of the defendants upon 
 the bond of indomnit}' to pa}' the judgment rendered against him, or to 
 furnish him the money with which to pay it. 
 
 1 Arc. Sonth African P.rcwcries i-. Kinff, flS'.tO] 2 Ch. 173, [1900] 1 Ch. 273. —En. 
 ^ This statement of the case is suhstitiiteii for that of the Reporter. Arguments of 
 counsel and part of the opinion are omitted. — Ed.
 
 SECT. III.] PRITCHARD V. NORTON. 475 
 
 The single question presented by the record, therefore, is wheth er 
 fhp la w ^^ ^P'^ York or that of Louisiana defines and fixes the rights 
 and obligations of the parties. If the former applies, the judgment of 
 the court below is correct ; if the latter, it is erroneous. 
 
 The argument in support of the judgment is simple, and may be 
 briefly stated. It is, that New York is the place of the contract, both 
 because it was executed and delivered there, and because no other 
 place of performance being either designated or necessarily implied, it 
 was to be performed there ; wherefore the law of New York, as the 
 lex loci contractus, in both senses, being lex loci celebrationis and lex 
 loci solutionis, must apply to determine not only the form of the con- 
 tract, but also its validity. 
 
 On the other hand, the appHcation of the law of Louisiana may be 
 considered in two aspects : as the lex fori, the suit having been brought 
 in a court exercising jurisdiction within its territory and administering 
 its laws ; and as the lex loci solutionis, the obligation of the bond of 
 indemnity being to place the fund for payment in the hands of the 
 surety, or to repay him the amount of his advance, in the place where 
 he was bound to discharge his own liability. 
 
 It will be convenient to consider the applicability of the law of 
 Louisiana, first, as the lex fori, and then as the lex loci solutionis. 
 1. The lex fori. 
 
 The court below, in a cause like the present, in which its jurisdiction 
 depends on the citizensiiip of the parties, adjudicates their rights pre- 
 cisely as should a tribunal of the State of Louisiana according to her 
 laws ; so that, in that sense, there is no question as to what law must 
 be administered. But, in case of contract, the foreign law may, by 
 the act and will of the parties, have become part of their agreement ; 
 and, in enforcing this, the law of the forum may find it necessary to 
 give eflTect to a foreign law, which, without such adoption, would have 
 no force beyond its own territory. 
 
 This, upon the principle of comity, for the purpose of promoting 
 and facilitating international intercourse, and within limits fixed by 
 its own public policy, a civilized State is accustomed and considers 
 itself bound to do ; but, in doing so, nevertheless adheres to its own 
 system of formal judicial procedure and remedies. And thus the dis- 
 tinction is at once established between the law of the contract, which 
 may be foreign, and the law of the procedure and remed}-, which must 
 be domestic and local. In respect to the latter the foreign law is re- 
 jected ; but how and where to draw the line of precise classification it 
 is not always easy to determine. 
 
 TliP princinle is. that whate yffr TPlftt.es me rely to tl^P rpmedv f^yd 
 constitutes part _of the procedure is determined by jhe. law of the fomm^ 
 for matters of process must be uniform in the courts of the same coim- 
 *try ; but whatever goes to the substance of the obligation and af fects 
 the rights of the parties, as growing out of the contract itself, or inher- 
 ing in it or attaching to it, is governedjaj the law of the contr act. . . .
 
 476 PRITCHARD V. NORTON. [CHAP. X. 
 
 Jllie .question of consideration, whether arising upon the admissibil- 
 ity of evidence or presented as a point in pleading, is not one of proce- 
 dure and remedy. It goes to the substance of the right itsell, and_ 
 belongs to the constitution of the contract. The difference between the 
 law of Louisiana and that of New York, presented in this case, is radi- 
 caf, and gives rise to the inquiry, what^ according to each, are the 
 essential elements of a valid contract, determinable only by the law of 
 its seat ; and not that other, what remedy is provided by the law of the 
 place where the suit has been brought to recover for the breach of its 
 obligation. 
 
 On tKts point, what was said in The Gaetano & Maria, 7 P. D. 137, 
 is pertinent. In that case the question was whether the English law, 
 which was the law of the forum, or the Italian law, which was the law 
 of the flag, should prevail, as to the validity of a hypothecation of the 
 cargo by the master of a ship. It was claimed that because the matter 
 to be proved was, whether there was a necessity which justified it, it 
 thereby became a matter of procedure, as being a matter of evidence. 
 Lord Justice Brett said : " Now, the manner of proving the facts is 
 matter of evidence, and, to my mind, is matter of procedure, but the 
 facts to be proved are not matters of procedure ; they are matters with 
 which the procedure has to deal." 
 
 It becomes necessary, therefore, to consider the applicability of the 
 law of Louisiana as — 
 2. The lex loci solutionis. 
 
 The phrase lex loci contractus is used, in a double sense, to mean, 
 sometimes, the law of the place where a contract is entered into ; 
 sometimes, that of the place of its performance. And when it is em- 
 ployed to describe the law of the seat of the obligation, it is, on that 
 account, confusing. The law we are in search of, which is to decide 
 upon the nature, interpretation, and validity of the engagement in 
 question, is that which the parties have, either expressly or presump- 
 tively, incorporated into their contract as constituting its obligation. 
 It has never been better described than it was incidentally by Mr. 
 Chief Justice Marshall in Wayman v. Southard, 10 Wheat. 1, 48, where 
 he defined it as a principle of universal law, — " The princi j )le that in 
 every forum a co iit ract is sfo verned b}' the law with a A^ew to wtiich-it 
 ^•a s made. " The same idea hM b6feh 6g[)r6g56d by LorcTlVIansficld in 
 Robinson~y. Bland, 2 JJurr. 1077, 1078. "The law of the place," he 
 said, " can never be the rule where the transaction is entered into with 
 an express view to the law of another country, as the rule 1)3* which it 
 is to be governed." And in Lloyd o. Guibert, Law Rep. 1 Q. B. 115, 
 120, in the Court of Exchequer Chamber, it was said that "- it is neces- 
 sary to consider by what general law the parties intended that the 
 ■ transaction should be governed, or rather, by what general law it is 
 just to presume that they have submitted themselves in the matter." Le 
 Breton v. Miles, 8 Paige (N. Y.), 201. 
 
 It is upon this ground that the presumption rests, that the contract
 
 SECT. III.] PRITCHARD V. NORTON. 477 
 
 is to be performed at the place where it is made, and to be governed by 
 its laws, there being nothing in its terras, or in the explanatory circum- 
 stances of its execution, inconsistent with that intention. 
 
 So, Phillimore says : ^' It is always to be remembered that in obliga- 
 tions it is the will of the contracting parties, and not the law, which 
 fixes the place of fulfilment, — whether that place be fixed by express 
 words or by tacit implication — as the place to the jurisdiction of 
 which the contracting parties elected to submit themselves." 4 Int. 
 Law, 469. 
 
 The same author conclude.s his discussion of the particular topic as 
 follows ; " As all the foregoing rules rest upon the presumption that 
 the obligor has voluntarily submitted himself to a particular local law, 
 that presumption may be rebutted, either by an express declaration to 
 the contrary, or by the fact that the obligation is illegal by that par- 
 ticular law, tliough legal by another. The parties cannot be presumed 
 to have contemplated a law which would defeat their engagements." 
 4 Int. Law, § 654, pp. 470, 47L 
 
 This rule, if universally applicable, which perhaps it is not, though 
 founded on the maxim, ut res magis valeat quam pereat, would be de- 
 cisive of the present controversy, as conclusive of the question of the 
 application of the law of Louisiana, by which alone the undertaking of 
 the obligor can be upheld. 
 
 At all events, it is a circumstance, highly persuasive in its character, 
 of the presumed intention of the parties, and entitled to prevail, unless 
 controlled by more express and positive proofs of a contrary intent. 
 
 It was expressly referred to as a decisive principle in Bell v. Pack- 
 ard, 69 Me. 105, although it cannot be regarded as the foundation of 
 the judgment in that case. Milliken v. Pratt, 125 Mass. 374. 
 
 If now we examine the terms of the bond of indemnity-, and the 
 situation and relation of the parties, we shall find conclusive corrobora- 
 tion of the presumption, that the obligation was entered into in view of 
 the laws of Louisiana. 
 
 The antecedent liabilit}- of Pritchard, as suret}- for the railroad com- 
 pany on the appeal bond, was confessedly contracted in that State, 
 according to its laws, and it was there alone that it could be performed 
 and discharged. \ Its undertaking was, that Pritchard should, in certain 
 contingencies, satisfy a judgment of its courts. That could be done 
 only within its territor}- and according to its laws. \ The condition of the 
 obligation, which is the basis of this action, is, that McComb and Nor- 
 ton, the obligors, shall hold harmless and fully indemnify Pritchard 
 against all loss or damage arising from his liability as surety on the 
 appeal bond. A judgment was, in fact, rendered against him on it in 
 Louisiana. There was but one way in which the obligors in the in- 
 demnity bond could perfectly satisfy its warranty. That was, the 
 moment the judgment was rendered against Pritchard on the appeal 
 bond, to come forwai'd in his stead, and, by payment, to extinguish it. 
 He was entitled to demand this before any payment by himself, and to
 
 478 
 
 PRITCHARD V. NORTON. 
 
 [chap. X. 
 
 require that the fund should be forthcoming at the place where other- 
 uise he could be required to pay it. ^ Even if it should be thought that 
 Pritehard was bound to pay the judgment recovered against himself, 
 before his right of recourse accrued upon the bond of indemnity, never- 
 theless he was entitled to be reimbursed the amount of his advance at 
 the same place where he had been required to make it. ) So that it is 
 clear, beyond any doubt, that the obligation of the indemnity was to 
 be fulfilled in Louisiana, and, consequently, is subject, in all matters 
 affecting its construction and validity, to the law of that locality. 
 
 This construction is abundantly sustained by the authority of judi- 
 cial decisions in similar cases. 
 
 In Irvine u. Barrett, 2 Grant's (Pa.) Cas. 73, it was decided that 
 where a security is given in pursuance of a decree of a court of justice, 
 it is to be construed according to the intention of the tribunal which 
 directed its execution, and, in contemplation of law, is to be performed 
 at the place where the court exercises its jurisdiction ; and that a bond 
 given in another State, as collateral to such an obligation, is controlled 
 by the same law which controls the principal indebtedness. In the 
 case of Penobscot & Kennebec Railroad Co. v. Bartlett, 12 Gray 
 (Mass.), 244, the Supreme Judicial Court of Massachusetts decided 
 that a contract made in that State to subscribe to sliares in the capital 
 stock of a railroad corporation established b}- the laws of another State, 
 and having their road and treasur}- there, is a contract to be performed 
 there, and is to be construed by the laws of that State. In Lanusse v. 
 Barker, 3 Wheat. 110, 146, this court declared that "where a general 
 authority is given to draw bills from a certain place, on account of 
 advances there made, the undertaking is to replace the monej' at that 
 place." 
 
 -^The case of Cox v. United States, 6 Pet. 172, was an action upon 
 the official bond of a nav}'' agent. The sureties contended that the 
 United States were bound to divide their action, and take judgment 
 against each surety only for his proportion of the sum due, according 
 to the laws of Louisiana, considering it a contract made there, and to 
 be governed in this respect by the law of that State. The court, how- 
 ever, said: "But admitting the bond to have been signed at New 
 Orleans, it is very clear that the obligations imposed ui)on the parties 
 thereby looked for its execution to the cit}' of Washington. It is im- 
 material where the services as nav}- agent were to be performed l)y 
 Hawkins. His accountability for non-performance was to be at tlie 
 seat of government. He was bound to account, and the sureties un- 
 dertook that he should account for all public moneys received bj- him, 
 with such officers of the government of the United States as are dul}* 
 authorized to settle and adjust liis accounts. Tlie bond is given with 
 reference to the laws of the United States on that subject. And such 
 accounting is required to be with the Treasury Department at the seat 
 of government ; and the navy agent is bound b}' tlie very terms of the 
 bond to pay over such sum as may be found due to the United States
 
 SECT. III.] PRITCHARD V. NORTON. 479 
 
 on such settlement ; and such paying over must be to the Treasury 
 Department, or in such manner as shall be directed by the secretary-. 
 The bond is, therefore, in every point of view in which it can be con- 
 sidered, a contract to be executed at the city of Washington, and the 
 liability of the parties must be governed b3^ the rules of the common 
 law." This decision was repeated in Duncan v. United States, 7 Pet. 
 435. 
 
 These cases were relied on by the Supreme Court of New York in 
 Commonwealth of Kentucky v. Bassford, 6 Hill (N. Y.), 526. That 
 was an action upon a bond executed in New York conditioned for the 
 faithful performance of the duties enjoined by a law of Kentuck}- autho- 
 rizing the obligees to sell lottery" tickets for the benefit of a college in 
 that State. It was held that the stipulations of the bond were to be 
 performed in Kentucky, and that, as it was valid by the laws of that 
 State, the courts of New York would enforce it, notwithstanding it 
 would be illegal in that State. 
 
 Boyle V. Zacharie, 6 Pet. 635, is a direct authority upon the point. 
 There Zacharie and Turner were resident merchants at New Orleans, 
 and Boyle at Baltimore. The latter sent his ship to New Orleans, 
 consigned to Zacharie and Turner, where she arrived, and, having 
 landed her cargo, the latter procured a freight for her to Liverpool. 
 "When she was ready to sail she was attached by process of law at the 
 suit of certain creditors of Boyle, and Zacharie and Turner procured 
 her release by becoming security for Boyle on the attachment. Upon 
 information of the facts, Boyle promised to indemnify them for any loss 
 they might sustain on that account. Judgment was rendered against 
 them on the attachment bond, which they were compelled to pay, and 
 to recover the amount so paid they brought suit in the Circuit Court 
 for Maryland against Boyle upon his promise of indemnit}-. A judg- 
 ment was rendered b}' confession in that cause, and a bill in equity 
 was subsequently filed to enjoin further proceedings on it, in the course 
 of which various questions arose, among them, whether the promise of 
 indemnity was a Maryland or a Louisiana contract. Mr. Justice Story, 
 delivering the opinion of the court, said : " Such a contract would be 
 understood by all parties to be a contract made in the place where the 
 advance was to be made, and the payment, unless otherwise stipulated, 
 would also be understood to be made there ; " " that tlie contract would 
 clearl}' refer for its execution to Louisiana." 
 
 The very point was also decided by this court in Bell v. Bruen, 
 1 How. 169. That was an action upon a guaranty written by the de- 
 fendant in New York, addressed to the plaintiffs in London, who, at 
 the latter place, had made advances of a credit to Thorn. The opera- 
 tive language of the guaranty was, " that 3'ou may consider this, as 
 well as any and every other credit you may open in his favor, as being 
 under my guaranty." The court said : " It was an engagement to be 
 executed in England, and must be construed and have effect accord- 
 ing to the laws of that country," citing Bank of the United States a.
 
 480 CARNEGIE V. MORRISON. [CHAP. X. 
 
 Daniel, 12 Pet. 54. As the money was advanced in England, the 
 guaranty required that it should be replaced there, and that is the 
 precise nature of the obligation in the present case. Pritchard could 
 only be indemnified against loss and damage on account of his liability 
 on the appeal bond, by having funds placed in his hands in Louisiana 
 wherewith to discharge it, or by being repaid there the amount of his 
 advance. To the same effect is Woodhull v. "Wagner, Baldw. 296. 
 
 We do no t hesitate, therefore, to (1( eide t.lif^t |,|ie bond of indemnity 
 sued_^on was eutcred ialu with a view to the law of Louisiana as the 
 place for the fultllinent of its obligation; and that the que stion of its 
 validity, as depending on the character and sufSciencv of the considera- 
 tion, should be deterniiued by the law of Louisiana, and not that of 
 New York. For error in its rulings on this point, consequently, the 
 judgment of th e Circuit Co u rt is reversed, with directions to grant a 
 new trial. New trial ordered.^ 
 
 CARNEGIE V. MORRISON. 
 Supreme Judicial Court of Massachusetts. 184L 
 
 [Reported 2 Metcalf, 381.] 
 
 Shaw, C. J.^ Act ion of assumpsit, brought by Carnegie '^- ^^'^ , a, 
 m ercantile firm aTTjottenburg. SwodRnf against Messrs. Morriso n. 
 *"TTiy der. & Co., of Tiopdon . The action is founded upon a letter of 
 credit given by the defendants, by Mr. Oliver, their general agent, 
 residing in Boston, upon the application of Mr. John Bradford, in 
 favor of the plaintiffs, and for the purpose of paying, in part, a large 
 debt due from Bradford to the plaintiffs for merchandise before shipped 
 to him on credit. The letter of credit is of the following tenor : 
 
 " Boston, 4 March, 1837. 
 " Messrs. Morrison, Crtder, & Co., London : — Mr. John Bradford 
 of this city having requested that a credit may be opened with j'ou for 
 his account in favor of Messrs. D. Carnegie & Co. of Gothenburg for 
 three thousand pounds sterling, I have assured him that the same will 
 be accorded l)y you on the usual terms and conditions. 
 " Respectfully your obt. serv't, 
 
 " Francis J. Oliver. 
 "For £3,000." 
 
 It appears by the evidence that Oliver was the general agent of the 
 defendants in Boston ; that this letter of credit was obtained upon the 
 
 1 Ace. Seiders v. Merchant's Life Assoc, 93 Tex. 104, 54 S. W. 7.53. Conversely 
 it has been held that a contract vali<l at the ])lace of nuikiiis^ but void by the law of 
 the pl;ice of performance is invalid. Ilawley v. Bibb, 6'J ^VJa. 52 {scmble) ; Thayer v. 
 Elliott, 16 N. II. 102. — Ed. 
 
 2 Part of the oj>iiiion only is given. — Ed.
 
 SECT. Ill] CARNEGIE V. MORRISON. 481 
 
 application of Bradford, and was immediately forwarded to the plain« 
 tiffs at Gottenburg ; and that notice of it was given to the defendants 
 at London. Mr. Oliver knew the purpose for which Bradford wanted 
 it. He had often had similar letters of credit from Mi'. Oliver before ; 
 all of which have been honored, except one other in favor of Scholfield 
 & Co., which is now in controvers}- in this court. Mr. Bradford was 
 accustomed to give satisfactory security, from time to time, to Mr. 
 Oliver, and to pa}' the defendants a commission of one per cent. It 
 also appears that upon the strength of this letter of credit, the plaintiffs 
 drew a bill or bills on the defendants, according to the usual mode of 
 drawing bills at Gottenburg on London, which the defendants declined 
 accepting. Various other circumstances were given in evidence, but 
 this is a summary of the leading facts in the case. 
 
 This action, if it can be maintained at all, as between these parties, 
 must be maintained on the letter of credit. But a question meets us at 
 the outset, what law shall determine the rights of the parties in this 
 transaction ? It is obvious that the undertaking of the defendants was 
 to do some act out of this country. The substance of that undertaking 
 was to give Bradford a credit for the use and benefit of Carnegie & Co. ; 
 in other words, the suljstance and effect of that undertaking was to pay 
 a sum of money to Carnegie & Co. in discharge of Bradford's debt to 
 them, by means of bills of exchange to be drawn by Carnegie & Co. on 
 the defendants, in their own favor, or in favor of their appointee, for 
 their use, in consideration of the promise of Bradford to provide funds 
 to meet those bills, giving them satisfactory security, placed in the 
 hands of their agent, and in further consideration of a commission of 
 one per cent paid by Bradford. 
 
 In considering the nature of this transaction, the inquiry involves 
 two questions : first, whether the transaction in question constitutes 
 a contract, in which the plaintiffs have an interest ; and, secondly, 
 whether the interest of the plaintiffs in this contract is of such a char- 
 acter that they can maintain an action upon it in their own names. 
 The question, therefore, does not depend exclusively upon the lex fori, 
 although, as the action is brought in this Commonwealth, its laws must 
 determine whatever relates to the remedy. Supposing that the lex loci 
 contractus is also to have a bearing on the question, it must be consid- 
 ered that some of the rules applicable to the construction and effect of 
 contracts are founded in positive law, estabUshed by usage or by stat- 
 ute, which each country will establish for itself, according to its own 
 views of convenience and policy, and have a local operation ; whilst 
 others are derived from those great and unchangeable principles of 
 duty and obligation which are everywhere recognized amongst mer- 
 cantile communities, and indeed amongst all civilized nations, as lying 
 at the foundation of civil contracts, and must be considered as having 
 the same effect, wherever by the comity of nations contracts made in 
 one country are allowed to be carried into effect by tlie laws of another. 
 In some States, for instance, a bond made to one or his assigns is re- 
 Si
 
 482 CARNEGIE V. MORRISON. [CHAP. X. 
 
 garded as a negotiable instrument, and creates an obligation to paj' to 
 the obligee, or an}' person who shall legally- become the assignee of 
 it. In others, a note for money, paAable to one or order, creates a 
 legal obligation to the payee only, and an indorse^e cannot maintain a 
 suit in his own name. Whether an instrument, made in a particular 
 form, shall have the one or the other construction, will depend upon 
 the positive law of the country which governs it ; and such law there- 
 fore will determine the nature and legal obligation of the contract cre- 
 ated by it ; it is positive law, concurring with, and giving effect to, the 
 act of the parties, which determines, the nature and extent of such con- 
 tract. But that a party entering into a formal stipulation to pay 
 money, or do some other beneficial act to or for another, shall substan- 
 tially perform that undertaking, is a great principle of moral as well as 
 legal obligation, and of international as well as municipal law, recog- 
 nized everywhere. 
 
 Taking it as settled, in the present case, that the defendants became 
 subject to a duty or obligation of some kiud, the real subject of discus- 
 sion is not merely as to the remedy, but whether the facts now in proof 
 constituted a contract between these parties which may be enforced by 
 an action. 
 
 The objection to such an action, and the ground of this defence, are 
 that the immediate parties to the transaction were Bradford on the one 
 side and the defendants on the other ; that to this transaction the 
 plaintiffs were strangers; and that as Bradford acquired some right 
 under it, and had a remedy upon it against the defendants, their con- 
 tract must be deemed to be made with him and not with the plaintiffs. 
 But this position presupposes that the same instrument may not con- 
 stitute a contract between the original parties, and also between one or 
 both of them and others, who ma}- subsequently assent to, and become 
 interested in its execution ; an assumption quite too broad and unlim- 
 ited, wliich tlie law does not warrant. In a common bill of exchange, 
 the drawer contracts with the payee that the drawee will accept the 
 l)ill ; with the drawee, that if he does accept and pay the bill, he, the 
 drawer, will allow the amount in account, if he has funds in the drawee's 
 hands ; otherwise, that he will reimburse him the amount thus paid. 
 II(! also contracts with any person who may become indorsee, that he 
 will pay iiiin the amount if the drawee does not accei)t and pay the i)ill. 
 The law creates the privit}'. So in the familiar case of money had and 
 received, if A. deposits monej' with B. to the use of C, the latter may 
 have sin action against B., though they are in fact strangers. But if 
 C, not choosing to look to B. as his debtor, calls upon A. to pay him, 
 notwithstanding such deposit (as he may), and A. pays him, A. shall 
 have an action against B. to recover back the money deposited if not 
 repaid on notice and demand. The law, operating upon the act of the 
 parties, creates the duty, establishes the privity, and implies tlie prom- 
 ise and obliijation on wliich the action is I'oundod. Hall r. Marston. 17 
 Mass. 575. So in regard to a very common transaction ; when one
 
 5;ECT. III.] CARNEGIE V. MOKKISOX. 483 
 
 deposits money in a bank to the credit of a third person, and forwards 
 him a certificate, or other evidence of the fact, the bank is regarded as 
 coming under an obHgation to pay the mone}' to the person to whose 
 credit it is thus deposited. So it is held in England, when the depos- 
 itary assents to receive the money, though there is no consideration 
 moving from the plaintiff to the defendant. Lilly v. Hays, 5 Adolph. 
 & Ellis, 548, We think, therefore, it is no decisive objection to an 
 action by the plaintiffs, that the act done constituted, at the same time, 
 a contract between the defendants and Bradford, on which the latter 
 might provisionally have had a remed}', in case the plaintiffs should 
 not assent to, and enforce the contract, so far as it was intended for 
 their benefit. 
 
 From this view of the cas e, it is manifest that the (piestion whether 
 a particular transaction constitutes a cont ract, and between whom, 
 ^on which one part}' can have a remedy against another by I'udiciaJ 
 proceedings must depend upon the law governing such contract, as. 
 
 w ell as thft law of the forum w here it is sought to be enforced. Thfi 
 
 remedy may be sought in the form of an action at law^^ur. a bilLia 
 
 ^c[uity.,jir_lM!Jbj'£Jiiij;.spedgJ_tvLbunal, according ta tl4e4arW^-of-tbe^>k;ee- — 
 where jtJs-SQUgbJbiL^ut the qnestiojLwliether-a-partteiriaract ur iirstru- 
 
 ^ent constitutes .a coati-act, and between what parties, is previousJn 
 
 "jts nature^aaidJiiust-genei-ally be settled before any question of rcmedy- 
 
 _ariaes^_— - 
 
 What then is the law of the contract, or, in other words, what law I , 
 determines whether an act done constitutes a contract, and if so, be-y 0^^ 
 tween whom and to what effect? The general rul e certainly is, that _the 
 lex loci co ntractus d etermines the nature jind jegaLqAt alit}' of th e-ajd£ 
 
 "doneT~whether it constitutes a contract ; the nature and validi ty, ob li- 
 gatioii a lKfle gaT effect of such c o ntract ; and furnishes the rule of con^ 
 struction and interpretation. There ma}', perhaps, be exceptions to 
 this rule ; as wliere partTes happen to meet on a desolate island in a 
 savage country, where the principles of commerce and civilization do 
 not prevail, or where a settled municipal law is not enforced or re- 
 garded. Perhaps such would be the construction of a contract between 
 American or European merchants in China, who rather reside on the 
 confines of that empire than live under its government; and where 
 they may be presumed to have reference, in their dealings, to the gen- 
 eral laws and usages of tlie commercial world, without regard to the 
 laws of the people with whom they temporarily reside. But a contract, 
 made in one country, may contemplate the execution of deeds or other 
 contracts, making payments, or doing other legal acts in another ; in 
 regard to which, the law of the foreign country, wliere the act is to be 
 done, will govern the contract ; and the obligation of such contract 
 will bind the contracting party to do all such legal acts according to 
 the law of the place where they are to operate, so as to have their full 
 legal effect. As if a person in one country should contract to convey 
 land in another ; the general rule being that the lex loci rei sitce fur-
 
 484 CAKNEGIE V. MOERISON. [CHAP. X. 
 
 nishes the rule which regulates titles and conveyances of real estate, 
 the true construction and legal effect of such contract would be that 
 the convej'ance should be executed in such form as effectually to trans- 
 fer the title according to the law of the place where the land lies. If 
 the land were in Massachusetts, where the law requires the execution 
 and acknowledgment of a deed, it would bind the contracting party to 
 execute and aclvnowledge such deed, though made in a countr\' where, 
 by its municipal law, a deed would not be necessary. If the stipulation 
 be that the drawee shall accept a bill in a foreign country, and the law 
 of that countrj' require that a valid acceptance shall be in writing, 
 though not required by the law of the place wliere drawn, it is a con- 
 tract that the drawee shall accept the bill in writing. 
 
 That the transaction now in question constituted a good contract to 
 some purpose, and between some parties ; that it was made on a good, 
 valuable, and adequate consideration, and made in Massachusetts, is 
 not contested. Then the rule prima facie is, that the construction 
 and legal effect of this transaction are to be determined by the law of 
 Massachusetts. That is the law which must be regarded, in the first 
 instance, in deciding whether the act done constituted a contract, and 
 if so, between whom, and to what effect, and must prevail unless the 
 case falls within some exception to the general rule ; and the question 
 is whether it does. It is true that the parties to this suit are both 
 foreigners, one residing in Sweden and the other in England. This, 
 however, is immaterial, and only respects the question who may sue 
 and be sued in our courts. By the comity of nations, alien friends are 
 allowed the benefit of our courts in seeking their civil rights as plain- 
 tiffs ; and the defendants, by placing their property' under the control 
 and protection of our government, place themselves within the juris- 
 diction of our courts. But the immediate actors in the transactions 
 were here. Bradford, the prime mover, who opened and conducted the 
 negotiation, paid the consideration, and caused the obligation to be 
 entered into, was a resident citizen of Massachusetts ; and though in 
 legal strictness he might not be considered as the agent of the plain- 
 tiffs before the}' had assented to and adopted his act, yet still he so far 
 acted for them as to procui'e a stipulation, which, if executed, would 
 inure to their benefit. The other party, though domiciled abroad, were 
 here for the purpose of conducting mercantile and financial business by 
 their regularly constituted resident agent. The money was paid, or the 
 security given, in Boston, which constituted the consideration for the 
 defendants' undertaking. The negotiation, which terminated in giving 
 the letter of credit, was commenced and completed in Boston. 
 
 That some things are referred to foreign laws and usages, in this 
 agreement, is manifest in the instrument itself. The words, "on the 
 usual terms and conditions," are obviously of this character. They 
 refer to the laws and usages both of Sweden and England. All parties, 
 of course, knew that the credit was to be given b}' the defendants by 
 means of bills of exchange, although this is not expressed in terms.
 
 SECT. III.] CAENEGIE V. MORRISON. 485 
 
 Supposing that the object was that this credit should be afforded by 
 means of bills of exchange, to be drawn by Carnegie & Co. in Gotten- 
 bnrg, on Morrison & Co. in London, the instrument refers to the laws 
 atiJ usages of Sweden for the mode of drawing, and to those of Eng- 
 land for the mode of acceptance ; and the legal effect and obligation of 
 the contract in Boston are that the parties will respectivel}' conform to 
 those Iii.vs and usages in the performance of their respective acts. But 
 it is not as to the non-observance of an}- of these that the question 
 arises. The gravamen of the complaint is that the defendants have 
 violated the obligation of their contract in its entire substance. It 
 becomes, therefore, necessary to inquire and ascertain more exactly 
 what that contract, in its legal effect and operation, was. The sub- 
 stance of the undertaking of the defendants ma}', we think, be sim- 
 plified and expressed thus : Whereas, John Bradford is indebted to 
 Messrs. C arnegie & Co. of G otten jpu rg, in th e sum of £3,000, and has 
 requested us_ to pay them that amount for h i m, by m eans of bills of__ 
 exch ange to be drawn on us at LondoxL : we hereby, for value received 
 
 ^ofTiim for that purpose, to our satisfac tion, promise to accept their 
 bills~To that am ount, payable to t hemselves or their order, and pay 
 
 ~^theDa~ac cordingly . 
 
 The question is, supp osing a general failu re in the performancejof^ ; 
 this undertaking, who is entitled to a re medy fo r such breach^a,nd b^ ^ 
 what law shall this question be deteriningd ? The assurance or promise 
 is hi'terms macTeTo'^adford ; but the substantial benefit to be derived 
 from the performance of it would be the plaintiffs', and therefore the}'' 
 are damnified by the breach. Bradford had procured the defendants to 
 pay his debt for him to the plaintiffs for a satisfactory pecuniary con- 
 sideration, and immediately gave notice thereof, and remitted the con- 
 tract to the plaintiffs, who assented to and accepted it. It may be 
 fairly presumed that, but for this transaction, Bradford would have 
 adopted some other mode of remittance. Regarding it as a question of 
 principle and not of technical law, it was an undertaking in which the 
 plaintiffs had an interest nearly or quite as direct, and as great, as if 
 the promise had been in terms to them, or the negotiation had been 
 with them ; or as if the instrument had been a promissory note, pro- 
 cured by Bradford to be made payable to them, in consideration of 
 money paid and security given by him. and such note afterwards re- 
 mitted to and received by them. Upon these facts, the court are of 
 opinion^ that the construction, the o"BTigati6n, the legal effect and oper- 
 ation of this transaction are to-be governed by the law of Massachu- 
 setts: So far as this transaction constltuteTr"a legal and binding 
 ""contact at all, it was, we think, by force of the law of the place of 
 contract operating upon the act of the parties, and giving it force as 
 such. The undertaking, it is true, was to do certain acts in England, 
 to wit, to accept and pay the i>laintiffs' bills ; but the obligation to do^ 
 those acts was_created here , by force of the law of this_State^giving 
 force ancTeffect to the uliclertaking of the defendants' agent, and ma]^
 
 ' ^6 AEBUCKLE V. REAUME. [CHAP. X. 
 
 hg it a contract binding on them. Supposing tlie law of England had 
 provided that no letter of credit should be issued, unless under seal, or 
 stamped, or attested by two witnesses, or acknowledged before a no- 
 tar\-, is it not clear that, as no such formalities are required by our 
 laws, a letter of credit made here would be held good without such for- 
 malities? "VVe thiuk it would be so held even in England, under the 
 authority of the general rule, that a contract, valid and binding at the 
 place where made, is binding ever^'where. There is no reference, tacit 
 or express, in this instrument, to tlie laws of England, which can raise 
 a presumption that the parties looked to them as furnishing the rule of 
 law which should govern this contract. It was, therefore, in our opin- 
 ion, in legal effect, a contract made in Massachusetts by parties, both 
 of whom were here by their agents, or persons acting for their benefit 
 and in their behalf, and therefore the nature, obHgation, and effect of 
 this contract must be governed by the law of this Commonwealth. 
 
 ARBUCKLE v. REAUME. 
 Supreme Court of Michigan. 1893. 
 
 [Reported 96 Michigan, 243.] 
 
 Long, J/ This action was brought to recover upon two promissory 
 notes, dated February 4, 1889, and executed and deUvered to the plain- 
 tiffs' agent in this State, but payable at plaintiffs' office, at Toledo, Ohio. 
 The defendant, Peter Donnelly, pleaded the general issue, and denied 
 the execution of the notes. The other defendants did not appear, and 
 were defaulted. 
 
 It was admitted that, while the notes bore date as of Monday, they 
 ■were in fact executed and delivered to the agent of the payees in this 
 State on Sunday. The court below ruled that, though the notes were 
 executed and delivered in this State on Sunday, yet, the testimony 
 showing that the office of the plaintitis was in Ohio, and the contract to 
 be performed there, that tliey were not void, under section 2015, How. 
 Stat., as the laws of Ohio, and not of Michigan, governed the transac- 
 tion ; and judgment was given in favor of tlie plaintiffs. . . . 
 
 The court below was in error in holding that the notes could be 
 
 1 Part of the o])inion is omitted. — En.
 
 SECT. III.] BAXTER NATIONAL BANK V. TALBOT. 487 
 
 enforced here b}' reason of being made payable in Ohio. Parties can- 
 not be allowed to defy our laws, and recover upon a contract void from 
 its inception under our statute, by making the place of payment out of 
 the State. 
 
 It is an elementary' principle that one who has himself participated 
 in a violation of law cannot be permitted to assert in a court of jus- 
 tice any right founded upon or growing out of the illegal transaction. 
 7 Wait, Act. & Def. p. 114 ; Myers v. Meinrath, 3 Amer. Rep. 371. 
 
 The judgment must be reversed, and a new trial ordered. 
 
 The other justices concurred.^ 
 
 BAXTER NATIONAL BANK v. TALBOT. 
 
 SuPKEME Judicial Court of Massachusetts. 1891. 
 [Reported 154 Massachusetts, 213.] 
 
 Morton, J. The plaintiff seeks to recover in this suit from the de- 
 fendant as indorser on five promissor}- notes, and to reach and apply in 
 payment of them the interest of the defendant in a partnership of which 
 he is a member. The notes were made by the Esperanza Marble 
 Company, to its ow-n order, were indorsed in blank b}' it and the 
 defendant, and b}' two other parties, and were all made pa3'able at 
 the " Baxter National Bank, Rutland, Vt.," which we assume to be 
 the plaintiff bank. This suit is against the defendant alone. .T he- 
 defendant in his answer alleg ed^t bat his indorsement was mad e and took 
 effect as a contract in the State of Vermont, and that by the law of , 
 that State bis obligation depended, as between th*^ plaintifF ?^]^d Vfimspjfr 
 or any other uartv takinof the notes wit l^ nntire. np"" ^hp nnrlpr^f,anding 
 or agreement. bpt,\Y^pn t.hp. b.ink and himself a t the t.imp whpn eanh in- , 
 d orsement was made in regard to said indorsement . The defendant 
 further alleged that his indorsei£.8nt was in fact made subject to an 
 oral agreement with the plaintiff, which the defendant has fully per- 
 formed, that " he was not to be liable thereon except to the amount 
 of any moneys which he might receive upon a certain mortgage upon 
 property in the State of New York." At the trial, the defendant 
 offered testimony tending to prove these allegations. The court re- 
 ceived it de bene, and at the conclusion of all the testimony ruled that 
 the lex fori and not the lex loci contractus, must govern the case ; 
 that the oral agreement and the evidence tending to prove it were inad- 
 missible and immaterial, and could not be considered by the jury. The 
 defendant excepted to this ruling, and the question before us is as to its 
 correctness. 
 
 1 Ace. Swann v. Swann, 21 Fed. 299 ; McKee v. Jones, 67 Miss. 405, 7 So. 348 
 ^Ed.
 
 4S8 BAXTER NATIONAL BANK V. TALBOT. [CHAP. X. 
 
 The testimon}' introduced b}- the defendant tended to show the fol- 
 lowing, among other facts, in regard to liis indorsement of the notes ia 
 suit. In January-, 1887, the plaintiff banlc held overdue notes which it 
 had discounted for the Esperanza Marble Company of New York, but 
 which had its usual place of business in Rutland. Part of these notes 
 were indorsed by the defendant. The plaintiff also held a mortgage on 
 certain property in New Yorli as collateral to these notes, but found it 
 inconvenient to attend to its collection, and requested the defendant to 
 attend to it in its behalf; and it was orally agreed between the defend- 
 ant and the plaintiff that the mortgage should be assigned to the de- 
 fendant, and that he shouki collect the same and pay over the proceeds 
 to the bank. It was also orally agreed that the notes held by the bank 
 against the Marble Company should be surrendered to it and new notes 
 given by it therefor, which should be indorsed by the defendant and 
 the other two parties whose names are on the notes in suit, and that 
 the notes should be renewed from time to time as they fell due, the 
 renewals being indorsed by the same parties, until the total amount 
 collectible on the mortgage had been received and paid over by the 
 defendant to the plaintiff bank. It was further orally agreed that 
 the defendant should not be liable on his indorsements beyond the 
 amount which he might receive on account of the mortgage and fail to 
 pay over to the plaintiff, and that he should be held liable on his in- 
 dorsements onl}' to secure the performance of his agreement to collect 
 and pay over on account of the mortgage. The agreement thus made 
 was carried out. The overdue notes of the IMarble Company were sur- 
 rendered to it, and new notes, indorsed by the defendant and the other 
 pai-ties, were taken in their stead. These have been renewed from time 
 to time, the renewals being indorsed by the same parties, and the notes 
 in suit are renewals of said original notes. The notes have all been 
 made payable at the plaintiff bank in Rutland, and the defendant's in- 
 dorsement upon all of them was made and took effect as a contract 
 made in Vermont. The mortgage was assigned to the defendant, and 
 he has paid over to the plaintiff bank all the money which he has 
 collected under it. 
 
 The jury found by direction of the court that the notes in sui t wer e 
 nuulf p;i\able in the State^of Vermont, and that the defendant's indorse- 
 ment was niade and took effect as a contract in that State. 
 
 It is apparent that, if the lex fori is to govern, the"3eleiidant cannot 
 avail himself of the oral agreement entered into between the plaintiff 
 and himself. Adams v. Wilson, 12 Met. 138 ; Wright r. Morse, 9 Gray, 
 337. We do not think, however, that it should govern. It is c l ear^ 
 that in all that relates to a contrac t, to its nature and validi ty and iiv; 
 terpretatioji, the law of the place where it is made yf^v»'-"°- — Gftojegia. 
 V. Morrison, 2 Met. 381 ; Milliken i'. Pratt, 125 Mass. 374; Shoe & 
 Leather National P>ank v. Wood, 142 Mass. 563 ; Fonseca v. Cunard 
 Steamship Co., 153 Mass. 553 ; Nichols i'. Mase, 94 N. Y. 160 ; Buzzell 
 V. Cummings, 61 Vt. 213 ; Forepaugh r. Delaware, Lackawanna, &
 
 SECT. III.] BAXTER NATIONAL BANK V. TALBOT. 
 
 489 
 
 Western Railroad, 128 Penn. St. 217; Liverpool & Great Western 
 Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 453. The law of the 
 p lace where the contract is _made is, without am; express assent or^ 
 agreement of the parties, incorporated into and forms a part of tLe 
 contract^ ContraclsjiSe^cisJumed to be made with reference to the 
 /H!aw of the place where they are entered iutOj unless it appears thaC 
 ) ttiey were entered into with reference to the law of some other State qy 
 J comrtfjT^ Central Bank of Washington v. Hume, 128 U. S. 195, 207 ; 
 ' Chopin V. Dobson, 78 N. Y. 74. 
 
 *' A contract vali d in the State or country where it is mad^ jvUl be^n- 
 forced^ve n in a State or country where it would be invalid, p rovided it 
 be not th^e cont rary to public policy or morals . Parsons v. Trask, 
 7^ra3', 473; Milliken v. Pratt, 125 Mass. 374; Fonseca v. Cunard 
 Steamship Co., 153 Mass. 553; Forepaugh v. Delaware, Lackawanna, 
 & Western Railroad, 128 Penn. St. 217. 
 
 Oil, the othe r hand, it is equally clear that, in all that relates to the 
 procedure for'eiifoi-cing a~contract,~the law of the forum controls. Car- 
 negie u. Morrison, 2 Met. 381 ; Hoadle}' v. Northern Transportation 
 Co., 115 Mass. 304; Shoe & Leather National Bank v. Wood, 142 
 Mass. 563. Thus the form in which and the parties by or against 
 whom the action shall be brought, the competency of the evidence 
 offered to establish the alleged cause of action, whether the cause or 
 action is barred by the statutes of limitation, whether a party can main- 
 tain an action in his own name or is obliged to use that of another, 
 whether a contract is negotiable, and whether it is to be sued on as a 
 specialty or as a simple contract, with many other similar things, have 
 been held to be matters affecting the remedy, and therefore to be gov- 
 erned by the law of the forum. Pearsall v. Dwight, 2 Mass. 84 ; Orr 
 V. Amory, 11 Mass. 25 ; McClees v. Burt, 5 Met. 198 ; Foss v. Nutting, 
 14 Grayl 484 ; Richardson v. New York Central Railroad, 98 Mass. 85 ; 
 Hoadley v. Northern Transportation Co., 115 Mass. 304; Leach v. 
 Greene, 116 Mass. 534; Drake v. Rice, 130 Mass. 410; Downer v. 
 Chesebrough, 36 Conn. 39 ; Leroux v. Brown, 12 C. B. 801 ; Stoneman 
 V. Erie Railway, 52 N. Y. 429. 
 
 It is sometimes difficult to decide whether the question raised in a 
 given case relates to the na.ture and validity of the contract or to the 
 remedy upon it. We think in the present instance it relates to the 
 former, and not to t5eTattei\~~TEe defendant contended that under 
 ttielaws of Vei^ont his obligation growing out of his indorsements was 
 not an absolute one, but depended, as between the parties, upon the 
 oral agreement or understanding between them, if any, at the time 
 when he placed his name upon the notes. The defendant further con- 
 tended that, when he placed his name upon the notes, he did so under 
 an oral agreement with the plaintiff bank, b}- the terms of which his in- 
 dorsement was only to be regarded as security for the payment by him 
 to the bank of the money that he might collect on the mortgage which 
 was assigned to him.
 
 490 BAXTER NATIONAL BANK V. TALBOT. [CHAP. X. 
 
 Assuming, as we must for the purposes of this case, that the law of 
 Vermont was as stated by the defendant, the testimony offered by him 
 bore clearl}- upon the nature and validity of the contract between him- 
 self and the bank. The defendant could not show what the agreement 
 was in any other way than that in which he offered to show it. It was 
 not an attempt on his part to vary a written contract, because, under 
 the law of Vermont, the indorsement did not of itself constitute an 
 absolute contract ; but, in order to determine what the contract was, 
 it was necessary to ascertain what agreements or undertakings were 
 entered into at the time, and in connection with and as part of the in- 
 dorsement. If there were none, then the contract between the plaintiff 
 and the defendant was the usual contract growing out of a blank in- 
 dorsement. If there were such undertakings or agreements, then they 
 entered into and formed a part of the contract of indorsement. The 
 evidence was rejected, not because it would have been incompetent to 
 prove the facts which it was offered to establish, had the contract been 
 valid in this State, but on the ground that it related to a matter affect- 
 ing the remedy. Back of the question of remedv, however, lies the 
 question of the contract itself, and we think the evidence should have 
 been allowed as bearing upon that. See Powers v. Lynch, 3 Mass. 77 ; 
 Williams v. Wade, 1 Met. 82 ; Shoe & Leather National Bank v. Wood, 
 142 Mass. 563; Trimbe}' v. Vignier, 1 Bing. N. C. 151 ; Burrows v. 
 Jemino, 2 Strange, 733 ; Wattson v. Campbell, 38 N. Y. 153 ; Dunn v. 
 Welsh, 62 Ga. 241 ; Forepaugh v. Delaware, Lackawanna, & Western 
 Railroad, 128 Penn. St. 217. 
 
 The plaintiff objects that there was no issue framed upon the laws of 
 Vermont. But the ruling of the court rendered such an issue imma- 
 terial ; besides, an issue could at any time have been framed, in the 
 discretion of the court, if satisfied that justice required that it should 
 be done, or the court could hear and pass upon the question itself. 
 Atlanta Mills v. Mason, 120 Mass. 244. 
 
 Exceptions sustained.
 
 SECT. III.] ANDREWS V. POND. 491 
 
 ANDREWS V. POND. 
 
 Supreme Court of the United States. 1839, 
 
 [Reported 13 Peters, 65.] 
 
 Taney, C. J.^ This case conies before the court upon a writ of error, 
 directed to the judges of the Circuit Court for the Ninth Circuit and 
 Southern District of Alabama. 
 
 The action was brought b}' the plaintiff as indorsee, against the de- 
 fendants as indorsers of a bill of exchange in the following words : — 
 
 "New York, March 11, 1837. 
 "Exchange for $7287 J^^. 
 
 " Sixty days after date of this first of exchange, second of same 
 tenour and date unpaid, pay to Messrs. Pond, Converse, and Wads- 
 worth, or order, seven thousand two hundred and eighty-seven j^^^ 
 dollars, negotiable and payable at t he Bank o f Mobile, value received, 
 
 which place to the account of 
 
 " Your obedient servant 
 
 «' To Messrs. Sayre, Converse «fe Co., ) " D. Carpenter." 
 
 Mobile, Alabama." j 
 
 The case, as presented by the record, appears to be this. The cle- 
 fendants were mercha n ts, residing in Mobile, in the State of Alabama. 
 H M. Andrpws_ & (Jo. were mercha iitS— reaLding: .iii_-N^a__X£U-k ; and 
 BeloreTEe'above-nientioned bill was drawn, the defendants had become 
 liable to H. M. Andrews & Co. as indorsers upon a former bill for 
 $6,000; drawn by E. Hendricks on Daniel Carpenter, of Montgomery, 
 Alabama. The last-mentioned bill was dated at New York, and fell 
 due on the 21st of February, 1837, and was protested for non-payment. 
 
 The defendant Pond, it seems, was in New York in the month of 
 March, 1837, shortly after this protest ; when H. M. Andrews & Co. 
 threatened to sue him on the protested bill : and the defendant Pond, 
 rather than be sued in New York, agteed to pay H. M. Andrews & Co. 
 ten per cent damages on the protested bill, and ten per cent interest 
 and exchange on a new bill to be given, besides the expenses on tlie 
 protested bill. 
 
 According to this agreement, an account, which is given in the record, 
 was stated between them on the 11th of March, 1837, in which the 
 defendants were charged with the protested bill and ten per cent dam- 
 ages on the protest, and interest and expenses, which amounted alto- 
 gether to the sum of $6,625.25, and ten per cent upon this sum was 
 then added, as the difference of exchange between Mobile and New 
 York, which made the sura of $7,287.78 ; for which the defendant Pond 
 delivered to H. M. Andrews & Co. the bill of exchange upon which 
 
 1 Part of the opinion only is given. — Ed.
 
 492 ANDREWS V. POND. [CHAP. X. 
 
 this suit is brought, indorsed by the defendants in blank. The bill was 
 remitted hy H. M. Andrews & Co. to S. Andrews, at Mobile, for col- 
 lection. The drawees refused to accept it, and it was protested for 
 non-acceptance ; and after this refusal and protest it was transferred 
 bv S. Andrews to J. J. Andrews, tiie present plaintiff. It is stated in 
 the exception, that after this transfer it was a cash credit in the account 
 between H. M. Andrews & Co. and S. Andrews. The bill was not 
 paid at maturity, and this suit is brought to recover the amount. 
 
 There is no question between the parties as to the principal or dam- 
 ages of ten per cent charged for the protested bill of $6,000 ; nor as 
 to the interest and expenses charged in the account herein before 
 mentioned. The defendants admit that the principal amount of the 
 protested bill, the damages on the protest which are given by the act 
 of Assembly of New York, and the interest and expenses, were properly 
 charged in the account. The sum of $6,625.25 was therefore due from 
 them to H. M. Andrews & Co. on the day of the settlement, payable in 
 New York. The dispute arises on the item of $662.53, charged in the 
 account as the difference of exchange between New York and Mobile, 
 and which swelled the amount for which the bill was given to $7,287.78. 
 The defendants allege that the ten per cent charged as exchange was 
 far above the market price of exchange at the time the bill was given, 
 and that it was intended as a cover for usurious interest exacted by the 
 said H. M. Andrews & Co. as the price of their forbearance for the 
 sixty days given to the defendants. This was their defence in the Cir- 
 cuit Court, where a verdict was found for the defendants under the 
 directions given by the court. 
 
 Many points appear to have been raised at this trial, which are 
 stated as follows, in the exception taken by the plaintiff. 
 The defendant offered evidence, — 
 
 1. To pr ove that th e said bill of exchange was usmjous, according 
 to_tlie , statute and ja gs of th e_Jiiat e of New Y m:k^~ The plain titt' o b- 
 jected to the reading of the statuteaiic J depositions a foresaid^ because 
 thFcohtl'act was not made witli a"vIewof _the_ statute or laws of Ne w 
 VorZ — BTTt the bilF of "Exchange was usury or not by the laws and 
 """statutes of Alabama ; and that the contract was subject only to the 
 laws of the State of Alabama, as to its obligatory force and validity ; 
 and he further objected, that if this contract were to be decided by 
 the statute of New York, that this proof could not be given under 
 this issue ; but the court overruled all these objections, and permitted 
 the depositions and statute to be read, to show the bill of exchange to 
 be void by the laws of New York : to all which plaintiff excepts. . . . 
 
 Plaintiff moved the court to charge the jury that the contract ex- 
 pressed in this bill of exchange, if to be executed in Alabama, was 
 sul)ject alone to the laws of Alabama against usury ; and that the usury 
 laws of New York had no force, or anything to do with this investiga- 
 tion. This was refused by the court, and plaintiff excepts. . . . 
 
 Upon the whole case, and the several points stated, the court charged
 
 SECT. III.] ANDREWS V. POND. 493 
 
 the jury that ... if they believed from the evidence that the drawers 
 of the bill of exchange contracted with the drawee in the State of New 
 York, at the time the bill was drawn, for a greater rate of interest than 
 seven per centum per annum, for the forbearance of the paj'ment of 
 the sum of monej- specified in the bill, although it ma}- have been taken 
 in the name of exchange, the contract is usurious ; and unless the}' 
 believe from the evidence that the plaintiff took the bill in the regular 
 course of business, and upon a fair and valuable consideration Jo?;a 
 fide paid by him, and without notice of the usurj', they ought to find 
 for the defendants, otherwise for the plaintiff. . . . 
 
 Another ciuestion presented by the exception, and much discussed 
 here, is, whether the validity of this contract dep ends^ji^ pon the laws o f 
 New York or th^se of Alabama,. So far as the mere question of usury 
 IS concerned this question is not very important. There is no stipula- 
 tion for interest apparent upon the paper. The ten per cent in contro- 
 vers}' is charged as the difference in exchange only, and not for interest 
 and exchange. And if it were otherwise, the interest allowed in New 
 York is seven per cent, and in Alabama eight ; and this small differ- 
 ence of one per cent per annum upon a forbearance of sixty days could 
 not materiall}' affect the rate of exchange, and could hard!}' have any 
 influence on the inquiry to be made by the jury. But there are other 
 considerations which make it necessary to decide this question. The 
 laws of New York make void the instrument when tainted with usury; 
 and if this bill is to be governed b}' the laws of New York, and if the 
 jury should find that it was given upon a usurious consideration, the 
 plaintiff would not be entitled to recover, unless he was a bona fide 
 holder, without notice, and had given for it a valuable consideration ; 
 while by the laws of Alabama he would be entitled to recover the prin- 
 cipal amount of the debt, without an}' interest. 
 
 The gene ral p nnciple in relation to con tracts made in one place to be 
 executed in another, is wellsettl ed. TEey are to be governed by the 
 l aw of the place of performance, and if the interest .nllowed by the law s 
 \ Mthe place of per formamie is higher thnn t.hn t, pprrpltted at the place 
 ^of the contract tliP pnrti'pg mny stipul ate for tlie higher interest withou t 
 incurpJBg. tb.e i)enn]fips of usury.— And in the case before us, if the 
 defendants had given their note to H. M. Andrews & Co. for the debt 
 then due to them, payable at Mobile, in sixty days, with eight per cent 
 interest, such a contract would undoubtedly have been valid, and would 
 have been no violation of the laws of New York, although the lawful 
 interest in that State is only seven per cent. And if in the account 
 adjusted at the time this bill of exchange was given it had appeared 
 that Alabama Interest of eight per cent was taken for the forbearance 
 of sixty days given by the contract, and the transaction was in other 
 respects free from usury, such a reservation of interest would have 
 been valid and obligatory upon the defendants, and would have been 
 no violation of the laws of New York. 
 
 But that is not the question which we are now called on to decide.
 
 494 andi;ews v. pond. [chap. x. 
 
 The defendants allege that the contract was not made with reference 
 to the laws of either State, and was not intended to conform to either. 
 That a rate of interest forbidden by the laws of New York, where the 
 contract was made, was reserved on the debt actually due, and that it 
 was concealed under the name of exchange, in order to evade the law. 
 Now if this defence is true, and shall be so found b}- the jury, the 
 question is not which law is to govern in executing the contract, but 
 which is to decide the fate of a security taken upon an usurious agree- 
 ment, which neither will execute? UnquestionabU', it must be the law 
 of the State where the agreement was made, and the instrument taken 
 to secure its performance. A contract of this kind cannot stand on the 
 same principles with a bona Jide agreement made in one place to be 
 executed in another. In the last-mentioned cases the agreements were 
 permitted by the lex loci contractus, and will even be enforced there, 
 if the party is found within its jurisdiction, ,' But the same rule cannot 
 be applied to contracts forbidden by its laws and designed to evade 
 them. / In such cases tlie legal consequences of such an agreement 
 must be decided b\- the law of the place where the contract was made. 
 If void there, it is void every where ; and the cases referred to in Story's 
 Conflict of Laws, 203, fully establish this doctrine. 
 
 In the case of De Wolfe v. Johnson, 10 Wheat. 383, this court held 
 
 that the lex loci contractus must govern in a question of usury, although 
 
 by the terms of the agreement the debt was to be secured by a mortgage 
 
 on real propert}- in another State. And the case of Dewar v. Shaw, 
 
 3 T. R. 425, shows with what strictness the English courts apply their 
 
 own laws against usury to contracts made in P^ngland. In ^he case 
 
 ,mider_co nsideration, the previous debt for which ^^ ^f^ ^^ill wnc npgotjgj^^od 
 
 was ,iiii£L-La- Now Y €>rtes--a_I3ML&f it, thati s to s oy, th<^ d-'i'"-''gps Qu the 
 
 ^_pi:Qtest_of_ the first bill, w ere giveiTB^' aTIaw of that State, and the xlebt 
 
 jYis th fn hpnn'ng' ^^hn IMnw Yni - k interest of seven per cent, as appear4, 
 
 \'\ ^h^ flr^*"*""!! Ilpfnrit rftfgri-p fl to. And, if in consideration of further 
 
 indul<ronce in the time of payment. X] \(\ pnrtipg sfipiilnted for a hig her 
 
 interest, n nd ^^ropc\ \o_ conceal it under the name of exchange, th( 
 
 validity of th e instrument, wh ich was exe cuted to carry this a"greemc nt 
 ~nnto cttect, musTb e determined by the laws nCJVew York, and not by , 
 thej aws of Ala hjun^. 
 
 In this aspect of the case another question arose in the trial in tlie 
 Circuit Court. By the laws of New York, as the}' then stood, usury 
 was no defence against the holder of a note or bill who had received it 
 in good faith, and to whom it was transferred for a valuable considera- 
 tion and witliout notice of the usur^'. Tlie present plaintiff claims the 
 benefit of this {irovision ; but upon the evidence in the case it is ver}' 
 clear that he does not bring liimself within it. The bill of exchange 
 was protested for non-acceptance while it was in the hands of S. Andrews, 
 the agent of H. M. Andrews & Co., to whom it had been sent for col- 
 lection ; and this fact appeared on the face of tlie bill at the time it 
 was transferred to the plaintiff. Now, a person who takes a bill, which
 
 SECT. III.] 
 
 BROWN V. NEVITT. 
 
 495 
 
 upon the face of it was dishonored, cannot be allowed to claim the 
 privileges which belong to a bona fide holder without notice. If he 
 chooses to receive it under such circumstances, he takes it with all the 
 infirmities belonging to it, and is in no better condition than the person 
 from whom he received it. There can be no distinction in principle 
 between a bill transferred after it is dishonored for non-acceptance, 
 and one transferred after it is dishonored for non-payment ; and this 
 is the rule in the English courts, as appears b}- the case of Crossley 
 V. Ham, 13 East, 498. Now it is evident that no consideration passed 
 between Carpenter, the drawer of the bill, and the defendants, who are 
 the payers and indorsers. The bill was made and indorsed by the 
 defendants for the purpose of being delivered toH. M. Andrews & Co., 
 in execution of the agreement for further indulgence. And if that 
 agreement was usurious, then the bill in question was tainted in its in- 
 ception, and that taint must continue upon it in the hands of the present 
 plaintiff.^ 
 
 BROWN V. NEVITT. 
 
 High Court of Errors and Appeals, Mississippi. 1854. 
 
 [Reported 27 Mississippi, 801.] 
 
 Handy, J.'^ This was a bill filed in the Southern District Chancery 
 Court by James Brown, appellant, against John B. Nevitt, to fore- 
 close a mortgage of real and personal property, executed by Nevitt to 
 
 1 By the prevailing doctr ine, where a contract is made in one iurisd ictinn to p^y 
 moncjjn ninnthpr,-a nd the contract is usurious by the law of one jurisdicti nn am] cmnd- 
 bv that oTthp other , the parties are said to be permitted to choose the one or the other 
 la w to (rnvprn their nhligatinn , provided they do SO bona fide : and t hey are presume^ 
 t/^^W vo f^l i Qcpp <-linf law wViipb sustains th p. rnntrarf,^ Junction R. R. v. Ashland Bank, 
 12 Wall. 226 ; Andruss v. People's B. & L. Assoc, 94 Fed. 57.5 ; Dygert v. Vermont 
 L. & T. Co., 94 Fed. 913 ; Pancoast v. Travelers' Ins. Co., 79 Ind. 173 (cf. Smith v. 
 Muncie Nat. Bank, 29 Ind. 158); Brown v. Freelaud, 34 Miss. 181 ; Coad v. Home 
 Cattle Co., 32 Neb. 761, 49 N. W. 757 ; Townsend v. Riley, 46 N. H. 300; U. S. S. & 
 L. Co. V. Shain, 8 N. D. 136, 77 N. W. 1006; Thorutou v. Dean, 19 S C. 583; Sharp 
 V. Davis, 7 Baxt. 607 ; Fisher v. Otis, 3 Chaud. 83. If, however, the jjlacejjfjjflrjoaa; 
 ari PR js nnt hnna Hde agreed np nn, hut is namiid aa n , m Pana-^l£-&ya4iag -tllfiJlsUf-V-Iaffia 
 of the p ]f^';;p "f pnTi traptino' , the xont ract is usurioo ^. Nat. Mut. B. & L. Assoc, v. Burch 
 (Mich.), 82 N. W. 837 ; Meroney v. Atlanta N. B. & L. Assoc, 112 N. C. 842, 17 S. E. 
 637. See McAUister v. Smith, 17 111. 328. 
 
 In som e jurisdictions, however, gre ater stress is laid on_t.Ua- Inw of the , piftre of 
 perfo"r mance ; and a contract good by the law of the place of contracting but voiiJ 
 Ky't.hat _nf the place of performance is held invalid, unless the parties are sliowu to. 
 have intended otherwise. .lackson v. Amer. Mtg. Co , 8S Lk\. 756, 15 S. E. 812 ; Odora 
 c. N. E. Mtg. Sec. Co., 91 Ga. 505, 18 S. E. 131 ; Underwood v. Amer. Mtg. Co., 97 
 Ga. 238, 24 S. E. 847 ; Dickinson v. Edwards, 77 N. Y. 578. (See Sheldon v. Haxtun, 
 91 N. Y. 124). — Ed. 
 
 2 Part of the opinion only is given. — Ed. 
 
 
 ^r
 
 496 BROWN V. NEVITT. [ClIAP. X. 
 
 Brown, to secure a debt amounting to 832,500, and interest, consist- 
 ing of several notes made by Nevitt to Brown, one for the sum of 
 $4,833.33^, two for the sum of $10,833.33;^- each, all l)earing interest 
 at the rate of eight per centum per annum from their date, also two 
 drafts drawn hy Nevitt on Samuel Nicholson, agent for Brown, amount- 
 ing to the sum of $6,000, all bearing the same date of the mortgage, 
 and being payable at future daj^s. The bill states that the lirst note 
 and the two drafts had been paid, and claims that there was due on 
 the two notes for $10,833.33^-, a balance of principal and interest of 
 about $23,879.60, and seeks a foreclosure. 
 
 The answer of Nevitt denies his indebtedness to the amount claimed 
 in the bill, and alleges that the contract sought to be enforced against 
 him is usurious, unlawful, and against the form of the statute in such case 
 made and provided, and was made under the following circumstances: 
 That Nevitt agreed with Nicholson, agent of Brown, that Brown should 
 lend and advance to him the sum of 832,500, on a credit of one, two, 
 and three jears, in equal annual instalments, to be secured b}- mort- 
 gage and to bear interest at the rate of eight per cent per annum from 
 the date of the transaction ;Vthat $10,000 of this amount was to be ad- 
 vanced b}' Brown, b}' causing a credit for that sum to be entered for 
 Nevitt on the books of the Planters' Bank at Natchez, and the sum of 
 SI 6, 500 of the money advanced was to be by a credit to that amount to 
 be entered for Nevitt on the books of the Commercial Bank of Rodney ; 
 and the residue of said amount, $6,000, was to be advanced in cash to 
 Nevitt on the 1st of January thereafter ; that the credits were accord- 
 ingly given on tlie books of the banks, and the sum of S6,000 was paid 
 in cash, but that although the credits received on the books of the 
 banks were at their nominal amounts, they were, at the time they were 
 received, at a depreciation of twenty or twenty-five per cent below law- 
 ful money ;\that the notes and mortgage were executed for the credits 
 so given, in part as for a loan and advance of so much money by Brown 
 to Nevitt, and with the intention to require a greater rate of interest 
 than was allovved by our laws. ... It is insisted in behalf of tlie ap- 
 pellant, that as these notes were made payable in Louisiana, they are 
 to be governed by the law of that State; and as it is not shown that 
 the contract was usurious by the law of that State, that it cannot be 
 held to be usurious under our laws. This argument would have much 
 force if the objection to this transaction was merely that a rate of in- 
 terest not permitted by our laws, but allowable by the laws of Louisi- 
 ana, was claimed or charged bona fide., and not with the view of evading 
 our laws upon tlie subject ; for in such a case, the law of the place of 
 performance of the contract would govern it. But a much more seri- 
 ousj)biection_is _ruised t £Ltliis-££Ln tract. The usury is alleged to consist, 
 not in tifce stipulation for a rate of interest upon a legal loan not allowed 
 by our laws, though legal in the State of Louisiana, but in loaning or 
 selling depreciated bank securities as if they were worth their nominal 
 value, by means of which an illegal rate of interest and a usurious
 
 SECT, III.] AKEKS V. DEMOND. 497 
 
 profit upon the real value loaned or sold would be realized. _The_objec-__ 
 tion is, that the co nsideration of the co ntract is illeg al, becaus e the 
 appeJ lant thereby reserved, as a component ' parFof IheL- principal su in 
 i ntended to be sf^cnred, a usurious rate of in terest_JlipQn the sum ad-_ 
 vanced, t his bpin o- inhpront in the transaction^ and necess arily governed 
 by the laws of this State, where it was actually don e/~T?uch a tnills- 
 action is held to be prohibited bj- our laws, as is above shown ; and it 
 cannot stand on the same principles with a bona fide agreement made 
 in one place, to be executed in another. We canji rit rocofrniBO tho In^vs 
 of Louisiana as rendering valid a _cont ract made _jiere_and_SQUght_J^ 
 be enforced here, which is pro hibited by our law s^^The rule in such 
 cases is, that the agreement must stand or fall by the law of the place 
 where it was made. Andrews v. Pond et al.^ 13 Pet. 65 ; Story, Confl. 
 Laws, 203. 
 
 CHere the defendant alleges that a usurious interest and profit were 
 intended to be secured to the appellant, by means of the advance of 
 bank credits to the amount of $26,500, as at par, when they were at a 
 depreciation of from twenty to thirty per cent, retaining upon the nom- 
 inal amount interest at the rate of eight per cent per annum from the 
 date. V And these allegations are sustained by the evidence. It is shown 
 that the appellant's agent, who conducted the negotiation, was well 
 aware of the depreciation of the bank funds, and of Nevitt's great 
 desire to procure them ; that he would not transfer the sterling bonds, 
 which were somewhat more valuable than the general bank credits, and 
 were the kind of funds which he knew that Nevitt especiall}- desired to 
 purchase, and that he insisted that the bank credits should be received 
 by Nevitt at par ; that all the efforts of Nevitt to obtain the funds and 
 advances on better terms were unavailing ; that he had to come to 
 Nicholson's terms, take a smaller advance of acceptances than he 
 desired, take the bank debt at par, and pa}' interest at the rate of 
 eight per cent upon the whole amount. These circumstances show 
 that bj- the giving time of payment on the notes of Nevitt, an interest 
 and profit were intended to be secured, contrar}' to the law of this 
 State, and which cannot be carried into execution by our courts. 
 
 AKERS V. DEMOND. 
 Supreme Judicial Court of Massachusetts. 1869. 
 
 [Reported 103 Massachuseits, 318.] 
 
 Wells, J.^ The defence to this suit is, that the bills of exchange 
 are void for usury, under the laws of New York, where they were first 
 negotiated. The statute of New York, Eev. Sts. part 2, c. 4. tit. 3, § 5, 
 
 1 Part of the opinion only is given. — Eq. 
 32
 
 498 AKERS V. DEMOND. [CHAP. X. 
 
 declares such securities void " whereupon or whereby there shall be 
 reserved or taken or secured, or agreed to be reserved or taken," a 
 greater rate of interest than seven per cent. The Superior Court ruled 
 that, upon the testimony offered, no defence was established, and 
 instructed the jur^' to return a verdict for the plaintiffs. . . . 
 
 The testimon}' . . . tends to prove that the bills in suit were drawn 
 by Reed and indorsed by William H. Russell, the payee, in New York, 
 and accepted by the defendant in Boston, being upon their face ad- 
 dressed to him there. Both the acceptance and the indorsement were 
 for the accommodation of Reed. The possession of collateral security, 
 whether subsequent or at the time, does not change the character of 
 the acceptance or the relations of the parties. Dowe v. Schutt, 2 Denio, 
 621, After the return of the acceptances to Reed, by an arrangement 
 between him and the nominal payee, tlie latter procured the bills to be 
 discounted b}' the plaintiffs, at the rate of one and a half per cent a 
 month. The proceeds of one of the bills were retained by William H, 
 Russell, the payee, as a loan from Reed, and the proceeds of the other 
 handed over bv him to Reed. 
 
 As the case is now presented, in the absence of controlling testimony 
 on the part of the plaintiffs, the foregoing statement must be taken as 
 the result of the evidence. It shows tliat the transaction by which the 
 plaintiffs became holders of the bills was the original negotiation of the 
 paper ; a loan upon discount, and not a mere sale of the bills. The\' 
 are therefore open to the defence of usury. This is so clearl}' shown 
 to be the law of New York, by the decisions of the courts of that State 
 referred to in Ayer v. Tilden, 15 Gray, 178, as to require no further 
 citations. 
 
 Tlie defendant is entitled to set up tlie usury, although not paid by 
 himself, and althougli the loan was not made to liim nor on his account. 
 Van Schaack v. Stafford, 12 Pick. 565 ; Dunscomb v. Bunker, 2 Met. 8 ; 
 Cook V. Litchfield, 5 Seld. 279 ; Clark v. Sisson, 22 N. Y. 312. 
 
 The difficuU question in the case arises from the fact that the paper 
 was made payable in Boston. It is contended that the contract of the 
 acceptor is to be governed by the laws of the place where the bills are 
 made payable. The_g£i;eral principle is. that the Law _of t he^plaoe of 
 performance is the law ofUie^SCmtraet. — TlttSTTTtelipplies to the opera- 
 tionand effecFoTThc corrtraet, and to the rights and obligations of ITie. 
 'parties under it. But the question of its validity, as affected by the 
 legality of the consirloration, or of the transaction upon which it is 
 "Tounded*- and^ in ""wbich ft took its inception as a contract, must be de- 
 termined by the law^otthe -S tat e wl ^eye^that transaction was had. _No 
 other law con ap[)ly to it. ~ tJmnH-vm ft loan effected elsewhere, is no 
 offence against the laws of Massachusetts. In a suit upon a contract 
 founded on such a loan, the penalty for usury could not be set up in 
 defence, under the statutes formerly in force in this Commonwealth. 
 Neither can a penalty, as a partial defence, authorized by the laws of 
 one State, be applied or made etFective in the courts of another State.
 
 SECT. III.] AKERS V. DEMOND. 499 
 
 Gale V. Eastman, 7 Met. 14. Such penal laws can be administered 
 only in the State where they exist. But when a usurious or other 
 illegal consideration is declared by the laws of any State to be incap- 
 able of sustaining any vaUd contract, and all contracts arising there- 
 from are declared void, such contracts are not only void in that State, 
 but void in every State and everywhere. They never acquire a legal 
 existence. Contracts founded on usurious transactions in the State of 
 New York are of this character. Van Schaacli v. Stafford, 12 Picli, 
 565 ; Dunscomb v. Bunker, 2 Met. 8. | The fact that the bills now in 
 suit were accepted in Boston and were payable there does not exempt 
 them from this operation of the laws of New York. \ They were mere 
 " nude pacts," with no legal validity or force as contracts, until a con- 
 sideration 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. Little v. Rogers, 1 ]Met. 108 ; Cook 
 V. Litchfield, 5 Seld. 279 ; Clark v. Sisson, 22 N. Y. 312 ; Aeby v. 
 Rapeiye, 1 Hill, 1. By the statutes of New York, that transaction was 
 incapable of furnishing a legal consideration; and, so far as the bills 
 depend upon that, they are absolutely void. The original validity of 
 such a contract must be determined by the law of the State in which it 
 is first negotiated or delivered as a contract. Hanrick v. Andrews, 9 
 Port. 9 ; Andrews v. Pond, 13 Pet. 65 ; Miller v. Tiffany, 1 Wall. 298 ; 
 Lee V. Selleck, 33 N. Y. 615. 
 
 There is no pretence that a discount of one and a half per cent a 
 month was justifiable by reason of any added exchange between New 
 York and Boston ; nor that it was otherwise than usurious, if any 
 amount of charge upon paper payable elsewhere than in New York 
 would be usurious there. It has often been held, in States where re- 
 strictions upon the rate of interest are maintained, that it is not usury 
 to charge upon negotiable paper whatever is the lawful rate of interest 
 at the place where the paper is payable, although greater than the rate 
 allowable where the negotiation takes place. V But if the paper is so 
 made for the purpose of enabling the larger rate to be taken, or the 
 greater rate is received with intent to evade the statutes relating to 
 usury, and not in good failh as the legitimate proceeds of the contract, 
 it is held to be usury. So also, if a greater rate is taken than is allowed 
 by the law of either State, it is usury.> Such a rate necessarily implies 
 an intent to disregard the statutes restricting interest. Andrews v. 
 Pond, 13 Pet. 65 ; Miller v. Tiffany, 1 Wall. 298. The legal rate of 
 interest or discount in Massachusetts is six per cent per annum ; and, 
 at the date of the negotiation of these bills, a greater rate than six per 
 cent was usurious and unlawful. 
 
 It follows, from these considerations, that, upon the evidence as it 
 now stands upon the part of the defendant, the transaction, upon which 
 alone the bills in suit must depend for a consideration to give them 
 validity as contracts, was illegal, and such as, under the laws of New 
 York, renders them utterly void. No action, therefore, can be main-
 
 500 SCOTT V. PERLEE. [CHAP. X 
 
 tained upon them in the courts of Massachusetts, unless the effect of 
 this evidence be in some waj^ overcome or controlled. The verdict for 
 the plaintiff must be set aside, and a liew trial granted} 
 
 SCOTT V. PERLEE. 
 
 Supreme Court of Ohio. 1883. 
 
 [Reported 39 Ohio State, 63.] 
 
 DoTLE, J. The findings and judgment of the court, where a case is 
 tried without the intervention of a jury, will not be disturbed b}' this 
 court, unless such findings and judgment are clearly against the weight 
 of the evidence. In the present case, the testimony, bej'ond what ap- 
 pears upon the face of the note, consists solel}' of that given by the 
 two parties, Scott and Perlee. Which of them was to be believed, 
 was a matter properly to be determined b}' the court trying the case, 
 and if the judgment can fairly be sustained upon the testimony of 
 either, it ought not to be reversed. Landis r. Kell^', 27 Ohio St. 571. 
 
 The court might well find from this testimony, if the plaintiff was 
 believed, that in the summer of 1870, the plaintiff was in Fairbury, 
 Illinois, wliere the defendant, Andrew J. Scott, resided ; that the latter, 
 desiring mone}- to carry on some building enterprises in which he was en- 
 gaged, in Illinois, applied to the plaintitf, who was his brother-in-law and 
 visiting him at the time, for a loan, agreeing to pay him therefor ten per 
 cent interest ; that the_plaintiff agreed to make the loan.npon the terms 
 named, upon defendant's note, with Henderson W. Scott, who lived in 
 Ohio, as suretv, and that without an}' further arrangement Scott wrote 
 the note at Fairbury, at which place he dated and signed it ; that it 
 was then sent to Ohio to the surety, who signed it and delivered it to 
 the pa^-ee, receiving the monej' in this State and forwarding it to the 
 principal, and that the parties intended in good faith, to contract with 
 reference to the law of Illinois, as to the rate of interest to be paid for 
 the use of the mone\-. 
 
 The question presented for our consideration therefore is, whether such 
 a contract, thus made, is usurious? That this contract was executed 
 in Ohio may be conceded ; although signed in Illinois by the principal 
 debtor and there dated, it was delivered in Ohio and was not a com- 
 pleted contract until delivery. The fact that the loan was negotiated 
 
 ^ In several jurisdictions a note invalid for usury where made is void, without regard 
 to the law of the place of payment. Falls r. Savings Co., 97 Ala. 417 ; Astor r. Trice, 
 7 Mart. n. s. 408 ; Atwater v. Walker, 16 N. J. Eq. 42; Maynard v. Hall, 92 Wis. .565, 
 66 N. W. 71.5. 
 
 In most jurisdictions a contract pood where made will not be affected hv the usury 
 laws of the place of payment. Sturdivant v. Bank, 60 Fed. 7.30; Amer. F'reehold M. 
 Co. V. Sewell, 92 Ala. 163 ; Fine v. Smith, II Gray, 38; Fcssenden v. Taft, 65 N. iL 
 39, 17 Atl. 713. — Ed.
 
 SECT, III.J SCOTT V. PERLEE. 501 
 
 for in Illinois in accordance with the written terras of the note, is not 
 insignificant, however, in determining the intention of the parties to 
 contract with reference to Illinois law. Findlay v. Hall, 12 Ohio St. 
 612. It is then, the case of a citizen of Illinois executing his note in 
 Ohio, in pursuance of an arrangement previously made in Illinois, for 
 money borrowed to be used in the latter State, with an agreement to 
 pay interest according to her laws, not intending or attempting thereby 
 to evade our usury laws, but in good faith. Is such a contract tainted 
 with usury? 
 
 Since the cases of Findlay v. Hall, 12 Ohio St. 610, and Kilgore v. 
 Dempsey, 25 Ohio St. 413, it is undoubtedly the law of this State, and 
 indeed it is now well established almost universally, that where a con- 
 tract is entered into in one State, to be performed in another, between 
 citizens of each, and the rate of interest is different in the two, the 
 parties may, in good faith, stipulate for the rate of either, and thus 
 expressly determine with reference to the law of which place that part 
 of the contract shall be decided. Where such a contract, in express 
 terms, prov ides for a rate of interest law ful in one but unlawf ul in fhp. 
 nthp r^Stfltp, t.hp. p artie s will be presumed to contract wij li referenrfi-to 
 the laws of the State w here the s tipulated rate is la wful^ nnd sncb-pwv 
 gpmpIl on_will prevail until overcome b y pr"^f that thp stipnlaJion wns 
 a s hift to impart validity to a contract for a rate of intaj-e.st. in, fnct 
 usuriou s. Fisher v. Otis, 3 Chandler, 102 ; Butters v. Old, 11 Iowa, 1 ; 
 Arnold v. Potter, 22 Iowa, 198; Newman r. Kershaw, 10 Wis. 340; 
 Horsford v. Nichols, 1 Paige, Ch. 225 ; Townsend v. Riley, 46 N. H. 
 300; Depau v. Humphreys, 20 Mart. (La.) 1; Fanning v. Consequa, 
 17 Johns. 511 ; Pratt v. Adams, 7 Paige, 615 ; Chapman v. Robertson, 
 6 Paige, 627 ; Richards r. Globe Bank, 12 Wis. 696. 
 
 If the parties to the note in question had expressly stipulated in the 
 note that it was payable in Illinois, the contract to pa}' ten per cent 
 interest would be perfectly valid, although the note was executed in 
 Oliio. Is it rendered invalid by reason of the omission to make that 
 express stipulation? Itjs not entirely settled by the authorities where 
 thisnote^;ag_ a matter of inter pretation, is payable, there being no place, 
 expressly stipulalg d ; b ut the~weight _of a'utliority an^^t he sounder reason, 
 we think, sustain the proposition, that a note dated and sig ned a t the 
 place of residence of the debtor, and cont aining stipulations, lawfuTunder, 
 the laws of sucli place, but forbidden by the law of the residenc e_ of the, 
 
 r».-oH.tr^r r.v wnnra the nntP wna nninplptorl hv f TplivPVV^ n n H rwo O^IPr 
 
 pTacC of payment ItT ' hHUKJd , will b(j IJI^'^Unied 'Tcrbemvab^e (\t th e 
 f ormer place, assu ming of course that no attempted evasion of the 
 "usury law of the latter is proved. In other words, in the absence of 
 any proof the presumption of law is that the note in (juestion is an 
 Illinois contract, and is vaUd both as to principal and interest. To 
 overcome this presumption the actual facts may be shown. It is shown 
 that tlie contract was delivered in Ohio ; but, taken in connection with 
 the other facts proved, that does not overcome the presumption that it
 
 502 SCOTT V. PEELEE. [CHAP. X. 
 
 is pajable in Illinois, where the debtor resides, where he dated and 
 signed his contract, and where alone it is legal according to all of its 
 terms. 2 Pai'sons on Contracts, 584, and cases cited ; Daniels' Neg. 
 Inst. § 90; Arnold v. Potter, 22 Iowa, 198 ; Tillottson v. Tillottson, 34 
 Conn. 336; Jewell v. Wright, 30 N. Y. 264. Where such express 
 stipulation would uphold the contract, if the same thing can fairly be 
 inferred from what is stipulated, it will likewise be upheld. 
 
 But, while we believe that this contract can be thus sustained, it is 
 not necessary to place the decision upon that ground. There is no 
 reason why a citizen of Illinois, or an}' other State, may not come into 
 Ohio and borrow money to be used in the State of his residence, and in 
 good faith contract with reference to the laws of the latter State, inde- 
 pendentl}' of where his note is executed or where it is legally' presumed 
 to be payable. In such case the only question is one of good faith. 
 Did he honest!}' contract with reference to the law of his allegiance, 
 the law of the State or countr}' where he lives ? 
 
 In Arnold v. Potter, 22 Iowa, 194, the note was made by a citizen of 
 Iowa, in Massachusetts, payable in New York, and the court instructed 
 the jury that "If defendant went to Boston and urged the loan and 
 promised ten per cent under the laws of Iowa, and all the arrangements 
 and contracts were made as to the laws of Iowa, in good faith, then the 
 defence fails and plaintiff can recover. If the parties in good faith 
 loaned and borrowed the money sued for with a full understanding that 
 the law of Iowa was to govern as to the interest, then the laws of New 
 York and IVIassachusetts can have no influence, but the understanding 
 of the parties must prevail." The Supreme Court in affirming this 
 charo-e say: "The form of the transaction is nothing, the cardinal in- 
 quiry being when the contract specifying the amount reserved is ex- 
 press, did the parties resort to it as a means of disguising the usury in 
 violation of the laws of the State where the contract vvas made or to be 
 executed, and in arriving at this intention all of the facts are to be 
 taken into consideration." 
 
 It is true that in this case, like Chapman v. Robertson, supra, se- 
 curity was given by mortgage upon lands in the State of the debtor's 
 residence, but the fact that security is given for a note does not alter 
 the terms of the note. But such fact has significance in determining 
 what the intention of the parties was, as to the laws of which State 
 their contract had reference, or by which it was to be construed. New- 
 man V. Kershaw, 10 Wis. 341 ; Fisher ik Otis, 3 Chandler, 83; Ilors- 
 ford V. Nichols, 1 Paige, Ch. 225; 2 Kent, Com. 12 ed. 460, bottom 
 p. 623. Vlt is a fact of no greater significance than is found in this case, 
 where the borrower actuall}' negotiated for tlie loan in the State of his 
 residence, dated his note there, and stipulated for interest allowed by 
 her laws./ See Ilorsford v. Nichols, snjyra ; 10 Wis. 340. 
 
 In a recent case, Kellogg v. Miller, 13 Fed. Rep. 198, decided hy 
 McCrarv, C. J., in the Circuit Court of Nel)raska, he held, upon a state 
 of facts very like those recited in this case, except that there was a
 
 SECT. III.] SCOTT V. PERLEE. 503 
 
 mortgage security, that the contract was valid upon both grounds as- 
 sumed in this opinion, first, because the contract was to be performed in 
 Nebraska, and second, the ground we are now considering, " A citizen 
 of one State may loan money to a citizen of another State, and con- 
 tract for the rate of interest allowed by the laws of the latter State, 
 although the legal rate of interest allowed is greater in such State than 
 in the State where the contract is made, and in which it is to be per- 
 formed." See also Tilden v. Blair, 21 Wall. 241, and comments 
 thereon of Folger, J., in 77 N. Y. 580, that the ruling consideration of 
 that case was the intention of the parties, that the draft should be 
 used in Illinois, as a contract of that State, although accepted and 
 payable in New York. Wayne Co. Savings Bk. v. Low, 6 Abb. N. C. 
 76! 95, affi'd 81 N. Y. 569 ; 2 Kent, Com. 12 ed., bottom p. 622-625, 
 and note ; Vliet v. Camp, 13 Wis. 208. Indeed these cases are but 
 applications of the rule as given b v Lord Mansfield. '• The law of 
 ti io p ^ pp ^-^n noT-Qv V.O iho rn]p w|i _ ere the t rnns nclin n i^ cntoi-od int o 
 w ith an express view to th^ h^^ r,f nnnthpr nountry, as tlie rule 1^' 
 w hich it is to be tyovernedJ' Robinson r. Bland, 2 Burr. 1078. The 
 place of making the contract is not to be so exclusively regarded, but 
 that when the contracting parties had reference to another place that 
 may be regarded ; that is, the intention of the parties shall govern 
 when it is made manifest. Fisher v. Otis, supra. That the parties 
 here entered into this contract in good faith with reference to the laws 
 of Illinois, there can be no doubt. The law of Ohio never entered into 
 the transaction so far as the intention of the parties can be ascertained. 
 There was no intention to make an illegal contract ; and to hold it 
 illegal, we must be able to say that the mere fact that Scott forwarded 
 this note to his surety for his signature, and that it was signed and de- 
 livered by the surety in Ohio, and the money there paid (more than 
 probably as a mere matter of convenience), has the effect of defeating 
 the intention of the parties. It is difficult to perceive upon what prin- 
 ciple we should so find. 
 
 We do not in thus holding encourage two citizens of Ohio to attempt 
 to contract here for money to be used here, and make their notes 
 payable in another State ; nor in any wa}' relax the strictness of the 
 rules which prevent any form of evasion of the law against usury ; but 
 we hold that it is not repugnant to such law for a person to contract 
 with reference to the law of his domicil, for money to be used there, 
 where no such evasion is sought or intended. 
 
 Judgment affirmed} 
 
 1 Ace. Dugan v. Lewis, 79 Tex. 246, 14 S. W. 1024. Contra, Amer. Freehold L. 
 & M. Co. V. .Jefferson, 69 Miss. 770, 12 So. 464 (semble) ; Central Trust Co. v. Burton, 
 74 Wis. 329, 43 N. W. 141. — Ed.
 
 504 BIGELOW V. BURXHAM. [CHAP, X. 
 
 BIGELOW V. BURNHAM. 
 Supreme Court of Iowa. 1891. 
 
 {Reported 83 Iowa, 120.] 
 
 Beck, C. J. The promissory note is in tiie following language : 
 
 " Storm Lake, Buena Vista Co., Iowa. 
 
 "For value received I promise to pay Rufus Burnham or bearer 
 eigliteen hundred and fifty -eight dollars and sixty-three cents, within one 
 year from date, with interest at seven per cent. May 2, 1885. 
 
 " ROLLIN BUENHAM." 
 
 The answer of the defendant admits the execution of the note in suit, 
 but alleges that it was executed and delivei-ed in the State of New York, 
 and that under the laws of that State it is usurious and void. The 
 statutes of New York declare that all notes and other contracts, provid- 
 ing for the payment of interest at a rate greater than six per centum per 
 annum, shall be void. J^ he evidence shows that the note in suit was 
 signed in New York, and delivered there, and that the plaintiflT at the 
 time, and both prior and subs equently thereto, r esided, and still doe s 
 reside, in Storm Lake, in this State , and the paye e of the note resiiied 
 in New York. It is not shown where the indebtedness was incurred 
 for which the note was given, nor where the consideration therefor 
 was delivered to and received by the plaintiff, nor was there any evi- 
 dence showing an agreement for the payment of the note at any speci- 
 fied place. The only facts upon which the case was decided are that 
 the note was executed in New York, and that the payee resided in that 
 State. 
 
 It is a settled rule that the law of the place where a contract or a 
 note by its terms is to be performed determines the question of its 
 validity. Butters v. Olds, 11 Iowa, 1 ; Arnold v. Potter, 22 Iowa, 194 ; 
 Burrows v. Styker, 47 Iowa, 477; Story on Conflict of Laws, §§ 242, 
 280, 281 ; Andrews v. Pond, 13 Pet. 65 ; 2 Parsons on Notes and Bills, 
 320. 
 
 The date and place of execution of a promissory note, which aj > 
 p car on its face, and not by mere memorandum entered thereon, raise 
 the presumption that it is payable at that {)iacc. The reason of this 
 i-ule is based upon the fact that the mention of the place is always 
 intended to show that the note was executed there, just as the entry of 
 the date is intended to show the day of execution. In business afl'airs, 
 and the general affairs of life, the date of an instrument, and the place 
 named in connection with the date, are written thereon, in order to show 
 the day and place of its execution. The law will raise a presumption in 
 accord with this uniform custom of men generally. The place named 
 i n a promissorv note as the place of execution is usuallv ♦''^ \}\?^^ "^
 
 SECT. III.] BIGELOW V. BURNIIAM. 505 
 
 residence or business of the maker of the paper, and is em> ^r>rlipH in the. 
 no ^e to sliow wliere it may be presented for paymen t. It follows that 
 the law raises a presumption upon the face of the note of an agreement 
 that it is payable at the place indicated as the place of its execution, 
 and permits it to be enforced under the law prevailing there. 1 Parsons 
 on Notes and Bills (1 ed.), 441, 442 ; Bullard v. Thompson, 35 Tex, 
 313 ; Orcutt v. Hough, 54 N. H. 472 ; Ricketts v. Pendleton, 14 Md. 
 320. 
 
 It will not do to presume that the parties entered into a contract, 
 which is void under the laws of New York, and that they intended that 
 it should be subject thereto. Such presumption would charge them 
 with the folly or the fraud of entering, with their eyes open, into a void 
 contract. ATpn^^^llJ ^^ pi-p^nm ^^d by tlie law to ant-JH^foll v or in di s ho n- 
 esty, butrat her that they intended in good faith that their acts shall be 
 val Td, and what they purport to bp Nor will we by presumption bring 
 the case under the usury law of New York, which is penal in its effects. 
 Bullard v. Thompson, 35 Tex. 313 ; Thompson v. Powles, 2 Sim. 194. 
 
 When a con trac t is made in on e S tate, to be pe rformed in another, 
 and in express terms provides for a rate of interest lawfu l in one^Jmt 
 
 nnl.ivv fpl in thp otliPr Stn.t.P, the parties will be^ prrP""^^^ ^^ nnutmct 
 
 with reference to the laws of the State wherein the stipulated r a te pf 
 interest is lawful, and such presumption will prevail until overcome by 
 ^nf thnt thfi sti | )u1ntion was intended as a means to defeat the law 
 oo Yi j I^gt no nvy ^pri to support a coutract otherwise usurious . I f it be 
 a bona fide transaction the contract will be sustained ; if f^ cIpy^qq, for 
 spcnnno- n^ppons in le''^'^^ ^^ "'i" bp hold invnli^r Scott V. Perlee, 39 
 Ohio St. 63 ; Newman u. Kershaw, 10 "Wis. 333 ; Fisher v. Otis, 3 Chand. 
 (Wis.) 83; Richards v. Bank, 12 W^is. 692 ; Horsford v. Nichols, 1 Paige, 
 220 ; Pratt v. Adams, 7 Paige, 615 ; Fanning v. Consequa, 17 Johns. 
 511; Townsend v. Riley, 46 N. H. 300 ; Arnold v. Potter, 22 Iowa, 194 ; 
 Butters v. Olds, 11 Iowa, 1. See note to Martin v. Johnson, 8 Lawyer's 
 Rep, Ann. 170 ; 10 S. E. Rep, 1092, 
 
 It api)ears that the rule as to the law of contracts, made in one State 
 to be performed in another, is modified or softened when applied to con- 
 tracts for interest, so that the intentions of the parties are effectuated, 
 as a concession to trade and commerce. See Daniels on Negotiable 
 Instruments, § 922, and cases cited ; 2 Parsons on Contracts, § 5, p. 94, 
 and cases cited. Hart v. Wills, 52 Iowa, 56, is not in conflict with our 
 conclusions in this case, the note in that case being held to be an Iowa 
 contract upon grounds not inconsistent with our decision in this case. 
 
 On .the ground that the note upon its face will be presumed to be 
 payable in Iowa, and in accord with other doctrines stated, we reach 
 the conclusion that the judgment of the District Court ought to be 
 
 Heversed.
 
 506 GALE V. EASTMAN. [CHAP. X. 
 
 GALE V. EASTMAN. 
 Supreme Judicial Court of Massachusetts. 1843. 
 
 [Reported 7 Metcalf, 14.] 
 
 Assumpsit by the payee against the maker of a promissory note made 
 and p ayable in New Hampshire. The defence was iisury .^ 
 
 Shaw, C. J. By the law of New Hampshire, the contract, even 
 though usury were taken or received upon it, was not void ; it was so 
 far legal, that an action might be maintained and a judgment recovered 
 upon it, with certain deductions. Act of 12th Feb., 1791. By § 2, 
 it is provided that when usuiy is relied upon, in defence, a special 
 mode of trial may be offered h\ the defendant ; that is, a trial by oath 
 of the parties, as formerly practised under the law of ^Massachusetts, 
 St. 1783, c. 55, but which mode of proof and form of trial are now 
 altered in this State. Bj- the law of New Hampshire, still in force, if 
 the usury is thus proved, a certain amount shall be deducted, in as- 
 sessing the damages, from the principal and interest due on the note. 
 These provisions appl}- only to the remed}', and of course can extend 
 only to suits brought in New Hampshire, and can have no effect when 
 a remedy is sought under our laws. The general rule is, that those 
 provisions of law which dete rmine the c ons truc tion ^ operation, and 
 effect of a contract are part of the contract, and follow it, and give 
 eJTect to it, j vher ever it goes; but that in regard to remedies, t\\Q lex 
 j fori, the law of the plaf p whprp t.hp ypp pedy is sought, must govern. ^ 
 We therefore cannot be governed by the law of New Hampshire, which 
 professes only to regulate the remed}' on a usurious contract. 
 
 The law of Massachusetts, though somewhat analogous, cannot ap- 
 ph', because, although the mode of enforcing the law against usury is 
 by applying it to the remedy, 3'et the law to be enforced is the law of 
 Massachusetts. The law of this Commonwealth declaring what shall 
 be the rate of interest, and what contracts shall be deemed usurious, 
 also directs, when suits are brought, what deductions shall be made ; 
 but it is suits brought on such contracts, that is, contracts made in 
 violation of its own provisions. 
 
 Judgment for the p/aui^i*^'.^ 
 
 1 Tliis short statement is substituted for that of the Keporter. Arguments of 
 counsel are omitted. — Ed. 
 
 2 Acr. Sherman r. Gassett, 9 111. 521 ; Lindsay v. Hill, 66 Me. 212; Collins Iron 
 Co. v. Burkam, 10 Mich. 283; Watri.=is r. Pierce, 32 N. H. 560. See Meares v. Fin- 
 layson, 55 S. C. 105, 32 S. E. 986.— Ed.
 
 SECT. IV.] KNIGHTS TEMPLARS, ETC. AID ASSOC. V. GREENE. 
 
 SECTION IV. — Interpretation. 
 
 507 
 
 KNIGHTS TEMPLARS, &c. ASSOCIATION v. GREENE. 
 Circuit Court of the United States, S. D. Ohio. 1897. 
 
 [Reported 79 Federal Reporter, 461.] 
 
 Petition in the nature of an interpleader filed b\- the plaintiff associ* 
 ation against the widow, mother, and brothers and sisters of John G. 
 Greene, filed in the Superior Court of Cincinnati, and removed to this 
 court. The petition was filed to determine who among the defendants 
 should be paid the amount of an insurance policy issued by the plaintiff 
 association in 1879 on the life of John G. Greene for the sum of So,000. 
 He died in 1894. T he plaintiff as sociation was an Ohio corporatioQ ; 
 one of its agents went to New -Xork^wherfiXLcaene then was and always 
 remained domiciled, and secured from him an ajjplication for the policy; 
 lie policy was mailed from Ohio, probably: to the company's . ag.ent_ju 
 New York, and was delivered to Greene. -At_JLhe_time oLGLcene^ 
 death the^policy was payable '^ to the heirs of the said John G. Greene."_^ 
 
 Taft, CircuItT Judge. ^ I t is_ contended on behalf of the widow of 
 John G. Greene, the insured^^hat the word "heirs" should be cou- 
 "^ued acc6r^tT[g2t5~theT aws of Ohio. If so, it is conceded that, as 
 the insured left no~cliTldren, she would take the entire fund, whether 
 the word '• heirs " is to be construed strictly as meaning those who at 
 his death would inherit real estate from the insured, or is to be taken 
 as meaning those to whom personal property of the insured would be 
 distributed if he died intestate. The administrator of Mary Greene , 
 the mother of the ins ured (she having died since the beginning of this ^ 
 suit)^^j iidtIiel)rot^ ers^^ of tbp. insured, p.nntend that the word^ 
 
 " heirV^js Jo be construed iin rlpr thp 1n.w of New York, and that, whetlie r 
 itjs _to be intcr piieted^ t^'-h^i'^^lly "« thnge inh eriting real estate, or only, 
 as n^xt _of kin, in either onsp, by the. New York law, the wid ow^ Sarah 
 Tl fti-PPne. takes nothing . It is contended by the association (which 
 has paid $1,000 to the widow) and by the widow that, even if the New 
 York law is to control the meaning of ''heirs," the court must construe 
 the word in accordance with that law to mean those to whom the pro- 
 ceeds of the policy would have gone had it been part of his estate and 
 he had died intestate, and in that case by the intestate statutes of New 
 York the widow would receive a moiety of the proceeds of the policy. 
 
 T he applicati on was ma de and delivered to the agent of the company 
 in New" York, and th e (;ertificate or policy was delivered by an agent o£ 
 the company in New York to the insured. All payments were made in 
 "H^ew Yo rkbyjh e insured to an agent of the company, both those ac- 
 companying the original application and all subsequent ones. These . 
 
 1 This short statement of facts is substituted for that of the Reporter. — Ed. 
 
 2 Part of the opinion is omitted. — Ed.
 
 508 KNIGHTS TEMPLARS, ETC. AID ASSOC. V. GREENE- [CHAP. X 
 
 circumstances, under the decision in Assurance Soc. v. Clements, 140 
 U. S. 226, 11 Sup. Ct. 822, might seem to justify the conehision that 
 the contract, having been made in New York, should be construed b}' 
 the New York law, and thus that the word " heirs," within tlie intention 
 of the parties, should be construed to be ''heirs" as interpreted by the 
 New York law, rather than as interpreted by that of Ohio. I do not 
 propose, however, to rest the decision in this case on its likeness to the 
 case of Assurance Soc. v. Clements. There are some additional circum- 
 stances in this case which ma}', perhaps, distinguish this case from that. 
 The policy was to be approved and issued in Ohio. The policy was to 
 be payable there. In cases where both parties are interested in the 
 construction of the insurance contracts, these circumstances are some- 
 times regarded as important. 
 
 But I do not think this a case for construing the terms of a contract 
 tr>_rpfl,c h^ the common intent of two parties , and it does not seem to me. . 
 that the same rules apply . What we are construing here is language 
 of the insured designating the beneficiary of his bounty after his death. 
 By the by-laws of the association he was given power to change this 
 designation at any time before his death. The association reserved no 
 right or power to object to any designation or change of designation, 
 provided the beneficiarv named was within those classes of persons to 
 whom, b}' statute, charter, and its own by-laws the association was per- 
 mitted to pay policies. Now, it must be conceded that, as those class es 
 a re lim itgd by tlie law of Ohio, the terms nsed tn dpscribp tlinm in t]\f. 
 l aw mu jt_ be construed according ja -the law of the StntPi^ Therefore 
 the association had no power to agree to pa}', policies to an}- person not 
 a member of the family of the insured or not an heir of the insured, as 
 "family" and "heir" are defined by the law of Ohio. Within these 
 classes, however, the association was entirely indifferent who the desig- 
 nated beneficiary might be. It is conceded that eacli of the claimants 
 at t he bar is within the r e quirement of the statute of O hio. Subject_to^ 
 tEclimitation of the statute, the co nst niftinn of the lnnorn;|or^ '^f tili'' 
 designation becomes solely a matte r of dntprtninincr tlip int.p nt of tlje 
 i nsurecL In other words, the language is to be treated as of a testa- 
 mentary character, and is to receive, as nearly as possible, the same 
 construction as if used in a will under the same circumstances. Bolton 
 V. Bolton. 73 Me. 299 ; Duvall v. Goodson, 79 Ky. 224-228 ; Mutual 
 Ass'n V. Mfjoitgomery, 70 Mich. 587, 38 N. W. 588 ; Silvers r. Associ- 
 ation, 94 Mich. 39, 53 N. W. 935; Chartrand v. Brace, 16 Colo. 19, 
 26 Pac. 152 ; Phillips v. Carpenter (Iowa), 44 N. W. 898. 
 
 This designation was made in New York, by one domiciled in New 
 York, for distribution to his family, most of whom lived in New York. 
 If we were construing this language as a clause in a will, whether the 
 money bequeathed were payable in New York or Ohio, there can be no 
 doubt that the word "heirs" would be construed under the New York 
 law, because that of the domicil of the testator. Harrison v. Nixon, 
 Pet. 483 ; Anstruthcr v. Chalmer, 2 Sim. 1 ; Yates r. Thompson,
 
 SECT. IV.] KNIGHTS TEMPLARS, ETC. AID ASSOC. V. GREENE. 5 OS 
 
 3 Clark & F. 544 ; Enohin v. Wylie, 10 H. L. Cas. 1 ; Wilson's Trusts 
 (Shaw V. Gould), L. R. 3 H. L. 55 ; Paisous v. Lyman, 20 N. Y. 1U3 ; 
 Freeman's Appeal, 68 Pa. St. 151. FoUovYino ; this testnpnpntnrj- rnlp 
 of coust ruet ion,^have little difficul ty in fonr-lnrling thaf, Grpenp in- 
 tended that tbelang:ua^e h e used stioiild l)e mnsb-nprl by the law ( ;> ( 
 New York . Indeed, without the aid of authorit}-, I should reach the 
 same decision. Greene lived in Xew York, and all the possible objects 
 of his bounty lived there. Is it reasonable to suppose that he would 
 use language to describe them, intending it to be interpreted by the 
 law of some other State? I cannot think so. Nor is there anything 
 in the circumstances of his change of the beneficiary to lead to a differ- 
 ent result. If the correspondence between the insured and the associ- 
 ation at the time the beneficiary was changed is competent, it shows 
 that he wished the proceeds of the policy to go to his estate, for he used 
 the words "heirs, administrators, executors, and assigns." To this the 
 association responded that the law of its creation forbade a designation 
 to his "estate," but that he might designate his "heirs," which he did. 
 This shows that his purpose was to leave it to those to whom it would 
 go, were it part of his estate and he were to die intestate, and he used 
 the word " heirs " as most nearly accomplishing that purpose. Had he 
 been permitted to designate his estate as the payee, certainly the pro- 
 ceeds of the policy would have been distributed under the New York 
 law. May we not presume that, with the same purpose in view, he 
 intended that the designation he was permitted to make should receive 
 a New Y'ork construction? The mere fact that he was cautioned that 
 the Ohio law did not permit him to direct payment to his estate does 
 not, it seems to me, show that he intended the words he used to receive 
 an Ohio construction. He knew that the association did business out- 
 side of the State of Ohio. He knew that, so large was the number of 
 New York certificate holders, the annual meeting of the association was 
 held in New York. Was it not most natural for him to think that, so 
 long as he designated persons within the limitation permitted by the 
 Ohio law, the particular individuals named l)y him should be determined 
 b}' giving to his language the meaning it would have at his home, where 
 the money was ultimateh' to come and where the beneficiaries lived? 
 We can be certain that Greene regarded the proceeds of this polic}" as 
 part of his estate which he was leaving to be distributed at his death ; 
 and we may be sure that he did not distinguish between language used 
 in the designation and that which he would have used in a will concern- 
 ing his personal estate. 
 
 In Mayo v. Assurance Soc, 71 ]\riss. 590, 15 South. 791, it was held 
 that the proceeds of a polic}- of life insurance issued in New York, and 
 payable to the heirs of the insured, who was domiciled in Virginia, were 
 to be distributed under the laws of the latter State. In Association v. 
 Jones, 154 Pa. St. 107, 26 Atl. 255, an association of Ohio, organized 
 under exactly the same law as the complainant, issued a policy payable 
 to the legal heirs of the insured, who was domiciled in Pennsylvania.
 
 510 KNIGHTS TEMPLAKS, ETC. AID ASSOC. V. GKEENE. [CHAP. X. 
 
 It was held that the court must determine who the legal heirs of the 
 insured were by the law of his domicil, to wit, Pennsylvania. The court 
 said (page 108, 154 Pa. St., and page 255, 26 Atl.) : 
 
 "This contract is made with William D. Jones, of Philadelphia, and 
 it fixes Ills domicil, and promises to pa}' the fund to his legal heirs. His 
 domicil Ijeing thus here, a promise to pa}' to his legal heirs must be such 
 as are determined b}' the intestate laws of such domicil." 
 
 In Association v. Jones, 154 Pii. St. 99, 26 Atl. 253, a policy was pay- 
 able "to the devisees, or, if no will, to tiie heirs, of the said William 
 Jones." The association was organized under the laws of Illinois. It 
 was held that there w\is no disposition of the proceeds of the policy hy 
 the will. It was held that the word " heirs " meant those distributees 
 to whom personal i)ropcrty of tlie insured would go if he died intestate. 
 It was contended that the words should be given effect according to 
 the law of Illinois, and as, b}' those laws, the husband's personal prop- 
 ert}' would go to the widow in case of his intestacy, she was entitled to 
 the whole fund. The court held that, as the policy was issued to Jones 
 as a citizen of Pennsylvania, the promise to pa}- to his heirs must be 
 treated as a promise to pa}' according to the intestate law of his domicil, 
 and that it was a case for the application of the common-law rule " that 
 personal property has no situs, but follows the person of the owner, and 
 is distributed according to the intestate laws of such owner's domicil." 
 
 There are other cases in which the same result was reached, though 
 no question seems to have been raised on the point by counsel or con- 
 sidered by the court. Gauch v. Insurance Co., 88 111. 251 ; Britton v. 
 Supreme Council, 46 N. J. Eq. 102, 18 Atl. 675. It may be noted, in 
 connection with the two Pennsylvania cases just cited, that the policy 
 in this case expressly insures the life of John G. Greene, of Schenectady, 
 N. Y. I con clude, both on reason and anth o rify , tiint tho w/->r>^ "heir s ". 
 as used in the certificate or policy in the case at bar, is to be construed 
 according to New York law^ 
 
 And what does the word "heirs" mean, according to the New Yoi: k 
 Tn^y^spd in .i-^lim- of Ijfo insurance? It is well sett led la many-States 
 thnf^;hprp <Vhpjrs^isjispdj_iri ft will or oth er dponrnpnt having a testar 
 mentary effect, to designate persons who are to receive personal prop- 
 eit}-, it shall be held to mean those persons to whom the personalty of. 
 the giver would be distributed if he were to die intestate,. Of course, 
 as already said, technically it means those who would inherit the giver's 
 real estate in case of his intestacy. But courts recognize that the word 
 is given in common parlance — xt loquitur vuh/us — a much wider 
 meaning, and includes all those who would succeed, under the intestate 
 laws of the State, to the enjoyment of the property in question. Asso- 
 ciation r. Jones, supra ; McGill's Appeal, 61 Pa. St. 46 ; Eby's Appeal, 
 84 Pa. St. 241 ; Sweet v. Dutton, 109 Mass. 589 ; Welsh v. Crater, 32 
 N. J. Eq. 177; Freeman v. Knight, 2 Ired. Eq. 72: Croom r. Herring, 
 4 Hawks, 393; Corbitt lu Ccnbitt, 1 Jones. Eq. 114; Henderson v. 
 Henderson, 1 Jones (N. C), 221 ; Alexander v. Wallace, 8 Lea, 569;
 
 SECT. IV. ] BETHELL V. BETHELL. 511 
 
 Collier v. Collier's Ex'rs, 3 Ohio St. 369 ; Doody v. Higgins, 2 Kay & 
 J. 7-29. ... 
 
 With this construction, we must refer to the statute of distribution of 
 New York to determine how the money in this case must go. Para 
 graph 2, § 75, tit. 3, of chapter 6 of the statutes of New York on wilN 
 and decedents' estates (4 Rev. St. [8th ed.], p. 2565) provides as 
 follows : — 
 
 ''That if the deceased leave no children the widow shall take a moiety 
 of the personal estate.*' 
 
 Paragraph 6 provides : — 
 
 "If the deceased shall leave no children and no representatives of 
 them, and no father, and shall leave a widow and a mother, the moiety 
 not distributed to the widow shall be distributed in equal shares to his 
 mother, and brothers and sisters, or the representatives of such brothers 
 and sisters." 
 
 The decree of the court must be, therefore, an order distributing the 
 proceeds of the policy, one-half to the widow, Sarah L. Greene, and 
 one-half to be equally divided between the administrator of Mary Greene, 
 the mother, and the brothers and sisters of John L. Greene, including, 
 as one of the equally sharing distributees, the son of his deceased sister. 
 The widow, Sarah L. Greene, will, of course, be charged with the $1,000 
 already paid her by the complainant. The costs will be paid out of 
 the fund. 
 
 BETHELL v. BETHELL. 
 
 Supreme Court of Indiana. 1876. 
 
 [Reported 54 Indiana, 428.] 
 
 WoRDEN, C. J. Action by the appellee, against the appellant. The 
 complaint contained two paragraphs. The first went out on demurrer. 
 A demurrer for want of sufficient facts was filed also to the second, 
 but was overruled, and exception taken. Such further proceedings 
 were had as that final judgment was rendered for the plaintiff. 
 
 Error is assigned upon the overruling of the demurrer to the second 
 paragraph of the complaint. 
 
 'JJoe-agcond paragraph of the complaint alleges, th at, on th e 13th of 
 MnA' , 1 HR^ Tb y^^ (teed'or''cgnve.\'art cc b& tweeTr~tB ( r~appellant and his 
 w_lfe aa^-ttia. appellee, all of whom were andjhad been citizens of War-
 
 512 • BETHELL V. BETHELL. [CIIAP. X. 
 
 rick County, Indiana, for more than thirty' years, the appellant granted, 
 bargained, and sold to the appellee certain lands in Missouri, described 
 by sections, etc., in consideration of four thousand eight hundred 
 dollars. 
 
 The deed is copied into the paragraph, and contains the words 
 " grant, bargain, sell, and convey," and purports to be upon a con- 
 sideration of four thousand eight hundred dollars. 
 
 The paragraph then avers that, b}' the law of the State of Missouri 
 at said date, the defendant, bj' said deed of conveyance, covenanted to 
 and with the plaintiff that he was seised of an indefeasible estate of 
 inheritance in fee simple, and that said defendant, by force of said law, 
 might be sued upon the same in the same manner as if said covenant 
 had been inserted in the deed. 
 
 The paragraph here sets out a section of the Missouri statutes, which 
 corresponds with these allegations, and proceeds to allege, further, that 
 at said date the defendant was not seised of an indefeasible estate of 
 inheritance in fee-simple to said real estate, but, on the contrar}', that 
 he had not nor has he yet an}- title whatever to an\- part of said lands. 
 That defendant was never at any time in possession of said lands, nor 
 were the}' ever in the possession of the plaintiff; and that while the 
 plaintiff was ignorant of said want of title, he paid a large amount 
 of taxes on said lands, to wit, some eighteen months, after said 
 conveyance. 
 
 The deed, as set out, contains no covenants whatever, either 
 express or implied. There is no general warranty, as provided for 
 b\' our statute. The words "• grant, bargain, sell, and convey " do 
 not impl}' any covenants in a conve\"ance in fee, though the words, 
 '•grant" or '"denaise" may imply a covenant of title, in a lease for 
 years. This proposition was decided, after an exhaustive examination 
 of the authorities, in the case of Frost v. Raymond, 2 Caines, 188. So 
 that if the deed is to be regarded as containing the covenant of seisin, 
 or, indeed, any other covenant, it must be by virtue of the law of 
 Missouri, set out in the [)leading. 
 
 Henc e, the q uestion arises, whetbor n , dp fd, pvfr'i |ted in Indiana, 
 between her citizens^ for Innrl in nnof.lior St ^itri 1'-n<-^'^"<^'^''"'"p- nn pf^yp,- 
 n ants whatever b y the la w of Indiana^ shall bo construed as contnininrr. 
 bv implication, such covenants as would, bv the law of the State where 
 tlie land lies, be regarded as contained in i]]p, floo'l- 
 
 This is an interesting and a somewhat novel question. We have 
 been furnished with able briefs b}' counsel for the respective parties, 
 who have cited the general authorities upon the point, but Act no case 
 has been found entirely in point. 
 
 There can be no doubt t h:it the l aw of .Missouri, alone, can be look cil 
 to in ord er to detern^iiie ^^'lletller the deed in question was suftic^ient to ... 
 pass the t itle. In the sale and conveyance of real estate, s o far as 
 regards the capacity of the pa rties to con vey and hold, resj)ectivelv, 
 the formalities necessary to a valid transfer, the dominion and enjoy-
 
 SECT. IV. J BETHELL V. BETHELL. 513 
 
 ment_of_t he same by the vendee, and the right of succession thereto, 
 and all other incidents to the acquisition of the land, the lex rp.i nitxR. 
 governs^ 
 
 But it does not, therefore, necessarih* follow that the lex rei sitce so 
 far governs conveyances made elsewhere as to change their character 
 as mere conveyances and invest them with the character of personal 
 covenants not necessary to the transmission of the property. 
 
 We are referred by the counsel for the appellee to the case of 
 McGoon r. Scales, 9 Wall. 23, in which Mr. Justice Miller said : "It 
 is a principle too firmly established to admit of dispute at this da}', 
 that to the law of the State in which land is situated, we must look for 
 the rules which govern its descent, alienation, and transfer, and for the 
 effect and construction of conveyances." 
 
 This was said, however, in reference to the question whether the title 
 did actualh' pass b}' a certain deed. Tlie question was, whether " the 
 effect and construction" of the conveyance were such as to pass the 
 title. 
 
 As we desire to decide nothing but the exact question presented 
 here, and as the distinction between covenants running with the land 
 and those not running with the land may perhaps be supposed to enter 
 into the question, we proceed to consider the character of the covenant 
 alleged to have been broken. The supposed covenant, of which a 
 breach is alleged, is the covenant of seisin. And it is alleged that the 
 land was never in the possession of the defendant or the plaintiff. 
 There are some cases holding that the covenant of seisin runs with tiie 
 land, where the grantor was in possession and delivered possession to 
 the grantee. But all the cases, so far as we are advised, hold, that 
 where the grantor is not in possession and does not deliver possession 
 to his grantee, the covenant of seisin, if the grantor had no title, is at 
 once broken and does not run with the land. In the case of Chambers' 
 Adra'r v. Smith's Adm'r, 23 Mo. 174, it was held, that '• If there be a 
 total defect of title, defeasible and indefeasible, and the possession 
 have not gone along with the deed, the covenant is broken as soon as it 
 is entered into, and cannot pass to an assignee upon any subsequent 
 transfer of the supposed right of the original grantee. In such case, 
 the breach is final and complete ; the covenant is broken immediately, 
 once for all, and the party recovers all the damages that can ever 
 result from it. If, however, the possession pass, although without 
 right, — if an estate in fact, although not in law, be transferred by the 
 deed, and the grantee have the enjoyment of the property according to 
 the terms of the sale, the covenant runs with the land and passes from 
 party to party, until the paramount title results in some damage to the 
 actual possessor, and then the right of action upon the covenant vests 
 in the party upon whom the loss falls." 
 
 The supposed covenant in this case, then, was one that did not run 
 with the land ; it was purely personal and broken as soon as entered 
 into ; it was not so connected with the land that any subsequent 
 
 33
 
 514 
 
 BETHELL V. BETHELL. 
 
 [chap. X. 
 
 grantee thereof could take advantage of it. The question is therefore 
 narrowed down to this : can a deed, executed in Indiap -^i i^ffwPf^n oLti- 
 zens thereof, containin p; nn nnvppants wliatevt^r ficonrdin.o- to the 1nw oi. 
 ' Indiana. be 'Eeld by virtue of t he law of Missouri, where the ] niid liea^ 
 To" contain a cov enant not running with tbe land but broken as soon ag 
 We think this question must be answered in the nega - 
 
 er- 
 
 s onal cove nant , broken as soon as made, and has nothing whatever to_^ 
 rlo with the transmission of tbe title to the land. As a treneral rula* 
 
 e ntered into .'' 
 
 fTver^A covenant of seisin not running with the land is purely 
 
 the lex loci contractus determines the construction and e ffect of coof 
 tracts. And we think that where adeecUs^ m ade, as above stated, the 
 qTIestTor Twhether it contains ^ucbTa cov enanTls to be determijied by 
 TTie~Tavir of the~tjkice where it is ma"He^ 
 
 iTeTasedoes not fall within another rule of law well established, 
 
 viz., that where a contr a'-^ is t.r> bp pprfnrmedjn^ a place differen^ JVom^ 
 thni jn wliieh it is made, the law of the place of oerforman"c e is to 
 gov^MTijL he contract. Here, the contract was completely ex peuted and . 
 was not e vp^"tnrv. B y the ter ms of th e d eedjhe^'^ ^^-^ nnthin^o- 
 
 ^^^JV^j ^.»v f^ hp flnn p hy fhp cry^y^fn.,-^ pjfhpr in Mjssouri or elspwlipre^ 
 T[icre were no stipulations that bound him to the performance_ of jmx, 
 ~U^ ^^^o.\.. Whateve r Jitl e did "or could pass by the deed passj " 
 
 mediately upon its execution a nd deliv ery, and there was nothing 
 f urther to be done by the grantor. ~~ ' 
 
 As the deed was executed in Indiana, and as the parties resided 
 therein, it would seem that they accepted the law of Indiana as the 
 exponent of tlie rights conferred, and obligations imposed thereby, 
 beyond the mere passing of the title. The case of Thurston v. Rosen- 
 field. 42 Mo. 474, is closely analogous in principle. Rosenfield failed 
 in business in New York, and in that State made an assignment of his 
 effects, including certain real estate in Missouri, in which assignment 
 certain creditors were preferred. The assignment was regularly exe- 
 cuted and acknowledged, so as to pass the title to the land in Missouri, 
 but according to the laws of Missouri it was void on account of tlie 
 preference given to some of the creditors. But it was held, as tlie par- 
 ties were residents of New York and New Jersey, and as the assign- 
 ment was valid by the law of New York where it was executed, and as 
 the policy of the Missouri law was to deny preferences in that State, 
 that the assignment was governed by the law of New York, and it was 
 uplield accordingly. See Whart. Conll. Laws. § 276. 
 
 'rh2-Jmv <^^ MisRnnri naimQt-axl.»»n4- 4^ev<»B4-l4eiilcidto rial limits so 
 as to make an instrui iKLUljcoiit.-iiiiin;;.imjQQ:s:iUUiiis . executed in another 
 ^^gT^Ifv, l^fitwpftn p.itizpns thereof, co ntfiin i»w^A 4i-GQyimaJi t as that alleged 
 here to have been br okgji. 
 
 ^"TlielJase of Carver r. Louthain, 38 Ind. 530, was an action upon the 
 covenants contained in a deed for the conveyance of land situate in 
 the State of Illinois. The question docs not seem to have been nmde 
 whether the covenants were governed by the law of Illinois, or other-
 
 SECT, v.] WAVERLY NATIONAL BANK V. HALL. 515 
 
 wise. But the case was decided upon the theory that the law of 
 Indiana was appUcable to it. 
 
 The case is, of course, less authoritative upon the point than if the 
 question had been made. 
 
 We are of opinion that the second paragraph of the complaint failed 
 to state facts sufficient to constitute a cause of action, and that the 
 demurrer thereto should have been sustained. 
 
 The judgment below is reversed, with costs, and the cause remanded 
 for further proceedings in accordance with this opinion. 
 
 SECTION V. 
 
 EFFECT. 
 
 WAVERLY NATIONAL BANK v. HALL. 
 
 Supreme Court of Pennsylvania. 1892. 
 [Beported 150 Pennsylvania, 466.] 
 
 Heydrick, J.^ Tlie plaintiff sues upon notes made by C. M. Cran- 
 dall, one of the defendants, in his own name, and seeks to charge the 
 other defendants as partners of Crandall in a business in which the 
 proceeds of certain other notes, of which these were renewals, were 
 used. The evidence relied upon to establish the alleged partnership is 
 a contract in writing between Crandall of the one part, and the other 
 defendants of the other part, dated February 24, 1885. If this con- 
 tract does not create a partnership as to creditors it cannot be success- 
 fully contended that all the evidence in the cause taken together tends 
 to charge anybody but Crandall ; and inasmuch as all the assignments 
 of error are predicated upon the assumption that such partnership was 
 created by that contract, it is evident that if that assumption was 
 unfounded the plaintiffs could not have been injured by the rulings com- 
 plained of, and hence, though there may have been technical error 
 therein, the judgment ought not to be disturbed. It is, therefore, per- 
 tinent to inquire what were the rights and liabilities of the parties under 
 that contract, although the question is not directly raised by any of the 
 assignments of error. 
 
 The w hole scope of the contract indicates that a loan of money to 
 Crandal l by th e other parties in consideration of a share of the profits 
 of a busin ess in which he was to embark was intended, and not a con- 
 tr ibution to the capital of a partnership of which the parties were tooe 
 
 1 Part of the opinion only is given. — Ed.
 
 516 WAVEULY NATIONAL BANK V. HALL, [CIIAP. X. 
 
 the members. The parties of the second part covenanted to furnish 
 three thousand dollars to Crandall, and not to a firm ; they were to 
 furnish it to him from time to time as he might require it, and its 
 repayment to them was to be secured by a chattel mortgage upon the 
 tools, machinery, furniture, and fixtures of every kind and nature belong- 
 ing to or connected with the business in which it was to be used. 
 Crandall might repay it at his option before the expiration of the full 
 term for which he had the right to demand it ; and, although it vvas 
 stipulated that the money so to be furnished should be used in the 
 business contemplated, the I'ight of entire control of that business was 
 recognized to be in, and was expressly conceded to Crandall. And it 
 was further stipulated that nothing in the writing contained should be 
 construed to create a partnership between the parties thereto except as 
 to the profits of the business. These provisions are ail consistent with 
 the relation of borrower and lender, and some of them are inconsistent 
 with anv other relation. It is therefore manifest that that relation was 
 intended to be established ; and the next question is whether, in spite 
 of the intention of the parties, the community of interest in the profits 
 constituted them a partnership as to creditors. 
 
 Tfjiij'i w*^''*^ <» T^ t^nn s^lvan ia co ntract the question would be answerecL. 
 m fhe negative bvlhe ly^ nt Anni (i. l.-S/urF. L. 56, and by Hart C. 
 Kt^llv ^ 88 Pa. 281 ). - But, although it was made in this Stat e- it vy^^s f^. 
 be executed in the State of New York. Such cases are stated by 
 approved text writers to be an exception to the general rule that the 
 lex loci applies in respect to the nature, obligation, and construction of 
 contracts. That exception is thus stated by Judge Story : " But wlj^re 
 the contract is either expressly or tacitly to be performed m any other 
 place tlie general rule is in conformity to the presumed intention of the 
 parties that the contract, as to its validity, nature, obligation, and inter- 
 pretation, is to be governed by the law of the place of performance," 
 Conflict of Laws, § "280, Chancellor Kent, after stating the exception 
 in substantially the same terms, adds that it " is more embarrassed than 
 any other branch of the subject (the lex loci) by distinctions and jarring 
 decisions." 2 Com. 459. But whatever conflict of auth ofity tlicn; \\]p^v 
 be in respect to the exceptio n, all af^ryoe that matters connocteil witJi 
 tJurprH o rTrinrv^" ^^ ^ pnntivi7-t pr^ ivo-iilnted by the Inw provnilin" ^ ftt i 
 tlie place o ^* prrflM'lir"^^' Brown r. Railroad Co., 83 Pa. 31 G ; Scudder 
 V. Union National Bank, 91 U. S. 40G. Under the present contract it 
 is clear there could be no liability to third persons without a perform- 
 ance as between the parties to it, and therefore the question of such 
 liability would necessarily be connected with or grow out of such per- 
 formance and be determinable by the law of New York. 
 
 More than a century ago Chief Justice De Grey, in Grace v. Smith, 
 2 Wm, Bl. 998, laid down the proposition that " every man that has a 
 share of the profits of a trade ought also to bear his share of the loss." 
 In a few years the principle thus stated became recognized as a part of 
 the law of England, and so continued until 18G0, when it was over-
 
 SECT, v.] BALDWIN V. CxRAY. 517 
 
 thrown by the House of Lords in Cox v. Hickman, 8 H. L. C. 268. 
 On this side of the Atlantic, and especially in tlie State of New York, 
 it was accepted without question, so far as I have observed, as to the 
 soundness of the reasons put forth in support of it, until it was 
 exploded in England. . • . 
 
 It is said, however, in Hackett v. Stanley, 115 N. Y. 625, . . . that 
 " exceptions to the rule (that participation in profits of a business 
 renders the participant liable to creditors) are, however, found in cases 
 where a share in profits is contracted to be paid, as a measure of com- 
 pensation to employees for services rendered in the business, or for the 
 use of moneys loaned in aid of the enterprise." It is not material to 
 inquire how much more of the rule is left by this exception than was 
 left by Cox v. Hickman. It is enough that the present case comes 
 within the letter and the spirit of the exception. The parties who 
 made the loan and who are now sought to be held liable as partners 
 had no voice or part in the prosecution of the business either as piin- 
 cipals or otherwise, nor had they an irrevocable right to demand a 
 share of the profits as was the ease in Hackett v. Stanley. The light 
 of control, or any voice in the control, an incident of proprietorship, 
 was denied to them. And the implication of partnership from com- 
 munity of interest in the profits was excluded by an express stipulation, 
 the absence of which in Hackett v. Stanley was thought to be worthy 
 of notice : and their right to demand a share of the profits was to ter- 
 minate upon repayment of the money advanced at the end of five 
 years, or sooner at the option of Crandall. In all its material pro- 
 visions the contract under consideration is not distinguishable fi;ora 
 that in Curry r. Fowler, 87 N. Y. 33, or from those provisions of the 
 contract in Hackett v. Stanley which it is there conceded would create 
 no other relation than that of borrower and lender. 
 
 For these reasons the defendants as to whom issue was joined 
 are not liable to the plaintitf, and therefore the judgment must be 
 aflfirmed. 
 
 BALDWIN V. GRAY. 
 Supreme Court of Louisiana. 1826. 
 
 [Reported 4 Martin, New Series, 192.] 
 
 Porter, J.^ The facts in this case do not appear to be controverted ; 
 the only matter disputed is the legal obligations which arise on them. 
 
 The plaintiff was agent for the steamboat "Fayette," of which the 
 defendant was part-owner. This action is instituted to recover the 
 amount of an appeal bond, given in an action, wherein the owners of 
 
 1 Part of the opinion only is given. — Ed.
 
 518 KING V. SAERIA. [CHAP. X. 
 
 this boat were defendants, and also for mone3's paid for tiie expenses 
 of the boat while in this port. 
 
 It is insisted the defendant is liable in solido, because the contract 
 by which he became interested in this vessel was entered into at Pitts- 
 burg, in the State of Pennsylvania, where the common law prevails. 
 
 This law governs the obligation of the partners with each other, but 
 not with third persons. It can no more atTect 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 be- 
 fore us was made in this State, and must be regulated by llie lex loci 
 contractus. This is the general rule, and we know of no exception to 
 it, unless the agreement is in respect to land in another countrj-. or the 
 performance is to be in another State. A foreigner coming into Louisi- 
 ana who was twenty-three years old could not escape from a contract 
 with one of our citizens by averring that according to the laws of the 
 country he left he was not a major until he reached tiie age of twenty- 
 five. 
 
 We think, therefore, that the defendant is only liable for his virile 
 portion of the moneys laid out and expended on the steamboat " Fay- 
 ette." Caroll V. Waters, 9 Mart. 500. 
 
 KING V. SARRIA. 
 Court of Appeals, New York. 1877. 
 
 [Reported 69 New York, 24.] 
 
 FoLGER, J.^ The plaintiffs seek to recover a sum of money from the 
 defendant Sarria, upon contract. They do not show that he in person 
 made with them the contract which they allege. It is, indeed, one of 
 the conceded facts in the case, that the contract was made, as matter 
 of fact, by persons otiier than Sarria. To succeed, then, in their action, 
 they must show that those persons in some way represented Sarria, and 
 had authority to bind him thereto, to the full extent to which the plain- 
 tiffs seek to hold him. To show such authority, proof is made that 
 Sarria was a partner with Grau & Lopez, and that the latter two, under 
 the firm name of Grau, Lopez & Co., made the contract. If nothing 
 more appeared in the case, this would sutlice for the plaintiffs ; for, by 
 virtue of the relation of partnership, one partner becomes the general 
 agent for the other, as to all matters within the scope of the partnership 
 dealings, and has thereby given to him all authority needful for carr}'- 
 ing on the partnership, and which is usually exercised b}- partners in 
 that l)usiness. ILiwken /•. Bourn-?, 8 M. & W. 703. Indeed, it is as 
 agent that the power of one partner to bind his co-partner is obtained 
 
 ^ I'art of the opiuiou ouly is j^iveu. — Ed.
 
 SECT, v.] KING V. SARRIA. ^^^ 
 
 and exercised. The law of partnership is a branch of the law of prin- 
 cipal and agent. Cox v. Hickman, 8 H. of L. Cas. 268 ; Baring v. 
 Lyman, 1 Story, 396 ; Worrall v. Munn, 5 N. Y. 229. In the case 
 first above cited (8 M. & W. supra), it is added : that any restriction 
 which by agreement amongst the partners is attempted to be imposed 
 upon the authority which one partner possesses as the general agent 
 of the other, is operative only between the partners themselves, and 
 does not limit the authority as to third persons, who acquire rights by 
 its exercise, unless they know that such restriction has been made. It 
 is manifest, however, that this remark is to be qualified, when taken in 
 connection with any statute law, which has provided for the formation 
 of Umited partnerships, where that statute law is operative. A due 
 observance of such statutory provisions limits the liability of the si)ecial 
 partner. It limits, too, the authority of the general partner, as the 
 agent of the special partner, and fixes beforehand the extent to which, 
 as agent, he may bind the special partner. It is hardly necessary to 
 say that when a limited partnership is duly formed and carried on under 
 our statute, though the general partner is the agent for all the part- 
 ners, with powers full enough to transact all the business of the firm, 
 and to bind it to all contracts within the scope of that business, he gets 
 no authority, from his relation as partner and agent of the special 
 member of the firm, to fix upon him any greater liability than that 
 which has been stipulated for. These principles are stated here, not 
 as new or forgotten by any one, b"- as the basis upon which the de 
 termination of this case will rest. 
 
 It turned out that the partnership of Grau, Lopez & Co. was createa 
 by a formal instrument in writing, and that, by its terms, the liability 
 of Sarrla was special, and limited in extent to a fixed amount. That 
 instrument (it is found as fact by the learned referee), and all the 
 doings of the three partners under it have been in due accord with 
 the commercial code of Spain, of which nation they were citizens, 
 and under whose government and laws they were living and acting 
 when they executed the instrument, and formed and carried on the 
 partnership. And it is proven and found as fact in the case, that 
 wlien, in due pursuance of the Spanish law, a person has, as did Sarria, 
 entered into such a partnership with others, and has, as did Sarria and 
 his partners, duly observed and carried out the provisions of the law 
 and the terms of their agreement, the liability of the special partner, 
 as was Sarria, is limited to the amount of funds which he has con- 
 tributed according to his agreement. It is well to observe here, that 
 the learned referee has found that Sarria never had any partnership 
 connection with Grau & Lopez, other than that of a limited partner ; 
 that he did not use, nor permit to be used, his name in the firm name ; 
 that he did not, by any representation, act, or omission, hold himself 
 out, or render himself liable, as a general partner. We have then, 
 Sarria himself making, in person, no contract with the plaintiffs, and 
 giving a special and express authority only, to Grau & Lopez to make
 
 520 KING V. SARRIA. [CHAP. X. 
 
 one, which authorit}' was in exact pursuance of law. Those who deal 
 with one as agent do so at their peril, if it turns out that he had no 
 authority from a principal ; and where they rely upon his delegated 
 authority as that of a partner, and know that the partnership was 
 created in another country, must the}' not look to it, to see how far 
 that law, and the partnership under it, gave power to the acting part- 
 ner? ( As then, the power of Grau & Lopez to bind Sarria by contract 
 was tnUt of partners, that is, of agents ; and as their authority was law- 
 full}' restricted, so that they could not bind him in a liability greater 
 than that named in the contract of partnership, it seems to follow that 
 the plaintiffs have no contract which can be enforced against Sariia, 
 otherwise or further, than is provided for by the terms of that authority. J 
 Nor did Grau & Lopez make the contract with the plaintiffs in the 
 name of Sarria, nor with any special claim of right to represent him. 
 They made it in the name of Grau, Lopez & Co., and claiming only to 
 represent that partnership. As to Sarria, the unnamed partner, they 
 were agents, acting under an authorit}- special, express, limited, and 
 could give to the plaintiffs no more claim upon Sarria than such an 
 authority empowered them. The plaintiffs were subject, in these deal- 
 ings with Sarria, to the limitations which he had lawfully put upon tne 
 powers of his agents. Again, to state fam.iliar doctrine, no one, in 
 dealing with an agent, may hold the principal to a contract which was 
 not within the authorit}^ of the agent to make ; nor where there is an 
 express written authority', is it to be enlarged by parol, or added to by 
 implication. It is to be construed, as to its nature and extent, accord- 
 ing to the force of the terms used, and the objects to be accomplished. 
 
 But it is claimed b}' the learned counsel for the plaintiff that the 
 Commercial Code of Spain cannot have an extraterritorial effect ; and 
 that one dealing in this State, in which that law does not rule, cannot 
 avail himself of its effect. If this be so, it must be because the law of 
 this State forbids a foreigner, in such a case as this, from invoking 
 the aid of any law of his domicil. But one country recognizes and 
 admits the operation within its own jurisdiction of the laws of an- 
 other, when not contrary to its own public polic}', nor to abstract 
 justice, nor pure morals. It does this on the principle of comity. 
 It has been so long practised that it is stated as a principle of pri- 
 vate international jurisprudence, that rights which have once well 
 accrued by the l-aw of the appropriate sovereign arc treated as valid 
 evoryvvhere. Westlake on Priv. Int. Law, art. 58. 
 
 The principle, from which originates the influence exercised by the 
 law of a foreign State, in determining the status or rights of its sub- 
 jects in another country, is thus well stated. It is the necessar}- in- 
 tercourse of the subjects of independent governments, which gives rise 
 to a sort of compact, that their municipal institutions shall receive a 
 degree of recii)roeal efficacy and sanction within their respective do- 
 minions. It is not the statutes of one connnunitv which extend their 
 controlling power into the territories of another ; it is the sovereign of
 
 SECT, v.] KING V. SAKRIA. 521 
 
 each who adopts the foreign rule, and applies it to those particular 
 eases in which it is found necessarj' to protect and clierish the mutual 
 intercourse of his subjects, with those of the countr}- whose laws he 
 adopts. Per Sir Samuel Romilly, arguendo, Shedden v. Patrick, 
 1 Macqueen's H. of L. Cases, 554. 
 
 It cannot be said that there is a rule of exclusion, on account of 
 this particular law being contrary to our public policy. It much re- 
 sembles our own statute for the formation of limited partnerships, 
 and, with some difterence in detail, it aims at the same beneficial re- 
 sult, which ours has in view ; nor may we saj-, with our statute before 
 us, that the law is opposed to good morals or abstract justice. There 
 cannot be that exclusion, because it is a rule of our law not to give in 
 an}' case to a foreigner the benefit of the law of his domicil. 
 
 Mr. Nash was correct, in opening his argument, in saying that this 
 is a case of first impression in this State. Hence it is, that in looking 
 for the reasons upon which it is to be decided, we have to be governed 
 by the analogies of the law, rather than cases in point. Let us see 
 where those analogies tend. If one marry, where marriage is only a 
 civil contract, his marital relation will be held valid, in a countrj- where 
 a religious ceremon}' is, b}' its law, deemed vital. The same principle 
 prevails with us, though not called into application by such a state of 
 facts. It is an established principle that the law of the place where 
 contracts purel}' personal are made, must govern as to their construc- 
 tion and validity, unless they are made to be performed in another 
 State or country. Curtis v. Leavitt, 15 N. Y. 227 ; Chapman v. Rob- 
 ertson, 6 Paige, 627. This contract of partnership was made to be 
 performed in Cuba. The contract made by the partnership with the 
 plaintiffs, it may be conceded, was made in New York, to be performed 
 here. The contract with the plaintiffs will be construed and enforced 
 by the laws of this State, and they will determine the nature and extent 
 of the liability upon it, of the partnership, the maker of it. The for- 
 mer, the contract of partnership, between the members of the firm, 
 will be construed and weighed by the laws of Spain, and they will 
 determine the liability of Sarria, and the extent of the authority given 
 by him to Grau & Lopez. In Comm. of Ky. v. Bassford, 6 Hill, 526, 
 the Supreme Court of this State maintained an action on a bond, given 
 to secure the paj'ment of mone}*, to be raised and distributed b}' a lot- 
 tery, on the ground that it was a valid and legal obligation in Ken- 
 tucky, where it was assumed that it was made, and where it was to be 
 executed, though opposed to the statutory policy of this State. And 
 the rule has been so far carried, in one jurisdiction, in recognizing the 
 law of the domicil, as to enforce a claim of propert}' in slaves. Mad- 
 razo V. Willes, 3 Barn. & Aid. 353 ; see also. Greenwood v. Curtis, 
 6 Mass. 358 ; Com. v. Aves, 18 Pick. 215 ; The Antelope, 10 Wheat. 
 66 ; and so far in another jurisdiction as to hold good a sale of lottery 
 tickets in this State. Melntyre i\ Parks, 3 Mete: 207. 
 
 There is a close analogy between this case and questions arising as
 
 622 KING V. SAE2!A.. [CHAP. X. 
 
 to the aiithoritj' of the master of a vessel to bind his owners in a for- 
 eign port. Though the sokition of the latter depends upon the rules 
 of the maritime law more particularly, yet the relation of the master 
 and the owners is but a branch of the general law of principal and 
 agent, and so the ultimate reason of each starts from the same root. 
 It is not a new doctrine, that a master of a vessel cannot bind her 
 owners in a foreign port, to any greater liability than will be recognized 
 by the law of their domicil. Pope v. Nickerson, 3 Story, 465. And 
 the rule there laid down has been recognized and applied in the Court 
 of Queen's Bench, on the principle that the power of the master to bind 
 the owners personally is but a branch of the general law of agency. 
 Lloyd y. Guibert, 6 Best & Smith, 100; s. c. in Exch. Ch., id. That 
 case, also, in its reasoning, recognizes the distinction which we have 
 stated, (between the law which is to affect the question of the authority 
 to make a contract, and that which is to determine the validity and 
 effect of the contract when made.X It was urged there, too, by counsel, 
 but without effect, that the law of the place where the contract was 
 made, and of the place where it was to be performed, was different 
 from the law of the domicil of the defendants. It was also urged that 
 the contract entered into was boiiajide, hi the ordinary course of busi- 
 ness b}' the master, and within the scope of his ostensible autliorit}' to 
 contract ; and that his power could not be narrowed by provisions of 
 foreign law, unknown to the party dealing with him, more than by 
 secret instructions, but urged without avail. So, also, in the case of 
 The Moxham, 1 P. Div. 107, it is pertinently said: " One can under- 
 stand that a contract between master and servant, or the relations be- 
 tween principal and agent, may affect a contract made b}' the agent, 
 qua agent, with foreigners ; that is to sa}', it may affect the nature and 
 extent of his agenc}'." 
 
 So, too, in actions of tort, it has been held that an extraterritorial 
 law will furnish a defence in the courts of England. Phillips f. Eyre, 
 Law Rep. 6 Q. B. 1. It is said that an act committed abroad, if valid 
 and unquestionable by the law of the place, cannot, so far as civil lia- 
 bility is concerned, be drawn in question elsewhere, unless by force of 
 some distinct, exceptional legislation. See also Dobree v. Napier, 
 2 Bing. N. C. 781. 
 
 The effect of the judgments in these cases is this : That where the 
 essentials of a contract made under foreign law are not hostile to the 
 law and policy of this State, the contract may be relied upon and 
 availed of in the courts of this State. If the substance of the contract 
 is against that law and policv, our judicatories will refuse to entertain 
 it and give it effect. Hence, the contract of partnership made by 
 Sarria, in Cuba, may be availed of by him hcre.^ 
 
 1 Ace. Banwws v. Downs, 9 K. I. 446; Hastings v. llopkiusoii, 28 Vt. 108. — Ed.
 
 BECT. V.J CHATENAY V. BRAZILIA^^ SUBMARINE TELEGRAPH CO. 523 
 
 CHATENAY v- BRAZILIAN SUBMARINE TELEGRAPH 
 
 COMPANY. 
 
 Court of Appeal. 1890, 
 
 [Reported [1891] I Queens Bench, 79.] 
 
 Appeal from a judgment of Day, J., on a preliminar}' issue. 
 In the ye ar 1880 the plaintiff, who was a Brazilian subject and resi- 
 dent in . Brazil, execute d, in lavor ot one tiroe, a stock-jaroJ^erQarrjlno; 
 <TTr:5«iIftftftfi--Lu the cit y of Lon don^ a power of attorney to purchase- and* 
 sell shares in public companies and public funds. The power of attor- 
 
 "ne}' was in the Portuguese language, and was executed by the plaintiff 
 in Brazil with the formalities required by the Brazilian law. Broe, 
 purporting to act under the power of attorney, disposed of certain 
 shares in the defendant company which were the propert}' of the plain- 
 tiff and registered in his name. Broe did not account to the plaintiff for 
 the proceeds of the sale of these shares, the purchasers of which were 
 registered as owners in the books of the conipan}*. The plaintiff issued 
 an originating summons asking for the rectification of the register by 
 inserting therein his name as holder of the shares, and an issue was 
 directed to be tried by a jur3' in London to determine whether the 
 plaintiff' was entitled to have the register so rectified. Before this issue 
 came on for trial an order was made that the question whether Brazil- 
 ian or English law was to govern the construction of the power of 
 attorney should be tried by a judge without a jurv. The matter came 
 on before Day, J., who decided that English law was to govern the 
 construction of the power of attorney, and a certificate to that effect 
 was accordingly made out. 
 The defendants appealed.^ 
 Lord Esher, M. R. In_ jhis c ase a pprsonresident in Brazil ^rul 
 
 ^carr vipg on business the re wrote down that wEicb he intended to be an ^ 
 autb'oritv'"to 'an agen tTl?^ that agent would accept the delegation. The 
 
 "person wfaomTig d t;^ ! ^^ "^ be Tus"~clelcgate did afterwards accept that 
 delegation. The question raised is, wh .^t is the me aning of that docii - 
 ment? Now, I agree that it has one meaning, and no more; and the 
 queslTon is, what was the meaning of the plaintiff when he wrote that 
 document? The.iiQurt has to ascertain that meaning^ j'i;om a considera- 
 tion of what it is that waS wrTften under the circumstances in which it 
 was written ; that is, in other words, having regard to the words used, 
 andjto tfiie~snrrounding circu nistaTY ces^^e ti me th o\- were used, " 
 
 Now, this writing was a business document, written in Brazil m the 
 Brazilian language, and with the formalities necessary according to the 
 Brazilian law and custom, by a man of business carrying on business 
 
 1 Arguments of counsel and concurring opinion of Lindlet, L. J., are omitted. 
 — Ed.
 
 524 CHATENAY V. BRAZILIAN SUBMARINE TELEGRAPH CO. [CHAP. X. 
 
 in Brazil. An English court has to construe it, and the first thing, 
 therefore, that the English court has to do is to get a translation of the 
 language used in the document. Making a translation is not a mere 
 question of trying to find out in a dictionary the words which are given 
 as tlie equivalent of the words of the document ; a true translation is 
 the putting into English that which is the exact effect of the language 
 used under the circumstances. To get at this in the present case you 
 must get the words in English which in business have the equivalent 
 meaning of the words in Brazilian, as used in Brazil, under the circum- 
 stances. Therefore you would want a competent translator, competent 
 to translate in that way, and, if the words in Brazil had in business a 
 particular meaning different from their ordinary meaning, yon would 
 want an expert to say what is tliat meaning. Amongst those experts 
 you might want a Brazilian lawyer ; and a Brazilian lawyer for that 
 purpose would be an expert. That is tlie first thing the court has to 
 do. Then, when the court has got a correct translation into English, 
 it has to do what it always has to do in the case of any such document, 
 — either a contract, or such an authority as this, — that is to say, de- 
 termine what is to be taken to be the meaning of the party at the time 
 he wrote it, and what is to be inferred from the language which be has 
 used. There are certain inferences which are adopted in ascertaining 
 the meaning of the language used, unless in the particular instance the 
 contrary intention appears. One inference which has been always 
 adoi)ted is this: if a contract is made Jn^ country to be^xecuted in 
 that^lQuntryv, unlesTthere appears sonietlmig to JjULContraryL^^iouJiaka 
 it that the parties must have intended that that contract, as to its con- 
 struction, and as to its effect, and the mode of carrying it out (which 
 really are the result of its jconstruation), is_to be construed according 
 iO-the law o£ the c_ountry where it was mtyje. But the business _sense_ 
 of all bu sine ss men has coiue to this conclusion. tli:it if a contract is 
 "^ade in one country to be carried out between the parties in another 
 country, either in whole or in part, unle ss there appears something to 
 tiie contraryTltlsJto be concluded that the parties must have intended 
 'tliat'it shouldl)e carried out according toJheJawoXthat_othcr country, 
 ^herwise a Vei-y~strange state of things would arise, for it is hafclly 
 conceivable that persons should enter into a contract to be carried out 
 in a country contrary to the laws of that country. That is not to be 
 taken to be the meaning of the parties, unless they take very particular 
 care to enunciate such a strange conclusion. Therefore the law has 
 said, that if the contract is to be carried out in whole in another coun- 
 trv, it is to be carried out wholly according to the law of that country, 
 and that must have been the meaning of tlic parties. But if it is to be 
 carried out partly in another country than that in vvhicli it is made, 
 that part of it which is to be carried out in that other country, unless 
 something appears to the contrary, is taken to ' have been intended to 
 be carried out according to the laws of that country. 
 
 Now, applying those rules to the present case, the first thing to be
 
 SECT. VI.] LEE V. ABDY. 525 
 
 done is to get at the true construction of the language used in the au- 
 thority. When the plaintiff used the Brazilian language in this docu- 
 ment, he must have used it in the business sense given to it in Brazil. 
 Therefore, that has to be ascertained ; and then having got that, the 
 equivalent in the English language must be found. Having got in 
 English the equivalent of the Brazilian words, we have to see what the 
 meaning of the language so used is. If it appears that the contract is 
 to be performed in Brazil wholly, — that is to say, that the contract 
 shall be performed according to Brazilian law, — that is the construc- 
 tion of it, and that is the meaning of the parties ; but if it appears that 
 it was to be wholly carried out in England, we should infer that the 
 meaning of the parties and the true construction of the contract were 
 that it was to be carried out according to English law. If we find that 
 the authority might be carried out in England, or in France, or in any 
 other country, we come to the conclusion that it must have been in- 
 tended that in any country where In fact it was to be carried out, that 
 part of it which was to be carried out in that country was to be carried 
 out according to the law of that country. That would be putting one 
 construction only on the document, and not putting a different con- 
 struction on it in different countries. The one meaning that he had 
 was, " I give an authority which if carried out in England is to be car- 
 ried out according to the law of England ; if in France, according to 
 the law of France." That is one meaning, though this authority is to 
 be applied in a different wa}' in diflferent places. 
 
 SECTION VI. 
 
 ASSIGNIIENT. 
 
 LEE V. ABDY. 
 
 High Court of Justice, Queen's Bench Division. 1886. 
 
 [Reported 17 Queen's Bench Division, 309.] 
 
 Action against the trustees of the Reliance Mutual Life Insurance 
 Society on a policy of insurance upon the life of Ellis Laurence Lee, 
 deceased, by an assignee of the polic}'. 
 
 The defence {inter alia) stated as follows: At tlie date of the 
 alleged assignment of the policy the said Ellis Laurence Lee was, and 
 he remained till his death, a merchant domiciled in Cape Colony, and
 
 526 LEE V. ABDY. [CHAP. X. 
 
 the plaintiff was his wife. The title to the policy money is governed 
 by the law of the said colony, according to which the alleged assign- 
 ment, if executed, was and is void both by reason of the alleged as- 
 signee being the wife of the said Ellis Laurence Lee, and by reason 
 that the said Ellis Laurence Lee was, and remained till his death, 
 insolvent, and that his creditors are entitled to the policy moneys. 
 
 The plaintiff in her reply objected that the above statements of the 
 defence showed no defence in law. It was ordered b}- Wills, J., that 
 the question of law whether, assuming the facts stated in the defence 
 to be true, the rights of the plaintiff under the assignment of the policy 
 were governed b}' the law of Cape Colon}- or by that of England, should 
 be disposed of before the trial, and that the policj' should be produced 
 on the argument. It appeared in the course of the argument to l)e an 
 admitted fact that the assignment was executed in Cape Colony, though 
 it was not expressly so stated on the pleadings. 
 
 It appeared from the policy that it was effected by the deceased, Ellis 
 Laurence Lee, who was described therein as resident at Kimberley, 
 in South Africa, with the societ}', which was a life insurance company 
 in London. It recited that the proposal for assurance, and the usual 
 declaration b}- the assured, had been delivered at the office of the 
 society by him, and that the truth of the statements therein were to 
 form the basis of the contract. The policy monej', together with such 
 further sum, if an}-, as might be apportioned by way of bonus to the 
 policy, was to be paid within three calendar months after proof satis- 
 factory to the directors had been given of the death of the assured 
 having happened within the term of the insurance. The policy con- 
 tained the usual clause to the effect that the funds of the society should 
 alone be answerable for any demand under the policy. 
 
 Day, J.^ If it were necessar}' to determine where the assured was 
 domiciled when the policy was entered into, or where the policy must 
 be considered as having been made, or where it is payable, there might 
 be some difficulty in doing so upon the facts so far as they at present 
 appear before us ;' but in the view I take it is unnecessar}' to go into 
 those questions. It seems to me that quite independently of those 
 considerations the assignment of the polic}' was invalid. The su bjcct- 
 matter of the assignment is a cjiose in acti.onjg.biciL ha s no lo cality. 
 ~THe general rule, sulyect to exceptions which do noTJeera to me to 
 - ajjply to _tlie present case, is ilmt the \ nlidity and incidents of a con- 
 tract must be determined hy the l;i\v of tlie p lace wher e [t is entered 
 int o^ The assignment here in question is an assignment that exists 
 if at all by virtue of a contract between assignor and assignee, and fl 
 cannot see how, if there was no valid contract between them, there can 
 be any valid assignment. Now the contract in fact entered into by the 
 parties to tlie assignment was entered into in Cape Colony, and the 
 parties were domiciled tliore, and, as 1 have said, it had relation to a 
 
 1 Arguraeuts of couusel and the coucurriug -/'>iiii<in of Wills, J., are oinitteu. — 
 Ed.
 
 SECT. VI.] WILLIAMS V. COLONIAL BANK. 527 
 
 chose in action which has no locaUty. Xt is argued that the vaHditv_ of 
 this contract must be d etermine d^b y thp I nw of Knglnnd . — Why slionld 
 that be^o? The reason given is that thej jaijifcs are o ott-feya-ctirrglvtth 
 
 r eference to a contract which is affected by tl i p , Inw of Eng l and . — I'linJih, 
 cons ideration seems to me to b e imniaterial. The y are d omiciled an d 
 are contracting in Cape Col ony, and by the law of t hat colony, a s it 
 ""seems" to me, the validity or i nvalidity of such contract must be detej>- 
 rainecL It was urged upon us that this conclusion would occasion great 
 inconvenience to insurance companies. But I cannot see that much 
 greater difficult}- would arise in ascertaining whether an assignment 
 was good according to foreign law than in the ordinary case of an as- 
 signment under English law. No doubt people are theoreticall}- bound 
 to know the law of their country-, but in point of fact in man}' cases 
 the}' do not, and there might often be difficulties in ascertaining whetlier 
 an alleged assignment according to English law had been validly' effected. 
 I do not think that any additional difficulty occasioned by the assignment 
 being governed b}' foreign law is of so much moment as was suggested. 
 We were pressed with the authority' of the case of Lebel r. Tucker, Law 
 Rep. 3 Q. B. 77, but the decision there had relation to a bill of 
 exchange, and I do not think that case is analogous to the present. 
 It seems to me that the question which really arises here is one of 
 the validity of a contract which is purely foreign, though such contract 
 has relation to a chose in action which possibly arises upon an English 
 contract. For these reasons I think our judgment must be for the 
 defendants.^ 
 
 WILLIAMS V. COLONIAL BANK. 
 
 Court of Appeal. 1888. 
 
 [Reported 38 Chancerij Division, 388.] 
 
 Cotton, L. J.^ These ai-e two appeals, one in each action. Each 
 action was brought by the executors of the late Mr. Williams, one 
 against the Colonial Bank, and the other against the Chartered Bank 
 of Australia. Each action was to prevent the defendant bank from 
 dealing with and claiming as its own certain shares in an American 
 railway company, the New York Central and Hudson River Railroad 
 Company. 
 
 Mr. Williams at the time of his death was the owner of 1210 shares 
 in that compan}*, which were standing in his name, and his executors 
 
 1 Ace. Miller v. Campbell, 140 N. Y. 457, 35 N. E. 65L But see Brown's Appeal, 
 125 Pa. 303, 17 AtL 419. — Ed. 
 
 - Parts of the opinions given and the concurring opinion of Bowen, L. J., are 
 omitted. — Ed.
 
 528 WILLIAMS V. COLONIAL BANK. [CHAP. X: 
 
 shortly after his death desired that those shares should be transferred 
 from the name of the testator into their own names in the books of the 
 company. Those shares, in parcels of ten, were represented by cer- 
 tificates, and the executors sent those certificates to Messrs. Tliomas, 
 who were brokers in London, lor the purpose of their getting the 
 shares transferred into the names of the executors. At first they did 
 not sign the power of attorney on the back of the certificates, the cer- 
 tificates were sent back to them, and the two executors who had then 
 proved signed the power of attorney on the back of the certificates, 
 leaving it in blank, not naming any attorney nor filling in the name of 
 an}- one as the person to whom the shares were to be transferred. The 
 shares were not transferred into the names of the executors, and a 
 member of the firm of brokers used the certificates for his own pur- 
 poses. At first he deposited the whole of them with the Colonial Bank, 
 as a security for money due to them from his firm. In the year 1883, 
 two years and a half after the certificates had been signed and left with 
 the brokers, the brokers got some of these certificates back from the 
 Colonial Bank, and the same member of the firm deposited them for an 
 advance with the Chartered Bank of Australia. In 1884 the firm be- 
 came bankrupt, and inquiries were made by the executors as to what 
 had become of their certificates which they had left with the firm up to 
 that time, and apparently without inquiry, except an inquiry made in 
 December, 1882, when the fraudulent member of the firm told them 
 that the certificates were quite safe in America. They found that 
 these certificates were not in the possession of the brokers, but of the 
 banks, and the banks claimed to be entitled to them according to 
 American law. The plaintiffs brought their -actions to assert their 
 title to the shares. At the time when the actions were commenced 
 the shares were still standing in the name of the testator, and the cer- 
 tificates were in the same state as when handed to Thomas & Co. 
 Mr. Justice Kekewich decided in favor of the defendants, and dis- 
 missed both actions. The question before us is, was he right in so 
 deciding? 
 
 I will first say a few words as to the nature of these certificates. On 
 the face of them each is a certificate that Mr. Williams was entitled to 
 ten shares of Si 00 each in tlie capital stock of the railroad company, 
 transferable in person or by attorney in the books of the company 
 only on the surrender and cancellation of this certificate by an indorse- 
 ment thereof hereon in the form and manner prescribed by the regu- 
 lations of the company. Then on the back there was this: [His 
 Lordship read the indorsement.] The two executors who had proved 
 signed these indorsements, leaving the names of the transferee and of 
 the attorney in blank. The banks contend that, according to Ameri- 
 can law, and by the delivery of these certificates with signed transfers 
 upon them, they became entitled l^oth at law and in equity to the shares 
 which are represented in the certificates as belonging to the testator ; 
 and that as the means were given to them of re(iuiring a transfer by
 
 SECT. VI,] WILLIAMS V. COLONIAL BANK. 529 
 
 the company of the shares into the name of the transferee, though as 
 against the company they cannot be considered as having tlie rights of 
 shareholders till their names are entered in the books of the company, 
 yet as between transferor and transferee they have both the legal and 
 equitable title. According to English law of course they would have 
 no legal title. They would have a mere inchoate title, which, according 
 to English law would not enable the transferees to hold the shares as 
 against the executors who are the legal owners, but it appears that 
 according to American law the transferee has not only an equitable 
 title but a legal title to the shares. . . . 
 
 Now_tbe question here whether Thomas & Co. gave the banks a good 
 title to the certificates depeiids on transactions in England, and must_ 
 be decided by the law of England, and not by the law of America. 
 The law of America, in my opinion, is property referred to for the pur- 
 pose of deciding what would be the effect of a valid effectual transfer 
 
 of the certificates on the title to shares in an American compan}-, but_ 
 jwhether Thomas & Co. transferred to the banks a good title to the cer- 
 tificates depends on transactions in England, and in no way depends 
 on thejaw of America. So also the question whether the plaintiffs 
 "^Tiave been estopped by any act of theirs from questioning the title of. 
 ■"the' t ransf erees of Thomas & Co. must be a question of English 
 law. . . . 
 
 LiNDLEY, L. J. I am of the same opinion, and were it not that all 
 cases of this kind are of the greatest importance, I do not know that I 
 should consider it necessar}* to say anything, but when we have to de- 
 cide which of two innocent people is to suffer from the fraud of a third 
 it is necessary to be xevy careful and to take great pains to assure our- 
 selves that the party against whom we decide is, according to law, in 
 the wrong, 
 
 First of all, let me dispose of the questions as to American law. As 
 I understand the evidence given by the American lawyers, if this trans- 
 action had taken place in America the banks would have got a good 
 title to these shares, subject possibly to the question about the docu- 
 ments not being jjroperl}^ attested. I doubt ver}' much whether the 
 American lawyers would have attached much importance to that, and 
 I shall assume throughout my judgment that if this transaction had 
 taken place in America the banks would have succeeded. Now, the 
 American law is important up to a certain point, but not be3-ond that 
 point. We must look to the American law for the purpose of under- 
 standing the constitution of the railway compan}- and the proper mode 
 of becoming a shareholder in it. Moreover, it ma}* be that the conse- 
 quences of having acquired a title to the certificate may depend on 
 American law, but the question how a title is to be acquired to a cer- 
 tificate by a transaction in this countr}' does not depend on American 
 law at all. One question, and to m}' mind the main question, resolves 
 itself into this, — Who is entitled to these certificates ? Now the cer- 
 tificates have been dealt with by the executors in England, and the 
 
 34
 
 530 JACKSON V. TIERXAN. [CHAP. X. 
 
 certificates are chattels, and when we are considering who is entitled 
 to a chattel bought or sold or pledged in England, it is English law 
 and not American law that is to govern the case.^ . . . 
 
 JACKSON V. TIERNAN. 
 Supreme Court of Louisiana. 1840. 
 
 [Reported 15 Louisiana, 485.] 
 
 Martin, J.^ This is an action to recover the sum of two thousand 
 four hundred dollars, with six per cent interest per annum, according to 
 the laws of Maryland, on an assignment, for a valuable consideration, 
 hy one Thomas H. Fletcher, to the plaintiff of this sum, to be paid by 
 the defendants, from so much of the proceeds of a shipment of tobacco 
 made to them by Fletcher, who was indebted to the plaintiff. The 
 latter took this assignment without an}- other security', against a 
 protested bill of exchange, for the same amount, on being shown 
 tlie receipts of the agent of tlie defendants, that Fletcher owed them 
 nothing, and that the consignment of tobacco had actualh' been made. 
 The assignment was made on the 21st of May, 1819, at Nashville, and 
 the defendants resided in Baltimore. . . . 
 
 The counsel for the plaintiff has shown that although the assignment 
 of a debt would be disregarded l)y, or ratlier would not be enforced in 
 the common law courts of the State of ]Maryland, which is the loc^is 
 solutionis, yd the assignment even of a part of a debt would be en- 
 forced in the Courts of Chanceiy in that State : provided the debtor 
 assented thereto; or an obligation, resulting from the assignment of 
 a part of the debt ma}' be fairly implied from the custom of trade, or 
 the course of business between the parties, as a part of their contract. 
 As, for example, the deposit of mone\- in a bank ; the proceeds of a 
 crop sent by a planter to his commission merchant for sale ; or those 
 of a shipment of produce to a consignee or factor in Baltimore, Liver- 
 pool, or Havre, which is the present case. See the case of Poydras v. 
 Delamare et al., 13 La. Rep. 98 ; Mandeville v. Welch, 5 Wheat. 277. 
 See also 2 Story's Eq. Jur. § 1044; 3 Swanst. Rep. 393; Tiernan v. 
 Jackson, 5 Pet. 598. 
 
 The plaintiff had, therefore, an equitable right, on this assignment, 
 in the State of Maryland. The courts of this State are bound to en- 
 force equitable rights. These rights are to be tested by the lex loci 
 contractus, though tlie remedy here must be sought according to our 
 laws, to wit, the lex fori. 
 
 1 vSee Masnry v. Arkansas Xat. Batik, 87 Fed. 3%\,anlt, p. 181. — tl>. 
 3 Part of the opiuiou ouly is giveu. — Ei>.
 
 SECT. VH.j JACOBS V. CREDIT LYONNAIS. 531 
 
 SECTION VII. 
 
 PERFORMANCE. 
 
 JACOBS V. CREDIT LYONNAIS. 
 
 Court of Appeal. 1884. 
 
 [Reported 12 Queen's Bench Division, 589.] 
 
 BowEN, L. J. The plaintiffs in this case are esparto merchants 
 carrying on business in the c\%y of London, and the defendants are 
 a banking firm also carrying on business in the cit}'. 
 
 By a contract made in London on the 6th of October, 1880, the de- 
 fendants agreed to sell to the plaintiffs 20,000 tons of Algerian esparto, 
 to be shipped from Algeria during the year 1881 by monthly deliveries 
 on board ships or steamers to be provided by the plaintiffs, payment 
 to be made by cash on arrival of the ship or steamer at her port of 
 destination. The defendants delivered a portion of the esparto under 
 the contract, but failed to deliver the remainder; and this action was 
 brought by the plaintiffs for its non-delivery. The defendants in their 
 statement of defence admitted the non-delivery complained of, but 
 alleged that the insurrection in Algeria and the militarj' operations 
 connected with it had rendered the performance of the contract impos- 
 sible ; and that by the French Civil Code, which prevails throughout 
 Algeria, force majeure is an excuse for non-performance. The plain- 
 tiffs demurred to this defence on the ground that the contracts were 
 governed by English law and not by the law of Algeria, and further 
 alleged that the defendants or their agents could have procured and 
 shipped esparto from other parts of Algeria where /brce majeure did 
 not exist. The defendants to the latter allegation rejoined that the 
 insurrection and military operations rendered it impossible to transport 
 such esparto as last mentioned to the place fixed in the contract for 
 approval by the plaintiffs of its quality before shipment, or to transport 
 the same to the place fixed in the contract for shipment. To this 
 rejoinder there was a further demui'rer upon similar grounds; .;.The 
 Queen's Bench Division having given judgment upon both demurrers 
 for the plaintiffs, the case now came before us upon appeal.,; 
 
 The question which we have in substance to consider is, whether 
 aon -performance of their agreement by the defendants can be excused on 
 the ground that military operations in Algeria and the Algerian insurrec- 
 tion had rendered its performance impo«sible, and that such an excuse 
 would have been recognized by the French Civil Code which prevails 
 in Algeria, in conformity with the following section as translated from
 
 532 JACOBS V. CK^DIT LYONNAIS. [CHAP. X. 
 
 the French : " There is no ground for any damages when by means of 
 a superior force or an accident the obligor has been prevented from 
 giving or doing that which he was bound to give or do, or has done 
 that which he was not bound to do." The first matter we have to 
 determine is, whether this contract is to be construed according to 
 English law or according to French. To decide this point we must 
 turn to the contract itself, for it is open in all cases for parties to make 
 such agreement as they please as to incorporating the provisions of any 
 foreign law with their contracts. What is to be the law by which a 
 contract, or any part of it, is to be governed or applied, must be always 
 a matter of construction of the contract itself as read by the light of 
 the subject-matter and of the surrounding circumstances. Certain 
 presumptions or rules in this respect have been laid down by juridical 
 writers of different countries and accepted by the courts, based upon 
 common sense, upon business convenience, and upon the comity of 
 nations ; but tiiese are only presumptions ox prima facie rules that are 
 capable of being displaced, wherever the clear intention of the parties 
 can be gathered from the document itself and from the nature of the 
 transaction. The broad rule is that the law of a country where a con- 
 tract is made presumably governs the nature, the obligation and the 
 interpretation of it, unless the contrary appears to be the express 
 intention of the parties. " The general rule," says Lord Mansfield, 
 " established ex comitate et jure (jentium is that the place where the 
 contract is made, and not where the action is brought, is to be con- 
 sidered in expounding and enforcing the contract. But this rule admits 
 of an exception where the parties at the time of making the contract 
 had a view to a different kingdom." Robinson v. Bland, 1 W. Bl. 258 
 (see Peninsular and Oriental Steam Navigation Co. v. Shand, 3 Moo. 
 P. C. (n. s.) 291). This principle was explained by the Exchequer 
 Chamber in the case of Lloyd r. Guibert, Law Rep. 1 Q. B. 122, as 
 follows : " It is generallv_agrce cl that th £- law of the place where thg 
 contTaciJL£2iaiieas._^*w,^^^^^c^ 
 
 £»Ught.tq be presumed to have adopted as the^footingjj ponwhich t hey 
 d^t, and that such law ought therefore to'prevaU in~th e~absenc^ o f 
 circumstances indicating a different intention, as^ fOTTiisTance, that the 
 contract is to be entirely performed elsewhere, or that the subject-matter 
 is immovable property situate in another country, and so forth ; which 
 latter, though sometimes treated as distinct rules, appear more properly 
 to be classed as exceptions to the more general one, by reason of the 
 circumstances indicating an intention to be bound by a law different 
 from that of the place where the contract is made ; which intention is 
 inferred from the subject-matter and from the surrounding circumstances 
 so far as they are relevant to construe and determine the? character of 
 the contract." It is obvious, however, that the subject-matter of each 
 contract must be looked at as ^ell as the residence of the contracting 
 parties or the place where the contract is made. The place of performance 
 is necessarily in many cases the place where the obligations of the contract
 
 SECT. VII.] JACOBS V. CREDIT LYONNAIS. 533 
 
 will have to be enforced, and hence, as well as for other reasons, has 
 been introduced another canon of construction, to the effect that the 
 law of the place of fulfilment of a contract determines its obligations. 
 But this maxim, as well as the former, must of course give way to any in- 
 ference that can legitimately be drawn from the character of the contract 
 and the nature of the transaction. In most cases, no doubt, where a 
 contract has to be wholly performed abroad, the reasonable presump- 
 tion may be that it is intended to be a foreign contract determined by 
 foreign law ; but this prima facie view is in its turn capable of being 
 rebutted by the expressed or implied intention of the parties as deduced 
 from other circumstances. A^nillLJLlIllLl''^ ^'"^' ^ ^ ' 1 """ ^ O"*"''^^^ ^"^ partly — 
 to be perfomiecUn_one_place and parth' in another. In sucha^cas^Jhe — 
 only^ertain gujde^is to be found in applying sound ideas of business, — 
 convenience, and sense to the language of the contract itself, wi th a 
 view to discovering from it tlie true intention of the parties . E ven in 
 respect of any performance that is to take place abroad, the parties may 
 still have desired that their liabilities and obligations shall be governed 
 by English law ; or it may be that they have intended to incorporate 
 the foreign law to regulate the method and manner of performance 
 abroad, without altering any of the incidents which attach to the 
 contract according to English law. Stereotyped rules laid down by 
 juridical writers cannot, therefore, be accepted as infallible canons of 
 interpretation in these days, when commercial transactions have altered 
 in character and increased in complexity ; and there can be no hard- 
 and-fast rule by which to construe the multiform commercial agreements 
 with which in modern times we have to deal. In the present case the 
 contract was made in London between merchants carrying on their 
 business in the city of London, and payment was to be made in London. 
 Presumal)ly, therefore, we should infer that this was an English contract 
 and intended to be governed by English law ; but it still remains to be 
 considered whether anything in the contract itself or the nature of its 
 stipulations displaces this prima facie view either wholly or in part. 
 Now it cannot be contended that the parties have in express terms 
 provided that an}' portion of this contract is to be construed or applied 
 otherwise than according to English law ; but it was suggested by the 
 appellants that such an intention ought to be inferred from certain 
 provisions as to the collection of the esparto in Algeria and as to 
 its shipment thence. The esparto was to be shipped by the Compagnie 
 Franco-Algerienne, or their agents, from Arzew, or any other port with 
 safe anchorage, by sailing ships or steamers during thej'ear 1881. The 
 quality of the esparto was to be finally approved by the plaintiffs' repre- 
 sentatives at the works of the Compagnie Franco-Algerienne, at Ain-el- 
 Hadjar, in Algeria, before being baled, and no claim respecting quality 
 was to be allowed after the delivery of the bales at Arzew. The neces- 
 sary ships or steamers were to be supplied by the plaintiffs, otherwise 
 the esparto was to be warehoused by the Compagnie Franco-Algerienne 
 at the plaintiffs' peril and risk. Insurance was to be effected by the
 
 534 JACOBS V. CREDIT LYONNAIS. [CHAP. X 
 
 defendants for the invoice amount at selling price, and 2 per cent over 
 in the United Kingdom on the usual conditions. Payment to be made 
 by cash on arrival of the ship or steamer at port of destination. Finally 
 the contract contained an arbitration clause, with a provision that it 
 should be made a rule of the High Court of Judicature on the applica- 
 tion of either of the contracting parties. 
 
 Tliere is absolutely nothing in any part of this contract, as it appears 
 to us, which can amount to~an indication that it is in any way or in any 
 part of it to be treated as anything except _an English contract, unles s 
 it be the mere fact_that„ihe ^sparto is to be collected in ATgeria^ ap- 
 ^pi^SvecTaFtlie^orks of a French company in Algeria before shipment, 
 and to be delivered on board ships of the plaintiffs at an Algerian port, 
 after which it is to be at plaintiffs' risk. To hold that on this ground 
 only the ordinary- presumption is to be displaced, and that the parties 
 must have meant some law other than the English to govern the con- 
 struction of any portion of the contract as regards the liabilities of the 
 contracting parties, would be to introduce a serious element of uncer- 
 tainty into mercantile contracts. The mere fact that a contract of this 
 description, — made in England between English resident houses, and 
 under which payment is to be made in England upon delivery of goods 
 from up country in an Algerian port, — is partly to be performed in 
 Algeria, does not put an end to the inference that the contract remains 
 an English contract between English merchants, to be construed ac- 
 cording to English law, and with all the incidents which English law 
 attaches to the non-performance of such contracts. 
 
 Now one of the incidents which the English law attaches to a contract 
 is that (except in certain excepted cases as that of common carriers 
 and bailees, of which this is not one), a person who expressly contracts 
 absolutely to do a thing not naturally impossible, is not excused for 
 non-performance because of being prevented by vis major. 
 
 " The rule laid down in the case of Paradine v. Jane, Aleyn, 27, has 
 often," says Lord Ellenborough, " been recognized in courts of law as 
 a sound one ; that wiie'n the party by his own contract creates a duty 
 or charge upon himself, he is bound to make it good, if he may, not- 
 withstanding any accident by inevitable necessity ; because he might 
 have provided against it by his contract." Atkinson i\ Ritchie, 10 East, 
 530. at p. 53.3. See also Spcnce r. Chodwick, 10 Q. B. 530 ; Lloyd r. 
 Guibert, Law Rep. 1 Q. B. 121. If inevitable necessity occurring in 
 this country would not excuse non-performance, why should non-per- 
 formance be excused on account of the inevitable necessity arising 
 abroad ? So to hold would be to alter the liability which PZnglish law 
 attaches to contracts, and would, in the absence of an expressed or 
 implied intention to that effect, be contrary to authority as well as 
 principle, see Barker v. Hodgson, 3 M. & S. 267 ; Sjoerds v. Luscombe, 
 IG East, 201. The Solicitor-General, in his argument, admitted that 
 he was driven to contend that the law of the place of fulfilment not 
 merely governed the mode of performance of this particular coutract.
 
 SECT. VII.] JACOBS V. CREDIT LYONNAIS. 535 
 
 but governed also the obligations in respect of performance, and the 
 liabilities in respect of non-performance of it. It seems to us, however, 
 that the true principles of construction to be appUed do not admit of 
 this interpretation of this contract. To what extent foreign law is to 
 be incorporated in an}- contract must be, as we have said, a question of 
 construction of the contract itself read by the light of the surrounding 
 circumstances. If a contract made in England by English subjects or 
 residents, and upon which payment is to be made in England, has to be 
 performed in part abroad, it might not be unreasonable to assume that 
 the mode in which any part of it has to be performed abroad was in- 
 tended to be in accordance with the law of the foreign country, and to 
 construe the contract as incorporating silently to that extent all pro- 
 visions of a foreign law which would regulate the method of performance, 
 and which were not inconsistent with the English contract. But it 
 cannot be gathered from such a contract as the present that the parties 
 desired to go further and to discharge the defendants from performance 
 whenever circumstances arose which would, according to foreign law, 
 excuse them. The contract has absolutely provided that delivery of 
 the esparto shall be duly made, not that the bargain as to such delivery 
 need only be observed when the foreign law would insist upon such ob- 
 servance. The contract being an English contract, only such portions 
 of the French Civil Code can be applied to its provisions as to per- 
 formance in Algeria as are not inconsistent with the express language 
 of the contract as interpreted according to English law. If the parties 
 had wished, in addition to this, to incorporate a provision of French 
 law which in the event of vis major would operate to excuse the con- 
 tracting parties for non-performance, and thus to vary the natural con- 
 struction of the instrument according to P^nglish law, they should have 
 done so in express terms. Read by English law the contract is not 
 susceptible of such an interpretation, and there is nothing to show that 
 in this respect the parties desired the contract to be governed by the 
 French. 
 
 For these reasons we are of opinion that the judgment of the court 
 below was right and must be affirmed with costs. 
 
 Judgment affirmed.
 
 )36 TAKBOX V. CHILDS. [CHAP. X. 
 
 TARBOX V. CHILDS. 
 
 Supreme Judicial Court of Massachusetts. 1896. 
 
 [Reported 165 Massachusetts, 408.] 
 
 Contract, to recover a balance of the purchase price for horses sold 
 by the plaintiff to the defendants. Answer, payment. Trial in the 
 Superior Court, without a jury, before Blodgett, J., who reported the 
 case for the determination of this court, in substance as follows. 
 
 The following facts were agreed. In May, 1893, the plaintifT, at 
 Fredonia, in the State of New York, sold to the defendant Childs cer- 
 tain horses, and promised to deliver the horses at Fredonia. The 
 defendant agreed to pay to the plaintiff one thousand dollars in cash 
 at Fredonia, upon the delivery of the horses. The plaintiff forthwith 
 delivered the horses to the defendant at Fredonia, but the defendant 
 did not, at the time of delivery, pay anything towards the purchase 
 price agreed upon. A few days later, the defendant sent bj' mail from 
 Boston to the plaintiff at Fredonia $675 in cash, to be applied on the 
 purchase price. A few months later, the defendant sent to the plain- 
 tiff by mail from Boston to Fredonia his promissory note for $325, 
 pa3'able at Boston in three months from date. 
 
 There was no agreement or understanding at any time between the 
 parties as to whether that note or the renewal notes hereinafter men- 
 tioned should be accepted b}' the plaintiff in payment of the balance 
 due or not, except such, if any, as can be implied from the facts herein 
 set forth. When the first note became due, the defendant renewed it 
 by another, which was the same as the first in all terms except the date. 
 This renewal note was also sent by mail from Boston to Fredonia, and 
 with it was sent a cash paj'ment of the interest due on the first note to 
 the date of maturity thereof. The plaintiff returned the first note, on 
 request of the defendant, and retained the second note and the payment 
 of interest. 
 
 No part of the principal thereof has ever been paid, nor any interest 
 thereon. The plaintiff brought into court and tendered to the defend- 
 ant the protested note, which tender was refused. 
 
 The agreed facts were the only evidence at the trial, with evidence 
 of the law of the State of New York so far as the same was applicable 
 to those facts. 
 
 Tlic defendant Childs, who alone defended, objected to the admission 
 of evidence of the law of New York, and requested the judge to rule 
 that the effect of the delivery and receipt of the notes set forth in the 
 agreed facts was to be determined solely b}' the law of this Common- 
 wealth ; and further requested the judge to rule as follows : — • 
 
 " 1. The question whetlier tlie first note is to be presumed to have 
 been given in payment of the pre-existing debt or not is a question to 
 be determinea according: to the laws of Massachusetts.
 
 SECT. VII.J TARBOX V. CHILDS. 537 
 
 " 2. Upon the agreed facts and the pleadings, it is to be presumed 
 that the first note was given by the defendant and received by the 
 plaintiff in payment and satisfaction of the pre-existing debt due the 
 plaintiff for the purchase price of the horses. 
 
 " 3. Upon all the evidence, the plaintiff is not entitled to recover. 
 
 "4. Upon all the evidence, it is to be presumed that the second 
 note was given b}' the defendant and received by the plaintiff" in pay- 
 ment of the first note." 
 
 The judge refused to give any of the rulings requested, and found 
 for the plaintiff.^ 
 
 Allen, J. The defendant Childs contends that the notes given to 
 the plaintiff were Massachusetts contracts, and that they should be 
 interpreted and have effect according to the law of Massachusetts. 
 That would be so if a question arose in an action upon the notes, or 
 either of them. Shoe & Leather National Bank v. Wood, 142 Mass. 
 663. But the present action is brought on the original contract, and 
 not on either of the notes. The plaintiff seeks to recover what the 
 defendants agreed to pay him as the price of the horses sold. The 
 defendants' promise was made in New York, and was to be performed 
 there. They were bound to make payment in that State, and the ques- 
 tion is whether they have done so. They paid a part in cash, and for 
 the residue they sent by mail from Massachusetts to the plaintiff in 
 New York their note made in Massachusetts and payable here. By 
 the law of Massachusetts a negotiable note taken for an antecedent 
 debt is deemed to be a payment, unless there is something to show a 
 contrary intention. The rule in New York is the other way. The 
 plaintiff in New York was not affected by the rule which prevails here. 
 The defendant's promise to pay him in that State remained unper- 
 formed and undischarged, according to the law of that State. It 
 makes no difference that successive notes were given. The plaintiff 
 was to be paid there, and he has not 3-et been paid according to the 
 law of New York, and is entitled to recover. Vancleef v. Therasson, 
 3 Pick. 12 ; Eosseau v. Cull, 14 Vt. 83 ; Winsted Bank v. Webb, 39 
 N. Y. 325 ; Olcott v. Rathbone, 5 Wend. 490. Story, Confl. of Laws, 
 § 332. Judgment for the ^plaintiff^^ 
 
 1 Part of the statement of facts is omitted. — Ed. 
 
 2 Where a note is given in payment at the place where the original debt was con- 
 tracted and is payable, the question whether it is to be taken as a discharge of the 
 original debt is of" course to be determined by the law of the place. This is commonly 
 said to be governed by that law because the note was there accepted as payment. 
 Bartsch v. Atwater, 1 Conn. 409 ; Thompson-Houston Electric Co. v. Palmer, 52 Minn. 
 174, 53 N. W. 1137 ; Oilman v. Stevens, 63 N. H. 342. — Ed.
 
 538 GRAHAM V. FIRST NATIONAL BANK. [CHAP. X. 
 
 BENNERS V. CLEMENS. 
 Supreme Court of Pennsylvania. 1868. 
 
 [Reported 58 Perms i/lvania, 24.1 
 
 This was an amicable action of assumpsit to December Term, 1866, 
 in which John Clemens was plaintiff and Isaac R. Benners, survivor of 
 the firm of Isaac R. Benners & Co., defendant. The claim was for a 
 balance due b}' defendant on an invoice of fruit, contracted for in P^ng- 
 land and shipped to defendant to New York. The whole amount of 
 the shipment was $2,967.85, which was reduced to $896.95 b}- quercitron 
 bark shipped to plaintiff. The plaintiff claimed to recover this balance 
 at gold prices with interest from December 17th, 1863. The onl}' ques- 
 tion in the case was whether it was to be paid on that basis.^ 
 
 The verdict was for $1,456.65, the whole amount of the plaintiffs 
 claim. The defendant took a writ of error. 
 
 Thompson, C. J. The debt sued for was a debt contracted in Eng- 
 land, or rather the balance of a debt contracted and partialh- liquidated 
 there b}- returns in quercitron bark. In the absence of any under- 
 standing to the contrary the balance was due and payable there. This 
 being so, it was payable in the legal currenc}' of the country, denomi- 
 nated pounds, shillings, and pence, and the representative of gold. Of 
 course, as any payment obtained here would be payable in legal tender 
 notes, the value of the gold in legal tenders, with interest, would be 
 what in amount the judgment should be. The lex loci contractus must 
 control in interpreting the contract. Allshouse v. Rarasa}-, 6 Whart. 
 331 ; Watson v. Brewster, 1 Ban*, 381, and authorities cited by tlie 
 defendant in error. This view of the case is sufficient to affirm the 
 judgment without reference to any question arising on our Legal Ten- 
 der Acts. The judgment being right in amoicnt is affirmed.'^ 
 
 GRAHAM V. FIRST NATIONAL BANK 
 
 Court of Appf.als, New York. 1881. 
 [Reported 84 New York, 39.T ] 
 
 Finch, J.^ The ownership of one Juindred and ninety-six shares of 
 stock, which stood upon the books of the Norfolk Bank, in the name 
 of Eliza A. Graham, must be deemed vested in her, whether the pur- 
 chase price was paid by her or by her husband, and notwithstanding 
 
 1 Part of the statement of facts and arguments of counsel are omitted. — Ed. 
 
 2 Ace. Gninwald v. Freese (Cal.), 34 Pac. 73; Comstock v. Smith, 20 Mich. 338; 
 8 Clnnet, 447 (Brescia, 4 Nov. 78) ; 8 Clunet, 448 (Florence, 21 May, '70) ; 23 Clunet, 
 597 (Marseilles, 25 June, '95). — En. 
 
 " Part of the opiniou only is given. — Ed.
 
 SECT. VII.] GKAIIAM V. FIRST NATIONAL BANK. 539 
 
 the evident control of it, for his own purposes, bv the latter. No 
 creditors of the husband intervene to affect the question, and, as be- 
 tween Mrs. Graham and the bank, her right as owner must be admitted. 
 The dividends declared during such ownership belonged to and were 
 payable to her ; and, assuming for the present that her assignment to 
 plaintiffs was effective to transfer such right to them, there remain for 
 discussion onl}- the two questions : whether the Norfolk Bank did, in 
 fact, pay the dividends sued for to the husband of Mrs. Graham ; and 
 whether, by such payment to him, the liability of the bank to iier was 
 discharged. The referee has found that such payments were, in fact, 
 made to James Graham, the husband. . . . While the facts are not 
 free from difficultv, a careful examination has satisfied us that there 
 was sufHcient evidence to warrant the finding of the referee, and to 
 make it conclusive on this appeal. 
 
 The question of law, however, remains, whether the payment by the 
 bank to James Graliam was a good pa3'nient to his wife in whose name 
 the stock stood upon the books of the bank. The Norfolk Bank was 
 located and transacted business in the State of Virginia. It is proved 
 that in that State the common law prevails as it respects the relation of 
 husband and wife, and that within that jurisdiction the husband has the 
 absolute right to reduce to his own possession, and use for his own 
 benefit, the personal propert}' of the wife. The contract out of whicii 
 grew the right to the dividends was both made and to be [)f rforuied in 
 Virginia, and if the payment by the Bank of Norfolk to James Graham 
 is to be tested and measured b}' the law of that State, it is conceded to 
 have been good and an effective discharge of the liabilit}' to the wife. 
 It is denied, however, that the law of Virginia applies, and it is argued 
 that the law of Marj'land, the lex domicilii^ governs and controls the 
 capacity of the parties to receive payment, and the duty of the bank in 
 making it. The general subject of a conflict between the law of the 
 domicil and that of the place of contract has been fully discussed by 
 Story and Wharton in their respective treatises. Stor}' on Conflict of 
 Laws, § 374 et seq. ; Wharton, § 393 et seq. Whatever is useful in 
 the learning of the continental jurists, or the decisions of the English 
 courts, has been made tributary' to conclusions which we may safely 
 follow where, at least, they are in harmony with the ruling of our own 
 tribunals. It must, then, be granted that movables or personal prop- 
 erty, by a fiction of the law, are deemed attached to the person of the 
 owner, and so, present at his domicil, whatever their actual situation 
 may be. The law of the domicil, therefore, naturalh' governs their 
 transfer by the owner, and their disposition and distribution in case 
 of his death. So far the authorities substantially agree, differing only 
 in the reasons upon which the rule is founded, and b}' which it is to be 
 justified. When, however, the question passes beyond the disposition 
 of the personal property b}- the partv, or the act of the law, within the 
 jurisdiction of the domicil, and busies itself with the inherent character 
 of the property, and of the contracts which both create and constitute
 
 540 GRAHAM V. FIRST NATIONAL BANK. [CHAP. X. 
 
 it, elements of discord arise, and the authorities are not easily to be 
 reconciled. It is readily seen that the inherent character of the con- 
 tract must usually be the product of the jurisdiction in which it 
 originates, and hence it follows, and has been justly held, that the 
 construction, nature, and effect of a contract are to be determined by 
 the lex loci contractus. Story on Conflict of Laws, § 321. But no 
 such question is here. There is no dispute about the construction of 
 the contract to pay dividends. All are agreed upon that. There is no 
 trouble as to the nature of the contract or its effect. Its validity, and 
 the dut}' of pa3'ment to the stockholders, is conceded on all sides. The 
 real question is over the performance of the contract, or its discharge 
 by payment ; and that involves the capacity of the husband to receive 
 and discharge the debt, represented by the dividends, jure Duiriti. On 
 the one hand, it is argued that this question of capacit\-, of the rights 
 and powers flowing from the marriage relation, is dependent upon the 
 law of the domicil, and utterly unaff"ected bj' the foreign law, and the 
 former must, therefore, dictate and measure the authority and power 
 of the husband and the right of the wife. That is, in general, true as 
 between themselves, and relativel}' to each other. ( It does not follow 
 that it is true as between them and a debtor in another State, whose eon- 
 tract was made there, and is there to be performed. iSuch a fact intro- 
 duces a new element into the problem. It would scarcely be endurable 
 if a railroad or insurance compan}', declaring dividends in this State, 
 should be bound to pa\- stockholders in other States according to the 
 foreign laws, and in accordance with different and varying codes. Ob- 
 serving the evil result, we must remember that, in a case like the pres^ 
 e nT, it is a lega l Ijction which at ta ches the property to th e^domicil, and 
 the^ acJLiiaLiact may., be otherw ise. Judge Comstock, in Ho}! v. The 
 Coinmissioners of Taxes (23 N. Y. 228), well says, " that the fiction or 
 maxim, mohilia personam sequu7itur, is by no means of universal ap- 
 plication. Like other fictions, it has its special uses. It may be 
 resorted to when convenience and justice so recjuire. In other circum- 
 stances the truth and not the fiction affords, as it plainly ought to 
 afford, the rule of action." And Judge Story says that the legal fiction 
 "yields whenever it is necessary for the purposes of justice that the 
 actual situs of the thing should be examined," Conflict of Laws, 
 § o'jO. And hence has l)een ver\' stcadilv sustained^the general rule 
 that a contract made in one State, and to be performed there, is gov- 
 erned by the law of that State, and tlie further rule, which is a logical 
 result, that a (Icfciice or discharge, good by the law of the place where 
 tlie contract is made or to be performed, is to be held, in most cases, 
 of equal valid it}' elsewhere. Story on Conflict of Laws, § 331 ; Thomp- 
 son V. Ketcham, 8 Johns. 189 ; Bartsch r. Atwater, 1 Conn. 401) ; Smith 
 V. Smith, 2 Johns. 235; Hicks /•. Brown, 12 Johns. 142; Sherrill v. 
 Hopkins, 1 Cow. 103 ; Peck v. Hibbard, 26 Vt. 702 ; Bowen v. Newell, 
 13 N. Y. 290; Cutler v. Wright, 22 N. Y. 472 ; Waldron v. Kitehings, 
 3 Daly, 288 ; Jewell o. Wright, 30 N. Y. 259 ; Willitts v. AVaite. 2b
 
 SECT. VII.] GRAHAM V. FIRST NATIONAL BANK. 541 
 
 N. Y. 577. In these cases th e fiction yields to the fact ; the situs 
 a ttached theoretically to the pe rson of the owner, and ^ therefore, to his 
 domicil surrenders to the actual _ situs_yNJiere^ justice and conv enience 
 demandiL The illustrations are various, but founded upon a common 
 reason and justification. For the purpose of taxation the actual situs 
 controls, and the fiction which carries the personal property to the 
 domicil of the owner is disregarded. As to days of grace affecting the 
 maturity of a contract and determining when it becomes due, the lex 
 loci is applied. The defence of infancy is to be sustained or denied 
 according to the rule of the place of contract and performance. So, 
 also, as to the disabilit}- of coverture, and the rate and legality of in- 
 terest. And even an assignment, in invitum, compelled b}- the local 
 law, will transfer propert}' in another State where suitors in the courts 
 of the latter are not thereb}' prejudiced. These rulings and others of 
 the like character have been modified and moulded in their application 
 by the influence of varied circumstances, but concur in the general 
 principle upon which the lex loci has been applied. The point pressed 
 here is that while it controls the construction and validity of the con- 
 tract, it does not settle the capacity of the non-resident parties. But 
 to found a ruling upon such a test would involve us in an ambiguity. 
 Capacity ma}- affect the power of transfer and the direction and details 
 of distribution. In that respect it is often shaped and settled by the 
 law of the domicil. But it also affects the validit}' of a contract and 
 the mode and manner of its dissolution or discharge. In that respect 
 it is generally governed by the law of the place of contract. Story 
 concludes, after a full and learned review of the insuperable difficulties 
 which attend an effort to extend the capacity or incapacity created b}' 
 the law of the place of domicil to foreign States, that the true rule is 
 that " the capacit}', 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 domicil, touching 
 propei'ty situate therein," but as to acts done, etc., elsewhere, the lex 
 loci contractus will govern in respect to capacity and condition. We 
 cannot make, therefore, the law of the domicil in and of itself a solvent 
 of the doubts and difficulties likeh" to arise even as to questions of 
 capacit}'. In the present case the contract was made in Virginia and 
 to be performed there. The dividends were there declared and payable. 
 The}' were paid to the husband who could lawfully receive and appro- 
 priate them, by the law of Virginia, to his own use and benefit. The 
 payment was, therefore, valid and effectual, and discharged the bank 
 from its liability. The rights of the wife after such payment, as be- 
 tween herself and her husband under the law of Maryland, might prove 
 to be a very different question. It is sufficient for the purposes of this 
 case that the payment, which the referee finds was in fact made to the 
 husband, discharged the liability of the bank and furnished a defence 
 to the action. 
 
 The judgment should be affirmed, with costs. 
 
 All concur, except Rapallo, J. , absent. Judgment affirmed.
 
 542 GIBBS V. SOCI^IE INDUSTRIELLE. [CiiAP. 
 
 SECTION VIIL 
 
 DISCHARGE. 
 
 GIBBS V. SOCIETE INDUSTRIELLE. 
 
 Court of Appeal. 1890. 
 
 [Reported 25 Queen's Bench Division, 399.] 
 
 Lord Esher, M.R.^ In this case the defendants, a French company, 
 entered into negotiations for the purchase of copper through a London 
 metal-broker, who effected contracts between them and the plaintiffs 
 in England in the ordinar}' way. He drew up bought and sold notes, 
 by which the contract was expressed to be according to the rules of 
 the London Metal Exchange. One of these notes he sent to the plain- 
 tiffs, and the other he sent to the defendants ; and both parties retained 
 the notes so sent to them. The contracts were for the purchase of 
 copper to be delivered in P^ngland. It appears to me impossible to 
 den}' that these were English contracts. The contracts being so made, 
 the defendants became bound to accept the copper contracted to be 
 sold. The plaintiffs were always ready and willing to deliver the 
 copper ; but the defendants were not readv to accept, and absolved 
 the plaintiffs from tendering it. Consequentl}-, according to English 
 law, the plaintiffs are entitled to sue the defendants for non-acceptance 
 of the copper, the measure of damages being the difference between 
 the contract and market price at the time of the breaches of contract. 
 But the defendants are a French company domiciled in and governed 
 by the law of France. They have been, b}' a judgment of the Tribunal 
 of Commerce of the Seine, pronounced to be in judicial liquidation. It 
 was asserted by the defendants by wa}' of defence to the action that the 
 pronouncing of that judgment by the French tribunal by the law of 
 France operated as a discharge of the defendants from liabilitv to an 
 action on the contracts ; and it was asserted that it so discharged them 
 in more than one way. It was said that such a judgment dissolved the 
 French company, so that it no longer existed, and so dissolved their 
 lial)ility to be sued on the contracts. It was furtlier said, that the fact 
 of the plaintiffs having by their agents offered proof of tlieir claims 
 before the French tribunal operated as a discharge of the defendants' 
 liability to this action. It was further said, as to part of the claim, 
 that by the law of France, where a compan}' is in liquidation as in the 
 present case, and there is a contract for the acceptance of goods b}' 
 
 ^ Part of this opinion only is given. Coucurriug opinions were delivered by 
 LiNDLEY and Loi-Es, L.JJ. — Ed.
 
 SECT. VII].] GIBBS V. SOCl^T^ INDUSTRIELLE. 543 
 
 such compaii}' at a date subsequent to the judgment of liquidation, the 
 vendors cannot prove for damages for the non-acceptance ; they can 
 elect to deliver the goods to the liquidator and prove for the price ; 
 but, if the}' do not so elect and the goods are not delivered, the effect 
 is that the contract is cancelled and the purchasers discharged. Such 
 are the contentions set up by the defendants b}' way of defence. Then 
 they raise a further point. They say that the judgment against the 
 defendants ought not to have been pronounced, but the judge ought to 
 have stayed the proceedings before judgment, or that, on giving judg- 
 ment, he ought to have stayed further proceedings generally. The 
 plaintiffs contend, that there was no discharge of the defendants from 
 their obligations under the contract, according to the law of France ; 
 but they go further, and contend that, assuming that there was such a 
 discharge by reason of the liquidation proceedings, and that such dis- 
 charge was for this purpose equivalent in France to a discharge in 
 bankruptcy' according to English law, yet such discharge would be 
 no answer to an action in England upon an English contract. We have 
 to decide the questions so raised, or such of them as it may be neces- 
 sary to decide for the purposes of this case. The question really is, 
 whether anything has been proved which is an answer to the plaintiffs' 
 action in this country according to the law of England. It is clear that 
 these were English contracts according to two rules of law ; first, 
 because the}' were made in England ; secondh', because they were to 
 be performed in England. The general rule as to the law which gov- 
 erns a contract is that the law of the country, either where the contract 
 is made, or where it is to be so performed that it must be considered 
 to be a contract of that countrj', is the law which governs such con- 
 tract ; not merel}' with regard to its construction, but also with regard 
 to all the conditions applicable to it as a contract. I say " applicable 
 to it as a contract " to exclude mere matters of procedure, which do 
 not affect the contract as such, but relate merely to the procedure of 
 the court in which litigation may take place upon the contract. The 
 parties are taken to have agreed that the law of such country shall be 
 the law which is applicable to the contract. Therefore, if there be a 
 bankruptc}' law, or an}' other law of such country, by which a person 
 who would otherwise be liable under the contract would be discharged, 
 and the facts be such as to bring that law into operation, such law- 
 would be a law affecting the contract, and would be applicable to it in 
 the country where the action is brought. That, at any rate, is the law 
 of England on the subject. So, where a contract is made or is to be 
 performed in a foreign country, so as to be a contract of that country, 
 and there is a bankruptcy law, or the equivalent of a bankruptcy law, 
 of that country, by which, under the circumstances that have occurred, 
 a party to the contract is discharged from liability, he will be discharged 
 from liability in this country. But it is only in virtue of the principle 
 which I have mentioned that such a discharge from a contract takes 
 place. It is now, however, suggested that, where by the law of the
 
 54-1- GIBBS V. SOCIETE INDUSTRIELLE. [CHAP. X. 
 
 country in whicli the defendants are domiciled the defendants would, 
 under tlie circumstances wliich have arisen, be discharged from liability 
 under a contract, although the contract was not made nor to be per- 
 formed in such country, it ought to be held tliat they are discharged in 
 this country. It seems to me ol)vious that such a proposition is not in 
 accordance with tlie piinciple wliich I have stated. The law invoked 
 is not a law of the country to which the contract belongs, or one by 
 which the contracting parties can be taken to have agreed to be bound ; 
 it is the law of another country by which they have not agreed to be 
 bound. As Lord Kenyon said, in Smith r. Buchanan, 1 East, 6, it is 
 sought to bind the ijlaintitfs by a law with which they have nothing to 
 do, and to which they liave not given any assent either express or 
 implied. The proposition contended for seems to me to contravene 
 the general principle to which I have alluded as governing these 
 matters, and to suggest a principle for which there is no foundation in 
 law or reason. Why should the plaintiffs be bound by the law of a 
 country to which tiiey do not belong, and by which they have not con- 
 tracted to be bound? Tlierefore, i^ it were true that in any of the 
 modes suggested the defendants were by the law of France discharged 
 from liability, I should say that such law did not bind the plaintiffs, 
 and that they were nevertheless entitled, according to English law, to 
 maintain their action upon an English contract. I should sa}', too, 
 that, if the contract had been made in any foreign country other than 
 France, the plaintiffs could sue upon it in this country, and their action 
 would not be affected by the law of France. In that case the law of 
 such other foreign country would govern the contract. That would be 
 the conclusion I should come to, even supposing that the propositions 
 stated by the defendants as to the law of France were in fact made out. 
 It is not necessar}-, in the view I take, to determine whether they were 
 or not. I must say that I do not think it was clearly made out that, 
 in an}' of the modes suggested, the defendants were by the law of 
 France discharged from liability. I wish to base my judgment, how- 
 ever, on the assumption that they were so discharged. I say that, 
 assuming that to be so, the suggestion that the defendants would be 
 discharged in this countr}" by a law of the countrv of their domicil is 
 altogether outside the general principle that governs such matters, and 
 cannot be supported.^ 
 
 1 Arc. lilanclianl v. Russell. 13 Mass. 1; May i'. Breed, 7 Cush 15: Smith v. 
 Smith, 2 Johus. 235. — Ed.
 
 SECT. VIII.] FELCH V. BUGBEE. 545 
 
 FELCH V. BUGBEE. 
 
 Supreme Judicial Court of Maine. 1859. 
 
 [Reported 48 Maine, 9.] 
 
 Kent, J.^ The questions between the plaintiff and the principal 
 defendants relate to the effect of a discharge in insolvenc}-, granted to 
 the defendants by the proper tribunal under the laws of Massachusetts. 
 It appears from inspection of the papers that the discharge was regu- 
 larly granted, and, by its terms, includes the contract as set forih 
 in each of the notes in suit. The question arises, whether such a 
 discharge is effectual to bar this action. 
 
 Both note s w ere made in Boston, p ayable to defendants' o wn order , 
 signed and indorsed by them to citizens ot J\lassachuseits7^w~ho, at" 
 Boston, negotiated and sold them to the plaintiff, before maturity, and 
 before the commencement of proceedings in insolvency. The first of 
 these notes contains no specification of any place of payment; the 
 second is payable at any bank in Boston. . . . 
 
 The second note ... is made payable at any bank in Boston ; and 
 it is contended that this stipulation takes the case out of the prin- 
 ciples of the former decisions, and makes it subject to the discharge 
 offered in evidence ; and that a contract, although with a citizen of 
 another State, is barred if it is payable in the State where the debtor 
 resides and has obtained his discharge. 
 
 The other questions being disposed of, the only remaining one is, 
 whether the fact that the note is made payable in Massachusetts gives 
 efficacy to the discharge, although the contract is with a citizen of 
 another State. 
 
 We will first consider the authorities bearing on this precise point. 
 
 In Scribner r. Fisher, 2 Gray, 43, a majorit}- of the court in Massa- 
 chusetts decided that such a note is barred by a discharge in insolvency 
 in that State. This decision has been reaffirmed in several cases de- 
 cided subsequently in that court. 5 Gray, 539, and note. No reasons 
 are assigned in the subsequent cases. The\' rest on the case of Scrib- 
 ner V. Fisher, in which Metcalf, J., gave a dissenting opinion. But 
 this is now established as the doctrine of that court. 
 
 In the case of Demerit v. Exchange Bank (Law Reporter, March, 
 1858), Judge Curtis held, " that it is not competent for the State of 
 Maine, under the Constitution of the United States, to pass any law 
 discharging or suspending the right of action on a contract made with 
 a citizen of another State b}' a citizen of Maine. This was settled in 
 Ogden V. Saunders, 12 Wheat. 213, and Boyle v. Zacharie, 6 Pet- 
 348." "It is urged," says Judge Curtis, "that where the contract is 
 to be performed in the State, it is not within Ogden v. Saunders. It 
 
 1 Part of the opinion only is given. — Ed. 
 36
 
 546 FELCH V. BUGBEE. [CHAP. X. 
 
 has been so held in Scribner v. Fisher, 2 Gray, 43. But I cannot con- 
 cur in that opinion. I consider the settled rule to be that a State law 
 cannot discharge or suspend the obligation of a contract, though made 
 and to be performed within the State, when it is a contract with a citi- 
 zen of another State. Such was Justice Story's understanding of the 
 decisions of the Supreme Court of the United States in which he took 
 part. Springer v. Foster, 2 Story, 387." 
 
 / Mr. Justice Story has also expressed the same view of the law in his 
 /elementary works. In his Conflict of Laws, § 341, he says, "that 
 / a dischai'ge under any law of the State where made will not operate to 
 I discharge any contracts except such as are made between citizens of the 
 Vsame State." Very v. McHenry, 29 Maine, 214. 
 
 The Court of Appeals in New York, in 1852, in the case of Donnelly 
 V. Corbett, 3 Seld. 500, had this precise question before them, — the 
 contract being pa3-able in South Carolina, where the debtor resided and 
 was discharged, — the creditor being of New York. The court held 
 that an action on the contract was not barred by a discharge. The 
 ground of tlie decision was, that a discharge, under a State insolvent 
 law, of a debtor from his debts contracted after its passage, is valid as 
 respects contracts between citizens of the State, but invalid as to all 
 contracts where a citizen of another State is a party. The same 
 doctrine is found in Poe v. Duck, 5 Md. Rep. 1. 
 
 In Anderson v. Wheeler, 25 Conn. 613, the case presented the same 
 question as the one before us, — the original parties to the note were 
 both of New York, it was indorsed before due to a citizen of Con- 
 necticut, it was pa3able at a bank in New York, wliere the payee 
 oV)tained his discharge in insolvenc}'. Tlie court refers to the case of 
 Scribner v. Fisher, but dissents from it, and decides that the fact of the 
 place of payment being designated does not take it out of the rule as 
 laid down in Judge Johnson's opinion, concurred in by a majority of 
 the court, in Ogden v. Saunders. 
 
 We have also the opinion of Mr. Justice Baldwin of the Supreme 
 Court of the United States, in the case of Woodhull v. Davis, Baldwin's 
 Rep. 300. His decision is based on the position that bankrupt or in- 
 solvent laws can have no extraterritorial effect on persons beyond the 
 limits of the State or nation. 
 
 The decisions wiiich are in opposition to the cases in Massachusetts 
 rest upon the understanding of the doctrine in the original case of 
 Ogden V. Saunders. All the courts, including that of Massachusetts, 
 state and national, agree, as a starting-point, that whatever is clearl}^ 
 and expressly decided in that case is to be taken as settled, although 
 the reasoning ma}' not be entirely satisfactor}'. That case, indeed, re- 
 sembles the works of some ancient authors, where the commentaries, 
 and doubts, and ex|)lanations outrun the text and overwhelm it, leav- 
 ing the bewildered student " in wandering mazes lost," — ofttimes the 
 " interpreter being the harder to he understood of the two." 
 
 Mr. Justice Woodbury, in the case of Town v. Smith, 1 Wood. &
 
 SECT. VIII.] FELCH V. BUGBEE. 547 
 
 Minot, 137, discusses fully the authorities bearing on the whole ques- 
 tion, and, although doubting some of the views, and the soundness of 
 the reasoning on which they are based, yet feels bound by the authority 
 of the cases in the Supreme Court of the United States, which he under- 
 stands as establishing the test of citizenship of the parties. 
 
 The discussions and decisions, have, however, resulted in bringing 
 about a general agreement as to all the points first enumerated, leav- 
 ing this single point of the place of performance yet, in a measure, 
 in controvers}-. 
 
 The Supreme Court of the United States was called upon to revise 
 and interpret the leading case of Ogden v. Saunders, and the judges 
 gave their opinions on the various questions raised, in Cook v. Moffat, 
 5 How, 309. Whilst there is an almost painful difference of opinion 
 on the question of the soundness of the grounds assumed or reasons 
 assigned, the court concurs in fixing certain principles as finally estab- 
 lished. The one bearing on the exact point before us is thus stated : 
 " A certificate of discharge under an insolvent law will not bar aa 
 action brought by a citizen of another State, on a contract with him." 
 
 This is the state of the authorities on the subject. ThejDrepoiider- 
 a nce seems cleark jigainstgirmg^efAjn^^ discharge in a case 
 
 "Hke this. 
 """ iTwe leave the authorities and seek Jjeyond them fbLlhfi-X£asQns._oj3i 
 w-hich an3^ " riile on this subjecO's"foujLdM»jge-£x>d-lwQ -Iraina of argjj- 
 .ment, which, star Mn^JIQin, Jiftexent^Kemise_s^ to dLr££tlyj04ipriaiiiP 
 r esults. Thp whole cont roversy on this point seems to turn uponjhs 
 question whetherjtJs.Jtlie contract itself, includinij; the place of niakiiig 
 and of x)ei;fornianc.e, andjiie /_t,r hici <:u at rart '(.-<, that is to govern, xw 
 whether the, citizfiixahip..QilJiu2-XXuilj:axjting.4iailies_cmi^^^ 
 ei-ence to the nature oi•Jila£e_aLlMJvja^m'43£l^tb^^laIxce-o£4il£-.^^^^ 
 "Tt is m-g^ed b}- those who favor the first view, that, when a foreigner, 
 or a citizen of one State, voluntarily comes into another State, and 
 there makes a contract with a citizen of the latter State, not by its 
 terms to be performed elsewhere, the lex loci attaches to the contract, 
 and must not only govern its construction, but its validity, and the 
 grounds or facts by which it may be discharged. The argument is, 
 that every contract made has relation to the existing law of the State, 
 and (to apply the doctrine directly to the case before us) that, when 
 such a contract is made within the territorial jurisdiction of Massa- 
 chusetts, the liability to a discharge under the existing insolvent laws 
 becomes a part and parcel of that contract, incorporated into it, or 
 attached to it, as a condition or limitation, and goes with it every- 
 where, whoever makes or becomes a party to it, at any time. In this 
 view, citizenship is of no consequence. The ground on which insolvent 
 laws of a State, which allow a full discharge of a contract, are sus- 
 tained against the objection that they impair the obligation of con- 
 tracts, and thus violate the provision of the United States Constitution, 
 is that above stated, viz. : that the liability to such discharge is either
 
 548 FELCH V. BUGBEE. [CHAP. X. 
 
 expressly or tacitl}- understood by the parties, as a part of, or a fixed 
 attendant upon, all contracts made under the overshadowing canopy of 
 the statute of insolvency ; and that any citizen of another State, who 
 comes voluntarily within the territory tlius embraced, must be lield to 
 contract with reference to the law, and that the enforcement of it would 
 not violate his rights. 
 
 If this were a new question, this view of the case would certainly- be 
 entitled to great consideration. It will, however, be observed, that the 
 strength of this argument rests upon the doctrine of the lex loci con- 
 tractus^ the place of making the contract, not the place of performance 
 only or chiefly. It is the fact of making a contract on a territory gov- 
 erned by a certain law that incorporates the law into it, if it is thus in- 
 corporated. And it would seem, that if it is not citizenship, but place, 
 that is to control, those who favor this view should have taken their 
 stand upon the ground that every contract made in the State, and not 
 expressly to be performed elsewhere, must be governed by the existing 
 law. But this has been given up by all the courts. Even the court in 
 Massachusetts admits that the fact that the contract was made in that 
 State cannot bar recovery, after a discharge in insolvency. The place 
 of making is treated as immaterial. Dinsraore v. Bradley, 5 Gra}-, 487 ; 
 Houghton «. Maynard, 5 Gray, 552 ; 10 Met. 694, and numerous other 
 cases. The same court has decided that a contract made in Georgia, 
 and there to be performed, between two citizens of Massachusetts, 
 would be barred by a discharge in Massachusetts. Marsh v. Putnam, 
 3 Gray. 
 
 The question naturally arises, why the place of performance of a 
 contract should subject it to the operation of a discharge, whe n t,hp_ 
 place of its formation would not. If the tJlace of performance ig 
 mat erial, and"Tnust control, it must be because the party out of the 
 State voluntarily assentcd to th e condition fixing the place, ther eby 
 ^I'''n^'"g ^'^'^ r-r.ivrror.^ Mn<| p.r tho. law of the State. The same reasoning 
 j[>niild ■•i p[)l y to the making of a cq ntractjYllif^h fn'gbt. ]^p pprfnrmpd__in 
 the State. When the fact of the place of making the con t ract is not 
 regard ed as essential, the citadel, as it seems to us^ is surrenderedj_ 
 and it is \a \n to attemijt to make a stand upon the place of performan ce 
 alone. 
 
 It is conceded by the court in Massachusetts that the forum makes 
 no difference ; that tlie same rule a[)plies everywhere. And, after a 
 careful consideration of the reasonings and decisions of the court on 
 this vexed subject, we can only say that, if the question were an open 
 one in all respects, we might incline to the doctrine that the place of 
 making anil the place of [)erfortnance should control, on the grounds be- 
 fore stated, ratlier than the fact of naked citizenship. Yet we are forced 
 to the conclusion that a different rule has been finally established hy 
 the Supreme Court of the United States, and concurred in by most of 
 the State courts, and we are not disposed to depart from the rule thus 
 established. That rule is the one found in Cook v. Moffat, 5 IIow.
 
 SECT VIII.] PHCENIX NATIONAL BANK V. BATCHELLER. 
 
 549 
 
 before cited. It rests entirel}- upon the citizenship of the party, and 
 not at all upon the place of making or perforjnance. It is the result of 
 that train of reasoning which regards the insolvent laws of a State as 
 local, having no extraterritorial force so as to act upon the rights of 
 citizens of other States ; and which holds that, as between citizens of 
 the State, the discharge will bind them as to all posterior contracts, 
 wherever made or wherever to be executed ; and, as to citizens of 
 other States, will not discharge any existing contract, although made 
 or to be performed in the State granting the discharge. Or, as ex- 
 prpggpf] \\\- the court, tlie discha rge is hot a bar " wlie n the action i s 
 brought b}' a citizen of anot her"Statgr"— Thit . t i ulei TTT Uroad enoui;li to ,^ 
 
 ipe 
 and 
 
 exclude all questions ansingfrom either tlie place of ma king o 
 
 .of p&r(brmaUCe. I^ yf-Sto Q»t,irt»|vr^n thp >.iti7Pnglii|^ pf t.IlP^ l>fll' 
 
 treats all other matters as i mmateria l 
 
 'e'plaiHtiff must haoe judgment on both Jiotes.^ 
 
 PHCENIX NATIONAL BANK v. BATCHELLER. 
 
 Supreme Judicial Court of Massachusetts. 1890. 
 
 [Reported 151 Massachusetts, 589.] 
 
 Holmes, J. This is an action by a Rhode Island national bank, 
 upon a promissory note payable in Massachusetts, and made here by 
 the defendants, citizens of this State. The defence is a discharge in 
 insolvency in this State. It is admitted that the plaintiff did not prove 
 its claim upon the note, and the only question is whether, under these 
 circumstances, the discharge is a bar. It was argued for the defend- 
 ants, that the decisions of the Supreme Court of the United States tliat 
 discharges in such cases are not generally valid against citizens of 
 other States do not go upon any constitutional ground, but upon mis- 
 taken views of what is called private international law, and therefore 
 are not binding upon us ; and we were asked to reconsider Kelley v. 
 Drury, 9 Allen, 27, in which this court yielded its earlier expressed 
 opinion, and follo^ved the precedent of Baldwin v. Hale, 1 Wall. 223. 
 See also Guernsey v. Wood, 130 Mass. 503 ; Maxwell v. Cochran, 136 
 Mass. 73. 
 
 There is no dispute that the letter of the discharge and of our stat- 
 ute covers the plaintiff's claim ; Pub. Sts. c. 157, §§ 80, 81 ; and the 
 argument in favor of giving them effect according to their letter is, that 
 unless the statute is void we are bound to follow it ; that the law of the 
 
 1 Ace. Baldwin v. Hale, 1 Wall. 223 ; Rhodes v. Borden, 67 Cal. 7, 6 Pac. 851; 
 Anderson v. Wheeler, 25 Conn. 603 ; Hawlev v. Hunt, 27 la. 303 ; Newmarket Bank v. 
 Butler, 45 N. H. 236 ; Phelps v. Borland, 103 N. Y. 406 ; Main v. Messner, 17 Or. 78, 
 20 Pac. 255 ; Roberts v. Atherton, 60 Vf. 563, 15 Atl. 160. — Ed.
 
 550 PHCENIX NATIONAL BANK V. BATCHELLER. [CHAP. X. 
 
 place where the contract is made and is to be performed, which is in 
 force at the time of making and for performing it, enters into the con- 
 tract so far as to settle everywhere what acts done at that place shall 
 discharge it (May v. Breed, 7 Cush. 15) ; and that a discharge in ac- 
 cordance with that law cannot be said to impair the obligation of a con- 
 tract wliich contemplated it, or to deprive the contractee of property 
 without due process of law when that property was created subject to 
 destruction in that vfay. 
 
 We express no opinion upon the weight of this argument. Although 
 it formerly prevailed with this court (Sci'ibner v. Fisher, 2 Gra}', 43 ; 
 Burrall v. Rice, 5 Gray, 539), it may be that there is a distinction as 
 to a discharge by legal proceedings. It may be that statutes providing 
 for a discharge by an insolvency court do not enter into the contract in 
 such a sense as to bind the contractee to adopt and submit himself to 
 the jurisdiction as an implied condition of the promisor's undertaking. 
 It does not follow, because the discharge, if effective, does not impair 
 the obligation of the contract, that absolute liabilit}' to it is a part of 
 the substantive obligation. The substantive promise and the obligation 
 of the contract are different things ; and apart from this consideration 
 it maj- be that by sound principle the plaintiff is to be taken to have 
 subjected itself to Massachusetts proceedings onl}' to the extent that, 
 if the Massachusetts courts could acquire jurisdiction over it in the 
 ordinary modes i)y which jurisdiction of the person is acquired, it 
 would be bound everywhere b}' a discharge granted here. 
 
 However this ma}- be, we see no sufficient reason for departing from 
 what has been accepted as the law for a quarter of a century. We 
 agree that, consistentlj' with our dut}', we cannot yield our opinion 
 upon new questions not subject to the final jurisdiction of the vSupreme 
 Court of the United States solely out of a desire for uniformity. But 
 when we are asked to overrule a decision of our own court which has 
 been acquiesced in for so long, we should have to be very sure, before 
 doing so, not only that the decision was wrong, but also that the Su- 
 preme Court of the United States, whatever we may think about it, 
 either would not regard our decision as subject to review by them, or 
 would abandon opinions which the}' have expressed repeatedly, and 
 down to the latest volume of their reports. 
 
 We should hesitate to overrule Kelley v. Drury, even if we were 
 ready to say that we disagreed with the principle of Baldwin r. Hale, 
 and that we thought our decision not subject to review. For when in 
 a particular case the precedents are settled in favor of uniformity, the 
 fact that they do conform to the decisions of the Supreme Court of the 
 United States is a most powerful secondary reason for not disturbing 
 them, and would be likely to outweigh our private opinions upon the 
 original matter. There is, too, a particular reason for uniformity in 
 the present case, because it is manifest that, practically at least, the 
 general validity of the discharge, tliat is, its effect outside this Com- 
 monwealth, depends upon the decision of other courts than this, and
 
 SECT. VIII.] PHCENIX N.\T10NAL BANK V. BATCHELLER. 551 
 
 that the decision of the United States Court upon that question is of 
 more importance than that of any other. 
 
 TJm. ^ft,en repeated view of the Supreme Court o f th e United State s 
 is, that discharges lik e the present are void for want of iurisdictio n, 
 ai\d that statutes purporti ng to author i^ e _them are bevond the power o f^ 
 the States to pass. Baldwm v. Hale, 1 Wall. 223, 233 ; Baldwin 
 ■fj.'Bank of "Tftr^vbury, ib. 234 ; Gihnan v. Lockwood, 4 Wall. 409 ; 
 Denny u. Bennett, 128 U. S. 489, 497 ; Cole v. Cunningham, 133 U. S. 
 107, 115. Whether that court would regard a decision to the contrary 
 by a State court as subject to review by them upon constitutional 
 grounds, does not appear very clearly from any language of theirs 
 which has been callecl to our attention, unless it be the following, re- 
 peated in Baldwin v. Hale, 1 Wall. 223, 231, from Ogdon v. Saunders, 
 12 Wheat. 213, 369 : "But when, in the exercise of that power, 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 con- 
 flict of sovereign power, and a collision with the judicial powers granted 
 to the United States, which renders the exercise of such a power in- 
 compatible with the rights of other States and with the Constitution of 
 the United States." This is somewhat emphasized as the deliberate 
 view of the court, not only by its original mode of statement, but by 
 their adhesion to it after the dissent of Chief Justice Taney in Cook v. 
 Moffat, 5 How. 295, 310. See Scribner v. Fisher, 2 Gray, 43, 47. 
 
 This language certainly gives the impression that our decision would 
 be regarded as subject to review, possibly on the ground of an implied 
 restriction on the power to pass insolvent laws reserved to the States 
 (Denny v. Bennett, 128 U. S. 489, 498) ; possibly on the ground that 
 the discharge would impair the obligation of contracts with persons not 
 within the jurisdiction (Cook v. Moffat, 5 How. 295, 308) ; possibly by 
 reason of the Fourteenth Amendment (Pennoyer v. Neff, 95 U. S. 714) ; 
 possibly on some vaguer ground. We feel the force of the reasoning 
 quoted from Stoddard v. Harrington, 100 Mass. 87, 89, but that case 
 did not profess to weaken the authority of Kelley v. Drury, and, more-_ 
 over, the question which we are now considering is not what would be 
 our own opinion, but what seems to be the opinion of the Supreme 
 Court of the United States. 
 
 The decision in Kelley v. Drury did not go upon any nice inquiry 
 whether it was subject to review, but upon the ground that this court 
 deferred to the decision of the Supreme Court of the United States, 
 that discharges like the present were not binding outside the jurisdic- 
 tion, and that, this being so, a discrimination should not be made in 
 favor of our citizens in proceedings in the State court in distinction 
 from proceedings in the courts of the United States. 
 
 This last proposition was conceded by the senior counsel for the de- 
 fendant. But as some doubt was thrown upon it in the printed brief, 
 we repeat what was again intimated in Murphy r. Manning, 134 Mass. 
 488, that there is nothing in the law affecting the question before us
 
 552 CANADA SOUTHERN RAILWAY V. GEBHARD. [CHAP. X. 
 
 which indicates an intent to refuse foreign creditors access to the courts 
 of Massachusetts as a merely local rule of procedure, or otherwise than 
 as a consequence of the substantive right having been barred by the 
 discharge. The form of the discharge in the Pub. Sts. c. 157, § 80, 
 and the language of § 81, address themselves directly to the substan- 
 tive right, and declare the debtor discharged from the specified debts. 
 It being settled that the plaintiffs debt is not barred, an action can be 
 maintained to recover it iu a State court. 
 
 Judgment for the plaintiff. ^ 
 
 CANADA SOUTHERN RAILWAY v. GEBHARD. 
 Supreme Court of the United States. Ib83. 
 [Reported 109 United States, 527.] 
 
 Suits (commenced in the Supreme Court of the State of New York 
 and removed to the Circuit Court of the United States for the Southern 
 District of New York), by holders of mortgage bonds of the Canada 
 Southern Railway Company, and of extension bonds, to recover on 
 their extension bonds and on the interest coupons on their mortgage 
 bonds. The following are the facts as stated by the court : 
 
 What is now known as the Canada Southern Railway Company' was 
 originally incorporated on the 28th February, 1868, by the legislature 
 of the Province of Ontario, Canada, to build and operate a railroad in 
 that province between the Detroit and Niagara rivers, and was given 
 power to borrow money in the province or elsewhere and issue nego- 
 tiable coupon bonds therefor, secured b}' a mortgage on its property, 
 " for completing, maintaining, and working the railway." Under this 
 authority the compau}-, on the 2d of January, 1871, at Fort Erie, 
 Canada, made and issued a series of negotiable bonds, falling due in 
 the year 1906, amounting in all to $8,703,000, with coupons for semi- 
 annual interest attached, payable, principal and interest, at the Union 
 Trust Compan}', in the city of New York. To secure the paj-ment of 
 both principal and interest as they matured, a trust mortgage was 
 executed by the company covering " the railwaj' of said company, its 
 lands, tolls, revenues present and future, property and effects, fran- 
 chises and appurtenances." Every bond showed on its face that it was 
 of this kind and thus secured. 
 
 Before the 31st of December, 1873, the company became satisfied 
 that it would be miable to meet the interest on these bonds maturing in 
 the coming Januarv, and so it requested the holders to fund their 
 coupons falling due January 1, 1874, Jul}' 1, 1874, and January 1, 
 1875, by converting tiiem into new bonds payable on the 1st of 
 
 1 Ace. Fareira v. Keevil, 18 Mo. 166. See Chase v. Henry, 166 Mass. 579. — Ed.
 
 SECT. VIII.] CANADA SOUTHERN RAILWAY V. GEBHARD. 553 
 
 January, 1877, and b}' so doing only, in legal effect, extend the time 
 for the payment of the interest, without destroying the lien of tlie 
 coupons under the mortgage, or otherwise affecting the obligation of 
 the old bonds. Some of the bondholders funded their coupons, in 
 accordance with this proposition, and accepted the extension bonds, 
 but, under the arrangement, their coupons were not to be cancelled 
 until the new bonds were paid. 
 
 h\ this condition of affairs the Parliament of Canada, on the 26th of 
 May, 1874, enacted that the Canada Southern Railwa}-, which was the 
 railway built bj' the Canada Southern Railway Company under its pro- 
 vincial act of incorporation, " be declared to be a work for the general 
 advantage of Canada," and a " body corporate and politic within the 
 jurisdiction of Canada, " for all the purposes mentioned in, and with all 
 the franchises conferred b}-, the several incorporating acts of the legis- 
 lature of the province. This, under the provisions of the British North 
 America Act, 1867, passed by the Parliament of Great Britain " for the 
 Union of Canada, Nova Scotia, and New Brunswick, and the Govern- 
 ment thereof," made the corporation a Dominion corporation, and sub- 
 jected it to the legislative authority of the Parliament of Canada, 
 
 On the 15th of March, 1875, another series of bonds, amounting in 
 the aggregate to $2,044,000, or thereabouts, was issued and secured 
 b}' a second mortgage to trustees. After the issue of all the bonds 
 the company found itself unable to pay its interest and otherwise finan- 
 cially embarrassed, and a joint committee, composed of three directors 
 and three bondholders, after full consideration of all the circumstances, 
 submitted to the company and to the bondholders " a scheme of 
 arrangement of the affairs of the company," which was approved at a 
 meeting of the directors on the 28th of September, 1877. This scheme 
 contemplated the issue of $14,000,000 of thirtj'-year bonds, bearing 
 three per cent interest for three years and five per cent thereafter, guar- 
 anteed, as to interest, for twentv N'ears, bj' the New York Central and 
 Hudson River Railroad Company', the first coupons being payable 
 January 1, 1878. These new bonds were to be secured by a first 
 mortgage on the propert}' of the company, and exchanged for old 
 bonds at certain specified rates. The old bonds of 1871 were to be 
 exchanged for new at the rate of one dollar of principal of the old for 
 one dollar of the new, nothing being given either for the past due 
 coupons or the extension bonds executed under the arrangement in 
 December, 1873. The proposed issue of bonds was large enough to 
 take up all the old indebtedness at the rates proposed, whether bonded 
 or otherwise, and leave a surplus, to be used for acquiring further 
 equipment, and for such other purposes of the company as the directors 
 might find necessary. This scheme was formally assented to by the 
 holders of 108,132 shares of the capital stock out of 150,000 ; by the 
 holders of the bonds of 1871 to the amount of $7,332,000 out of 
 $8,703,000; and by the holders of $1,590,000 of the second series of 
 bonds out of $2,029,000 then outstanding. Upon the representation
 
 554 CANADA SOUTHERN RAILWAY V. GEBHARD. [CHAP. X. 
 
 of these facts to the Parliament of Canada, the " Canada Southern 
 Arrangement Act, 1878," was passed and assented to in the Queen s 
 name on the 16th of April, 1878. 
 
 This statute, after reciting the scheme of arrangement, with the 
 causes that led to it, and that it had been assented to by the holders 
 of more than two-thirds of the shares of the capital stock of the com- 
 panj-, and by the holders of more than three-fourths of the two classes 
 of bonds, enacted that the scheme be authorized and approved ; that 
 the new bonds be a first charge " over all the undertaking, railway 
 works, rolling stock, and other plant " of the company, and that the 
 new bonds be used for the purposes contemplated by the arrangement, 
 including the payment of the floating debt. Section 4 was as follows : 
 " 4. The scheme, subject to the conditions and provisos in this act 
 contained, shall be deemed to have been assented to by all the holders 
 of the original first mortgage bonds of the company secured by the 
 said recited indenture of the fifteenth day of December, one thousand 
 eight hundred and seventy, and of all coupons and Ifouds for interest 
 thereon, and also by all tLe holders of the second mortgage bonds of 
 the company secured by the said recited indenture of the fifteenth day 
 of March, one thousand eight hundred and seventy-five, and of all 
 coupons thereon, and also by all the shareholders of the Canada South- 
 ern Railway Company, and the hereinbefore recited arrangement shall 
 be binding upon all the said holders of the first and second mortgage 
 bonds and coupons, and bonds for interest thereon respectively, and 
 upon all the shareholders of the company." 
 
 Under the arrangement thus authorized the New York Central and 
 Hudson River Railroad Com[)any executed the projxjsed guaranty, and 
 the scheme was otherwise carried into effect. 
 
 The several defendants in error were, and always had been, citizens 
 of the State of New York, and were, at the time the scheme of arrange- 
 ment was entered into and confirmed by the Parliament of Canada, the 
 holders and owners of certain of the bonds of 1871, and of certain 
 extension bonds, these last having been delivered to them respectively 
 at the Union Trust Company in the city of New York, where the 
 exchanges were made, in December, 1873. ^Neither of the defendants 
 in error assented in fact to the scheme of an-angeraent, and they did 
 not take part in the appointment of the joint committee. Their exten- 
 sion bonds have never been paid, neither have the coupons on their 
 bonds of 1871, which fell due on the first of July, 1875, and since, 
 though demanded. The company has been at all times ready and 
 willing to issue and deliver to them the full number of new bonds, with 
 the guaranty of the New York Central and Hudson River Railroad 
 Company attaciicd, that they would be entitled to receive under the 
 scheme of arrangement. 
 
 ^ These suits wore brought on the extension bonds and past due 
 coupons. V The company pleaded the scheme of arrangement as a 
 defence, and at the trial tendered the new bonds in exchange for the
 
 SECT. VIII.] CANADA SOUTHERN RAILWAY V. GEBHARD. 555 
 
 old. The Circuit Court decided that the arrangement was not a bar to 
 the actions, and gave judgments in each of them against the company 
 for the full amount of extension bonds and coupons sued for. To 
 reverse these judgments the present writs of error were brought. 
 
 Waite, C. J.^ That the laws of a countr}' have no extraterritorial 
 force is an axiom of international jurisprudence, but things done in 
 one countr}' under the authority of law may be of binding effect in 
 another countrj'. The obligor of the bonds and coupons here sued on 
 was a corporation created for a public purpose, that is to say, to build, 
 maintain, and worii a railway in Canada. It had its corporate home 
 in Canada, and was subject to the exclusive legislative authoritj' of the 
 Dominion Parliament. It had no power to borrow money or incur 
 debts except for completing, maintaining, and working its railway. 
 The bonds taken by the defendants in error showed on their face that 
 the}- were part of a series amounting in the aggregate to a ver}- lai'ge 
 sum of money, and that they were secured b\- a trust mortgage on the 
 railway of the compan}', its lands, tolls, revenues, etc. In this way 
 the defendants in error, when they bought their bonds, were, in legal 
 effect, informed that they were entering into contract relations not only 
 with a foreign corporation created for a public purpose, and carrying 
 on its business within a foreign jurisdiction, but with the holders of 
 other bonds of the same series, who were relying equally with them- 
 selves for their ultimate security on a mortgage of property devoted 
 to a public use, situated entirely within the territor}' of a foreign 
 government. 
 
 A corporation " must dwell in the place of its creation, and cannot 
 migrate to another sovereignty " (Bank of Augusta v. Earle, 13 Pet. 
 588), though it may do business in all places where its charter allows 
 and the local laws do not forbid. Railroad v. Koontz, 104 U. S. 12. 
 But wlierever it goes for business it carries its charter, as that is the 
 law or its existence (Relf v. Rundel, 103 U. S. 22G), and the charter is 
 the same abroad that it is at home. Whatever disabilities are placed 
 upon the corporation at home it retains abroad, and whatever legisla- 
 tive control it is subjected to at home must be recognized and sub- 
 mitted to by tliose who deal with it elsewhere. A corporation of one 
 country mav be excluded from business in another countr}- (Paul v. 
 Virginia, 8 Wall. 168), but, if admitted, it must, in the absence of 
 legislation equivalent to making it a corporation of the latter countr}', 
 be taken, both by the government and those who deal with it, as a 
 creature of the law of its own country, and subject to all the legislative 
 control and direction that ma}' be properly exercised over it at the 
 place of its creation. Such being the law, it follows that every person 
 who deals with a foreign corporatiorX impliedly subjects liimself to such 
 laws of the foreign government, affecting the powers and obligations of 
 the corporation with which he voluntarily contracts, as the known and 
 established policy of that government authorizes. N To all intents and 
 
 ^ Part of the opinion is omitted. — Ed.
 
 556 CANADA SOUTHERN KaILWAY V. GEBHARD. [CHAP. X. 
 
 purposes, he submits his contract with the corporation to such a policy 
 of the foreign government, and whatever is done by that government in 
 furtherance of that polic\- which binds those in hke situation with him- 
 self, who are subjects of the government, in respect to the operation 
 and effect of their contracts with the corporation, will necessarily bind 
 him. He is conclusively presumed to have contracted with a view to 
 such laws of that government, because the corporation must of neces- 
 sity be controlled by them, and it has no power to contract with a 
 view to an}- other laws with which they are not in entire harmon\'. 
 It follows, therefore,*»'that anything done at the legal home of the cor- 
 poration, under the authority of such laws,^,which discharges it from 
 liability there, discharges it everywhere!^ 
 
 No better illustration of the propriety of this rule can be found than 
 in the facts of the present case. This corporation was created in 
 Canada to build and work a railway in that Dominion. Its principal 
 business was to be done in Canada, and the bulk of its corporate prop- 
 erty was permanently fixed there. All its powers to contract were 
 derived from the Canadian government, and all the contracts it could 
 make were such as related directly or indirectly to its l)usiness in 
 Canada. That business affected the public interests, and the keeping 
 of the railway open for traffic was of the utmost importance to the 
 people of the Dominion. The corporation had become financially 
 embarrassed, and was, and had been for a long time, unable to meet 
 its engagements in the ordinary way as the}' matured. There was an 
 urgent necessity that something be done for the settlement of its afftiirs. 
 In this tiie public, the creditors, and shareholders were all interested. 
 A large majority of the creditors and shareholders had agreed on a 
 plan of adjustment which would enable the company to go on with its 
 business, and thus accommodate the public, and to protect the creditors 
 to the full extent of the available value of its corporate propert}'. The 
 Dominion Parliament had the legislative power to legalize the plan of 
 adjustment as it had been agreed on by the majorit}' of those interested, 
 and to bind the resident minority creditors by its terms. This power 
 was known and recognized throughout the Dominion when the corpo- 
 ration was created, and when all its bonds were executed and put on 
 the market and sold. It is in accordance with and part of the polic}' 
 of the English and Canadian governments in dealing with embarrassed 
 and insolvent railway companies and in providing for their reorganiza- 
 tion in the interest of all concerned. It takes the place in England 
 and Canada of foreclosure sales in the United States, which in general 
 accomplish substantially the same result with more expense and greater 
 delay ; for it rarely hap[)ens in the United States that foreclosures of 
 railwa}' mortgages are anything else than the machinery b}' which 
 arrangements between the creditors and other parties in interest are 
 carried into effect, and a reorganization of the affairs of the corpora- 
 tion under a new name brought al)()ut. It is in entire harmony with 
 the spirit of bankru^jt laws, the bintling force of which, u[)on those who
 
 SECT. VIII.] CANADA SOUTHERN RAILWAY V. GERHARD. 557 
 
 are subject to the jurisdiction, is recognized by all civilized nations. It 
 is not in conflict witli the Constitution of the United States, which, 
 although prohibiting States from passing laws impairing the obligation 
 of contracts, allows Congress " to establish . . . uniform laws on the 
 subject of bankruptcy throughout the United States." Unless all par- 
 ties in interest, wherever they reside, can be bound by the arrangement 
 which it is sought to have legalized, the scheme may fail. All home 
 creditors can be bound. What is needed is to bind those who are 
 abroad. Under these circumstances the true spirit of international 
 comity- requires that schemes of this character, legalized at home, 
 should be recognized in other countries. The fact that the bonds made 
 in Canada were payable in Ne'w York is unimportant, except in deter- 
 mining by what law the parties intended their contract should be gov- 
 erned ; and every citizen of a country, other than that in which the 
 corporation is located, may protect himself against all unjust legislation 
 of the foreign government by refusing to deal with its corporations. 
 
 On the whole, we are satisfied that the scheme of arrangement bound 
 the defendants in error, and that these actions cannot be maintained. 
 
 Harlan and Field, JJ., dissented.
 
 558 OUY V. WINTEK. [chap. X. 
 
 SECTION IX. 
 
 SPECIAL FORMS OF OBLIGATION. 
 (A) Mercaktile Instruments. 
 
 ORY V. WINTER. 
 
 Supreme Court of Louisiana. 1826. 
 
 [Reported 4 Martin, New Series, 277.] 
 
 Porter, J.,^ delivered the opinion of the court. This case was heard 
 last June, and judgment pronounced at that term. Doubting the cor- 
 rectness of our former judgment, we granted a rehearing, and the case 
 has been argued again, and has received all the elucidation of which we 
 believe it is susceptible. 
 
 The action was instituted on a promissorj' note made at Natchez, 
 pa^'able to one Lloyd Gilbert, and b}- him indorsed to the plaintiff and 
 appellee. 
 
 it is shown b}' a statute of the State of Mississippi, that the maker 
 of a note, in that State, may set up any equitable defence against a 
 bona fide indorsee which he could offer against the jDayee. Laws of 
 Mississippi, 464. 
 
 The first question in the cause is, by what laws should this contract 
 be governed? The plaintiff contends, that as the note was indorsed in 
 this State, and to a citizen of it, that the rights of the parties must be 
 ascertained by the laws of Louisiana. 
 
 "We are clearly of opinion it should not. That the validit}' of a con- 
 tract must be ascertained in relation to the laws of the country- where 
 it is made, is a rule as well known, and of as frequent application in this 
 court, as any other we act under. We see nothing in the circumstance 
 of tlie rights of one of the parties being transferred to the citizen of 
 another State which can take the case out of the general principle. 
 The argument whicli attempts to do so takes for granted the note was 
 negotiable, in our understanding of the term, thougli the ver}' object of 
 tlie statute was to take from it that character. This is not the case of 
 a citizen of one State claiming rights in opposition to those set up bj- a 
 third part}', under a contract made in pursuance to the laws of another 
 country. It is a demand made under an agreement entered into in a 
 foreign State, and consequently the party claiming rights under it musi 
 take it with all tlie limitations to which it was subject in the place where 
 it was made, and that although he be one of our citizens.^ 
 
 1 Part of the opinion is omitted. — Ed. 
 
 - All i|ue>tii)us as to the validity and the nature of a mercantile obligation are to 
 be determined by the law of the place where the obligation came into being. Thus
 
 SECT. IX.] LEBEL V. TUCKER. 559 
 
 LEBEL V. TUCKER. 
 
 Queen's Bench. 1867. 
 
 [Reported Law Reports, 3 Queen's Bench, 77]. 
 
 Lush, J.^ The action is on a bill drawn, accepted, and payable in 
 England, and which is therefore an inland bill ; and the action is 
 brought by persons claiming the right to sue by title derived from 
 the drawers and payees according to the English law. The defence 
 is, that the indorsement was made in France, and is not conformable 
 to the law of France, which requires that the indorsement should l)ear 
 a date, and express the consideration for the indorsement and the 
 name of the indorsee. The question is, is that any answer to an action 
 against the acceptor of an English liill? The circumstances are some- 
 what novel, but the principle applicable is not novel ; it existed before, 
 and is well established bj- the decision in Trimbe^' v. Vignier, 1 Bing. 
 
 capacity is governed by the law of the place of eutering iuto the obligation. Beuton 
 V. Bank, 4.5 Neb. 850, 64 N. W. 227 ; 14 Clunet, 638 (Germany, 16 Oct. '83). See, how- 
 ever, 4 Clunet, 71 (Austria, 23 Dec. '75^, domicil of the party to be bound; 26 Chinet, 
 177 (Austria, 27 April, '98), capacity of acceptor by place of drawing. 
 
 Whetlier sufficient consideration has passed is to be governed by the law of the place 
 of obligation : as against tlie drawer, by the place «f drawing: Wood v. Gibbs, 35 Miss. 
 559 ; as against the acceptor, by the place of acceptance: Webster r. Howe Machine 
 Co., 54 Conn. 394, 8 Atl. 482 ; Pasic. Beige, '93, 2, 39 (Liege, 16 July, '92) ; as against 
 the indorser, by the place of indorsement: Gliddeu c, Chamberlin, 167 Mass. 486, 46 
 N. E. 103 ; Staples v. Nott, 129 N. Y. 403. 
 
 The form of the obligation is governed by the law of the place of making ; as 
 whether commercial paper must be expressed as for "value received." Stix v. Mat- 
 thews, 63 Mo. 371 ; Sirey, '57, 1, 586 (Fr. Cass. 18 Aug. '56). But see Emanuel v. 
 White, 34 Miss. 56 (by law of place of payment). So w'.iether the addition of a clause 
 giving attorneys' fees deprives a bill of its negotiable character depends on the law of 
 the place of making. Howenstein v. Barnes, 5 Dill. 482. 
 
 The nature of the liability created is governed by the law of the place of creating 
 the obligation. Thus whether an "anomalous indorser" is a joint maker is deter- 
 mined by the law of tJie place of indorsement. Phipps v. Harding, 70 Fed. 468. 
 Whether an indorser is liable personally to the indorsee is determined by the law of 
 the place of indorsement. Hyatt v. Bank, 8 Bush, 193 ; Nichols v. Porter, 2 W. Va. 
 13 ; 16 Clunet, 735 (Cass. Florence, 16 Jan.' 88). Whether an acceptor is liable to the 
 drawer is determined by the law of the place of acceptance, 24 Clunet, 387 (Colmar, 11 
 Jan. '95). Whether a note is negotiable, so that payment to the payee or his creditor 
 before notice of indorsement would not discharge the maker, is determined by the law 
 of the place of making. Stevens t'. Gregg, 89 Ky. 461, 12 S. W. 775; Warren v. 
 Copelin, 4 Met. 594 ; Dow v. Rowell, 12 N. H. 49. It has, however, bien intimated 
 that this question is governed by the law of the place of payment. Brabston v. Gibson, 
 9 How. 263 {semble) ; Strawberry Point Bk. r. Lee, 117* Mich. 122, 75 N. W. 444 
 (semhle). And see Savings Bank v. Nat. Bank, 38 Fed. 800; Bank v. Hemingray, 31 
 Oh. S. 168. 
 
 It has been held that whether an indorsement for a pre-existing debt bars equities, 
 as a purchase for value, is to be determined by the law of the place of indorsement. 
 King V. Doolittle. 1 Head 77. — Ed. 
 
 '^ The concurring opinion of Mellor. J., is omitted. — Ed.
 
 560 LEBEL V. TUCKER. [CHAP. X. 
 
 N. C. 151, viz., that contracts must be governed b}' the law of the 
 country where they are made. Now, the contract on which the present 
 defendant, the acceptor, is sued, was made in England. The contract 
 which the drawer proposes is this: he says, "Pay a certain sum at a 
 certain date to my order ; " the acceptor makes this contract his own 
 by putting his name as acceptor, and his contract, if expanded in words, 
 is, "I undertake at the maturity of the bill to pay to the person who 
 shall be the holder under an indorsement from you, the payee, made 
 according to tlie law merchant." How can that contract of the ac- 
 ceptor be varied by the circumstance that the indorsement is made in 
 a country where the law is different from the law of England ? The 
 bill retains its original character ; it remains an inland bill up to the 
 time of its maturity, and is negotiable according to English law ; and 
 by the English law a simple indorsement in blank transfers the right to 
 sue to the holder. This principle is pointedly applied by the judgment 
 in Trimbey v. Vignier, 1 Bing. N. C. 151. My Brother Hayes is mis- 
 taken in supposing that the judgment deals simpliciter with the place 
 of the indorsement, without reference to the fact of the instrument it- 
 self being a French note ; on the contrary, that fact lies at the very 
 bottom of the decision. Thus, at the very commencement of the judg- 
 ment TiNDAL, C. J., after saying that the point reserved was, whether 
 the plaintiff, under the circumstances stated in the case, was entitled 
 to maintain the action in an English court of law in his own name, pro- 
 ceeds : " The promissory note was made by the defendant in France ; 
 and it was indorsed in blank by the payee in that country ; each of the 
 parties, the maker and the payee, being at the respective times of mak- 
 ing and indorsing the note domiciled in that country. The first inquiry, 
 therefore, is, whether this action could have been maintained by the 
 plaintiff against the defendant in the courts of law in France." He 
 then discusses what is the law of France, and comes to the conclusion 
 that the plaintiff, the indorsee, could not have sued the maker in his 
 own name in the courts of France, and proceeds: "The question, 
 therefore, becomes this : Supposing such rule to prevail in the French 
 courts, by the law of that country, is the same rule to be adopted by the 
 English courts of law, when the action is ])rought here, the law of Eng- 
 land, applicable to the case of a note indorsed in blank in England, 
 allowing the action to be brought in the name of the holder? The rule 
 wliich applies to the case of contracts, made in one country and put in 
 suit ui the courts of law of another country, appears to be this : that 
 the interpretation of the contract must be governed by the law of the 
 country where the contract was made {lex loci contractus), the mode 
 of suing, and the time within which the action must be brought, must 
 be governed by the law of the country where the action is l)rought." 
 He then cites authorities for this position, and concludes : '^ The ques- 
 tion, therefore, is, whether the law of France, by which the indorse- 
 ment in blank does not operate as a transfer of the note, is a rule 
 which soverns and regulates the interpretation of the contract, or only
 
 SECT. IX.] ALCOCK V. SMITH. 561 
 
 relates to the mode of instituting and conducting the suit. . . . And 
 we think the French law on the point above mentioned is the law by 
 which the contract is governed, and not the law which regulates the 
 mode of suing. ... If the indorsement has not operated as a transfer, 
 that goes directl}- to the point that there is no contract upon which the 
 plaintiff can sue. . . . We think that our courts of law must take 
 notice that the plaintiff could have no right to sue in his own name 
 upon the contract in the courts of thj country where such contract was 
 made ; and that such being the case there, we must hold in our courts 
 that he can have no right of suing here." The judgment, therefore, 
 proceeds on the ground that the contract, that is, the contract of the 
 maker of the note, liaving been made in France, it must be governed 
 by the law of France. 80 here, the contract of the acceptor, having 
 been made in England, must be governed by the English law. It 
 would be anomalous to say that a contract made in this country 
 could be affected by the circulation and negotiation in a foreign 
 country of the instrument by which the contract is constituted. The 
 original contract cannot be varied b}' the law of an}- foreign country 
 through which the instrument passes. Therefore, as it seems clear 
 to me, the plaintiffs are entitled to judgment. It is not necessary to 
 consider what would be the effect of this indorsement as against the 
 indorser, if sued in France ; probably, the courts of France would hold 
 that the English law governed. All we decide is, that the acceptor 
 having contracted in England to pay in England, the contract must 
 be interpreted and governed by the law of England, and that the 
 plaintiffs have acquired a right to sue. 
 
 Judgment for the plaintiffs.'^ 
 
 ALCOCK V. SI^nTH. 
 
 Court of Appeal. 1892. 
 
 [Reported [1892] 1 Chancery, 238.] 
 
 LiNDLET, L. J.^ The question in this case is which of two persons 
 is entitled to a sum of £350, being the produce of a certain cheque for 
 £235 and a bill of exchange for £115. It will not be necessar}- to 
 draw any distinction between the cheque and the bill, and, therefore, 
 I will allude only to the bill. 
 
 1 See Bradlaugh v. De Rin, L. R. 5 C. P. 473. 
 
 The sufficiency of au indorsement to pass title to a mercantile instrument is to be 
 determined by the law of the place of indorsement. Brook v. Vannest, 58 N. J. L. 
 162,33 Atl. 382; Woods v. Ridley, 11 Humph. 194; 5 Clunet, 51 (Palermo, 7 July, 
 '77) ; 12 Clunet. 79 (Paris, 8 Dec. '81 ) ; 21 Clunet, 586 ; (Liejre, 26 July, '93). Contra 
 (by the law of the place of payment), Everett v. Vendryes, 19 N. Y. 436; 20 Clunet, 
 194 (Germ. 5 Nov. '89). — Ed. 
 
 2 Concurring opinions of Lopes and Kay, L.JJ., are omitted. — Ed. 
 
 36
 
 562 ALCOCK V. SMITH. [chap. X. 
 
 The bill was drawn in the English language in England by an 
 Englishman named Ellison on Messrs. Smith, Payne, & Smith, of 
 London, bankers, and was made payable in London. It was drawn 
 to the order of Messrs. Andresen & Co., who were merchants in 
 Christiania, in Norway. The history of the bill is this : It was 
 indorsed .by Messrs. Andresen to a Mr. Meyer, and it was on the llth 
 of March indorsed by Mr. Meyer in blank, and was given by him to a 
 gentleman of the name of Schiender for Arthur Alcock and the firm 
 of J. F. Alcock &, Co., which last firm consisted of John Forster 
 Alcock and Arthur Alcock. It is important to bear in mind that it 
 was a bill which, as it then stood with Meyer's indorsement upon it, 
 was a negotiable instrument ti-ansferable to bearer. The Alcocks then 
 held it by their agent Schiender. In that state of things, under a 
 judgment obtained in Norway against Mr. John Forster Alcock, one 
 of the judicial officers or ministerial officers in Norway (a person whom 
 I will allude to for the sake of shortness as a sheriff) seized in execu- 
 tion, according to the law of Norway, this bill indorsed as it was, and 
 sold it in accordance with the law of Norwa}-. It was bought bj- a 
 person of the name of Schjodt for Meyer, and, on the 9tli of May, Me^er 
 sold it to Kopmansbank. It did not require an}' further indorsement, 
 because it was sold as a negotiable instrument paj-able to bearer, and 
 was bought by Kopmansbank as a negotiable instrument payable to 
 bearer ; and the}' bought it in the ordinary course of business bond fide 
 and for value. At that time the bill was unquestionably overdue. One 
 point which we have to consider is, what was the effect of the purchase 
 by Kopmansbank of this bill in its then state and under the circum- 
 stances I have mentioned, bearing in mind that it was an overdue bill 
 of exchange ? Now, according to Mr. Schiender's evidence, which is 
 not contradicted or disputed, it is plain that, under the law of Norway, 
 the judicial sale of that negotiable instrument " transferable to bearer" 
 (a circumstance to which I attach great importance) conferred a good 
 title upon the purchaser. It is also proved b}- the other evidence 
 that, according to the law of Norwa}', a person who bond fide purchases 
 for value a bill of exchange, which bill is overdue, is not afll'ected in 
 regard to title as he would be affected b}' the law of England. 
 
 That being the state of things, and K()pmansbank having become 
 the holders of that bill for value, I proceed to consider whether thej- 
 are or are not entitled to recover and hold for themselves the mone}' 
 represented by the bill. It has been argued by Mr. Haldane and Mr. 
 Farwell, that inasmuch as this was an inland bill transferred to them 
 when it was overdue, altliough it was taken bond fide, the}^ took it 
 suliject to all equities affecting the bill, and they say that Kopmansbank 
 could not maintain an action in respect of that bill against the acceptor 
 of it. That argument is based upon the fact that this was an English 
 bill, and upon the combined operation of the Bills of Exchange Act, 
 sect. 72, sub-sect. 2, which I will read presentl}-, sect. 36, sub-sect. 2, 
 and sect. 21), sub-sect. 2. Now, it is impossible in applying those see-
 
 SECT. IX.] ALCOCK V. SMITH. 563 
 
 tions to this bill and to the title of Kopmansbank to ignore the fact that 
 tbey acquired their title under the judicial sale, and if due effect is 
 given to that, then it seems to me that, even looking at the matter 
 in the narrowest possible point of view, Kopmansbank are entitled to 
 recuvLT this money from the acceptor. 
 
 Now, I will go through the sections with reference to the arguments 
 which have been addressed to us. Sect. 72 of the Bills of Exchange 
 Act lelates to the conflict of laws, and the first part of it does not 
 apply, but sub-sect. 2 runs thus : " Subject to the provisions of this Act, 
 the interpretation of the drawing, indorsement, acceptance, or accept- 
 ance supra protest of a bill, is determined by the law of the place 
 where such contract is made. Provided that where an inland bill" — 
 as this is — " is indorsed in a foreign countr}- " — as this was — " the 
 indorsement shall as regards the payer " — which I read as the 
 acceptor — "be interpreted according to the law of the United King- 
 dom." Now, this bill was indorsed in such a waj', as it api)ears to 
 me, that the indorsement was effectual whether you interpret according 
 to English law or according to any other law. Then sect. 36, sub-sect. 
 2, is important, because, treating this as an English bill covered by 
 English law, it is applicable. Sub-sect. 2 says this: "Where an 
 overdue bill is negotiated, it can onh' be negotiated subject to any 
 defect of title affecting it at its maturity, and thenceforward no person 
 who takes it can acquire or give a better title than that which the 
 person from whom he took it had." That is to sa^', if you take an 
 overdue bill you take it subject to any defect of title in the person 
 from whom you got it. That gives rise to the question, Was theie 
 any defect in title in Meyer, from whom Kopmansbank got it? That 
 must be considered. But Meyer got it under the judicial sale, and 
 there was no defect at all. Now, " defect of title " is a phrase in- 
 troduced into the Bills of Exchange Act in lieu of the old expression 
 '• subject to equities," which is an expression not adopted because the 
 Act applies to Scotland as well as to England, and " subject to equi- 
 ties '" is an expression not known to Scotch law. Sect. 29, sub-sect. 2, 
 says "In particular the title of a pei'son who negotiates a bill is 
 defective within the meaning of this Act when he obtained the bill, or 
 the acceptance thereof, h\ fraud, duress, or force and fear, or other 
 unlawful means, or for an illegal consideration, or when he negotiates 
 it in breach of faith, or under such circumstances as amount to a 
 fraud." The present case clearh* does not come within those words. 
 The only possible words under which it could come would be "or 
 other unlawful means." But the means b}- which Meyer got the bill 
 were not unlawful ; they were lawful according to the law of the place 
 where the transaction took place. Therefore, putting the case in the 
 light most favorable to the appellants, Kopmansbank have a good 
 title to this bill and the money represented b}- it, treating it as an 
 English bill and applying the provisions of the Bills of Exchange Act, 
 having regard, of course, to what took place in Norway.
 
 564 ALCOCK V. SMITH. [CHAP. X. 
 
 Now, if that is so, we have only further to consider whether there 
 are any equitable grounds for depriving those gentlemen of the money 
 to which they have become entitled. The appellants put their case 
 very forcibly in this way, that the judicial sale of the bill was subject 
 to the claim of Arthur Alcock to eight-elevenths of this money ; but 
 how can that equity attach to a bill indorsed in l)lank, and so transfer- 
 able to bearer? That maybe a question between themselves, but it 
 does not affect any person taking the bill. The bill is taken simply 
 with notice that the sheriff, as I have called him, was selling. Now, 
 what did the sheriff sell? He did not sell the bit of paper merely, but 
 he sold the bill — that is to say, he sold the benefit of the contract 
 represented by the paper which he handed over. What was that 
 benefit, and what was the contract ? The contract on the part of the 
 acceptor was to pay the bill to the lawful holder. That is said to 
 mean, the lawful holder according to the law of England. I agree. 
 But we must not ignore what took place in Norway. The argument on 
 the part of the appellants is that we ought to shut our eyes to the mode 
 and circumstances under which Meyer got the bill. If the mode and 
 circumstances under which he got it were such as to give him a title in 
 Norway, not only to the bill but to the benefit of the contract, then 
 Kopmansbank are the lawful holders by the law of England, and there 
 would be no defence to an action. The equity is displaced by the 
 verv same reasoning. You cannot enforce the equity as against the 
 bond fide holder of a bill which is transferable to bearer, and of which 
 he is the lawful holder. 
 
 With reference to the authorities, I do not think I need say much. 
 The strength of the plaintiffs' case is that this was an overdue bill with 
 notice of the defect in title. The answer is that there is no defect of 
 title, and therefore there is nothing for the holders to have notice of. 
 The cases of Lebel v. Tucker, Law. Rep. 3 Q. B. 77 ; Lee v. Abdy, 1 7 Q. 
 B. D. 309 ; and Bradlaugh v. De Rin, Law Rep. 3 C. P. 538 ; Ibid. 5 C. P. 
 473, do not appear to me to touch this case at all. We are asked to 
 say on the authority of those cases that the court is to ignore a title 
 which is good according to the law of the country where the bill has 
 been sold. Those cases lay down no such principle. The difficulty of 
 the appellants in this case arises from the fact that Alcocks, though 
 they had been the lawful holders of the bill, had ceased to be so by 
 the law of Norway. Lebel v. Tucker, Law. Rep. 3 Q. B. 77, does not 
 touch that, nor do any of the cases which have been referred to come 
 near it. 
 
 On those short grounds, treating this to the fullest extent as a bill 
 overdue when bought, and assuming that Kopmansbank are supposed 
 to have had notice of any defect of title, the fact that there was no 
 defect of title is a complete answer both at law and in equity. There- 
 fore, I am of opinion that the learned judge in the court below in this 
 case was quite right, and that this appeal must be dismissed with 
 costs.
 
 SECT. IX.] AYMAK V. SHELDON. 565 
 
 AYMAR V. SHELDON. 
 
 Supreme Court, New York. 1834. 
 
 [Reported 12 Wendell, 439.] 
 
 Error from the Superior Court of the city of New York. Sheldon 
 and others, as indorsees, brought a suit against B. & I. Q. A^-mai", as 
 indorsers of a bill of exchange, bearing date 4th June, 1830, drawn by 
 V. Cassaigne & Co. St. Pierre, at Martinique, on L'Hotelier Freres, at 
 Bordeaux, in France, for 4,000 francs, payable at twenty-four days' 
 sight, to the order of B. Ayraar & Co., the name of the firm of B. & I. 
 Q. Aymar. The plaintiffs set forth the indorsement of the bill of ex- 
 change at the city of New York, where, they averred, that they and 
 the defendants, all being citizens of the United States at the time of 
 the indorsement, respectively dwelt and had their homes ; and then 
 aver that on the 11th August, 1830, the bill of exchange was presented 
 to L'Hotelier Freres, at Bordeaux, for acceptance, according to the 
 custom of merchants, and that they refused to accept ; whereupon the 
 bill was dul}' protested for non-acceptance, and notice given to the de- 
 fendants. The defendant pleaded : 1. Non-assumpsit ; 2. That the bill 
 declared on was made and drawn in the island of Martinique, a country 
 then, since, and now, under the dominion and government of the king 
 of France, by persons there dwelling subjects of the king of France ; 
 and that the bill, according to its tenor, was payable at Paris, in the 
 kingdom of France, by persons then and still residing and dwelling at 
 Bordeaux, in the kingdom of France, subjects of the king of France, to 
 wit, on, etc. at, etc. ; that the island of Martinique, as well as Paris 
 and Bordeaux, and the persons therein respectively residing, and the 
 drawers and drawees were subject and governed by the laws of the 
 kingdom of France, there and then, and still existing and in force, to 
 wit on, etc. at, etc. ; that by the laws of France, then and still at the 
 several places in the plea mentioned, existing and in force, it is estab- 
 lished, enacted, and provided, in relation to bills of exchange drawn 
 and payable in the countries subject to the laws of France, among 
 other things, in manner and form following, namely : The drawer and 
 indorsers of a bill of exchange are severally liable for its acceptance 
 and payment at the time it falls due. Code de Commerce, 119. The 
 refusal of acceptance is evidenced by an act denominated protest 
 for non-acceptance, id. 120. On notice of the protest for non- 
 acceptance, the indorsers and drawer are respectively bound to give 
 security, to secure the payment of the bill at the time it falls due. or 
 to effect reimbursement of it, with the expense of protest and re-ex- 
 change. The time when a bill of exchange becomes due, if payable at 
 one or more days after sight, is fixed by the date of the acceptance, or 
 by the date of the protest for non-acceptance. The holder is not
 
 566 AYMAR V. SHELDON. [CHAP. X. 
 
 excused the protest for non-payment by the protest for non-acceptance. 
 After the expiration of the above periods (certain periods specified in 
 the code, and which, in the case of a bill drawn in the West Indies on 
 France, is one year) for the i>i-esentment of bills at sight, or one or 
 more days after sight, for protest of non-payment, the holder of the bill 
 loses all his claim against the indorsers, etc. setting forth, besides the 
 above, a variety of other provisions of the French code, relative to bills 
 of exchange, and then averring, that although at the time of the com- 
 mencement of the action of the plaintiffs, twenty-four days after sight 
 of the bill of exchange declared on had elapsed, from the day when the 
 same was alleged to have been protested for non-acceptance, yet no 
 protest of the said bill for non-payment had been made, concluding with 
 a verification and prayer of judgment. 3. The defendants pleaded, 
 after referring to the matter of inducement stated in the second plea, 
 that on notice of protest for non-acceptance, as alleged in the declara- 
 tion, they were ready and willing to give security; and offered to the 
 plaintiffs to give security, according to the true intent and meaning of 
 the laws of France, to secure payment of the bill at the time wlien the 
 same should fall due, to wit, on, etc. at, etc., concluding as in last plea. 
 To the second plea the plaintiffs demurred, and took issue upon the 
 third, denying that the defendants did offer security, etc. 
 
 The Superior Court, on the argument of the demurrer, adjudged the 
 second plea to be bad ; after which the issues of fact were tried. The 
 jury found for the plaintiffs, on the plea of non-assumpsit, and assessed 
 their damages at $895.52, and found a verdict for the defendants on 
 the third plea. Notwithstanding which last finding, the court gave 
 judgment for the plaintiffs on the whole record. The defendants sued 
 out a writ of error. 
 
 By the court, Nelson, J. The only material question arising in this 
 case is, whether the steps necessary on the part of the holders of the 
 bill of exchange in question, to subject the indorsers upon default of 
 the drawees to accept, must be determined by the French law, or the 
 law of this State? If by our law, the plaintiffs below are entitled to 
 retain the judgment ; if by the law of France, as set out and admitted 
 in the pleadings, the judgment must be reversed. 
 
 AVe have not been referred to any case, nor have any been found in 
 our researches, in which the point now presented has been examined 
 or adjudged. • But there are some familiar principles belonging to the 
 law merchant, or applicable to bills of exchange and promissory notes, 
 which we think are decisive of it. The persons in whose favor the bill 
 was drawn were bound to present it for acceptance and for payment, 
 according to the law of France, as it was drawn and payable in French 
 territories; and if the rules of law governing them wore applicable to 
 the indorsers and indorsees in this case, the recover}' below could 
 not be sustained, because presentment for payment would have been 
 essential even after protest for non-acceptance. No principle, however, 
 seems more fully settled, or better understood in commercial law, than
 
 SECT. IX.] AYMAR V. SHELDON. 567 
 
 that the contract of the indorser is a new and independent contract, 
 and that the extent of his obligations is determined b}- it. The transfer 
 b}' indorsement is equivalent in effect to the drawing of a bill, the 
 indorser being in almost every respect considered as a new drawer. 
 Chitty on Bills, 142 ; 3 East, 482 ; 2 Burr. 674, 5 ; 1 Str. 441 ; Selw. 
 N. P. 256. On this ground, the rate of damages in an action against 
 the indorser is governed by the law of the place where the indorsement 
 is made, being regulated b}' the lex loci contractus. 6 Cranch, 21 ; 
 2 Kent's Com. 460; 4 Johns. R. 119. That the nature and extent 
 of the liabilities of the drawer or indorser are to be determined accord- 
 ing to the law of the place where the bill is drawn or indorsement 
 made, has been adjudged both here and in England. In Hix v. Brown, 
 12 Johns. R. 142, the bill was drawn hy the defendant, at New Orleans, 
 in favor of the plaintiff, upon a house in Philadelphia ; it was pro- 
 tested for non-acceptance, and due notice given ; the defendant obtained 
 a discharge under the insolvent laws of New Orleans after such notice, 
 by which he was exonerated from all debts previously contracted, and, 
 in that State, of course from the bill in question. He pleaded his dis- 
 charge here, and the court sa}-, " It seems to be well settled, both in 
 our own and in the English courts, that the discharge is to operate 
 according to the lex loci upon the contract where it was made or to be 
 executed. The contract in this case originated in New Orleans, and 
 had it not been for tlie circumstance of the bill being drawn upon a 
 person in another State, there could be no doubt but the discharge 
 would reach this contract ; and this circumstance can make no differ- 
 ence, as the demand is against the defendant as drawer of the bill, in 
 consequence of the non-acceptance. The whole contract or responsi- 
 hilitv of the drawer was entered into and incurred in New Orleans. 
 The case of Peters v. Brown, 5 East, 124, contains a similar principle. 
 See also 3 Mass. R. 81 ; Van Raugh v. Van Arsdaln, 3 Gaines, 154 ; 
 1 Cowen, 107 ; 6 Cranch, 221 ; 4 Cowen, 512, n. 
 
 The contract of indorsement was made in this case, and the execu- 
 tion of it contemplated by the parties in this State ; and it is therefore 
 to be construed according to the laws of New York. The defendants 
 below, by it, here engage that the drawees will accept and pay the bill 
 on due presentment, or, in case of their default and notice, that they 
 will pay it. All the cases which determine that the nature and extent of 
 the obligation of the drawer are to be ascertained and settled according 
 to the law of the place where the bill is drawn, are equally applicable 
 to the indorser ; for, in respect to the holder, he is a drawer. Adopt- 
 ing this rule and construction, it follows that the law of New York 
 must settle the liability of the defendants below. The bill in this case 
 is payable twent3'-four days after sight, and must be presented for 
 acceptance ; and it is well settled by our law, that the holder may have 
 immediate recourse against the indorser for the default of the drawee 
 in this respect. 3 Johns. R. 202 ; Chitty on Bills, 231, and cases there 
 cited.
 
 568 AYMAR V. SHELDON". [CHAP. X. 
 
 Upon the principle that the rights and obligations of the parties are 
 to be determined b}- the law of the place to which the}' had relerence 
 in making the contract, there are some steps which the holder ranst take 
 according to the law of the place on which the bill is drawn. It must 
 be presented for pa3ment when due, having regard to the number of 
 days of grace there, as the drawee is under obligation to pay only 
 according to such calculation ; and it is therefore to be presumed that 
 the parties had reference to it. So the protest must be according to 
 the same law, whicli is not only convenient, but grows out of the neces- 
 sity of the case. The notice, however, must be given according to the 
 law of the place where the contract of the drawer or indorscr, as the 
 case may be, was made, such being an imphed condition. Chitt^' on 
 Bills, 266, 93, 217; Bayley, 28; Story's Conflict of Laws, 298. 
 
 The contract of the drawers in this case, according to the French 
 law, was, that if the holder would present the bill for acceptance 
 within one year from date, it being drawn in the West Indies, and it was 
 not accepted, and was dul}' protested and notice given of the protest, 
 he would give security' to pa}' it, and pay the same if default was also 
 made in the payment by the drawee after protest and notice. This is 
 the contract of the drawers, according to this law, and the counsel for 
 the plaintiffs in error insists that it is also the implied contract of the 
 indorser in this State. But this cannot be, unless the indorsement is 
 deemed an adoption of the original contract of the drawers, to be reg- 
 ulated b}' the law governing the drawers, without regard to the place 
 where the indorsement is made. "We have seen that this is not so ; 
 that notice must be given according to the law of the place of indorse- 
 ment ; and if, according to it, notice of non-payment is not required, 
 none of course is necessary to charge the indorser. But if the above 
 position of the plaintiffs in error be correct, notice could not then be 
 dispensed with, the law of the drawer controlling. The above position 
 of the counsel would also be irreconcilable with the principle, that the 
 indorsement is equivalent to a new bill, drawn upon the same drawee ; 
 for then the rights and liabilities of the indorser must be governed by 
 the law of the place of the contract, in like manner as those of the 
 drawer are to be governed b}- the laws of the place where his contract 
 was made. Both stand upon the same footing in this respect, each to 
 be charged according to the laws of the country in which they were at 
 the time of entering into their respective obligations. 
 
 I am aware that this conclusion may operate harshl}' upon the 
 indorsers in this case, as they may not be enabled to have recourse 
 over on the drawers. But this grows out of the peculiarity of the com- 
 mercial code which France has seen fit to adopt for herself, materially 
 differing from that known to the law merchant. We cannot break in 
 upon the settled principles of our commercial law, to accommodate 
 them to those of France or an}' other country. Tt would involve thorn 
 in great confusion. The indorser, however, can always protect liim- 
 self by special indorsement, requiring the holder to take the steps
 
 SECT. IX.] ROUQUETTE V. OVERMANN. 569 
 
 necessary according to the French law, to charge the drawer. It is the 
 business of the holder, without such an indorsement, only to take such 
 measures as are necessary to charge those to whom he intends to look 
 for payment. Judgment affirmed} 
 
 KOUQUETTE v. OVERMANN. 
 
 Queen's Bench. 1875. 
 
 [Reported Law Reports, 10 Queen's Bench, 525.] 
 
 This was an action brought by the plaintiff as indorsee and holder 
 against the defendants as drawers and indorsers of a bill of exchange. 
 The bill is as follows : 
 
 "Manchester, 28th June, 1870. For £345 15s. 2d. sterling. On 
 the 5th of October, 1870, pay this first of exchange (second and third 
 unpaid) to the order of ourselves the sum of £345 15s. 2d. sterling, at 
 the exchange as per indorsement for value received, which place to 
 account as advised. Overmann & Schou. 
 
 " To Messrs. Magalhaes Freres, 5 Rue Martel, Paris." 
 
 Defendants indorsed the bill to plaintiff in England. The bill was 
 duly presented to the drawees in Paris and accepted b}- them. Before 
 the time for payment, war having broken out between France and 
 Germany, payment of this and similar instruments was postponed 
 from time to time by the legislative authority in France, and demand 
 of payment before the time fixed forbidden, until a delay of eleven 
 months was finally provided. On the 5th of September, the day on 
 which the extended term of grace expired, the bill was presented for 
 
 1 It is held generally in this country that the nature of the notice required to bind 
 a drawer or indorser to a holder depends upon the law of the place of drawing or 
 indorsement. Thorp v. Craig, 10 la. 461 ; Huse v. Haniblin, 29 la. 501 ; Snow v. 
 Perkins, 2 Mich. 238 ; Douglas i'. Bank of Commerce, 97 Tenn. 133, 36 S. W. 874 ; 
 Raymond v. Holmes, 11 Tex. 54. Contra (by the law of the place of payment of the 
 instrument), Rothschild v. Currie, 1 Q. B. 43 ; Wooley v. Lyon, 117 111. 244, 6 N. E. 
 885 ; Chew v. Read, 11 Sm. & M. 182 ; 3 Clunet, 361 (Paris, 22 March, '75). 
 
 So, it has been held, that whether a provision of the bill has the effect of a waiver of 
 notice by the indorsee is determined by the law of the place of making and indorse- 
 ment. Dunnigan r. Stevens, 122 111. 396, 13 N. E. 51. 
 
 Whether prior judgment against the maker is required before suing the indorser is 
 likewise governed by the law of the place of indorsement. Williams v. Wade, 1 Met. 
 82 {semble). And what diligence is necessary to bind drawer or indorser is governed 
 by the law of the place of drawing or indorsement. Hunt v. Staudart, 15 Lid. 33; 
 Warner v. Citizens' Bank, 6 S. D. 152,60 N. W. 746; Sirey, '96, 4, 7 (Cass. Florence, 
 8 Apr. '95). Contra (by law of place of payment), 15 Clunet, 554 (Palermo, 13 Dec. 
 '86). 
 
 The form of protest is regulated by the law of the place of protest, i. e., of payment. 
 Todd V. Neal, 49 Ala. 266 ; Kentucky Com. Bk. v. Barksdale, 36 Mo. 563; 21 CluneW 
 370 (Brussels, 14 June, '93). — Ed.
 
 570 ROUQUETTE V. OVERMANN, [CHAP. X. 
 
 payment, which was refused. The bill was duh* protested, according 
 to the French law, on the 6th of September, and notice of dishonor 
 and of the protest duly sent to the defendants. The defendants refused 
 paj-ment.^ 
 
 CocKBURN, C. J. The main ground of defence is that due diligence 
 was not used by the holders of the bill in presenting it for payment at 
 the appointed time, or in giving notice of dishonor on its non-pay- 
 ment at that time ; b\' reason of which the indorsers were discharged ; 
 whence, as was contended, it followed that the plaintiff had paid the 
 bill in his own wrong, and therefore could not claim to be indemnified 
 by the defendants; who, again, it was said, were entitled on their own 
 account to notice of dishonor on non-payment at the regular time, — 
 it being contended that whatever might be the effect of this specia) 
 legislation of the French government, as between the holders of the 
 bill and the acceptors, the holders, though resident in France, were 
 bound, the bill having been drawn and indorsed in England, if they 
 desired to fix the parties in this countr3% to present the bill for pay 
 ment at the time at which it fell due in the regular course, according 
 to its tenor, and if it was not then paid, to give notice of its dishonor 
 — the right to insist on due diligence in these particulars according to 
 the law of England, as a condition precedent of liabilit}', being one 
 which it was not competent to a foreign legislature to affect. That, at 
 all events, the transaction between the defendants and the plaintiff 
 having occurred in this country, their respective rights and liabilities 
 must be determined by English law. The implied contract of indem- 
 nity, which attaches on non-payment of a bill of exchange, is based, it 
 was urged, on the assumption that the bill will be presented for pay- 
 ment at the time specified by it ; and that, in case of non-payment, 
 notice of dishonor will thereupon be given. How then, it was asked, 
 can the right to insist on these as the conditions of liability on a bill 
 drawn and indorsed in this country be modified or affected by the 
 legislation of a foreign country? 
 
 The question is of considerable importance and interest in a juridical 
 point of view. It has occupied the attention of the tribunals in Ger- 
 man}-, Switzerland, and Italy. The High Court of Leipzig has decided 
 it in favor of the view presented to us on the part of the defendants. 
 The High Court of Geneva and the Cour de Cassation of Turin have 
 come to tlie opposite conclusion. Our view coincides with tlieirs. 
 
 In considering the subject, two questions present themselves. The 
 first, as to what was the effect of this special legislation on the obHga- 
 tions of the acceptors ; the second, as to what, if any, was its effect on 
 the rights and liabilities of the drawers and indorsees inter se. It is 
 with tlie second question that we are more immediately concerned ; but 
 the consideration of the first may materially assist us towards the satis- 
 factory solution of tlie second. 
 
 1 This statement of facts is substituted for that of the Chief Justice. Part of the 
 opinion is omitted. — Ed.
 
 SECT. IX.] ROUQUETTE V. OVERMANN. 571 
 
 Now that, so far as the French hiw was concerned, the effect of the 
 exceptional legislation in question was to substitute, as the time of 
 payment, the expiration of the period of grace afforded by it for the 
 time specified in the bill, and to susi)end till then the legal obligation 
 of the acceptors to pa}', cannot be doubted. If the bill had been pre- 
 sented for payment on the 5th of October, and payment having been 
 refused, an action had been brought in a French court against the ao 
 ceptors, whetlier by a French or foreign holder, the plaintiff must bj' 
 the effect of the new law have been defeated. P>en if the acceptors 
 had been found in this country, and an action had been brought against 
 them in an English court, the result must have been the same. It is 
 well settled that the incidents of presentment and payment must be 
 regulated and determined by the law of the place of performance, — a 
 rule v/hich is strikingly illustrated by the familiar but pertinent ex- 
 ample of the effect of days of grace being allowed by the law of the 
 country where a bill of exchange is drawn, but not by the law of the 
 country where it is payable, or vice versa, the payment of the bill l>eing, 
 as is well known, deferred till the expiration of the days of grace in the 
 one case, but not so in the other. And this arises out of the nature of 
 the thing, as the acceptor cannot be made liable under any law but his 
 own. It is, indeed, true that, in the present instance, the period of 
 grace has been accorded by ex post facto legislation. But this appears 
 to us to make no difference in the result, at all events so far as the 
 obligations of the acceptors are concerned. The power of a legislature 
 to interfere with and modify vested and existing rights cannot be ques- 
 tioned, although no doubt such interference, except under most excep- 
 tional circumstances, woulct be contrary to the principles of sound and 
 just legislation. 
 
 Such being the effect of this legislation on the liability of the ac- 
 ceptor, we have next to consider its effect on the relative position of 
 the drawer and the drawee or indorsee and holder. It is said that, 
 although the obligations of the acceptor may be determined by the lex 
 loci of the country in which the bill is payable, the contract as between 
 the drawer and indorsee must be construed according to the law of the 
 country where the bill was drawn ; and, consequently, that in order to 
 make the defendants, the drawers of this bill, liable, the bill should have 
 been presented at the time specified in it, and on non-payment notice 
 of dishonor should thereupon have been given according to the re- 
 quirements of English law. It is unnecessary to consider how far this 
 position may hold good as to matter of form, or stamp objections, or 
 illegality of consideration, or the like. We cannot concur in it as ap- 
 plicable to the substance of the contract, so far as presentment for pay- 
 ment is concerned ; still less to a formality required on non-payment in 
 order to enable the holder to have recourse to an antecedent party to 
 ■ the bill. Applied to these incidents of the contract, this reasoning 
 appears to us altogether to overlook the true nature of the contract 
 which a party transferring for value the property in a bill of exchange
 
 572 KOUQUETTE V. OVERMANN. [CHAP. X. 
 
 makes with the transferee. All that he does is to warrant that the bill 
 shall l)e accepted by the drawee, and, having been accepted, shall, on 
 being presented at the time it becomes due, be paid. In other words, 
 he engages as suret}- for the due performance by the acceptor of the 
 obligations which the latter takes on himself by the acceptance. His 
 liability, therefore, is to be measured by that of the acceptor, whose 
 surety he is ; and as the obligations of the acceptor are to be deter- 
 mined by the lex loci of performance, so also must be those of the 
 surety. To hold otherwise would obviously lead to very startling 
 anomalies. The holder might sue the drawer or indorser before, ac- 
 cording to the law applicable to the acceptor, the bill became due ; or, 
 the acceptor having refused payment till the expiration of the period 
 of grace thus afforded him by the new law, but on presentment at the 
 end of that time having duly paid, the holder might claim compensation 
 against the indorser in respect of any loss he might have sustained by 
 reason of the delay, although the obligations of the acceptor had been 
 fully satisfied by the payment of the bill. Again, as a bill may be in- 
 dorsed in different countries before it arrives at maturity, and each in- 
 dorsement becomes a fresh undertaking with the subsequent parties to 
 the bill for due performance by the acceptor, unless the performance 
 to which the acceptor is bound is made the measure and the limit of 
 each indorser's liabihty, confusion must arise in determining by what 
 law the rights and liabilities of the different indorsers and indorsees 
 t)iter se shall be governed. 
 
 It may be urged, no doubt, that, though it may be true that the 
 parties to a bill of exchange, payable in a foreign country, may be 
 assumed to have contracted for the paym^t of the bill according to 
 the existing law of the country in which it is to be paid, they cannot 
 be assumed to have contracted on the supposition of that law being 
 altered in the interval prior to the bill becoming due ; that, on the con- 
 trary, the intention of the parties was that the bill should be paid 
 according to the existing law, and the undertaking of the party trans- 
 ferring it was that it should be so paid ; and that such being the effect 
 of the indorsement, the obligation of the indorser cannot, as between 
 him and his indorsee, be affected b}' ex post facto legislation in the 
 foreign country. A strong argument a/j inconvenienti may also be 
 founded on the serious consequences which may ensue to the holder of 
 a bill of exchange, if the time of payment, as fixed by the bill, may 
 be postponed by subsequent legislation. He may require the money 
 secured by the bill at the precise moment it is to become due ; he may 
 have purchased the bill for the purpose of insuring the command of it. 
 The delay in receiving it may involve him in the greatest embarrass- 
 ment. The indorser ought, therefore, to be held strictly to his under- 
 taking that the bill shall be met at ths time stated in it, and contemplated 
 by the parties as the date of payment. That to hold otlierwise would 
 be materially to shake the credit and impair the utility of negotiable 
 instruments.
 
 SECT. IX.] KOUQUETTE V. OVERMANN. 573 
 
 To the first of these arguments it may be answered, that the indorser 
 of a bill guarantees its pa^'ment onh' according to the effect of the bill 
 at the place of payment. He transfers all the right the acceptance gives 
 him against the acceptor, and guarantees that the obligations of the 
 latter, as arising from the acceptance, shall be fulfilled. If, b}- an al- 
 teration of the local law pending the currency of the bill, the obligations 
 of the acceptor are rendered more onerous, those of the indorser be- 
 come so likewise. Thus, if it were enacted that certain da3-s should 
 be treated as holidays, and that a bill falling due on anj- one of them 
 should be paid at an earlier date, the indorser, on non-payment of the 
 bill at such earlier date, would become liable from such date. On the 
 other hand, if the time of paj-ment were postponed bj- a period of grace 
 being allowed, or bj' an enactment that a bill, falling due on a da}- ap- 
 pointed to be kept as a holiday, should be pa^'able a da\' after, — as 
 was done by the Act of 34 & 35 Vict. c. 17, — the period at which the 
 liability of the indorser on non-paj'ment by the acceptor would arise, 
 would be pro tanto delaj'ed. 
 
 To the second argument it may be answered, that it goes rather to 
 the expedienc\' of such exceptional legislation than to its etfect. Fur- 
 ther, that the instances in which it is resorted to are so extremely rare 
 as to be little likely to have the effect of lessening the faith in nego- 
 tiable instruments or diminishing their utilit}-. 
 
 If, then, the right of the holder, as against the acceptor and the 
 antecedent parties, can be thus modified in respect of the time of pay- 
 ment, there can be no injustice or hardship towards them in holding 
 him exempted from the obligations of presenting the bill earlier than 
 his right of pa3'ment accrues, or of giving notice of dishonor in order 
 to preserve his right of recourse to them. 
 
 If the time of payment, which is of the essence of the contract, and 
 the consequent necessit}' for presentment at the original time can thus 
 be postponed, it would seem to follow that, a fortiori, a formalit}', the 
 necessity for which arises only on the non-fulfilment of his obligation 
 by the acceptor, would follow any alteration introduced by the law in 
 respect of the time at which that obligation was to be discharged. But, 
 independently of this consideration, we are of opinion, on general prin- 
 ciples, that notice of dishonor cannot be required until pa^'ment has 
 been legally demandable of the acceptor, and has been refused. It is 
 true that if the bill had been presented for payment at the time men- 
 tioned in it, the acceptors might, possibly, have omitted to avail them- 
 selves of the indulgence accorded b}' the special law, and might have 
 paid at once. But so might, possibU', the acceptor of a bill under 
 ordinary circumstances, if asked to do so as matter of grace or of 
 special arrangement. The holder of a bill of exchange cannot be held 
 bound to present lit for payment till it becomes legall}' payable, that is 
 to say, pa3-able as matter of right and not of option. Neither, there- 
 fore, can he be called upon to give notice of non-payment to the indorser 
 before the time when his right to demand payment of the acceptor has
 
 574 ROUQUETTE V. OYEKMANN. [CHAP. X. 
 
 accrued, and the liabilit}' of the indorser, consequent on such refusal, 
 has arisen. There cannot be two ditferent limes at which a bill of ex- 
 chant^e becomes payable. Suppose the holder had presented this bill 
 for payment at the time specified in it, and payment had been refused 
 by reason of the extension of time afforded by the new law, such pre- 
 sentment would certainly not have dispensed with the necessity of pre- 
 senting the bill anew, when the period of grace expired, and the liability 
 of the acceptors had arisen ; and the omission to present it then would 
 have had the effect of discharging the indorser. If presentment at the 
 expiration of the time allowed by the special law was necessary to fix 
 the legal liability of the acceptor and the indorser, it was only on such 
 presentment and non-payment thereupon that the bill could be treated 
 as dishonored, or that notice of its dishonor could be effectually given 
 so as to charge the indorser. Another ground for holding that present- 
 ment and notice of dishonor at the earlier period were not necessary 
 to preserve the right of recourse against the defendants, as drawers 
 and indorsers, is to be found in the reasons assigned for requiring pre- 
 sentment at the appointed time and notice of dishonor immediately on 
 payment being refused.- The reason given is, that the drawer, whom 
 it is intended to make liable, may liave the earliest opportunity of with- 
 drawing his assets from the acceptor, or resorting to such other reme- 
 dies against him as the law may afford. But in such a case as the 
 present, as the acceptor remains bound to the holder to pay the bill 
 when presented at the time it becomes legally due, the drawer could 
 not withdraw from him the means of satisfying that liability, or take 
 steps against him for non-fulfilment of an obligation not as yet capable 
 of being legally enforced. . . . 
 
 On these grounds we are of opinion that the presentment for pa}-- 
 ment was made, and the notice of dishonor given, at the right time, 
 and that the foundation on which the defence rests consequently fails. 
 
 Our judgment, therefore, must be for the plaintiff. 
 
 Judgment for the plaintiff ^ 
 
 1 The time for presentment for payment is governed by the law of the place of 
 payment. Pierce v. Insdeth, 106 U. S. 546; Pryor v. Wright, 14 Ark. 189; Snovt v. 
 PeVliins, 2 Mich. 238 (semhle) ; Kentucky Com. Bk. v. Barksdale, 36 Mo. 563; Walsh 
 V. Dart, 12 Wis. 633; 1 Clunet, 100 (Austrian Consular Ct., 15 April, '72) ; 1 Clunet, 
 149 (Sweden, 14 May, '73); 1 Clunet, 209 (Brussels, 29 Apr. '72); 21 Clunet, 370 
 (Brussels, 14 June, '93) ; 24 Clunet, 827 (Germ. U Dec. '93). Contra, 1 Clunet, 185 
 (R. O. U. G. 21 Feb. '71). — Ec.
 
 SECT. IX.] LIVERPOOL STEAM CO. V. PHENIX INS. CO. 575 
 
 BOWEN V. NEWELL. 
 Court of Appeals, New York. 1855. 
 
 [Reported 13 New iV^-, 290.] 
 
 Johnson, J. By the law of the State of Connecticut, where this 
 paper was to be paid, it was payable upon the day when, by its tenor, 
 it became due, without grace. What the law of a foreign country is, can 
 only be determined upon evidence ; it is a question of fact. The 
 Superior Court has decided upon evidence derived from the best 
 sources, and of the most unquestionable character, that such is the 
 law of Connecticut, and we see no ground to doubt the correctness of 
 that conclusion. Nor is there any more room to doubt that by the law 
 of this State, the law of Connecticut is to control and govern, in respect 
 to the allowance of grace upon a bill of exchange or check drawn upon 
 and payable at a Bank in that State. (Story, Conf. of Laws, 2d ed., 
 § 36L) 
 
 The judgment should be affirmed. Judgment accordingly. 
 
 SECTION IX. — {B) Obligations of Carriers. 
 
 LIVERPOOL & G. W. STEAM CO. v. PHENIX INS. CO. 
 
 Supreme Court of the United States. 1889. 
 
 [Reported 129 United States, 397.] 
 
 Gray, J. This is an appeal by a steamship compan^^ from a 
 decree rendered against it upon a libel in admiralt}*, " in a cause of 
 action arising from breach of contract," brought b}- an insurance 
 company, claiming to be subrogated to the rights of the owners of 
 goods shipped on board the " Montana," one of the appellant's steam- 
 ships, at New York, to be carried to Liverpool, and lost or damaged 
 by her stranding, because of the negligence of lier master and officers, 
 in Holyhead Bay on the coast of Wales, before reaching her destination. 
 
 In behalf of the appellant, it was contended that the loss was 
 caused by perils of the sea, without any negligence on the part of 
 master and officer ; that the appellant was not a common carrier ; that 
 it was exempt from liability by the terms of the bills of landing ; and 
 that the libellant had not been subrogated to the rights of the owners 
 of the goods. . . . 
 
 The circumstances of the case, as found b}' the Circuit Court, clearly 
 warrant, if they do not require, a court or jury, charged with the duly 
 of determining issues of fact, to find that the stranding was owing to 
 the negligence of the officers of the ship. . . .
 
 576 LIVERPOOL STEAM CO. V. PHENIX INS. CO. [CHAP. X. 
 
 We are then brought to the consideration of the principaLjlUfistion 
 InT&e case, namely, the validity and effect of thatT clause in eacli bill 
 of lading by which the appellant undertoo k to exempt it self from ail 
 l ^tJiJOliyUjlllL) fui ' loijs or dtima^e b y penis of the sea, arising from" 
 ""ne gligenc e of the master and crew of the sh ip. 
 
 The quosLion iipp(iars to us to be substantially determined by the 
 judgment of this court in Railroad Co. v. Lockwood, 17 Wall. 357. . . . 
 
 It was argued for the appellant, that the law of New York, the 
 lex loci contractus, was settled by recent decisions of the Court of 
 Appeals of that State in favor of the right of a carrier of goods or 
 passengers, by land or water, to stipulate for exemption from all 
 liability for bis own negligence. Mynard v. Syracuse Railroad, 71 
 N. Y. 180 ; Spinetti v. Atlas Steamship Co., 80 N. Y. 71. 
 
 But on this subject, as on any question depending upon mercantile 
 law and not upon local statute or usage, it is well settled that the 
 courts of the United States are not bound by decisions of the courts of 
 the State, but will exercise their own judgment, even when their jurisdic- 
 tion attaches only by reason of the citizenship of the parties, in an action 
 at law of which the courts of the State have concurrent jurisdiction, 
 and upon a contract made and to be performed within the State. 
 Railroad Co. v. Lockwood, 17 Wall. 357, 368; Myrick v. Michigan 
 Central Railroad, 107 U. S. 102 ; Carpenter v. Providence Washington 
 Ins. Co., 16 Pet. 495, 511 ; Swift v. Tyson, 16 Pet. 1 ; Railroad Co. 
 V. National Bank, 102 U. S. 14 ; Burgess v. Seligman, 107 U. S. 20, 
 33 ; Smith v. Alabama, 124 U. S. 365, 478 ; Bucher v. Cheshire Rail- 
 road, 125 U. S. 555, 583. The decisions of the State courts certainly 
 cannot be allowed anj- greater weight in the Federal courts when 
 exercising the admiralty and maritime jurisdiction exclusively vested in 
 them b}- the Constitution of the United States. 
 
 It was also argued in behalf of the appellant, that the validity and 
 effect of this contract, to be performed principally upon the high seas, 
 should be governed by the general maritime law, and that by that law 
 such stipulations are valid. To this argument there are two answers. 
 
 First. There is not shown to be anj- such general maritime law. 
 The industr}- of the learned counsel for the appellant lias collected 
 articles of codes, decisions of courts and opinions of commentators in 
 France, Italy, Germany, and Holland, tending to show that, by the 
 law administered in those countries, such a stipulation would be valid. 
 But those decisions and opinions do not appear to have been based on 
 general maritime law, but largely, if not wholly, upon [)ruvisi(>ns or 
 omissions in the codes of the particular country ; and it has been said 
 hy many jurists that the law of France, at least, was otherwise. See 
 2 Pardessus Droit Commercial, no. 542 ; 4 Goujet & Meyer Diet. Droit 
 Commercial (2d ed.) Voiturier, nos. 1, 81; 2 Troplong Droit Civil, 
 nos. 894, 910, 942, and other books cited in Peninsular & OiiiMitai Co. 
 V. Shand, 3 Moore P. C. (n. s.) 272, 278, 285, 286 ; 25 Laurent Droit 
 Civil Franqais, no. 532 ; Mellish, L. J., in Cohen v. Southeastern 
 Railway, 2 Ex. D. 253, 257.
 
 SECT. IX.] LIVERPOOL STEAM CO. V. PHENIX INS. CO. 57T 
 
 Second. The general maritime law is in force in this country, or in 
 any other, so far only as it has been adopted by the laws or usages 
 thereof ; and no rule of the general maritime law (if any exists) con- 
 cerning the validity of such a stipulation as that now before us has 
 ever been adopted in the United States or in England, or recognized in 
 the admiralt}' courts of either. The Lotta wanna, 21 Wall. 558 ; The 
 Scotland, 105 U. S. 2i, 29, 33; The Belgenland, 114 U. S. 355, 369 ; 
 The Harrisburg, 119 U. S. 199 ; The Hamburg, 2 Moore P. C. (n. s.) 
 
 289, 319 ; s. c. Brown. & Lush. 253, 272 ; Lloyd v. Guibert, L. R. 1 
 Q. B. 115, 123, 124; s. c. 6 B. & S. 100, 134, 'l36; The Gaetano & 
 Maria, 7 P. D. 137, 143. 
 
 It was argued in this court, as it had been below, that as the 
 contract was to be chiefly performed on board of a British vessel and 
 to be finail}' completed in Great Britain, and the damage occurred in 
 Great Britain, the case should be determined by the British law, and 
 that by that law the clause exempting the appellant from liability for 
 losses occasioned by the negligence of its servants was valid. . . . 
 
 It appears by the cases cited in behalf of the appellant, and is hardly 
 denied by the appellee, that under the existing law of Great Britain, as 
 declared by the latest decisions of her courts, common carriers, by land 
 or sea, except so far as they are controlled by the provisions of the 
 Railwa_y and Canal Traffic Act of 1854, are permitted to exempt tliem- 
 selves b}' express contract from responsibility for losses occasioned by 
 negligence of their servants. The Duero, L. R. 2 Ad. & Ec. 393 ; 
 Taubman v. Pacific Co., 26 Law Times (n. s.) 704; Steel v. State 
 Line Steamship Co., 3 App. Cas. 72 ; Manchester &c. Railway v. Brown, 
 8 App. Cas. 703. It may therefore be assumed that the stipulation 
 now in question, though invalid by our law, would be valid according 
 to the law of Great Britain. 
 
 The general rule as to what law should prevail, in case of a conflict 
 of laws concerning a private contract, was concisely and exactly 
 stated before the Declaration of Independence by Lord Mansfield (as 
 reported by Sir William Blackstone, who had been of counsel in the 
 case) as follows: "The general rule, established ex comitate et Jure"^ 
 ffentium, is that the place where the contract is made, and not where 
 the action is brought, is to be considered in expounding and enforcing 
 the contract. But this rule admits of an exception, when the parties 
 (at the time of making the contract) had a view to a different king- 
 dom.'' Robinson v. Bland, 1 W. Bl. 234, 256, 258 ; s. c. 2 Bur. / 
 1077, 1078. ' 
 
 The recent decisions by eminent English judges, cited at the bar, so 
 clearly affirm and so strikingly illustrate the rule, as applied to cases 
 more or less resembling the case before us, that a full statement of 
 them will not be inappropriate. 
 
 In Peninsular & Oriental Co. v. Shand, 3 Moore P. C. (n. s.) 272, 
 
 290, Lord Justice Turner, delivering judgment in the Privy Council, 
 reversing a decision of the Supreme Court of Mauritius, said, " The 
 
 37
 
 578 LIVEEPOOL STEAM CO. V. PHENIX INS. CO. [CHAP. X. 
 
 general rule is, that the law of the country where a contract is made 
 governs as to the nature, the obligation, and the interpretation of it. 
 The parties to a contract are either the subjects of the power there 
 ruhng, or as temporary residents owe it a temporary allegiance; in 
 either case equally, they must be understood to submit to the law there 
 prevaihng, and to agree to its action upon their contract. It is, of 
 course, immaterial that such agreement is not expressed in terms ; it is 
 equally an agreement in fact, presumed de jure, and a foreign court 
 interpreting or enforcing it on any contrary rule defeats the intention 
 of the parties, as well as neglects to observe tlie recognized comity of 
 nations." 
 
 It was accordingly held, that the law of England, and not the French 
 law in force at Mauritius, governed the validity and construction of a 
 contract made in an English port between an English company and an 
 English subject to carry him hence by way of Alexandria and Suez to 
 Mauritius, and containing a stipulation that the company should not be 
 liable for loss of passengers' baggage, which the court in Mauritius had 
 held to be invalid by the Frencli law. 3 Moore P. C. (n. s.) 278. 
 
 Lord Justice Turner observed, that it was a satisfaction to find that 
 the Court of Cassation in France had pronounced a judgment to the 
 same effect, under precisely similar circumstances, in the case of a 
 French officer taking passage at Hong Kong, an English possession, 
 for Marseilles in France, under a like contract, on a ship of the same 
 company, which was wrecked in the Red Sea, owing to the negligence 
 of her master and crew. Julien v. Peninsular & Oriental Co., im- 
 perfectly stated in 3 Sloore P. C. (n. s.) 282, note, and fully reported 
 in 75 Journal du Palais (1864), 225. 
 
 The case of Lloyd v. Guibert, 6 B. & S. 100 ; s. c. L. R. 1 Q. B. 
 115, decided in the Queen's Bench before, and in the Exchequer 
 Chamber after, the decision in the Privy Council just referred to, 
 presented this peculiar state of facts : A French ship owned by French- 
 men was chartered by tlie master, in pursuance of his general author- 
 ity as such, in a Danish AVest India island, to a British subject, wlio 
 knew her to be French, for a voyage from St. Marc in Hayti to 
 Havre, London, or Liverpool at the charterer's option, and he shipped 
 a cargo from St. Marc to Liverpool. On the voyage, the ship sustained 
 damage from a storm which compelled her to put into a Portuguese 
 port. ° There the master lawfully borrowed money on bottomry, and 
 repaired the ship, and she carried her cargo safe to Liverpool. The 
 bondholder proceeded in an English court of admiralty against the 
 ship, freight and cargo, which being insufficient to satisfy the bond, he 
 brouglit an action at law to recover tiie deficiency against the owners 
 of the ship; and they ab.i.ndoned the ship and freiLrht in such a 
 manner as by the French law absolved them from liability. It was 
 held, that the Frencli law governed the case, and therefore the 
 plaintiff could not recover. 
 
 It thus appears that in that case the question of the intent of the
 
 SECT. IX.] LIVERPOOL STEA.M CO. V. PHENIX INS. CO. 579 
 
 parties was complicated with that of the lawful authority of the master ; 
 and the decision in the Queen's Bench was put wholly upon the ground 
 that the extent of his authority to bind the ship, the freight or the 
 owners, was limited by the law of the home port of the ship, of which 
 her flag was sufficient notice. 6 B. & S. 100. That decision was in 
 accordance with an earlier one of Mr. Justice Story, in Pope v. 
 Nickerson, 3 Story, 465; as well as with later ones in the Privy 
 Council, on appeal from the High Court of Admiralty, in which the 
 validity of a bottomry bond has been determined by the law prevailing 
 at the home port of the ship, and not by the law of the port where the 
 bond was given. The Karnak, L. R. 2 P. C. 505, 512 ; The Gatano & 
 Maria, 7 P. D. 137. See also The Woodland, 7 Bened. 110, 118, 14 
 Blatchf. 499, 503, and 104 U. S. 180. 
 
 The judgment in the Exchequer Chamber in Lloyd v. Guibert was 
 put upon somewhat broader ground. Mr. Justice Willes, in delivering 
 that judgment, said : " I t is generally agreed t.lint the liw of the |>lace 
 ■yylioj^o fi^ » pr>ni-rQf>t is made is yrima facie that which the pa iliiea- 
 inte nded, or ought to be presumed to hav e jxioH^A^^ ^-^^^ footing upon 
 ■vyEiciTthe ^^ dealt, _and_tbaL 7such law^ ou^ Jit i t'^^'-^f'^'-'^ ^^^ pr^vnil in thp 
 al jsence of circumstances indicating a different i ntention, as, for 
 instance^J jiat the co ntract is to_be entire ly performed elsew herej^QH 
 that the subject-ma tter is immovable propgrty^tuate d in anothe r 
 country, and so forth ; which latter, though sometimes treated as 
 distinct rules, appear more properly to be classed as exceptions to the 
 more general one, by reason of the circumstances indicating an inten- 
 tion to be bound by a law different from that of the place where the 
 contract is made ; which intention is inferred from the subject-matter 
 and from the surrounding circumstances, so far as they are relevant to 
 construe and determine the character of the contract." L. R. 1 Q. B. 
 122, 123, 6 B. & S. 133. 
 
 It was accordingly held, conformably to the judgment in Peninsular 
 & Oriental Co. v. Shand, above cited, that the law of England, as the 
 law of the place of final performance or port of discharge, did not 
 govern the case, because it was "• manifest that what was to be done at 
 Livei'pool was but a small portion of the entire service to be rendered, 
 and that the character of the contract cannot be determined thereb}'," 
 although as to the mode of delivery the usages of Liverpool would 
 govern. L. R. 1 Q. B. 125, 126 ; 6 B. & S. 137. It was then observed 
 that the law of Portugal, in force where the bottomry bond was given, 
 could not affect the case ; that the law of Hayti had not been men- 
 tioned or relied upon in argument; and that " in favor of the law of 
 Denmark, there is the cardinal fact that the contract was made in 
 Danish territory, and further, tliat the first act done towards perform- 
 ance was weighing anchor in a Danish port ; " and it was finally, upon 
 a view of all the circumstances of the case, decided that the law of 
 France, to which the ship and her owners belonged, must govern the 
 question at issue.
 
 580 LIVERPOOL STEAM CO. V. PHENIX INS. CO. [CHAP. X. 
 
 The decision was, in substance, tliat the presumption that the con- 
 tract should be governed b}- the law of Denmark, in force where it was 
 made, was not overcome in favor of the law of England, by the 
 fact that the voyage was to an English port and the charterer an 
 Englishman, nor in favor of the law of Portugal by the fact that 
 the bottomry bond was given in a Portuguese port ; but that tlie 
 ordinary presumption was overcome by the consideration that French 
 owners and an English charterer, making a charter party in the French 
 language of a French ship, in a port where both were foreigners, to be 
 performed partly there by weighing auclior for the port of loading (a 
 place where both parties would also be foreigners), partly at that port 
 bv taking the cargo on board, principally on the high seas, and partly 
 bv final delivery in the port of discharge, must have intended to look 
 to the law of France as governing the question of the liabihty of the 
 owner beyond the value of the ship and freiglit.^ . . 
 
 This review of th e princijoal cases demonstrates that accordlng-JO- 
 the great prep onderance, if not the uniform concurrence, of authority, 
 I he general rule, that the nature, the ob ligation, and the interpretation 
 "of a contract are to be go verned by th e law of the place where.it is _ 
 made, unless the parties at th e time of making it have^oraie other l aw _ 
 in view,_requires a cbtttract of affreig htment, made i n one coun try _ 
 "betweeiT^tizens or residents thereof^ and the performance of^vrhich 
 begins^ there, to be governed by the law of that country, unless the 
 ' parties, when entering into the contract, clearly manifest a mutual 
 ''intention that it shall be governed by the law of some other country. 
 There does not appear to us to be anything in either of the bills of 
 lading, in the present case, tending to show that the contracting parties 
 looked to the law of England, or to any other law than that of the 
 place where the contract was made. 
 
 The bill of lading for the bacon and hams was made and dated at 
 New York, and signed by the ship's agent there. It acknowledges 
 that the goods have been shipped " in and upon the steamship called 
 ' Montan'a,' now lying in the port of New York and bound for the port 
 of Liverpool," and are to be delivered at Liverpool. It contains no 
 indication that the owners of the steamship are English, or that their 
 principal place of business is in P:ngland. rather than in this country. 
 On the contrary, the only description of the line of steamships, or of 
 the place of business of their owners, is in a memorandum in the 
 maro-in, as follows: " Guion Line. United States Mail Steamers. 
 New York: 29 Broadway. Liverpool: 11 Rumford St." No distinc- 
 
 1 The learned Judge here examined the following cases : Chartered Bank of 
 India r. Netherlands S. X. Co., 9 Q. B. D. 118, 10 Q. B. D. 521 ; Jacobs v. Credit 
 Lvonnais 12 Q. B. D. 589; Watts r. Camors, 115 U. S. 353; Pope v. Nickerson, 3 
 Storv 465 ; Morgan v. R. R., 2 Woods, 244; Hale v. N. J. S. N. Co., 15 Conn. .5.38 ; 
 Dvke'r. Erie Rv., 45 N. Y. 113 ; McDaniel v. C. & N. W. Ry., 24 la. 412 ; Pennsyl- 
 vania Co. ('. Fai'rchild, 09 111. 260; Brown v. C. & A. R. R., 83 Pa. MG ; Curtis r. 1). & 
 L. R. R, 74 N. Y. 116; Barter v. Wheeler, 49 N. H. 9; Gray v. Jackson, 51 
 N. H. 9. — Ed.
 
 SECT. IX.J LIVERPOOL STEAM CO. V. PHENIX INS. CO. 5S1 
 
 tion is made between the places of business at New York and at 
 Liverpool, except that the former is named first. The reservation of 
 libertv, in case of an interruption of the voyage, " to transiiip the 
 goods by any other steamer," would permit transhipment into a vessel 
 of any other line, English or American. And general average is to be 
 computed, not by any local law or usage, but " according to York- 
 Antwerp rules," which are the rules drawn up in 1864 at York in 
 England, and adopted in 1877 at Antwerp in Belgium, at international 
 conferences of representatives of the more important mercantile associa- 
 tions of the United States, as well as of the maritime countries of 
 Europe. Lowndes on General Average (3d ed.), Appendix Q. 
 
 The contract being made at New Y ork, the shipowner liaving__a^ 
 place of business there, and the shipper being an American, l»oth_ 
 parties must be presumed to have submitted themselves to the law 
 there prevailing, and to have agreed to its aciion upon their contract. 
 The contract is a single one, and its principal object, the transporta- 
 tion of the goods, is one continuous act, to begin in the port of New- 
 York, to be chiefly performed on the high seas, and to end at the port 
 of Liveroool. The facts that the go ods are to be delivered at Liver- 
 p ool, and the frei g ht and primage, tEerefore, payable there in sterlipg 
 currency, do no t make the contract an English contract, or refer t o th e 
 Engli sh law the question ofTE e^iability of the carrier for the negligence 
 jxtl. ^e_master and crew in the 'course of the voyage. Peninsular & 
 Oriental Co. v. Shand, Llo3'd v. Guibert, and Chartered Bank of India 
 V. Netherlands Steam Navigation Co., before cited. 
 
 There is even less ground for holding the three bills of lading of the 
 cotton to be English contracts. Each of them is made and dated at 
 Nashville, an inland cit}', and is a through bill of lading, over the 
 Louisville and Nashville Railroad and its connections, and by the 
 Williams and Guion Steamship Compan}', from Nashville to Liver- 
 pool ; and the whole freight from Nashville to Liverpool is to be " at 
 the rate of fifty-four pence sterling per 100 lbs. gross weight." It is 
 stipulated that the liabilit}" of the Louisville and Nashville Railroad 
 and its connections as common carriers " terminates on delivery of the 
 goods or propert}' to the steamship company at New York, when the 
 liabilit}^ of the steamship commences, and not before ; " and that " the 
 property shall be transported from the port of New York to the port of 
 Liverpool by the said steamship company, with liberty to ship b\- any 
 other steamship or steamship line." And in the margin is this signifi- 
 cant reference to a provision of the statutes of the United States, 
 applicable to the ocean transportation onl}' : "Attention of shippers 
 IS CALLED TO THE ACT OF CoNGRESS OF 1851 : ' An}' pcrsou Or persous 
 shipping oil of vitriol, unslacked lime, inflammable matches [or] gun- 
 powder, in a ship or vessel taking cargo for divers persons on freight, 
 without delivering at the time of shipment a note in writing, express- 
 ing the nature and character of such merchandise, to the master, mate, 
 or officer, or person in charge of the loading of the ship or vessel, shall
 
 582 LIVERPOOL STEAM CO. V. PHENIX INS. CO. [CIIAP. X. 
 
 forfeit to the United States one thousand dollars.' " Act of March 3, 
 1851, c. 43, § 7 ; 9 Stat. G36; Rev. Stat. § 4288. 
 
 It was argued that as each bill of lading, drawn up and signed b}' 
 the carrier and assented to by the shipper, contained a stipulation 
 that the carrier should not be liable for losses by perils of the sea 
 arising from the negligence of its servants, both parties must be 
 presumed to have intended to be bound by that stipulation, and must 
 therefore, the stipulation being void by our law and valid by the law of 
 England, have intended that their contract should be governed by the 
 English law ; and one passage in the judgment in Peninsular & Oriental 
 Co. V. Shand gives some color to the argument. 3 Moore P. C. (n. s.) 
 291. But the facts of the two cases are quite different in this respect. 
 In that case, effect was given to the law of England, where the contract 
 was made ; and both parlies were English, and must be held to have 
 known the law of their own country. In this case, the contract was 
 made in this country, between parties one residing and the other doing 
 business here ; and the law of England is a foreign law, which the 
 American shipper is not presumed to know. Both parties or either of 
 them may have supposed the stipulation to be valid ; or both or either 
 may have known that by our law, as declared by this court, it was 
 void. In either aspect, there is no ground for inferring that the 
 shipper, at least, had any intention, for the purpose of securing its 
 validity, to be governed by a foreign law, which he is not shown, and 
 cannot be presumed, to have had any knowledge of. 
 
 Our conclusion on the principal question in the ^case may bg summed 
 up'~thus": E^ach of the bills of Lading is an Americ^ and not an English 
 "ooa tract, and, 'feo tar as concerns tlie oDligatio n to carry the goods iii_ 
 safe ty, is to be governed by the Am erican l aw, and not by the law, 
 municipa l or maritime, or any other country. By our law, as declared^ 
 "**itrrTHTs^court, the stipulation by which the appellant undertook to 
 "^exempr itself from liahllitylbr the negligence of its servants is contrary 
 "^to public polic y and t he refore v oid ; and the loss of the goods was a 
 breach of the contract, for which "Ee shipper might maintain a suit_ 
 asniiist the carrier. This being so, the fact that the place where the 
 v.-~-il went ashore, in consequence of the negligence of the master and 
 ^oliirers in the prosecution of the voyage, was upon the coast of Great 
 "" Britain, is quite iinniaterKil. ~~ 
 
 This conclusion is in accordance with the decision of Judge Brown 
 in the District Court of the United States for the Southern District of 
 New York in the Brantford City, 29 Fed. Rep. 373, which appears to 
 us to proceed upon more satisfactory grounds than the opposing 
 decision of INIr. Justice Chitty, sitting alone in the Chancery Division, 
 made since this case was argued, and, so far as we are informed, not 
 reported in the Law Reports, nor affirmed or considered by any of the 
 higher courts of Great Britain. In re Missouri Steamship Co., 58 
 Law Times (n. s.) 377. 
 
 The present case does not require us to determine what effect the
 
 SECT. IX.] DIKE V. ERIE RAILWAY. 583 
 
 courts of the United States should give to this contract, if it had 
 expressly- provided that any question arising under it should be gov- 
 erned by the law of England.^ 
 
 DIKE V. ERIE RAILWAY. 
 
 Court of Appeals, New Yokk. 1871. 
 
 {Reported 45 NewYork, 113.] 
 
 Appeals from the General Term of the Supreme Court in the Second 
 District in Dike's case, and from the General Term of the Supreme 
 Court in the Sixth District in Floyd's case. 
 
 These actions were to recover damages for personal injuries sus- 
 tained by the plaintiffs while passing over the road of the defendant as 
 passengers, caused by the negligence of the defendant's servants and 
 agents. The defendant is a corporation existing under the laws of the 
 State of New York, owning and operating a railroad for the carriage of 
 freight and passengers between the cities of Buffalo and New York, in 
 that State, and the intermediate places, running its road, en route 
 between the termini named, for short distances in the States of 
 Pennsylvania and New Jersey by the permission of those States 
 respectively-. 
 
 Each of the plaintiffs purchased a ticket and took passage on the 
 defendant's road, on the 14th of April, 1868, from stations in this 
 State to the city of New York, and while in transit from the place of 
 departure to the city of New York, and upon a part of the road in the 
 State of Pennsylvania, sustained the injuries complained of. By an 
 act of the legislature of Pennsylvania, passed April 4, 1868, the 
 recovery in actions then or thereafter instituted against common car- 
 riers or railroad corporations for personal injuries is limited to $3,000. 
 Upon the trials, it was claimed in behalf of the defendant that the 
 rights of recovery of the plaintiffs were controlled by this act. The 
 claim was overruled by the judge, and each of tlie plaintiffs had ver- 
 dicts in excess of the limit prescribed by the Pennsylvania statute, 
 Dike for $35,000, at the King's Circuit, and Floyd for $15,000 at the 
 Tioga Circuit, and judgments upon such verdicts were affirmed by the 
 
 1 Ace. Hale v. N. J. S. N. Co., 15 Conn. 539 ; Pennsylvania Co. v. Fairchild, 69 111. 
 261 ; Brockway v. American Ex. Co., 171 Mass. 158, 50 N. E. 620 ; Davis v. C. M. & 
 S. P. Ry., 93 Wis. 470, 67 N. W. 16 ; 8 Clunet, 72 (Cass. Belg. 30 Jan. '79) ; 26 Clunet, 
 420 (Holland, 17 May '97). 
 
 The English cases hold the charter-party or hill of lading to he regulated by the 
 law of the flag. Peninsular & O. S. N. Co. v. Shand. 3 Moo. P. C. n. s. 272 ; Lloyd v. 
 Guibert, L. R. 1 Q.B. 115; The August, [1891] P. 328. If, however, the fact? clearly 
 indicate an intention to be bound by another law, the instrument is governed by such 
 biw. The Industrie, [1894] P. 58. — Ed.
 
 584 DIKE v. ERIE RAILWAY. [CHAP. X. 
 
 Supreme Court at the General Terms. The defendant has appealed to 
 this court.^ 
 
 Allen. J. The only question to be considered upon this appeal is 
 as to the effect of the Pennsylvania statute, Ihniting the amount of the 
 recovery in actions of this character. It is conceded that the statutes 
 of one State are not obligatory upon the courts of other States ; that 
 the\- have not projjrio vigore^ the force of law be3-ond the limits of the 
 State enacting them. But it is sought to bring these actions within the 
 operation and effect of the foreign statute upon the ground that 
 the contracts were made with reference to the laws of that State, 
 and the causes of action arose there. 
 
 Tlie generally received rule for the interpretatio n of contracts is tha t 
 they are to be construed and interpreted according to tlieTawsJ^[The 
 State in which they are made unless from their terms it is perceived 
 
 ' that they were t'litiTcd into with a view to the laws^_joffie.oni[£EState. 
 The lac lo<:i contrwius determines the nature, validity, ob ligation, and 
 
 «J^gal effect of the contract, and gives the rule of eonst ruction^ ajid- 
 interpretation, unless it appears to have been made with reference to 
 
 ""^the laws and usages of some other State or government, as when i_t is 
 
 'to be performed in another place, and then in conformity to the pre- 
 "suined intention of the parties, the law of the place of performance 
 furnishes the rule of interpretation, Prentiss v. Savage, 13 Mass. 
 20; Medburyy. Hopkins, 3 Con. 472; Everett v. Vendryes, 19 N. Y. 
 436; Hoyt v. Thompson's Exr., id. 207; Curtis v. Leavitt, 15 N. Y., 
 227. The contracts before us were made in the State of New York, 
 and between citizens of that State. The plaintiffs were actual inhab- 
 itants, and the defendant was a corporation existing by the laws of 
 that State. The contracts were for the carriage and conveyance of the 
 plaintiffs over the road of the defendant, between two places in the 
 same State, to wit, from stations on the line of the road, in the western 
 part of the State to the city of New York. The duty and obligation of 
 the defendant, in the performance of the contracts, commenced and 
 ended within the State of New York. Although the route and line of 
 the defendant's road between the places at which the plaintiffs took 
 their passage and their destination passed through portions of the 
 States of Pennsylvania and New Jersey, by the consent of those States 
 respectively, the parties cannot bo presumed to have contracted in view 
 of the laws of those States. The contracts were single and the per- 
 formance one continuous act. The defendant did not undertake for 
 one specific act, in part performance in one State, and another specific 
 and distinct act in another of the States named, as to which the parties 
 could be presumed to have had in view tlie laws and usages of distinct 
 places. Whatever was done in Pennsylvania was a part of the single 
 act of transportation from Attica, or Wavorly, in the State of New 
 York, to the city of New York, and in pcrformanco of an oV)ligation 
 assumed and undertaken in this State, and whicli was indivisible. The 
 1 Arguments of counsel are omitted. — Ed.
 
 SECT. IX.] DIKE V. ERIE RAILWAY. 585 
 
 obligation was created here, and by force of the laws of this State, and 
 force and effect must be given to it, in conforiuit\- to the laws of New 
 York (Carnegie r. Morrison, 2 Mete. 381, Per Shaw, Ch. J.) The 
 performance was to commence in New York, and to be full}- completed 
 in the same State, but liable to breach, partial or entire, in the States 
 of Pennsylvania and New Jersey, through which the road of the de- 
 fendant passed, but whether the contract was broken, and if broken, 
 the consequences of the breach should be determined l)y the laws of 
 this State. It cannot be assumed that the parties intended to subject (' 
 the contract to the laws of the other States, or that their rights and /I 
 liabilities should be qualified or varied by any diversities that might ^ 
 exist between the laws of those States and the lex loci contractus. 
 The case of the Peninsular and Oriental Steam Navigation Co. v. 
 Shand (3 Moo. P. C. n. s. 272), is somewhat analogous in principle to 
 the case at bar. A passenger, by an English vessel belonging to an 
 English companv, from Southampton to Mauritius via Alexandria and 
 Suez, sustained a loss of his baggage between Alexandria and Mau- 
 ritius, and it was held that the contract for the passage was to be inter- 
 preted b>' the law of England, the place where the contract was made. 
 The Supreme Court at Mauritius had held that the contract was gov- 
 erned by the French law in force in Mauritius, and refused to the 
 defendants the benefit of an exemption from liability for loss of 
 propert}', to which thev were entitled by the terms of the contract as 
 interpreted bj' the laws of England, and the judgment was reversed, 
 upon appeal, by the Privy Council. 
 
 Whether the actions are regarded as actions of assumpsit upon the 
 contracts, or as actions upon the case for negligence, the rights and 
 liabilities of the parties must be judged by the same standard. The 
 form of the action concerns the remedy, but does not affect the legal 
 obligations of the parties. In either form of action the Uabilit}' of the 
 defendant, and the rights of the plaintiffs, are based upon the contracts. 
 The defendant owed no duty to the plaintiffs, except in virtue of the 
 contracts, and the obligations for the violation and breach of which an 
 action may be brought are onl}' co-extensive with the contracts made. 
 It follows, that the law of Pennsylvania cannot enlarge or restrict the 
 liability of parties to a contract, which for its validity, effect, and con- 
 struction, is subject to the laws of New York. -X lie damages to which 
 a paxtai is entitled up on the breach of a contract, or violation of a duty 
 growi ng out of a ( iQ ntract, a nd the rule and measu re of damages per- 
 t ains to the right and no t^jto_tbg^emed\\_ Tt.^^a— mnti.pr of s ubstance . 
 and the principal thing sought, and not a mere i nfidpnt tp the '-crnQHy 
 for JLhe principal thing . It is conceded that the statutes of Pennsjd- 
 vania have no intrinsic extraterritorial force, and that the}' bind only 
 within the jurisdictional limits of the State. Upon principles of comity, 
 effect is sometimes given by the courts of a State to foreign laws. In 
 matters of contract, such effect is accorded to statutes of other States, 
 only to carr}' out the intent of and do justice between the parties, never 
 
 /
 
 586 TALBOTT V. MERCHANT'S DESPATCH TRANSP, CO. [CHAP. X. 
 
 to qualify or var}- the effect of a contract between parties not citizens 
 of such foreign State, or subject to its laws, and not made in view of 
 the laws of such State. Effect will not be given b}' the courts of a 
 State to foreign laws in derogation of the contracts, or prejudicial to 
 the rights of citizens. Liverpool, Brazil, &c. Steam Navigation Corn- 
 pan}' /'. Benham, 2 Law Rep. P. C. Cases, 193 , Hale v. N. J. St. 
 Nav. Co., 15 Conn. 539 ; Arnott v. Redfern, 2 Carr. & Payne, 88 ; 
 Gale V. Eastman, 7 Met. 14. 
 
 The actions are not given b}' the laws of Pennsylvania. They grow 
 
 out of the contracts and the duties resulting from the contracts, and are 
 
 given b}' the common law, and, therefore, J;he_l aws of another State in 
 
 an actio n broug ht hpvp fapn ot prescribe the measure of damage s, or 
 
 imi l lEeTIabilitv of the parties. Judgment affirmed?- 
 
 TALBOTT V. MERCHANT'S DESPATCH TRANS- 
 PORTATION CO. 
 
 Supreme Court of Iowa. 1875. 
 
 [Reported 41 loiva, 247.] 
 
 This action is brought to recover the value of four cases of boots, 
 d elivered by plaintiff's agentS'' to^defe n d ah f,' "a 'cOTrnngn jcamer,'aT'H art- 
 ^rcl^Conn., to be transported by said" dFferrdant to"D^M oines, Iowa. 
 
 The plaintiff alleges ffie acceptance of the' goocIsTan agreement to carry, 
 and the failure to deliver, and claims the value thereof — $220.38. 
 The defendant, b}' answer, admits that it is a common carrier, the 
 receipt of the goods and the failure to deliver, and avers want of 
 knowledge as to value. The defendant also avers that by the express 
 terms of said agreement, the goods were to be transported and deliv- 
 ered in Des Moines, in like order as they were received, damages from 
 fire excepted ; and that without an}' fault or negligence of said defend- 
 ant, said cases of boots were, at Chicago, Illinois, destroyed bv fire 
 (in the great conflagration of October, 1871), while in transit from 
 Hartford to Des Moines. The bill of lading containing the agreement 
 was annexed as an exhibit to the answer, and it shows the receipt of 
 the goods in good order and the marks thereon, and states that said 
 four cases of boots are " to be forwarded in like good order (dangers 
 of navigation, collision, and fire, and loss occasioned b}' mob, riot, 
 insurrection, or rebellion, and all dangers incident to railroad trans- 
 
 1 In a few cases it is held that a limitation of liability is governed by the law of 
 the place of contractiiitj wliere the carriage is to be throngh tliat and other States, 
 because the contract is entire and the laws of several places of performance cannot be 
 applied. 111. Cent. R. R. v. Bcebe, 174 111. 13, 50 N. E. 1019; R. R. v. Exposit. C. 
 Mills, 81 Ga. 522,7 S. E. 916. — En.
 
 SECT. IX.] TALBOTT V. MERCHANT'S DESPATCH TR.\NSP. CO. 587 
 
 portation excepted), to depot only, he, or the}- paying freight and 
 charges for the same as below." 
 
 The plaintiff demurred to the answer because : 1, It does not allege 
 that plaintiff has assented to the alleged agreement. 2. It does not 
 show that the loss of said goods occurred through any exception men- 
 tioned. 3. The agreement stipulated for absolute exemption from lia- 
 
 Jbi Wjy^ju wv ' n thou gJ j^the loss occurs through the neg lig ence of defendant, 
 and is tlicrefor e again st publlapolioy, att4-void. 
 
 '^ This demurrer was sustained, and, the defendants electing to stand 
 upon the answer, judgment was rendered for plaintiff for the amount 
 of the claim. The defendant appeals.^ 
 
 Cole, J. It is conceded by the respective counsel that the contract^ 
 as shown by thel^ill of J[a^iji,.xaiitaiuijigjexce[)tioiis from liability for 
 
 "loss^W fire, was^al id an d-biudiag.ln. Connecticut.^ Latvrence iT'X 1 ." 
 R B. KT'R.t^o., 36 Conn. 63; and in IllinoiT, I. C. R. R. Co. v. Mor- 
 rison, 19 111. 24, And that, by Chap. 13, Laws of 11th G. A. of Iowa, 
 it was enacted "that in the transportation of persons or property by 
 any railroad or other company, or by any person or firm engaged 
 in the business of transportation of persons or property, no con- 
 tract, receipt, rule, or regulation shall exempt such railroad or other 
 company, person, or firm from the full liabilities of a common car- 
 rier, which in the absence of any contract, receipt, rule, or regu- 
 lation would exist with respect to such persons or property" (see 
 Laws of 1866, p. 121), and that thereby the exceptions in the bill of 
 lading in this case would be inoperative and void in Iowa. .The main 
 question, therefore, presented in this case is, whether the contract^f 
 affreightment shall be governed by the laws of Connecticut or of lowa^ 
 Respecting the general rule that a contract valid where made is valid_ 
 'everywhere, and tB3t-where a coirtract specifies a place of performance^ 
 ItTrtTbelnterpreted by the law of that place, the counsel are also 
 
 -agFeed." "The question of difficulty in this case is in determining the 
 place "of the performance of the contract. 
 
 Tt was held by this court in McDaniels v. The C. & N. W. Ry. Co., 
 24 Iowa, 412, that a contract of affreightment made in Iowa for the trans- 
 portation of cattle by railroad from Clinton, Iowa, to Chicago, Illinois, 
 and for their delivery at the latter place, was to be determined by the 
 laws of Iowa, for that the contract was made in Iowa, and was therein 
 partly to be performed. Applying the rule of that case to this, it 
 seems necessarily to follow, that since this contract was made in Con- 
 necticut and was there to be partly performed, its validity and effect 
 should be determined by the law of that State. But, without determin- 
 ing that such a rule should be applied to its full extent to every con- 
 tract or even to this. jve here g round, j)iii:__decision pUhia.j;a nfiP upon 
 the sp ecial facts of the case which sh owJhat_.tlie contractjis made_was 
 va lid in Connecticut, where the co ntract was made, and in Illinois^ 
 ■"Iviiere the loss occurred? Whether a different rule would apply if the 
 
 1 Arguments of counsel are omitted. — Ed
 
 jcr^ 
 
 588 CURTIS V. DELAWARE, ETC. RAILROAD. [CHAP. X. 
 
 detendants had entered upon the performance of their contract in Iowa 
 and the loss had there occurred, we need not determine. 
 A '- Our conclusion in this case may be i-estedjapon the general principle, 
 
 \jfy , tlat wlien there are several possibleTocal Taws "applicable, to the case^r- 
 
 ^ Cj |>^^that law IS to be"appliedlvhrcTi is most favorable to the^ contract.; or, to_ 
 
 >^uJK ' i/ State the same rule in' other phraseology, when there is a conflict of_ 
 
 Ci^ ^^pplicafoiy laws' the parties are presumed to have naiade_4)art of their 
 ^/f' ^agreement that law which is most favorable to its validity and per- 
 
 '^formance. See Wharton on Conflict of Laws, § 429, and authorities 
 there cited; Arnold v. Potter, 22 Iowa, 194. The answer, by its ad- 
 mission of the execution of the agreement, by fair implication, if not 
 necessarily, admits that it was accepted or assented to by the plaintiff. 
 Such acceptance, without more, would bind him. See Mulligan v. 111. 
 Cent. R. R. Co., 36 Iowa, 181. 
 
 A fair construction of the exception would exempt the defendant 
 from liability from loss, without its negligence, by fire, although such 
 fire did not result from collision. In other words, the exception relates 
 to the loss either by collision or fire, and not alone from loss resulting 
 from '' collisions and fire." Our conclusion, therefore, is that the 
 answer presents a sufficient defence and that the court erred in sustain- 
 ing a demurrer thereto. Meversed,} 
 
 CURTIS V. DELAWARE, LACKAWANNA, AND WESTERN 
 
 RAILROAD. 
 
 Court of Appeals, New York. 1878. 
 
 [Reported 74 New York, 116.] 
 
 Appeal from judgment of the General Term of the Supreme Court, 
 in the second judicial department, affirming a judgment in favor of 
 plaintiff, entered upon a decision of the court on trial, without a jury. 
 
 This .nct,ionjviis__broug ht to recover for the J(2as_of jl trunk and its 
 consents. The court found, in substance, that plaintiff, on the 9th of 
 —October, 1875, took passage on defendant's road from ScraolojU- Penn- 
 sylvanijL.t(LNew YprkCit\-j.leaving his baggage to be brought by his 
 —wife ; that, on the 16th of October, 1875, plaintiffs wife and infant son 
 took passage at Scrankin for New York, with his and their baggage, 
 consisting of personal clothing, all of which was his property ; that the 
 baggage was l)rouglit_safely by defendant to New York, and was there 
 lost through its negl igenc e. 
 
 'That by a general act of the Legislature of said Commonwealth of 
 Pennsylvania, passed on tlie llth day of April, 1867, and at all times 
 since and still in force, it was enacted and declared as follows : — 
 "Section 1. Each passenger upon a railroad shall have the right to 
 
 1 See Hazel v. C M. & S. P. Ry., 82 la. 477, 48 N. W. 926. —Ed.
 
 SECT. IX.] CURTIS V. DELAWARE, ETC. RAILROAD. 
 
 589 
 
 have carried in the car or place provided for that purpose, in the train 
 in which he or she ma}' be a passenger, his or her personal clothing, not 
 exceeding, inclusive of the trunk or box in which it may be contained, 
 one hundred pounds in weight, and $300 in value." 
 
 " Section 2. No railroad company' shall, under an}- circumstances, 
 be liable for_loss or damage of any baggage or property belonging to 
 any such passenger, beyond the said sum of ^300, unless it shall be 
 proven that the excess in value thereof over that sum was duly declared 
 to the agents of the company at the time of its delivery for transporta- 
 tion, and the sum charged by the railroad company for such transpor- 
 tation over and above passage fare was paid : 
 
 " Provided, however, that the said declaration shall not reUeve the 
 claimant from proving the actual value of the articles alleged to have 
 been lost or damaged ; but in no event shall there be any recovery 
 beyond the value thus declared." 
 
 Further facts appear in the opinion.^ 
 
 Miller, J. The right of a passenger to recover of a railroad corpo- 
 ration damages arising by reason of a loss of baggage, while travelling 
 upon the railroad, is fully estabUshed, and according to the laws of this 
 State_there can be no question as to the liability xif such company for 
 the loss actually siistained, when it fails to fulfil the contract witli the 
 traveller, or is chargeable with negligence, by which the damages are 
 caused. The baggage, for which a recovery was had, was delivered to 
 the defendant at Scran ton, in the State of Pennsylvania, to be trans- 
 ported to and delivered in the city of New York. The first question, 
 which arises upon this appeal is whether the statute of the State jaf 
 Pennsylvania, passed in 1867, which limits and defines the liability 
 of railroad corporations upon contracts entered into by them for_ 
 the transniission of baggage, forms a part of the contract between— 
 the plaintiff and the defendant, and should be considered as determin- 
 ing the right to recover and the amount of the recovery. I think that _ 
 the statute cited has no application, and that the rights of the parties 
 must be determined in accordance with the laws of the State of Nejr 
 York, jffhich are applicable to such contracts, as is manifest by refeij 
 ring to the principles which govern contracts of this description. One 
 of the rules applicable to the subject is that the lex loci contractus is to 
 govern, unless it appears upon the face of the contract that it was to 
 be performed in some other place, or made with reference to the laws 
 of some other place, and then the rule of interpretation is governed by 
 the law of the place. Dyke v. Erie Railway Co., 45 N. Y. 113; 
 Sherrill v. Hopkins, 1 Cow. 103. The place of delivery was a material 
 and important part of the contract, and until such delivery, the same 
 was not completed and fulfilled. Upon a failure to deliver the baggage 
 to the plaintiflT, in the city of New York, there was a breach of Ihe 
 contract ; and as the final place of performance was in that city, iL 
 would seem to follow that, within the rule laid down, the contract was 
 
 1 Arguments of counsel and part of the opinion are omitted. — Ed.
 
 590 BURNETT V. PENNSYLVANIA RAILROAD. [CHAP. X. 
 
 to be goveraecl, at. least so far as a delivery is concealed^ by_tlje_^laws 
 of New York,. This certainly was to be done in a different place from 
 where the contract was made, and it is a reasonable inference that it 
 was in the contemplation of the parties at the time, and that it was 
 entered into with reference to the laws of the place where it was to be 
 delivered. So, also, when it appears that the place of performance was 
 different from the place of making the contract, it is to be construed 
 according to the laws of the place where it is to be performed. Sherrill 
 r. Hopkins, supra, p. 108, and authorities there cited ; Thompson ?-• 
 Ketcham, 8 Johns. 189 ; 4 Kent's Com. 459. The place of final per- 
 formance of the contract being in the cit}- of New York, although the 
 transportation was mostly through other States, no reason exists why 
 a failure to deliver the baggage should not be controlled b}' the laws 
 which prevail at the place of delivery- It is said that the contract is 
 entire and indivisible, and we are referred to some cases outside of this 
 State, which, it is claimed, sustain the doctrine that the localitj- where 
 the contract was made, in cases of this character, must control. None 
 of the cases cited are entirely similar to the one at bar and do not 
 involve the precise point now considered. But even were it otherwise, 
 they are not, I think, controlling, as no reason exists why a contract to 
 deliver baggage should not be governed by the laws of the place where 
 the baggage is to be delivered. 
 
 BURNETT V. PENNSYLVANIA RAILROAD. 
 
 , Supreme Court of Pennsylvania. 1896. 
 
 [Reported 176 Pennsi/lvcmia, 45.] 
 
 Fell, J. The refusal of the court to charge that " as the contraet 
 for transportation was made in New Jersey it will be enforced in this 
 State as in that, and as the defendant was released from responsibility 
 by the free pass the verdict must be for the defendant, "j-aises the only 
 question to be cojisiderecL The plaintiff was employed by the defend- 
 ant as a flagman at Treiiton, N. J. He applied for and was granted 
 free transportation for himself, his wife and daughter, to Elmira, N. Y- 
 He received two passes, — one from Trenton to PhUadelplua, the terms 
 of which do not appear in evidence ; the other, an employee's trip pass 
 from Philadelphia to Elmira^^by the terms of which he assumed all 
 risks oT accident. He was injured at Harrisburg, Pa., through the 
 admitted negligence of the defendant's employees. 
 
 It was proved at the trial that under the laws of New Jersey the 
 contract by which the plaintiff in consideration of free transportation 
 assumed the risk of accident was valid, and that in that State he could 
 not recover ; and it is conceded that in Pennsylvania the decisions are
 
 SECT. IX.] BUKNETr V. PENNSYLVANIA KAILROAD. 591 
 
 Otherwise, and that such a contract, will not relieve <i common carrier 
 from responsibilit}- for negligence. Gokley c. Penna. R. R. Co., 30 Pa. 
 242 ; Penna. R. R. Co. v. Henderson, 51 Pa. 315 ; Penna. R. R. Co. 
 V. Butler, 57 Pa. 335 ; Buffalo, Pittsburg & Western R. R. Co. o. 
 O'Hara, 12 W. N. C. 473. The question then is: By the laws of 
 which State is the responsibility of the defendant to be determined? 
 
 The djjfendant isjLcori3oratii]ji_aLlJlfi_-Staifi.jQ£JPeimsyl£aaia^^ 
 injury occurred in the operation ofjts j'oad in thi s State . The passes, 
 alt hough iss u ed and deUvered in New Jersey, were for transportation 
 from the station in Trenton directly across the Delaware river into this 
 State. . 1 be service was to be rendered here ; this was the place of 
 performance. 
 
 ' ( ^nerally as t o its for malities and it",?^ inf,prprftto.t.ion. obligatiou^ ati^ 
 effect, a contract is g^v^g rned hj^ th^ 'ff'"" ^^ ^^ ^'^ pio^o whoro it. js madey 
 andit ^tris^v a lid there, it is valid everywhere ; b ut when it is majli;. iu^ 
 one State or co untry to be performed in another State or jcpuatry JLts 
 validity and effect are to be d etermined by the law s of the p lacej^ 
 performance. It is to be presumed that parties enter into a contract 
 with reference to the laws of the place of performance, and unless it 
 appears that the intention was otherwise those laws determine the 
 mode of fulfilment and obligation and the measure of liability for 
 its breach. Daniel on Negotiable Instruments, 658 ; Byles on Bills, 
 586 ; 2 Kent's Commentaries, 620 ; Wharton on the Conflict of Laws, 
 § 401 ; Story on the Conflict of Laws, § 280 ; Scudder v. Union 
 National Bank, 91 U. S. 406 ; Brown v. C. & A. R. R. Co., 83 Pa. 316 ; 
 Waverly Bank v. Hall, 150 Pa. 466. The decision in Brown v. C. & 
 A. R. R. Co. (supra) seems to be conclusive of this ease. In that case 
 a ticket was issued in Philadelphia b}- a New Jerse}' corporation oper- 
 ating a railroad in that State, and the plaintiff's trunk was deliveretl to 
 the defendant in Philadelphia, and it did not appear where it had been 
 lost. The liability being admitted, the question was whether the laws 
 of Pennsylvania limiting the amount of liability applied. It was held 
 that as the service was to be rendered by a New Jersey corporation in 
 New JerseN- the laws of the place of performance controlled. It was 
 said in the opinion by Sharswood, J.: "The negligence of which 
 the defendants are presumed to have been guilt}' was in the course of 
 the exercise of their franchises as a New Jersey' corporation, and the 
 extent of their liability is therefore to be determined by the laws 
 of that State." The judgment is affirmed.^ 
 
 i Ace. Barter v. Wheeler, 49 N. H. 9. — Ed.
 
 592 • BKACKETT V. NORTON, [CHAP. 2. 
 
 LORING V. NEFrUNE INSURANCE CO. 
 Supreme Judicial Court of Massachusetts. 1838. 
 [Reported 20 Pickering, 411.] 
 
 Shaw, C. J.^ The general average iu the present case was made up 
 and adjusted at Hamburg, the port of destination, at which the several 
 interests liable to contribute were necessarily to be separated from each 
 other. Hamburg therefore was the proper place for the adjustment and 
 payment of this general average. Such general average must neces- 
 sarily be adjusted according to the laws and usages of the place where 
 the adjustment was made.^ 
 
 SECTION IX. 
 
 (C) Obligatioxs Qcasi ex Contractu. 
 
 BRACKETT v. NORTON. 
 Supreme Court of Errors of Connecticut. 1823. 
 
 [Reported ^ Connecticut, .51 7. J 
 
 HosMER, C. J.^ The general question in the case is whether the 
 law implies a contract that the defendant shall pay the plaintifl' for 
 the services performed by him. . . . The services of the defendant 
 having been rendered in the State of New York, under a contract 
 made in that State, their laws are the standard by which the case 
 must be determined.* . . . 
 
 1 Part of the opinion onlv is given. — Ed. 
 
 2 Ace. Siraonds v. White, 2 B. & C. 80,5 ; 1 Cluuet, 1.33 (R. 0. II. G. 28 Dec. 72) ; 
 5 Clunet, 599 (Rouen, 20 Mar. '78) ; 8 Clunet, 311 (Holland, 11 Feb. '78) ; 20 Cluuet, 
 949 (Antwerp, 14 Jan. '92). 
 
 If the voyage is completely brokeu up at an intermediate port of refuge, it has been 
 hold that the adjustment of general avcsrage shouhl be according to tiie law there 
 prevailing. Mavro v. In.s. Co., L. R. 10 C. P. 414. In Norway, however, it ha.s been 
 hold that it should be adjusted at the port of refuge according to the law of the port 
 of intended destination. 15 Clunet, 151 (25 Mar. '86). If after disaster the cargo is 
 forwarded to destination, general average should tlien at any rate be computed 
 according to the law of the port of destination. Nat. Board v. Melcliers, 45 Fed. 
 643. — Ed. 
 
 8 Part of tlie opinion onlv is given. — Ed. 
 
 ♦ Ace. Crumlish v. Central Imp. Co., 38 W. Va. 390, 18 S. E. 456. —Ed.
 
 PART IV. 
 THE RECOGNITION AND ENFORCEMENT OF RIGHTS. 
 
 CHAPTER XI. 
 PERSONAL RELATIONS. 
 
 SECTION I. 
 
 CAPACITY. 
 
 SOMERSET V. STEWART. 
 King's Bench. 1772. 
 
 [Reported Loft, 1.] 
 On return to an habeas corpus, requiring Captain Knowles to show 
 cause for the seizure and detainure of the complainant Somerset, a 
 negro, the case appeared to be this : that the negro had been a slave 
 to Mr. Stewart, in Virginia ; had been purchased from the African 
 coast, in the course of the slave trade, as tolerated in the plantation ; 
 that he had been brought over to England by his master, who, intend- 
 ing to return, b\- force sent h' a on board of Captain Knowles's vessel, 
 lying in the river ; and was ..lere, by the order of his master, in the 
 custody of Captain Knowles, detained against his consent, until 
 returned in obedience to the writ. And under this order and the facts 
 stated, Captain Knowles relied in his justification.^ 
 
 1 The arguments of Mr. Hargrave and Mr. Alleyne for the negro, and of Mr. "Wallace 
 and Sarjeant Davy for the defendant, are omitted ; they will be found at length in 21 
 Howell's State Trials, 1. In the course of the argument, " the court approved Mr. 
 Alleyne's opinion of the distinction how far municipal laws were to be regarded ; 
 instanced the right of marriage, which, properly solemnized, was in all places the same, 
 but the regulations of power over children from it, and other circumstances, very 
 various." At the end of the arguments. Lord Mansfield said: "The now question is, 
 whether any dominion, authority, or coercion can be exercised in this country on a 
 slave according to the American laws ? The difficulty of adopting the relation without 
 adopting it in all its consequences is indeed extreme ; and yet many of those conse- 
 quences are absolutely contrary to the municipal law of England. We have no au- 
 thority to regulate the conditions in which law shall operate." — Ed. 
 
 38
 
 594 COMMONWEALTH V. GKEEN. [CHAP. XI 
 
 Lord Mansfield, C. J.^ We pay all due attention to the opinion of 
 Sir Philip Yorke and Lord Chief Justice Talbot, whereby they pledged 
 themselves to the British planters for all the legal consequences of 
 slaves coming over to this kingdom or being baptized : recognized by 
 Lord Hardwick, sitting as Chancellor, on the 1 9th of October, 1749, that 
 trover would lie ; that a notion had prevailed, if a negro came over or 
 became a Christian, he was emancipated, but no ground in law ; that 
 he and Lord Talbot, when attorney' and solicitor-general, were of opin- 
 ion that no such claim for freedom was valid ; that tliough the statute 
 of tenures had abolished villains regardant to a manor, yet he did not 
 conceive but that a man might still become a villain in gross, by con- 
 fessing himself such in open court. We are so well agreed that we 
 think there is no occasion of having it argued (as I intimated an inten- 
 tion at first) before all the judges, as is usual, for obvious reasons, on 
 a return to a habeas corpus. The onl}' question before us is, whether 
 the cause on the return is sufficient ; if it is, the negro must be re- 
 manded ; if it is not, he must be discharged. Accordingly, the return 
 states that the slave departed and refused to serve ; whereupon he was 
 kept to be sold abroad. So high an act of dominion must be recog- 
 nized by the law of the country- where it is used. The power of a master 
 over his slave has been extremely different in different countries. The 
 state of slaver}' is of such a nature that it is incapable of being intro- 
 duced on any reasons, moral or political, but only positive law, which 
 preserves its force long after the reasons, occasion, and time itself from 
 whence it was created is erased from memory. It 's so odious that 
 nothing can be suffered to support it but positive law. Whatever in- 
 conveniences, therefore, ma}- follow from a decision, I cannot say this 
 case is allowed or approved by the law of England ; and therefore the 
 black must be discharged^ 
 
 COMMONWEALTH v. GREEN. 
 Supreme Judici.\l Court of Massachusetts. 1822. 
 
 [Reported 17 Massachusetts, 515.] 
 
 Parker, C. J.^ The prisoner, having been convicted, by the verdict 
 of a jur}-, of the crime of murder, at the last term of the court, moved 
 for a new trial ; because, as alleged in his motion, one Sylvester 
 Stoddard, wlio had been sworn as a witness on the part of government, 
 and who had testified to tlie jury, had been convicted of the crime of 
 
 ^ Ivonl Mansfield fir.st cited the return to tlie writ. — Ed. 
 2 Part of the ouiniou is oiuitted. — Ed.
 
 SECT. I.J COMMONWEALTH V. GREEN. 595 
 
 larcen\', in a court having jurisdiction of the offence, within the State 
 of New York ; whereby, as is alleged, he was rendered infamous, and 
 for that reason his testimony could not be received in a court of justice 
 in this Commonwealth. . . . 
 
 If New York is to be considered on the footing of a foreign State, 
 the difficulty of giving such effect to a conviction seems insuperable. 
 The objection to the witness on account of infamy must be supported 
 by a record of the judgment. What is a record of a foreign State, and 
 how it shall be authenticated, are questions of delicacy and difficulty, 
 which it would be almost impossible to settle in the course of a trial, 
 which must always proceed with as little interruption and delay as pos- 
 sible. Whether the facts, which would be here deemed an infamous 
 crime, are the same which constitute the like offence in the countr}' 
 from which the record comes, the court would have no means of know- 
 ing with certaint}'. The crime of treason is known to be different in 
 different countries ; what is felony, also, in one country may not be 
 felony in another ; and it is competent to the legislature of every nation 
 to attach disabilities to the commission of offences which, b}' the laws 
 of otlier nations, may be wholly without such consequences. 
 
 Thus one State may enact that the detention of another's property 
 after demand b}' the owner, shall be deemed and taken to be larcen}-, 
 and punished as such ; and that a general description of the offence, in 
 the indictment, should be sufficient ; so that a foreign court could never 
 know, by inspection of a copy of a record, what were the ingredients of 
 the crime which had been punished. 
 
 So, also, the non-payment of a debt may be branded with infamy by 
 the laws of any country, and designated b}' some term usuallj- denoting 
 the crimen falsi ; and this class of crimes ma}' be enlarged so as to com- 
 prehend transactions which in other countries are considered venial, 
 or at least not criminal. 
 
 If the common law were unchangeable, the courts of countries which 
 adopt it as })art of their code might know with certainty the nature and 
 character of crimes ; but while ever}' country has its legislature, which 
 has a right to alter or repeal the common law, such certainty cannot be 
 attained. Treason, by the common law, renders the convict infamous ; 
 but many acts are made treason by positive enactments in one country, 
 which would not be so in another. The infam}', therefore, consequent 
 upon treason, ought not to pass beyond the country in which the crime 
 is committed. 
 
 Another objection to receiving such evidence for such a purpose is, 
 that a person, who ma}' have left his native country convicted of crime, 
 however long he ma}' have lived in his adopted country, and wliatever 
 reputation he may have acquired by a course of upright and honorable 
 conduct, has no means of being restored to credit. For the pardon- 
 ing power of the country where he resides cannot reach an offence 
 committed without its jurisdiction. And thus it may happen that a 
 naturalized citizen, who, by his virtue and talents, and a long course of
 
 596 COMMONWEALTH V. GREEN. [CHAP. XI. 
 
 irreproachable conduct, may have obtained the confidence of his fel- 
 low-citizens, and even their sutfrages for the most important offices, 
 may be met in a court of justice by some obsolete record of a conviction 
 of some crime, perhaps merely political, which may be deemed infamous 
 in the country from which he came ; and can have no power of effacing 
 the stain, without soliciting a pardon where he may be wholly forgotten, 
 and where there can be no evidence of such a change of life and manners 
 as would entitle him to the clemency of the offended power. 
 
 It is these difficulties, with others which might be mentioned, which 
 justify the principle that appears to be adopted by the English courts ; 
 and which we are disposed to think is a maxim of general law, recog- 
 nized by all nations, viz. that the penal laws of a country' do not reach, 
 in the ir effec ts, bej'ond the jurisdictTon where they are es tablisli edl 'it 
 is so laid down by an eminent judge in the case of Folliott v. Ogden, 
 1 H. Black. 131, and in a treatise of public law by Martens, the same 
 principle is advanced in more extensive and unlimited terms. In the 
 24th section of his work he says, "The criminal power being_confined 
 to the territory, no act of its authority can be exercised_ixL_£w:eiga 
 countries without violating their righta.." In the 2oth section he says, 
 "By the same principles a sentence, which attacks the. hoftor, rights^ 
 or propert}' of a criminal, cannot extend beyond the limits of tlie terri- 
 tory of the sovereignwho pronounced it. So that he who has been 
 declared infamous in one countr}' is infamous in a foreign country in 
 fcict^ but not in law ; " which terms the author probably uses in allu- 
 sion to the civil law, resembling, in some degree, our distinction be- 
 tween competenc}' and credibility. By infamia juris is meant infamy 
 established b}' law as the consequence of crime ; infainia facti is where 
 the party is supposed to be guilty of such crime, but it has not been 
 judiciall}' proved. " And the confiscation of his propertv cannot affect 
 his property- situated in a foreign country. To deprive him of his honor 
 and propert}' judicially there also, would be to punish him a second time 
 for the offence." To refuse a man the right to be a witness on account 
 of a conviction in another country, would be to suffer that conviction to 
 have force here, and, in some measure, to carry it into execution. 
 
 If it be said that it will be dangerous to the lives and reputations of 
 the citizens, that foreigners, who have been rendered infamous abroad, 
 should be admitted to testify against them, the answer is, that their 
 former condition and character may be made known to the jury to en- 
 able them to judge of their credibility ; and this without depriving thera 
 of any valuable personal right by reason of their conviction abroad. 
 Their right to stand in court as probi et Icgnles homines is sustained ; 
 but as all other men, the value of the testimony is to be estimated by 
 their general reputation, and even by the proof of particular facts 
 showing a conviction and punishment for crime ; and the effect of 
 such proof may be always reV)uttcd by evidence of good conduct, 
 a virtuous life, etc. 
 
 Infamy is, in truth, part of the punishment of the crimen Jxtlsi,
 
 SECT. I.] COMMONWEALTH V. GREEN. 597 
 
 although not expressed in the sentence ; and it creates a disability to 
 testify, just as excommunication in a spiritual court does to sue in the 
 courts of common law. To hold a person incompetent on account of ' 
 
 (such a conviction, is to give effect to the conviction, and to enforce the 
 punishment ; and thus the penal laws of one country would reach into 
 others, contrary to the principle above stated. 
 It would seem to be consistent with sound principles also that, wher- 
 ever there is a crime or punishment remaining in force, there should be a 
 power of pardon ; but the act of pardon cannot operate upon an offence 
 committed under another jurisdiction ; nor can it extend beyond the 
 jurisdiction of the offended sovereign. So that one who has once ex- 
 posed himself to a punishment which renders him infamous in the 
 country where the offence was committed, must be perpetually stig- 
 matized if he remove into another country. This is sufficient to show 
 the reasonableness of limiting the penal effects of crime to the country 
 whose laws have been violated. 
 
 We do not find, after a careful examination, as well by the counsel for 
 the prisoners, as by ourselves, that the question before us has arisen in 
 the English courts, or in those of any of the United States. All the 
 cases in the English books in which objections were made to the com- 
 petency of witnesses on the ground of infamy, seem very clearly to have 
 been cases of conviction in some of their own courts. Indeed the 
 strictness of the rule under which such evidence is admitted, seems 
 almost necessarily to exclude conviction in any foreign court. The 
 objector must have tlie record in his hands, and must show not only a 
 conviction, but a judgment thereon. We think the silence of the I^ng- 
 lish books on this subject, even among the multitude of treatises on 
 evidence, which have lately issued from the press, furnishes strong 
 reasons to believe that objections of this nature, if heard at all, only go 
 to the credibility of witnesses. 
 
 The only book we have seen which intimates a different doctrine 
 is one upon the principles of evidence, by a Mr. Glassford of Scotland, 
 referred to in the argument for the prisoner ; a respectable writer, but 
 hitherto unknown to the courts of law in this country. Speaking of in- 
 competency by reason of infamy, he inquires into the proof necessary 
 to establish the fact; and supposes that an exemplification of a record, 
 from England or Ireland, would be received as proof in Scotland. How 
 far the peculiar organization of the Scotch courts, and the system of 
 rules by which they are governed, may have had an effect on their law 
 of evidence, we cannot know ; nor whether the circumstance, that the 
 > three countries are under one sovereign, and one legislative power, may 
 not have had its effects. The examples produced by the writer are 
 from England and Ireland only ; and from this it would seem that his 
 doctrine would not apply to the records of a country strictly foreign. 
 Indeed such records cannot properly be exemplified; but must be 
 proved bv testimony, as other facts are proved. 
 
 But it has been argued by the counsel for the prisoner, that, although
 
 598 GATES V. BINGHAM. [CHAP. XL 
 
 a conviction in a court of a country strictly foreign, should not be held 
 to take away the competency of a witness, yet that such is the relation 
 of the several States which compose the American Union with each 
 other, that the same law ought not to prevail here, as the States are 
 not in fact foreign to each other. . . . 
 
 We have come to the opinion that there is no difference in the effect 
 of a conviction, in regard to the competency of a witness, between any 
 State in this Union and any foreign State ; and that in neither case is 
 the witness to be excluded on account of such conviction.^ 
 
 GATES V. BINGHAM. 
 
 Supreme Court of Errors, Connecticut. 1881. 
 
 [Eeported 49 Connecticut, 275.] 
 
 Assumpsit for the rent of a house, brought to the Court of Common 
 Pleas, and tried to the court, on the general issue with notice, before 
 Mather. J. The following facts were found by the court : — 
 
 In 1871 Charles M. Pendleton was appointed by the court of probate 
 for the district of Norwich in this State, conservator of the defendant, 
 •who was then a resident of the town of Norwich ; the court finding 
 that by reason of improvidence and prodigality he had become in- 
 capable of managing his affairs. Bingham was at that time twenty- 
 three vears of age. Pendleton duly qualified as conservator and has 
 never been removed. ... In December, 1876, the defendant married 
 in Worcester, and at that time hired of the plaintiff a tenement there, 
 at the rate of fifteen dollars a month, payable at the end of every 
 month, where he resided with his wife till October 13, 1877. 
 
 The defendant paid the rent of this tenement until the 15th of July, 
 1877, but the rent from that time until October 13 has never been 
 paid, and for the recovery of it this suit is brought. The tenement 
 was a suitable one for himself and family, and the rent reasonable, 
 and the defendant and his family during the time were not otherwise 
 provided with lodging. His conservator knew that he had hired a 
 tenement of the plaintiff, and sent money to the defendant at times 
 to pay the rent. The plaintiff was informed by the defendant that he 
 had a conservator. 
 
 The defendant requested the court to rule that his disability by 
 reason of the appointment of a conservator followed and was attached 
 to his person ; and that to render him liable in this suit, the same 
 
 1 Ace. Sims V. Sims, 75 N. Y. 466 ; C. v. Hanlon, S Brewst. 461 (semble). Contra, 
 Clark V. Hall, 2 H. & M'H. 378 {scmble) ; S. v. Foley, 15 Nev. 64 ; Chase v. Blodgett, 
 10 N. H. 24 ; S. v. Candler, 3 Hawks, 393. See Campbell v. S., 23 Ala. 44 ; Klein v. 
 Dinkgrave, 4 La. Ann. 540 ; Uhl i-. C, 6 Grat. 706. — Ed.
 
 SECT I.] GATES V. BINGHAM. 699 
 
 approval of the contract by the conservator would be required as would 
 have been necessary if he had continued to reside in this State. The 
 court refused so to rule ; but ruled that the law of the place where the 
 contract was made should govern, and that the disability of the defend- 
 ant, b}' reason of the conservatorship, only continued while he resided 
 within the jurisdiction of this State. 
 
 Upon these facts the court rendered judgment for the plaintiff. The 
 defendant brought the record before this court by a motion in error.^ 
 
 f^ Granger, J. There is clearly no error in the charge. The dis- 
 abilit}' under which one is placed, with regard to his power to make 
 contracts, b}' having a conservator appointed over him, is created 
 wholly by statute, and can have no operation where the statute does 
 not operate. It is a well settled principle that no statute can operate 
 beyond the territorial limits of the State in which it was enacted. 
 While the defendant was residing in the State of Massachusetts he was 
 sui juris, and if incapable of managing his own affairs the only mode 
 of securing a legal supervision for him was by proceeding under the 
 laws of that State in the same manner as in the case of an}- other of 
 its inhabitants. The defendant had in fact become an inhabitant and 
 citizen of that State, and had ceased to be a citizen of Connecticut. 
 
 It does not affect the case that the suit is brought in this State. 
 The contract upon which it is brought, being a valid and binding one 
 in the State where it was made, is equally valid and binding in this 
 State. 
 
 It cannot affect the case that the plaintiff knew that the defendant 
 was under a conservator in Connecticut. Since he was legally free 
 from the control of the conservator in Massachusetts, the fact that he 
 had previously been under a conservator in this State was of no 
 importance. 
 
 There is no error in the judgment complained of. 
 
 In this opinion the other judges concurred. 
 
 1 Part of the statement of facts aud the arguments are omitted. — Ed.
 
 600 WORMS V. DE VALDOR. [CHAP. XI. 
 
 WORMS V. DE VALDOR. 
 High Couut of Justice, Chancery Division. 1880. 
 
 [Reported 49 Law Journal, New Series, Chancery, 261.] 
 
 This was an action for the delivery up and cancellation of certain 
 bills of exchange accepted by the plaintiiT, a French subject in France. 
 
 Objections were taken in the several statements of defence that the 
 plaintiff, b}' French law, was incapacitated from suing without the 
 intervention of his " Conseil Judiciaire," by reason of liis having been 
 adjudicated a "prodigal," and placed under a "Conseil de Famille" by 
 the Tribunal of First Instance of the department of the Seine, the duly 
 authorized court in France for that purpose.^ 
 
 Fry, J. The first objection which has been raised to the plaintiff's 
 case is founded upon the fact that some time prior to the date of the 
 bills of exchange he had been placed under that proceeding of the 
 French law which is known as " Conseil de Famille," and it is said 
 that that fact prevents his being able to sue in this court. That argu- 
 ment is based upon the 13th section of the Code Civil, which prevents 
 "prodigals," among other things, from pleadhig without the assistance 
 of counsel, who may be assigned by the court. I declined to stop the 
 case on that preliminary objection, inclining to the view that if a change 
 of status were effected by an order of a French court, this court would 
 not take notice of a personal disqualification caused by sflch change of 
 status. Assuming the proposition to be true that a personal disquali- 
 fication was introduced by the judgment of the French court, I still 
 adhere to that view, and I read a passage from Mr. Justice Story's 
 " Conflict of Laws " (§ 104) as expressing the view I entertain : " Per- 
 sonal disqualifications not arising from the Law of Nature, but from the 
 principles of the customary or positive law of a foreign country, and 
 especially such as are of a penal nature, are not generalh- regarded in 
 other countries where the like disqualifications do not exist ; hence the 
 disqualification resulting from heresy, excommunication. Popish recu- 
 sanc}', infamy, and other penal disabilities, are not enforced in any 
 other country except that in wliich they originate. They are strictly 
 territorial, so the state of slavery will not be recognized in any country 
 where institutions and policy prohibit slaver}'." The learned author 
 niiglit have gone further with res[)ect to slaver}-, for it is well known 
 that in the celebrated case of Somerset, 20 Howell's State Trials, 1, 
 the courts of this countr}-, where villenage has never been abolished, 
 declined to recognize the status of slavery resulting from the legisla- 
 tion of any other countr}-. 
 
 It appears to me, however, that upon the point which is left for me 
 to decide without the assistance of any French lawyers, that a part of 
 the proceedings referred to was not to change the status of the plaintiff. 
 ^ Aifnimt^nts of counsel are omitted. — Ed.
 
 SECT. II. J HYDE V. HYDE. 601 
 
 According to French jurisprudence, before the passing of the Code 
 Napoleon, prodigality was one of the grounds which is known as inter- 
 diction : such interdiction as was passed in the case of a lunatic, for 
 instance. But b}' the code matters were altered in that respect, and an 
 interdict cannot now be passed against a person on the ground of 
 prodigality. I find this laid down in Toullier's work on French law 
 (2 Le Droit Civil FranQais, 5th ed. 443): " L'ancienne jurisprudence 
 avait mis la prodigalite au nombre des causes qui pouvaieut faire inter- 
 dire un majeur ; raais le Code n'en admet plus d'autres que I'etat 
 habituel d'imbecilite de demence ou de fureur." Then he says (lb. 476) : 
 " A la difference de I'interdiction qui opere un veritable changement 
 d'etat, la nomination d'un conseil judiciaire n'en opere aucun dans la 
 personne qui sS' trouve soumise ; elle continue d'exercer par elle-meme 
 toutes ses actions, tons ses droits civiles et politiques de voter dans les 
 assemblees de famille et dans les assemblees primaires et electorales, 
 de faire, en un mot, tons les actes de la vie civile : elle est seulement 
 assujettie a prendre pour certains actes d'exception I'avis du conseil, 
 qui doit la premunircontre les erreurs et les surprises auquelles elle est 
 exposee dans la disposition des ses biens ou dans la direction de ses 
 affaires." There being, therefore, no change of status but merely a re- 
 quirement of French law in particular cases, it appears to me that that 
 does not prevent the plaintiff in this case from suing in this action. 
 
 SECTION II. 
 
 MARRIAGE. ■ 
 
 HYDE V. HYDE. 
 Court for Divorce and Matrimoxial Causes. 1866. 
 
 [Reported Law Beports, 1 Probate and Divorce, 130.] 
 
 Lord Penzance, Judge Ordinar}-. The petitioner in this case claims 
 a dissolution of his marriage on the ground of the adulter}- of his wife. 
 The alleged marriage was contracted at Utah, in the territories of the 
 United States of America, and the petitioner and the respondent both 
 professed the faith of the Mormons at the time. The petitioner has 
 since quitted Utah, and abandoned the faith, but the respondent has 
 not. After the petitioner had left Utah, the respondent was divorced 
 from him, apparentl}' in accordance with the law obtaining among the 
 Mormons, and has since taken another husband. This is the adultery 
 complained of. 
 
 Before the petitioner could obtain the relief he seeks some matters 
 would have to be made clear and others explained. The marriage, as 
 it is called, would have to be established as binding by the lex loci, the 
 divorce would have to be determined void, and the petitioner's conduct
 
 602 HYDE V. HYDE. [CHAP. XI. 
 
 in wilfully separating himself from his wife would have to be accounted 
 for. But I expressed at the hearing a strong doubt whether the union 
 of man and woman as practised and adopted among tlie Mormons was 
 reall}- a marriage in the sense understood in this, the Matrimonial 
 Court of England, and whether persons so united could be considered 
 "husband" and "wife" in the sense in wiiich these words must be 
 interpreted in the Divorce Act. Further reflection has confirmed this 
 doubt, and has satisfied me that this court cannot properly exercise any 
 jurisdiction over such unions. 
 
 Marriage has been well said to be something more than a contract, 
 either religious or civil — to be an institution. It creates mutual rights 
 and obligations, as all contracts do, but be^-ond that it confers a status. 
 The position or status of " husband " and " wife " is a recognized one 
 throughout Christendom : the laws of all Christian nations throw al)Out 
 this status a variety of legal incidents during the lives of the parties, 
 and induce definite rights upon their offspring. What, then, is the 
 nature of this institution as understood in Christendom? Its incidents 
 varv in different countries, but what are its essential elements and in- 
 variable features? If it be of common acceptance and existence, it 
 must needs (however varied in different countries in its minor incidents) 
 have some pervading identity and universal basis. I conceive that 
 marriage, as understood in Christendom, may for this purpose be de- 
 fined as the voluntary union for life of one man and one woman, to the 
 exclusion of all others. 
 
 There are no doubt countries peopled by a large section of the human 
 race in which men and women do not live or cohabit together upon 
 these terms — countries in which this institution and status are not 
 known. In such parts the men take to themselves several women, 
 whom the}' jealously guard from the rest of the world, and whose num- 
 ber is limited only by considerations of material means. But the status 
 of these women in no way resembles that of the Christian " wife." In 
 some parts they are slaves, in others perhaps not ; in none do they 
 stand, as in Christendom, upon the same level with the man under 
 whose protection they live. There are, no doubt, in these countries 
 laws adapted to this state of things — laws which regulate the duties 
 and define the obligations of men and women standing to each other in 
 these relations. It may be, and probably is, tlie case that the women 
 there pass by some word or name vp'hich corresponds to our word 
 " wife." But there is no magic in a name ; and, if the relation tliere 
 existing between men and women is not the relation which in Christen- 
 dom we recognize and intend by the words " husband" or " wife," 
 but another and altogether different relation, the use of a common term 
 to express these two separate relations will not make them one and 
 the same, though it may tend to confuse them to a superficial observer. 
 The language of Lord Brougham, in Warrender tu "Warrender, 2 CI. & 
 F. T)?.!, is very appropriate to these considerations : " If, indeed, there 
 go two things under one and the same name in different countries — if
 
 SECT. II.] HYDE V. HYDE. 603 
 
 that which is culled marriage is of a different nature in each — there 
 may be some room for holding that we are to consider the thing to 
 which the parties have bound themselves according to its legal ac- 
 ceptance in the country where the obligation was contracted. But 
 marriage is one and the same thing substantially all the Christian world 
 over. Our whole law of marriage assumes this ; and it is important to 
 observe that we regard it as a wholly different thing, a different siatus 
 from Turkish or other marriages among infidel nations, because we 
 clearly should never recognize the plurality of wives, and consequent 
 validity of second marriages, standing the first, which second marriages 
 the laws of those countries authorize and validate. This cannot be 
 put on any rational ground, except our holding the infidel marriage to 
 be something different from the Christian, and our also holding the 
 Christian marriage to be the same everywhere. Therefore, all that the 
 courts of one country have to determine is whether or not the thing 
 called marriage — that known relation of persons, that relation which 
 those courts are acquainted with, and know how to deal with — has 
 been validly contracted in the other country where the parties pro- 
 fessed to bind themselves. If the question is answered in the affirma- 
 tive, a marriage has been had ; the relation has been constituted ; and 
 those courts will deal with the rights of the parties under it according 
 to the principles of the municipal law which they administer." "In- 
 deed, if we are to regard the nature of the contract in this respect as 
 defined by the lex loci, it is difficult to see wh}- we may not import from 
 Turkey into England a marriage of such nature as that it is capable 
 of being followed by, and subsisting with, another, pol^-garaj' being 
 there the essence of the contract." 
 
 Now, it is obvious that the matrimonial law of this country is adapted 
 to the Christian marriage, and it is wholly inapplicable to polygam\ 
 The matrimonial law is correspondent to the rights and obligation 
 which the contract of marriage has, b}- the common understanding of 
 the parties, created. Thus conjugal treatment may be enforced by a 
 decree for restitution of conjugal rights. Adultery by either party 
 gives a right to the other of judicial separation ; that of the wife gives 
 a right to a divorce ; and that of the husband, if coupled with bigamy, 
 is followed by the same penalty. Personal violence, open concubi- 
 nage, or debauchery in face of the wife, her degradation in her home 
 from social equality with the husband, and her displacement as the 
 head of his household, are with us matrimonial offences, for they vio- 
 late the vows of wedlock. A wife thus injured may claim a judicial 
 separation and a permanent support from the husband under the name 
 of alimony at the rate of about one third of his income. If these and 
 the like provisions and remedies were applied to polygamous unions, 
 the court would be creating conjugal duties, not enforcing them, and 
 furnishing remedies when there was no offence. For it would be quite 
 unjust and almost absurd to visit a man who, among a polygamous 
 community, had married two women, with divorce from the first woman, 
 
 is j
 
 604 HYDE V. HYDE. [CHAP. XI. 
 
 on the ground that, in our view of marriage, his conduct amounted to 
 adultery coupled with bigamy. Nor would it be much more just or 
 wise to attempt to enforce upon him that he should treat those with 
 whom he had contracted marriages, in the polygamous sense of that 
 term, with the consideration and according to the status which Chris- 
 tian marriage confers. 
 
 If, then, the provisions adapted to our matrimonial system are not 
 applicable to such a union as the present, is there any other to which 
 the court can resort? We have in P^ngland no law framed on the scale 
 of polygamy, or adjusted to its requirements. And it may be well 
 doubted whether it would become the tribunals of this country to en- 
 force the duties (even if we knew them) which belong to a system so 
 utterly at variance with the Christian conception of marriage, and so 
 revolting to the ideas we entertain of the social position to be accorded 
 to the weaker sex. 
 
 This is hardly denied in argument, but it is suggested that the matri- 
 monial law of this country may be properly applied to the first of a 
 series of polygamous unions ; that this court will be justified in treating 
 such first union as a Christian marriage, and all subsequent unions, if 
 any, as void ; the first woman taken to wife as a " wife " in the sense 
 intended by the Divorce Act, and all the rest as concubines. The in- 
 consistencies that would flow from an attempt of this sort are startling 
 enough. Under the provisions of the Divorce Acts the duty of cohab- 
 itation is enforced on either party at the request of the other, in a suit 
 for restitution of conjugal rights. But this duty is never enforced on 
 one party if the other has committed adultery. A Mormon husband, 
 therefore, who had married a second wife, would be incapable of this 
 remedy, and this court could in no way assist him towards procuring 
 him tlie society of his wife if she chose to withdraw from him. And 
 yet, by the very terms of his marriage compact, this second marriage 
 was a thing allowed to him, and no cause of complaint in her who had 
 acquiesced in tliat compact. And as the power of enforcing the duties 
 of marriage would thus be lost, so would the remedies for breach of 
 marriage vows be unjust and unfit. For a prominent provision of the 
 Divorce Act is that a woman whose husband commits adultery may ob- 
 tain a judicial separation from him. And so utterly at variance with 
 Christian marriage is the notion of permitting the man to marry a 
 second woman that the Divorce Act goes furthei-, and declares that if 
 the husband is guilty of bigamy as well as adultery, it shall be a ground 
 of divorce to the wife. A Mormon, therefore, who had, according to 
 the laws of his sect, and in entire accordance with the contract and 
 understanding made with the first woman, gone tln-ougli the same cere- 
 mony witli a second, raiglit find himself in the predicament, under the 
 application of English law, of having no wife at all : for the first 
 woman might obtain divorce on the ground of his bigamy and adultery, 
 and tlie second might claim a decree declaring the second ceremony 
 void, as he had a wife living at the time of its celebration ; and all this
 
 SECT. II.] HYDE V. HYDE. 605 
 
 without any act done with which he would be expected to reproach 
 himself, or of which either woman would have the slightest right to 
 complain. These difficulties may be pursued further in the reflection 
 that if a Mormon had married fifty women in succession, this court 
 might be obliged to pick out the fortieth as his only wife, and reject 
 the rest. For it might well be that after the thirty-ninth marriage the 
 first wife should die, and the fortieth union would then be the only 
 valid one, the tliirty-eight intervening ceremonies creating no matri- 
 monial bond during the first wife's life. 
 
 Is the court, then, justified in thus departing from the compact made 
 by the parties themselves? Offences necessarily presuppose duties. 
 There are no conjugal duties but those which are expressed or implied 
 in the contract of marriage. And if the compact of a polygamous 
 union does not carry with it those duties which it is the office of the 
 marriage law in this country to assert and enforce, such unions are not 
 within the reach of that law. So much for the reason of the thing. 
 
 There is, I fear, little to be found in our books in the way of direct 
 authority. But there is the case of Ardaseer Cursetjee v. Perozeboye, 
 10 jVIoo. p. C. 375, 419, in which the Privy Council distinctly held that 
 Parsee marriages were not within the force of a charter extending the 
 jurisdiction of the ecclesiastical courts to Her Majesty's subjects in 
 India, '• so far as the circumstances and occasions of the said people 
 shall require." And the following passage sufficiently indicates the 
 grounds upon which the court proceeded : " We do not pretend to 
 know what may be the duties and obligations attending upon the 
 matrimonial union between Parsees, nor what remedies may exist for 
 the violation of them ; but we conceive that there must be some laws 
 or some customs having the effect of laws which apply to the married 
 state of persons of this description. It may be that such laws and 
 customs do not afljord what we should deem, as between Christians, an 
 adequate relief; but it must be recollected that the parties themselves 
 could have contracted for the discharge of no other duties and obligations 
 than such as from time out of mind were incident to their own caste, 
 n.or could they reasonably have expected more extensive remedies, if 
 aggrieved, than were customarily afforded bj' their own usages." 
 
 In conformit}- with these views the court must reject the pra3'er of 
 this petition, but I may take the occasion of here observing that this 
 decision is confined to that object. This court does not profess to de- 
 cide upon the rights of succession or legitimacy which it might be 
 proper to accord to the issue of the polygamous unions, nor upon the 
 rights or obligations in relation to third persons which people living 
 under the sanction of such unions may have created for themselves. 
 All that is intended to be here decided is that as between each other 
 they are not entitled to the remedies, the adjudication, or the relief of 
 the matrimonial law of England. Petition dismissed.^ 
 
 ^ Following this case, it was decided by Stirling, J., In re Bethell, 38 Ch. D. 220, 
 that the issue of a marriage contracted ia South Africa between an Englishman and a
 
 fi06 SUTTON V. WARREN. [CHAP. XI. 
 
 SUTTON V. WARREN. 
 SuPREMK Judicial Court of Massachusetts. 1845. 
 
 [Reported 10 Metcalf, 451.] 
 
 Assumpsit on a promissory note for $1,300, given by the defendant to 
 Ann Sutton, on the 10th of August, 1840. The case was submitted to 
 the court upon the following facts agreed on by the parties : — 
 
 The note declared on was given for money lent by Ann Sutton to 
 the defendant. The plaintiff and said Ann Sutton are natives of 
 England, and were married at Duffleld, in England, on the 28th of 
 November, 1834. About one year after their marriage, they came 
 to this countr}', where they have lived, as hufband and wife, ever 
 since. The said Ann was the own sister of the mother of the said 
 Samuel Sutton, the plaintiff, and has always since said marriage gone 
 by the name of Ann Sutton. Her former name was Ann Hills. 
 
 Judgment to be rendered for the plaintiff, if the court are of opinion 
 that he is entitled to recover ; otherwise, he is to be nonsuit.^ 
 
 Hubbard, J. It is a well-settled principle in our law that marriages 
 celebrated in other States or countries, if valid by the law of the country 
 where they are celebrated, are of binding obligation within this Com- 
 monwealth, although the same might, by force of our laws, be held 
 invalid, if contracted here. This principle has been adopted, as best 
 calculated to protect the highest welfare of the community in the pres- 
 ervation of the purity and happiness of the most important domestic 
 relation in life. Greenwood v. Curtis, 6 Mass. 378 ; Medway v. Need- 
 ham, 16 Mass. 157; West Cambridge v. Lexington, 1 Pick. 506; 
 Compton V. Bearcroft, Bui. N. P. 114; Scrimshire v. Scrimshire, and 
 Middleton v. Janverin, 2 Haggard, 395, 437. There is_jin exception, 
 however, to this principle, in those cases where the marriage is con- 
 sidered as incestuous by the law of Christianity, and as against natural 
 law. And these exceptions relate to marriages in the direct lineal line 
 of consanguinity, and to those contracted between brothers and sisters ; 
 and the exceptions rest on the ground that such marriages are against 
 the laws of God, are immoral, and destructive of the purity and happi- 
 ness of domestic life. But I am not aware that these exceptions, by 
 any general consent among writers u{)on natural law, have been ex- 
 native woman, accorJinj; to tho native custom, could not take as legitimate. The 
 court said : " I am bound to hold that a union formed between a man and a woman 
 in a foreign country, altliough it may there bear the name of a marriage, and tlie par- 
 ties to it may there bo designated husband and wife, is not a valid marriage according 
 to the law of England, uidess it be formed on the same basis as marriages throughout 
 Christendom, and be in its essence ' the vohintary union for life of one man and one 
 woman, to the exclusion of all others.'" In Brinkley v. Attorney-General, 15 P. Div. 
 76, a marriage in Jaj)an, according to the native custom, between an P^nglishman and s 
 native, was lield to be valid in England. See Re Ullee, 53 L. T. Rep. 711. — Ed. 
 * Arguments of counsel are omitted. — Ed.
 
 SECT. II.] SUTTON V. WARREN. 607 
 
 tended further, or embraced other cases prohibited bj' the Levitical 
 law. This subject has been carefully discussed b}- Chancellor Kent, in 
 the case of Wightraan v. Wightman, 4 Johns. Ch. 343 ; and while be is 
 clear as to the exceptions before stated, he thinks, beyond them there 
 is a diversit}' of opinion among commentators. 2 Kent Com., Lect. 26. 
 See also Story's Conflict of Laws, §§ 113, 114. There is also a pro- 
 vision in our statutes, making marriages void in this State, where per- 
 sons resident in the State, whose marriage, if solemnized here would be 
 void, in order to evade our law, and with the intention of returning to 
 reside here again, go into another State or country- and there have their 
 marriage solemnized. Rev. Sts., c. 75, § 6. The only object of this 
 provision is, as stated by the commissioners in their report, to enforce 
 the observance of our own laws upon our own citizens, and not to suf- 
 fer them to violate regulations founded in a just regard to good morals 
 and sound polic\'. As to the wisdom of this provision it is unnecessar}' 
 here to speak. But the provision is noticed, to show that it has not 
 been overlooked in the consideration of the case at bar, which presents 
 no such state of facts. 
 
 In view of the whole matter, considering it as a part of the Jus gen- 
 tium, we do not feel called upon to extend the exceptions further. By 
 our statutes, the marriage contracted between Samuel Sutton, the plain- 
 tiff, and Ann Hills, his mother's sister, if celebrated in this State, would 
 have been absolutely void. But b}' the law of England, this marriage, 
 at the time it was contracted, viz. in November, 1834, was voidable onlj-, 
 and could not be avoided until a sentence of nullit}' should be obtained in 
 the spiritual court, in a suit instituted for that purpose. See Poynter 
 on Marriage and Divorce, 86, 120 ; 2 Stephen's Com. 280. In The 
 Queen v. Inhabitants of Wye, 7 Adolph. & Ellis, 771, and 3 Nev. & P. 
 13, the Court of King's Bench affirmed the doctrine, and held such a 
 marriage voidable only, and that, till avoided, it was valid for all civil 
 purposes. Rose. Crim. Ev. (2d ed.) 286. Since this marriage was 
 contracted, the St. of 6 Wm. IV., c. 54, has been passed, making such 
 marriages which should afterwards be celebrated absolutely void. 
 
 In the present case, the marriage of these parties was not void by the 
 laws of England, though Avoidable in the spiritual court. It never was 
 avoided, and though absolutel}' prohibited by our laws, yet not being 
 within the exception, as against natural law, we do not feel warranted 
 in saying the parties are not husband and wife. The plaintiff, Samuel 
 Sutton, sues on a promissor}' note given to the said Ann Sutton, and, as 
 her husband, he can maintain an action thereon, in his own name alone, 
 there being no other cause of objection raised than the one stated in re- 
 gard to the legalit}' of their marriage. Bayle}'' on Bills (2d Amer. ed.), 
 42 ; Clancy, Husb. & Wife, 4. 
 
 Judgment for the plaintiff.
 
 608 UNITED STATES V. RODGERS. [CHAP. XL 
 
 UNITED STATES v. RODGERS. 
 
 District Court ok thk United States, E. Dist. of Pennsylvania, 1901. 
 
 [Reported 109 Federal Reporter, 886.] 
 
 J. B. McPherson, District Judge. The relator is a naturalized 
 citizen of the United States, and is the husband of Rosa Devine, and 
 the father of her idiot son, William. Rosa and William are Russian 
 Jews, whom the commissioner of immigration at the port of Philadel- 
 phia has ordered to be deported, on the ground that both are aliens, 
 and that William is an idiot, and Rosa is a pauper that is likely to be- 
 come a public charge. The alienage of both is denied upon the ground 
 that when the husband and father became a citizen the wife and child 
 ceased to be aliens ; and this is the only point to be decided. The 
 decision is admitted to depend upon the answer to be given to the 
 question whether Rosa is the relator's lawful wife, or, rather, whether 
 she is to be so regarded in this State ; for she is her husband's niece, 
 and such a marriage, if originally celebrated in Pennsylvania, would 
 be void. Act 1860, § 39 (P. L. 393) ; 1 Purd. Dig. (ed" 1872), p. 54. 
 Among the Jews in Russia, however, where the ceremony took place, it 
 has been satisfactorily proved that a marriage between uncle and niece 
 is lawful, and, being valid there, the general rule undoubtedly is that 
 such a marriage would be regarded everywhere as valid. But there is 
 this exception, at least, to the rule : If the relation thus enteied into 
 elsewhere, although lawful in the foreign countiy, is stigmatized as in- 
 cestuous b}' the law of Pennsylvania, no rule of comity requires a court 
 sitting in this State to recognize the foreign marriage as valid. I think 
 the following quotation from Dr. Reinhold Schmid, a Swiss jurist of 
 eminence, to be found in Whart. Confl. Laws (2d ed.), § 175, correctly 
 states the proper rule upon this subject : — 
 
 "• When persons married abroad take up their residence with us, it is 
 agreed on all sides that the marriage, so far as its formal requisites are 
 concerned, cannot be impeached, if it corresponds either with the laws 
 of the place where the married pair had their domicil, or with those 
 where the marriage was celebrated. But we must not construe this as 
 implying that the juridical validity of tlie marriage depends absolutely 
 on the laws of the place under whose dominion it was constituted ; for 
 the fact that a marriage was void by tlio hnvs of a prior domicil is no 
 reason why we should declare it void if it united all the requisites of a 
 lawful marriage as they are imposed by our laws. So far as concerns 
 the material conditions of the contract of marriage, we must distinguish 
 between sucli hindrances as would have impeded marriage, but cannot 
 dissolve it when ah'catly concluded, and such as would actually dissolve 
 a marriage if celebrated in the face of them. A matrimonial relation 
 that in the last sense is prohibited !)}• our laws cannot be tolerated in our 
 territory, though it was entered into by foreigners before the}" visited 
 us. We will, therefore, tolerate no polygamous or incestuous unions of 
 foreigners settling within our limits." 
 
 ^
 
 SECT. III.] BIRTWHISTLE V. VAEDILL. 609 
 
 Other authorit}' may be found in State v. Brown, 47 Ohio St. 102, 
 23 N. E. 747, where it is said, in determining the effect of a statute 
 that forbade sexual intercourse between persons nearer of kin than 
 cousins : — 
 
 " We hold, therefore, that b}' section 7019, Rev. St.. sexual com- 
 merce as between persons nearer of kin than cousins is prohibited, 
 whether the}' have gone through the form of intermarriage or not ; nor 
 is it material that the marriage was celebrated in a countrj' where it 
 was valid, for we are not bound, upon principles of comity, to permit 
 persons to violate our criminal laws, adopted in the interest of decency 
 and good morals, and based upon principles of sound public policy, be- 
 cause they have assumed, in another State or country, where it was 
 lawful, the relation which led to the acts prohibited b}- our laws." 
 
 See also Inhabitants of Medway v. Inhabitants of Needham, 16 
 Mass. 157, 8 Am. Dec. 131, and la re Stull's Estate, 183 Pa. 625, 
 39 Atl. 16, 39 L. R. A. 539. 
 
 In view of this exception to the general rule, it seems to me to be 
 Impossible to recognize this marriage as valid in Pennsylvania, since a 
 continuance of the relation here would at once expose the parties to 
 indictment in the criminal courts, and to punishment by fine and im- 
 prisonment in the penitentiary. In other words, this court would be 
 declaring the relation lawful, while the court of quarter sessions of 
 Philadelphia County would be obliged to declare it unlawful. What- 
 ever may be the standard of conduct in another country, the moral 
 sense of this community would undoubtedly be shocked at the spectacle 
 of an uncle and niece living together as husband and wife ; and I am, 
 of course, bound to regard the standard that prevails here, and to see 
 that such an objectionable example is not presented to the public. 
 
 SECTION III. 
 
 LEGITIMACY. 
 
 BIRTWHISTLE v. VARDILL. 
 
 House of Lords. 1840. 
 
 [Reported 7 Clark & Finnelly, 895.] 
 
 This case came from the King's Bench on Writ of Error. The 
 case was first argued in the House of Lords in 1830. No judgment 
 was then given, but on account of the difficulty and novelty of the case, 
 it was ordered to be reargued.^ On the first of July, 1839, the case was 
 reargued before Tindal, C. J., Vaughan, Bosanquet, Patteson, 
 Williams, Coleridge, Coltman, and Maule, JJ., and Parke and 
 GuRNEY, BB. A question was framed and put to the judges; and 
 their unanimous opinion was delivered in the following terms. 
 
 39
 
 610 BIRTWHISTLE V. VARDILL. [CHAP. XI. 
 
 TixDAL, Lord Chief Justice. My Lords, the facts of the case upon 
 which your Lordships propose a question to Her Majesty's judges are 
 these: '' A^ went^ from England to Scptlandj_ _and resid ed and was 
 domiciled there^a nd so continued for many years, till the time of nis 
 deiattrr A. cohabited with M., an unmar ried woman, during the wEoIe 
 
 ■"period of his resid ence in_8£Qti] and, and iiad-b y her a s on, B., whr> 
 wasHborn in Scotland^ Several years af ter the birth of B., who was 
 the only son, A. and M. were married in^ Scotland, acco rding to the 
 
 "te WB Of thai country. Byjt he laws of Scotland, if the marriage of the 
 mo tire r of aT cliild with the father of such child t ake place irj_ Scotland, 
 siicH ctiild born in^Scotlandnjefore^he mjrriji ge is equally l egitimate 
 wit h child ren t7onraft6rttie""mamage, for t he purpose of_taking land,_ 
 ancTfor every other purpose. A. died seised of real estate in England, 
 
 'and intestate.'' And j'our Lordships, uporPEhe foregoing state of 
 'facts^ found lihis question, viz. : " Is B. entitled to such property as 
 the heir of_A- '• " And in answer to the question so proposed to us, 
 I have the honor to state to your Lordships, that it is the opinion 
 of all the judges who heard the argument that B. i s not entitle d to 
 such property as the heir of A . We have, indeed, reason to lament 
 that we have been deprived of the assistance of one of our learned 
 brethren who heard the case argued at your Lordship's bar, the late 
 Mr. Justice Vaughan ; but as he had expressed a concurrent opinion 
 upon the case at a meeting held immediately after the argument, I feel 
 myself justified in adding the authority of his name to that of the 
 other judges. 
 
 My Lords, the grounds and foundation upon which our opinion 
 rests are briefly these : That we hold it to be a ^rule or maxim of the 
 1fvwj2£_jiJ5lg^"d^-jd44<--p e «p ect -tQ the descent of land in England from 
 fathe r to son, t hat the son must be jjor n after actual marriage betwe en 
 
 *^is f ather _ and mother; that this iS*a rule juris j^ositivi, as are all tlie 
 laws which regulate succession to real property, this particular rule 
 having been framed for the direct purpose of excluding, in the descent 
 of land in England, the application of the rule of the civil and canon 
 law, by which the subsequent marriage between the father and mother 
 was held to make the son born before marriage legitimate ; g^id_ that 
 this rule of descent being,a jule_ ofj^ositive law annexed to the land 
 
 Itself, cannot be allowed to be broken in upon or disturbed by the law 
 oTTTie _c£miitry jshere the -elainiant was Jaoxn, and which mav be 
 
 "allowed to govern hjs jjersonal st atus as tQ..i£ »itimacy, upon the 
 su pposed ^grou n<l of the comity of nations. 
 
 My Lords, to understand the nature and force of this rule of our 
 law, " that the heir must be a person born in actual matrimony in 
 order to enable him to take land in England by descent," and to per- 
 ceive, at the same time, the positive and inflexible qualit}- of tliis rule, 
 and how closely it is annexed to the land itself, it will be necessarv to 
 consider the earlier authorities in whicli that rule is laid down and 
 discussed, botli before and subsequently to the statute of Merton,
 
 SECT. III.] BIETWHISTLE V. VARDILL. 611 
 
 and more particularh' the legal construction and operation of that 
 statute. . . . 
 
 At the parliament holden at Merton, in the 20th Henry III., the 
 statute was framed, which will be found to have a strong and direct 
 application to the present question. That statute has not upon the 
 original roll the title prefixed thereto, upon which observations were 
 made at your Lordships' bar, that it showed the intention of the law 
 to have been no more than to declare the personal status of those who 
 are described in such statute. In the edition of the statutes published 
 under the commission from the Crown, there is no other than the 
 general title " Provisiones de Merton;" and no more argument can 
 justly be built upon the title prefixed in some editions of the statutes, 
 than upon the marginal notes against its different sections. That 
 statute or provision of Merton runs thus, viz. : "To the King's writ 
 of bastard}', whether an}' one being born before matrimony mav 
 inherit in lilce manner as he that is born after matrimony, all the 
 bishops answered that the\' would not nor could not make answer to 
 that writ, because it was directly against the common order of the 
 church, and all the bishops instanted the lords that the}' would consent 
 that all such as were born afore matrimony should be legitimate, 
 as well as they that be born within matrimony, as to the succession 
 to inheritance, forasmuch as the church accepteth such as legitimate. 
 And all the earls and barons, with one voice, answered that they 
 would not change the laws of the realm which hitherto had been used 
 and approved." . . . 
 
 It therefore appe ars to be the just conclusion from these p remises, 
 thaTthe rule of descent to English land is, that the heir must be bora_^ 
 ' afteFactiiar marriage of his father and mother, in order to enable him 
 -^t oTtTiren l. ; and that TlTis~rs^ a^mte' of ^jDOSitTve Th flexi bl e^'na t ur^ 
 applying to, Ivnd inherent in, the land itself, which is the subject of 
 descent, of the same nature and character as thaT ruTe^which prohibited 
 tlie descent ot~ land to aiiy b;it those wbo were of the whole bjo od tq 
 the last taker, or like the custom of gavelkind or borough-English, 
 which cause"the'Tand to descend, m the one case, to all the__son3 
 togetSer r in the other, to the younger son alone. 
 
 And if such be, as it appears to us to be, the rule of law which 
 governs the descent of land in England, without any exception, either 
 express or implied therein, on the score of the place of birth of the 
 claimant, it remains to be considered whether, by any doctrine^ (jt 
 internationaTlaw,^ oj: byJJifi_.CGimJx pJ^^rttonsTT^ rule is to be letjn 
 by wli if^h R., being Jield-4o-^be4eg4timate in liis own country for all_ 
 purpo ses, must be considered as the heir-at-law in England. 
 "^ The broad propositidir"conten:ited for on the part of the plaintiff 
 in error is, that legitimacy is a personal status to be determined by tlie 
 law"bf tbe country which gives the party birth; and that, when the 
 -la^r-ofTHaL country has once pronounced him to be legitimate, he is, 
 by the comity^ oL ipternatioaal law, to be considered as legitimate in
 
 612 BIRTWHISTLE V. VARDILL. [cHAP. XI. 
 
 ever}* other country also, and for ever}' purpose ; and it is then con- 
 tended that, as by the Scotch law there is a presumptio juris et dejure, 
 that, under the circumstances supposed, the parents of B. were actually 
 married to each other before the birth of B., such presumption of the 
 Scotch law, b\- which his legitimacy is effected, must also be adopted 
 and received to the same extent in the English as in the Scotch courts 
 of justice. 
 
 Now, there can be no doubt but that marriage, which is a personal 
 contract, when entered into according to the rites of the country where 
 the parties are domiciled and the marriage celebrated, would be con- 
 sidered and treated as a perfect and complete marriage throughout the 
 whole of Christendom. 
 
 But it does not therefore follow, that, with the adoption of the 
 marriage contract, the foreign law adopts also all the conclusions and 
 consequences which hold good in the countrj- where the marriage was 
 celebrated. That the marriage in question was not celebrated in fact 
 until after the birth of B. is to be assumed from the form of the 
 question. Indeed, except on that supposition, there would be no 
 question at all. Does it follow, then, that because the Scotch hold 
 a marriage celebrated between the parents after the birth of a child to 
 be conclusive proof of an actual marriage before, a foreign country, 
 which adopts the marriage as complete and binding as a contract of 
 marriage, must also adopt this consequence? No authorit}' has been 
 cited from any jurist or writer on the subject of the law of nations to 
 that effect, — nothing beyond the general proposition that a party 
 legitimate in one country is to be held legitimate all over the world. 
 Indeed, the ground upon which this conclusion of B.'s legitimacy is 
 made by the Scotch law, is not stated to us, and we have no right to 
 assume an}' fact not contained in the question which your Lordships 
 have proposed to us. We may, however, observe that, in the course 
 of the argument at j'our Lordships' bar, the ground has been variously 
 stated, upon which the laws of different -countries have arrived at the 
 same conclusion. It was asserted that, by the law of Scotland, the 
 subsequent marriage is not to be taken to be the marriage itself, but 
 only evidence, though conclusive in its nature, of the marriage prior to 
 the birth of B. ; that the canon law rests the legitimacy of the son 
 born before such marriage upon a ground totally different, viz., that 
 having been liorn illegitimate, he is made legitimate, legitimatus, by 
 the subsequent marriage, by a positive rule of law, on account of the 
 repentance of his parents ; whereas, by the Scotch law, a marriage 
 previous to his birth is conclusively presumed, so that he always was 
 legitimate, and his parents had nothing to repent of. Pothicr, on the 
 other hand (Contrat de Marr., part. v. ch. 2, art. 2), when lie speaks 
 of the effect of a subsequent marriage, in legitimating children born 
 before it, disclaims the authorit}' of the canon law, nor does he mention 
 any fiction of an antecedent marriage, but rests the effect upon the 
 positive law of the countr}'. He first instances the custom of Troyes,
 
 SECT. 
 
 III.J 
 
 BIETWHISTLE V. VARDILL. 
 
 613 
 
 *' Les enfans n^s hors mariage De Soluto et Soluta puis que le pere 
 et la mere s'epousent I'un I'autre, succedent et viennent k partage 
 avec les autres enfans si ancuns y' a ; " and tlien adds, " tliat it is a 
 common right received throughout the whole kingdom." 
 
 Now it could never be contended by any jurist, that the law of 
 England in respect to the succession of land in England, would be 
 bound to adopt a positive law of succession like that which holds in 
 France, the distinction being so well known between laws that relate 
 to personal status and personal contracts, and those which relate to 
 real and immovable property ; for which it is unnecessary to make 
 reference to any other authority than that of Dr. Story, in his admir- 
 able Commentaries on the Conflict of Laws. (See sections 430 and 
 following, where all the authorities are brought together). And if 
 such positive law is not upon any principle to be introduced to control 
 the English law of descent, what ground is there for the introduction 
 into the English law of descents, not only of the contract of marriage 
 observed in another countr}', which is admitted to be adopted, but 
 also of a fiction with respect to the time of the marriage? that is, in 
 effect, of a rule of evidence which the foreign country thinks it right 
 to hold. 
 
 But admitting, for the sake of argument, and we are not called 
 upon to give our opinion on that point, that B., legitimate in Scotland, 
 is to be taken to be legitimate all over the world ; the question still 
 recurs, whether, for the purpose of constituting an heir to land in 
 England, something more is not necessary to be proved on his part 
 than such legitimacy ; and if we are right in the grounds on whicli 
 we have rested the first point, one other step is necessar}', namely, to 
 prove that he was born after an actual marriage between his parents ; 
 and if this be so, then, upon the distinction admitted by all the 
 writers on international law, the lex loci rei sitce must prevail, not the 
 law of the place of birth. 
 
 My Lords, in the course of the discussion, some stress appears to 
 have been placed on the argument, that if B. had died before A. the 
 intestate, leaving a child, such child might have inherited to A., 
 tracing through his legitimate parent ; and then it was asked if the 
 child might inherit, wliy might not the parent himself inherit? But 
 the answer to that supposed case appears to be, that if the parent be 
 not capable of inheriting himself, he has no heritable blood which he 
 can transmit to his child ; so that the child could not, under the 
 assumed facts, have inherited, and the question therefore becomes, 
 in truth, the same with that before us. The case supposed would 
 be governed by the old acknowledged rule of descent: "Qui doit 
 inheriter al pere, doit inheriter al fitz." 
 
 My Lords, the two decided cases that have been relied upon in the 
 course of argument, that of Shedden v. Patrick, and that of the Strath- 
 more Peerage, do not, upon consideration, create any real difficulty. 
 Those cases decide no more than that no one can inherit without bav- 
 
 ■J 
 
 / 
 
 ./- 
 
 t 
 
 y
 
 614 IN RE ANDROS. [CHAP. XI. 
 
 ing the personal status of legitimacy, — a point upon which all agree ; 
 but the}- are of no force to establish the main point in dispute in this 
 case, viz., that such personal status is sufficient of itself to enable the 
 claimant to succeed as heir to land in England. 
 
 Upon the whole, in reporting to your Lordships as the opinion of the 
 judges, " that B. is not entitled to the real property as the heir of A.,'* 
 I am bound at the same time to state, that although they agree in the 
 result, they are not to be considered as responsible for all the grounds 
 and reasons on which I have endeavored to support and to explain 
 such opinion. 
 
 Lord CoTTENHAM, Lord Chancellor. My Lords, I was not in 
 your Lordships' house when this case was first argued ; but I was 
 present at the argument when the learned judges were in attendance, 
 and I gave my attention to the opinion expressed bj' the Lord Chief 
 Justice, and I entirely concur in that opinion. I am extremely 
 satisfied with the ground upon which the judges put it, because they 
 put the question on a ground which avoids the difficulty that seems to 
 surround the task of interfering with those general principles peculiar 
 to the law of England, principles that at first sight seem to be some- 
 w^hat at variance with the decisions to which the courts have come. 
 Under these circumstances, as my noble and learned friend does not 
 move the judgment, I move judgment for the defendant in error. 
 
 Judgment accordingly} 
 
 In Ee ANDROS. 
 
 Chancery Division. 1883. 
 [Reported 24 Chancery Division, 637.] 
 
 William Andros, who died in January, 1882, by his will dated in 
 August, 1879, gave {inter alia) one-third part of his personal estate 
 to trustees '' upon trust to pay and divide the same equally between 
 such of his great nephews, the sous of his deceased nephew Thomas 
 
 1 Ace. Fenton v. Livingston, 3 Macq. 497 ; Lingen v. Lingen, 45 Ala. 410 ; "Williams 
 r. Kimball, 35 Fla. 49, 16 So. 783 ; Smith v. Uerr, 34 Pa. 167. Conversely land was 
 held to descend to persons described as heirs in the local statutes, though the}' were 
 not legitimate bv the law governing their status. Harvey v. Ball, 32 Ind. 98 ; Estate 
 of Oliver, 184 Pa. 306, 39 Atl. 72. See Leonard v. Braswell, 99 Ky. 528. 
 
 It has, however, been held in other States, under the statutes of inheritance there 
 in force, that one having a legitimate status (though illegitimate at birth) may in- 
 herit land. Scott v. Key, 11 La. Ann. 232; Ross v. Ross, 129 Mass. 243 (scmble) ; 
 Miller V. Miller, 91 N. Y. 315. So, conversely, that one illegitimate by the law 
 governing his status cannot inherit, though by the law of the situs he would be 
 legitimate, Smith v. Kelly, 23 Miss. 167. — Ed.
 
 SECT. III.] W EE ANDROS. 615 
 
 Godfrey Andros," as should survive him and attain the age of twent}-- 
 five years, in equal shares ; but he gave his said trustees absolute 
 discretion to pay to his said great nephews, or either of them, the 
 whole or an}' portion of the capital of the shares or share to which 
 the}' or he might be presumptively entitled at any time or times his 
 said trustees might consider it expedient to do so. 
 
 Thomas Godfrey Andros was a native of Guernsey, and by the laws 
 of tliat island a child born before the marriage of his parents becomes 
 legitimate upon their subsequent marriage as fully as if he had been 
 born in wedlock. 
 
 The plaintiff was the son of T. G. Andros, and he was born in 
 Guernse}' in December, 1860. In January, I860, T. G. Andros mar- 
 ried in Guernse}' the plaintiff's mother, he had four children after the 
 naarriage, and he died domiciled in Guernse}^ on the 12th of Novem- 
 ber, 1875. The plaintiff had attained twent^'-one, and the trustees of 
 the will being ready to pay him his due share of the one-third of the 
 testator's residuar}" personal estate if they could lawfully do so, the 
 question submitted for the opinion of the court was whether the plain- 
 tiff ought to be deemed to be a legitimate son of Thomas Godfrey 
 Andros, and as such entitled to share with his children born after 
 wedlock in the testator's bequest. 
 
 Kay, J. This will being an English will must of course be construe^ 
 according to Eji ajjsh law^ That l_aw requires that all wbotakp iind*^'' "^ 
 gift to son s of a named father should be legitimate oflfsprin^ . It must 
 now be treated as settled thatanv person legitimate according totHe" 
 law^oT T he dia FTr'tl" TTp ~ tTts '£.nTlixir nr, hw s,^mrTii is IpqIiIii imIh in H i yiv4 . irr -4» . 
 "witliiiTthe range of international law for tKe^prrrptTstrTTf^llDSeedlE^To^ 
 perSOUill piupuily: ' ~~- ^-"-""''^^ 
 
 I'he" well-knOwn case of Doe v. Vardill, 7 CI. & F. 895 ; 6 Bing. 
 N. C. 385 ; 9 Bl. (n. s.) 32, which introduced a distinction in tliis 
 respect in the case of a person claiming to succeed as heir to real 
 propert}' in England bv requiring sucli a person to establish his 
 legitimac}' according to Englisli law — that is, as though the father 
 had been domiciled in England at the time of the birth of the child — 
 treats this as an exceptional case and recognizes that the rule of 
 succession to personal estate is otherwise, and this has been recentl}^ 
 more expressly decided by the Court of Appeal in la re Goodman's 
 Trusts, 17 Ch. D. 266.^ 
 
 If, then, a child of a foreigner legitimate according to the law of 
 his father's domicil, though illegitimate if his father had been a domi- 
 ciled Englishman, can succeed as next of kin to personal estate in 
 England, why should he not take a bequest of personalty by the 
 description of the son of his father in the will of an English testator? 
 On principle it seems to me ver}' difficult to sa}' why he should not. 
 
 However, in Boyes v. Bedale, 1 H. & M. 798, the late Lord Hather- 
 lej in a considered judgment decided that such a person could not take 
 1 Contra LiLgeii v. Linden, 45 Ala. 410. — Ed.
 
 616 IN KE ANDROS. [CHAP. XI. 
 
 under a gift to the children of his father. The will and ever}' term 
 in it, his Lordship held, must be construed according to English law. 
 If in a Canadian will there were a gift of £100, that would mean 
 £100 Canadian currency not £100 sterling. So the testator " must 
 be taken to mean a child in the sense in which the law of England 
 understands the term." 
 
 Speaking with all deference, the illustration seems to me inapt and 
 wanting in analogy. If two countries happen to have the same name 
 for their monetary currency no one for a moment could suppose that 
 a testator in one of these using the familiar name of the currency 
 of his own country meant by that the currency of different value of 
 the foreign country which happened to have the same name ; but how 
 does it follow from this that a gift to the children of a foreigner means 
 such children only as would be legitimate if he had been a domiciled 
 Englishman? A bequest in an English will to the children of A. means 
 to his legitimate children, but the rule of construction goes no further. 
 The question remains Who are his legitimate children? That certainly 
 is not a question of construction of the will. It is a question of status. 
 By what law is that status to be determined? That is a question of 
 law. Does that comity of nations which we call international law 
 apply to tlie case or not? That may be a matter for consideration, 
 but I do not see how the construction of the will has anything to do 
 with it. The matter may be put in another way. What did the 
 testator intend by this gift? That is answered by the rule of construc- 
 tion. He intended A's legitimate children. If you ask the further 
 question. Did he intend his children who would be legitimate accord- 
 ing to Enghsh law or his actual legitimate children? How can the 
 rule of construction answer that? 
 
 Lord Hatherly considered that the bequest must be read to such 
 children as would be legitimate according to the law of England if 
 their father had been a domiciled Englishman at their birth. But 
 is that according to the English rule of construction that children 
 means legitimate children? Try it thus. Suppose the same rule of 
 construction to prevail in Guernsey, and that in the will of a Guernsey 
 testator there were a bequest to the cliildren of an Englishman. 
 According to Boyes i. Bedale, 1 H. & jNI. 798, children would mean 
 such children as would be legitimate according to the law of Guernsey. 
 By this construction coite iiafi of tlie English father would share with 
 his children legitimate according to English law, because they would 
 have been legitimate if the father had been domiciled in Guernse}', 
 though they were in fact illegitimate by English, and, of course, by 
 international law. 
 
 This would not carry out, but contravene, the rule of construction. 
 
 Vice-Chancellor Kindersley, in In )r AVilson's Trusts, Law Rep. 1 Eq, 
 247, expressed his readiness to follow Boyes r. Bedale. The facts 
 of that case, however, wore not the same. A domiciled Englishman 
 had married an Englishwoman. Pie went to Scotland, and without
 
 SECT. III.] IX RE ANDROS. 617 
 
 having a Scotch domicil he sued for and obtained a Scotch divorce, 
 which was not sufficient to dissolve the English marriage. The 
 woman then married in Scotland a domiciled Scotchman, and had 
 children by him, and the question was whether the}- could be con- 
 sidered legitimate in England. The decision of Vice-Chancellor Kind- 
 ersle}- was supported in the House of Lords (Shaw v. Gould, Law 
 Eep. 3 H. L. 55) on the ground that international law did not require 
 the English courts to recognize such a divorce, and therefore the 
 children were not by that law legitimate. 
 
 That decision does not apply, because it cannot be denied that the 
 children in this case would be recognized as legitimate, for some 
 purposes at any rate, by every other State in Christendom. 
 
 These are the two cases most nearly in point on the one side. On 
 the other there are two decisions of Vice-Chancellor Stuart, Goodman 
 V. Goodman, 3 Giff. 643, and Skottowe v. Young, Law Rep. 11 Eq. 
 474. The late Master of the Rolls observes of the former that the 
 point was not there really considered and decided. See In re Good- 
 man's Trusts, 14 Ch. D. 619. But according to the report it certainly 
 was argued, and the decision was that ante nati born in England 
 while the father was domiciled here could not take under a gift to 
 children, but that an a7ite 7iatus born in Holland when the father was 
 domiciled there might take in conjunction with the post nati b}^ the 
 same mother whom he married in that country, thus legitimatizing the 
 a?ite natus there. Skottowe v. Young was a question of legacy 
 duty, but the same point was involved. 
 
 Besides these two cases there is the analog}' which I have referred 
 to derivable from the decisions, showing that a child legitimate by the 
 law of his father's domicil may take as next of kin in a succession to 
 personal estate in England. 
 
 But in addition to these considerations there is the opinion of Lords 
 Justices Cotton and James in the case of In re Goodman's Trusts, 
 17 Ch. D. 266. The former says. Ibid. 295 : — 
 
 " In Boyes v. Bedale, 1 H. «&; M. 798, the question was on the con- 
 struction of a bequest in the will of a domiciled Englishman to the 
 children of a person named. The Vice-Chancellor held that a child 
 exactly in the same position as Hannah Pieret was not entitled under 
 the bequest. He said that the will, being that of a domiciled English- 
 man, must be construed according to English law, which, in my opinion, 
 is correct so far as to require that this word ' children ' shall be con- 
 strued 'legitimate children.' But he held that English law recognized 
 as legitimate only those children born in wedlock. This, though 
 correct as regards the children of persons domiciled in England at the 
 time of their birth, is, in my opinion, erroneous as to children born 
 of parents who at the time of the birth were domiciled in a country by 
 the law of which the children were legitimate." 
 
 Lord Justice James says, 17 Ch. D. 299: " The decision in Boyes 
 V. Bedale was on the ground that, in an Englishman's will, the children
 
 618 
 
 VAN MATRE V. SANKEY. 
 
 [chap. XL 
 
 of a nephew must mean children who would be lawful children if they 
 were English children. That seems to me a violent presumption. It 
 was an accident in that case that the testator was an Englishman. 
 But supposing it had been the will of a Frenchman, dying domiciled 
 in England, and made in favor of his French relations and their 
 children, or of liis own children, there being children legitimate and 
 legitimated, what would have been said of such a presumption and 
 such a construction?" 
 
 Tiie decision in In re Goodman's Trusts, 17 Ch. D. 266, overruled 
 the late Master of the Rolls, and was dissented from by Lord Justice 
 Lush. 
 
 This conflict of authority leaves me free to decide this case accord- 
 ing to my own opinion, which is in favor of the plaintiffs claim. 
 
 I observe that the testator describes the objects of his bounty not 
 merely as the sons of his deceased nephew Thomas Godfrey Andros, 
 but also as his own great nephews ; but that, in my opinion, makes 
 no difference. The law_of this countryjb^ the comity of nations 
 recognizes the plamtiff asl egitimate, and therefore he is as miioh the 
 l awful neT)hew^t,lio testator as he is the lawful son of J. G. Andros. 
 
 T he law, as I understand it, is that a bequest of personalty in an 
 English w ill to the children of a foreigner means to his legitima te 
 cnndren^_and_lbaliJby interaaJii^nal_Jaw^_as_recogni zed in tMs countL U. 
 t hose children are legitimate whose legitimacy is established by the 
 law of the father's domicil. Thus mUe nati whose f nther was domi- 
 cUecrTnlGn^rasev a Ltheir birthTand su bsegufp^ly niaP'''^^ ^h^ rnot.hdr 
 so n9^U2_mf^kp^J }^p^ JJMte ouiti Ip gitimflte by the law of Gucr nspyr ^'^'^^ 
 "recog nized as leg itimp^^ by thp law of this country, a nd can take 
 under such a gift.^ 
 
 VAN MATRE v. SANKEY. 
 Supreme Court of Illinois. 1893. 
 
 [Reported 148 Illinois, 53(5.] 
 
 Mary F. Van Matre filed her bill in chancery in the Cook County 
 Circuit Court, alleging that she and others named in the bill, including 
 Caroline C. Sankey, were the heirs-at-law of Samuel Sankey, who died 
 intestate in November, 1886, without issue or widow surviving him, 
 and seized of certain lots and lands in said county, of which partition 
 was sought among said collateral heirs of said decedent. The bill also 
 set up that appellant Henry L. Glos and others claimed some interest 
 in certain of the lands under tax deeds which were alleged to be void, 
 and were asked to be removed as clouds upon the title of complainant 
 and her co-heirs. 
 
 Caroline C. Sankey answered the bill, denying tliat others were inter- 
 1 Ace. In re Grey's Trusts, [1892] 3 Ch. 88. — Ed.
 
 SECT. III.] VAN MATEE V. SANKEY. 619 
 
 ested in said land and lots, and claiming title in fee to the whole, as 
 heir-at-law of the said Sanke}', and filed her cross-bill, alleging that by 
 virtue of certain adoption proceedings in the court of common pleas of 
 Lycoming County, Pennsylvania, she was ndnpt.p d by 'imVI Simnnl -» 
 S ankev. deceased, on the 2d day of J anuar}', 1879, and that said 
 S ankey having died without issue, and leaving no wido w him surviving, 
 his estate descended to her as heir-at lj ,w^ The cross- bill also allegec? 
 tEaTsaid GIos and others held certain tax deeds which were a cloud 
 upon her title, and alleging in the cross-bill, as amended, certain de- 
 fects therein, and praying that the same be removed as a cloud, etc. 
 
 Upon the issues joined upon the original and cross-bills, the court 
 found and decreed in accordance with the praj-er of the cross-bill ; dis- 
 missing the original bill ; finding that the tax deeds alleged were void, 
 and upon the terms of payment b}- complainant in the cross-bill, of the 
 taxes for which the tracts were severally' sold, interest and costs, etc., 
 removing them, severally, as clouds, etc. From the decree dismissing 
 the original bill and quieting the title in the complainant in the cross- 
 bill, Mary F. Van Matre appeals, and from so much of the decree as 
 finds the several tax deeds void and clouds, etc., the said Henry L. 
 Glos appeals.^ 
 
 Shope, J. It is insisted that the decree of adoption, although valid 
 in the State of the domicil of the child, and, 2)ro tempore, of the person 
 adopting her, cannot affect the descent of real property in Illinois, and 
 McCartney v. Osburn, 118 111. 403, is cited as supporting that conten- 
 tion. This is a misapprehension of the case cited, as well as of the 
 effect of the decree of adoption. In the Osburn Case the courts of 
 Pennsylvania had given construction to clauses of a will as affecting 
 property situated in that State, and the question was, whether the par- 
 ties were estopped, by the construction there given, in proceedings in 
 this State affecting real property in this State. It was held that they 
 were not, and that the courts of each State must construe the will, as 
 affecting lands within their respective jurisdictions, for themselves, and 
 might do so as if the several properties were devised by separate wills, 
 ^e real property passed under the law of its sit us, a nd not by the law_ 
 oT^iti d u micil of the te stator, aMtEerefore'the will must be constrjiecj^^ 
 under the laws of this S tate, and that construction control its disposi- 
 
 tion. T hat case was expressl}^ distinguished from Hannartr1Kea37l02 
 111. 596, and like cases, in which it is held that the right to re-litigate 
 is concluded by the former adjudication. 
 
 The proceeding in this case was in the nature of a proceeding in 
 rem, the purpose being to change the status of the child in her relation 
 to said Samuel Sankey. The decree of adoption was a declaration by 
 competent authority, operative to change her status, and, ipso facto, to 
 render her that which she was declared to be, — the heir-at-law of 
 Samuel Sankey, — and capable of inheriting from him, in all respects, 
 as if she had been his child born in lawful wedlock. 2 Black on 
 1 Part of the statement of facts and part of the opinion are omitted. — Ed.
 
 520 VAN MATRE V. SANKEY. [CHAP. XL 
 
 Judgments, 792, et seq. The statute under which the adoption pro- 
 ceedings were had, provides that the child shall be decreed to take the 
 name of the adopting parents, '' and have all the rights of a child and 
 heir of such adopting parents, and be subject to the duties of such 
 child." The decree, by force of this statute, established, eo instanti 
 its rendition, the relation of parent and child, imposed upon the parties 
 the reciprocal duties and obligations of that relation, and impressed 
 upon and invested the child with the rights and qualities of a child 
 and heir-at-law of Samuel Sankey. This we understand to be the 
 construction of the statute by the courts of that State. Wolf's Appeal 
 (Pa.) 13 Atl. 760. The^ status_of_aj>pellee havingjje en pstnhlishpd nn- 
 (j er and existing by v irtue of jbe lex dnmiriUi. is to be rP(^o<yni/ed and 
 upheld in eve n- other State, unle ss, such stat us, or the^ jights flow ing 
 therefro m, are inconsistent with or opposed to the laws and policy o f 
 the State where itj3_joughLtoj2fi_av ailcd of: 
 
 This court,TirKeegan v. Geraghty, 101 III. 26, quoted with approval 
 the language of Mr. Justice Gray in Ross v. Ross, 129 Mass. 243, as 
 follows: "It is a general principle that the status or condition of a 
 person, the relation in which he stands to another person, and by 
 which he is qualified or made capable to take certain rights in that 
 other's property, is fixed by the law of the domicil, and this status and 
 capacity are to be recognized and upheld in every other State, so far 
 as they are not inconsistent with its own laws and policy," and the 
 principle announced, with its limitation, was expressly approved. 
 Roth V. Roth, 104 111. 348. In the Keegan Case, suimi, the child, 
 adopted under the laws of Wisconsin, sought in this State to take, not 
 from the adopting parent, but from collaterals and by representation. 
 This court expressly recognized the status established in Wisconsin, so 
 far as it related to the right to inherit from the parent by adoption, 
 because consistent with the laws of this State relating to descent to 
 adopted children, but denied the right to take by representation from 
 collateral kindred of the parent, for the reason that such taking was 
 prohibited by and inconsistent with the laws of this State. Rev. Stat, 
 sect. 1, par. 5, chap. 39. No inconsistency with our laws or their 
 policy exists in this case. The rights claimed under and by virtue of 
 the adoption in Pennsylvania are tliose, and none other, that would 
 exist upon the creation of the same artificial relation in this State. 
 
 We are of opinion, therefore, that upon the death of Samuel Sankey 
 without other children, the estate in Illinois descended to appellee, 
 Caroline C. Sankey, as his child and heir-at-law, and that the court 
 correctly decreed in dismissing the original bill. 
 
 Decree affirmed} 
 
 1 Ace. Grav v. Holmes, .^)7 Kan. 217, 45 Pac. ^^f> \ Ross v. Ross, 120 Mass. 243 ; 
 Melvin v. Martin, 18 R. I. 650, 30 Atl. 467. See Stoltz v. Doering, 112 III. 234. 
 — Ed.
 
 SECT. IV.] NUGENT V. VETZERA. 621 
 
 SECTION IV. 
 
 GUARDIANSHIP OF THE PERSON. 
 
 NUGENT V. VETZERA. 
 
 Chancery. 1S66. 
 
 [Reported Law Ecports, 2 EquiUj, 704.] 
 
 Motion on behalf of the defendant, Albin Vetzera, that an order 
 appointing the plaintiff Mrs. Nugent and her husband, and the Coun- 
 tess Gifford, as guardians of the infant plaintiffs during their respective 
 minorities, might be discharged, and that such guardians might be 
 ordered to deliver up the infants, who were Austrian subjects, to the 
 custody of Signor Vetzera, their guardian duly constituted by the Im- 
 perial and Royal (Austrian) Consular Court at Constantinople ; and also 
 on behalf of the infant defendants, that an order directing tliat plain- 
 tiffs should be at liberty to serve the bill upon them out of the jurisdic- 
 tion, might be discharged. 
 
 The facts were shortly as follows : — 
 
 The father of the infant plaintiffs and defendants, Signore Theodore 
 Baltazzi, was a Greek by birth, but an Austrian subject, and carried on 
 the business of a banker at Constantinople until his death in June, 1860. 
 By his wife, who was an Englishwoman, and a member of the Church 
 of England, he had ten children, all of whom survived him and were 
 still under twenty-four, the age of majority according to the Austrian 
 law. Signor Baltazzi died intestate, and administration of his estate, 
 which was very considerable, was granted to his widow by the Austrian 
 Consular Court at Constantinople, and she, and Etienne Mavrocordato, 
 were also appointed by that tribunal guardians of the persons of the 
 intestate's infant children. 
 
 Early in 1863 Madame Baltazzi contracted a second marriage with 
 Mr. Alison, Her Britannic Majesty's envoy in Persia, and about the 
 same time Etienne Mavrocordato resigned his office of guardian, upon 
 which Signor Albin Vetzera (the defendant now moving), the secre- 
 tary to the Austrian Embassy at Constantinople, was appointed one of 
 the guardians in his place. Upon the death of their mother, Mrs. 
 Alison, in December, 1863, Epaminondas de Baltazzi was appointed 
 guardian of the children in her place. In July, 1865, Epaminondas de 
 Baltazzi resigned his office of guardian, partly (as it was alleged) from 
 differences between himself and Albin Vetzera as to the management 
 of the children and administration of the intestate's property, of which 
 they were joint " curators " or trustees, but principally from his being 
 unable to comply with the direction of the Consular Court ordering 
 him to fix his residence at Vienna for the purpose of having the chil- 
 dren educated there.
 
 622 NUGENT V. VETZERA, [CHAP. XI. 
 
 On the 24th of July, 1865, the resignation of de Baltazzi was ac- 
 cepted, and by a decree of the Austrian Consular Court of the same 
 date, Vetzera was appointed sole guardian of the children, with a direc- 
 tion that they should be brought up in the religion of their father, and 
 sent as soon as possible to Vienna " in order to receive their education 
 in that city, the onl}' mode of awakening and consolidating the senti- 
 ments of faithful Austrian subjects." 
 
 It appeared that Madame Baltazzi was alwa\s most anxious that her 
 children should receive an English education, and, with the consent of 
 her husband, they were all brought up as members of the Church of 
 England. Two of the girls were sent to school in England during his 
 lifetime, and in 1861 the eldest bo}' was sent over to this country, and 
 in 1862, after the marriage of the eldest daughter to Mr. Nugent, a 
 gentleman living in London, two more boys and two of the girls were 
 brought over from Constantinople to P^ngland under the care of Count- 
 ess Gifford, and were now being educated in this country, spending 
 their holidays with their married sister, Mrs. Nugent. 
 
 The state of the famih', and the ages and residences of the children 
 at the time of filing the bill (December, 1865) will appear from the 
 following tabular statement : — 
 
 Mesidi'tig in Englanxl. 
 
 Mrs. Nugent, the plaintiff, who was married in 1862 to Albert 
 
 Llewellyn Nugent (a nephew of Field Marshal Count Nugent) . 23 
 
 Alexandre (now at Eton) 16 
 
 Hector (at Rugby) 15 
 
 Aristides (preparatory school at Cheam) 14 
 
 Eveline fat Mrs. Watson's school in Gloucester Crescent, | 12 
 
 Charlotte \ Hyde Park ) 11 
 
 Hesiding at Constantinople. 
 
 Helen (wife of Signor Albin Vetzera) 19 
 
 Mary 17 
 
 Henry 8 
 
 Julia 5 
 
 After the resignation of Epaminondas de Baltazzi, Mrs. Nugent 
 petitioned the Consular Court, but without success, for the appoint- 
 ment of licrself as guardian over her itifant brothers and sisters, and 
 in the meantime Vetzera announced his intention of removing one of 
 the bo3'8 and the two girls from England, and sent over a confidential 
 female servant to take care of them during their journey to Constanti- 
 nople. Mr. and Mrs. Nugent refused to let the children go, and act- 
 ing upon the circumstance that a portion of the intestate's estate 
 (£160,000) was invested in consols and in India 5 per cents, they 
 had, on the 2d of December, 1865, filed this bill for the purpose of
 
 SECT. IV.] NUGENT V. VETZERA. 623 
 
 making the infants wards of court, securing the trust funds in this 
 countr\' for their benefit, and having guardians appointed, and a proper 
 scheme for their maintenance settled by the court. 
 
 On the 13th of December, 1865, an order was obtained for service of 
 the bill upon the defendants out of the jurisdiction, viz. : Albin and 
 Helen Vetzera, the three infants, Mary, Henry, and Julia Baltazzi, liv- 
 ing with them at Constantinople, and Mr. Gilbertson, who was one of 
 the trustees of Mrs. Nugent's marriage settlement. 
 
 On the 19lh of December, 1865, an order was obtained appointing 
 Mr. and Mrs. Nugent and the Countess Gifford guardians of the infant 
 plaintiffs, and giving liberty to serve a copy of the order upon the 
 defendant Albin Vetzera at Constantinople. 
 
 Against these orders the present motion was made on behalf of the 
 defendant Albin Vetzera. 
 
 In the meantime, on the 22d of December, 1865, an order was made 
 b}' the Austrian Consulate, on the petition of Vetzera, authorizing hira 
 to suspend all further payments of the allowance to the infants for the 
 purpose of their education in England, until thev should have been put 
 under the control of their guardian, and also of Mrs. Nugent's allow- 
 ance, until she should have ceased to interfere in the affairs of the 
 guardianship. 
 
 Against this order, and that, by which her petition, that she might 
 be appointed guardian, was refused, Mrs. Nugent had appealed to the 
 Supreme Court of Vienna. 
 
 In his affidavit filed in support of the present motion, the defendant 
 Vetzera stated that he was dissatisfied with the progress made by 
 Eveline and Charlotte with their schoolmistress, and also that he con- 
 sidered it to be his dut}" as guardian to obey the directions of the Aus- 
 trian Consular Court, and remove the infants from England. For that 
 purpose he had made arrangements that Eveline and Charlotte should 
 reside with himself and his wife at Constantinople, and a competent 
 governess for their education at his own house was already engaged. 
 With regard to the boys, he proposed to place one of them (Hector) 
 with a gentleman and his wife, of the liighest respectability, residing 
 in Austria, but stated that he had no present intention of removing 
 Alexandre and Aristides from where they now were, though he con- 
 sidered it of the greatest importance that the boys " should have the 
 advantage of an Austrian education, to qualifv them hereafter for that 
 position to which, frorn their rank and fortune, they would as Austrian 
 subjects in Austria naturally aspire." 
 
 Evidence was also given as to the jurisdiction over infant Austrian 
 subjects exercised by the Austrian courts, and b}' them committed to 
 the guardians. 
 
 The affidavits on behalf of the plaintiffs in favor of keeping the chil- 
 dren in P^ngland, need not be stated in detail, as the}' were directed to 
 the superiority of an P^nglish public school education, and English 
 associations, over education at Constantinople, or even at Vienna.
 
 624 NUGENT V. VETZERA, fCHAP. XI. 
 
 Attention was also called in the affidavits to the strongl}' expressed 
 and acted upon wish of the mother that the children should be brought 
 up in England.^ 
 
 Wood, V. C. As regards the more important matter in this case, 
 a question of very great importance, but I think really of small dif- 
 ficulty, is raised. Having regard to the principles of international 
 law, and the course that all courts have taken of recognizing the 
 proceedings of the regularly constituted tribunals of all civilized com- 
 munities, and especially of those in amicable connection with this coun- 
 try, it is impossible for me entirely to disregard the appointment of a 
 guardian by an Austrian court over these children, wlio are Austrian 
 subjects, and children of an Austrian father, merely because those who 
 preceded Signor Vetzera in his guardianship have taken the course of 
 sending the children over to this country for the purpose of educating 
 them, seeing that he is now desirous of revoking that arrangement. I 
 am now asked in effect to set aside the order of the Austrian court, 
 and declare that this gentleman so appointed cannot recall his wards 
 who have been sent to this country' for the purpose of their education. 
 It woul d be fraught with consequences o fjv^ry serious difficult}', and^ 
 coiit i-ary t o. nJl priiv-'pi^g nf rigiii-. and justice, if this court w ere to hold 
 fliatwhen a pa rent or guardian (for a gu ardia n stands e xactly in the. 
 rrTnTojn^lMli n n^< a pa ren t) i n n f oroi^jn country nvnils hiiiiselfofthe 
 •^portunityjo r educati oji afforded by this counUy, and sends ji is chjl - 
 — Tifen over heraJiieLniust do it^-at the risk of never being able to recall 
 
 Them, be caus e^ this court might b^ of opinion that an English.couraejaf 
 educati on is bette r than that adopted in the coiintry ta.whicJj-they be- 
 lon^] r~cannot conceive anything more startling than such a notion, 
 which would involve on the other hand this result, that an English 
 ward could not be sent to France for his holidays without the risk of 
 his being kept there and educated in the Roman Catholic religion, with 
 no power to the fatiier or guardian to recall the child. Surelj' such a 
 state of jurisprudence would put an end to all interchange of friendship 
 between civilized communities. What I have before me is nothing 
 more or less than that case. 
 
 Now. it appears to me plain, that I must take these children as re- 
 maining in this country only with the sanction of Signor Vetzera, and 
 without any interference on the part of the Austrian court. Then at a 
 proper time he wishes to recall them from England. Of course if there 
 had been no application to tliis court no one can doubt the course 
 which things would have taken. lie being sole guardian, when he 
 thought the children had been long enough at school in England would 
 take them, if he thought fit, from this country and they would be 
 removed. 
 
 [His Honor, after stating the filing of the bill and tlie appointment 
 of guardians in England who wished to retain the children in this coun- 
 try, continued : — ] 
 
 1 Arguments of counsel arc oniitted. — Ed
 
 SECT. IV.] ISIUGENT V. VETZERA. 625 
 
 This application being made, it is now souglit to prevent Signer 
 Vetzera from removing tlae children so sent to this country for their 
 education, on the plea that this court has appointed guardians here in 
 England (for which the jurisdiction is not to be disputed), and that 
 having so appointed them, the court will do no more than look at what 
 is most for the benefit of the int'ants. 
 
 Lord Bute's Case, 9 H. L. C. 440, is cited for the purpose of showing 
 that I ought, if satisfied that it is more for the interest of the infants 
 that they should remain here than be sent back to their own country, to 
 supersede the authority of the foreign guardian and the authority of 
 the court that has appointed him, which takes care of the education of 
 its own subjects, and directs how it shall be carried into effect. It 
 appears to me that no doctrine of that kind was in any way propounded 
 in Lord Bute's Case, and certainly the other authority referred to, of 
 Dawson v. Jay, 3 D. M. & G. 764 (called the American case), has no 
 bearing upon the subject. Lord Cranworth there puts his decision on 
 the ground that the child turned out to be a British subject, and that 
 he had no authority to send a British subject out of the realm. In 
 Lord Bute's Case the young marquis was a subject of the United King- 
 dom, and had very large property in England as well as in Scotland, 
 and the question was, between the English and Scotch guardians, to 
 which class the Crown, as parens j^atrm, having full power to deal 
 with the matter, should assign him. Can that be compared with a case 
 in which the question is, whether I, sitting here as a judge in this 
 country, am to decide whether or not the courts of the Emperor of 
 Austria have rightly decided upon the mode in which they wish their 
 subjects to be educated? The proposition is entirely beyond all reason, 
 and this court would be exceeding very largely the judicious exercise 
 of the powers which every tribunal has in an independent country over 
 those who may be within its control and jurisdiction, if it attempted to 
 form a judgment whether or not it was more expedient that these chil- 
 dren, who are Austrian subjects, should be brought up in England 
 rather than in Austria. The case apparently nearest in principle, per- 
 haps, though not, on examination, to be compared with it, is that in 
 which a Roman Catholic parent abandoning his child to Protestant 
 instruction for several years, has sought to change its course of educa- 
 tion and bring it back to his own form of religion. There the court 
 would not allow the child's religious principles to be disturbed by 
 changing the course of Instruction unde'r which it had so long been 
 allowed to remain, holding that the father had, in effect, abandoned 
 his right of choice. But that is not the case here. I see nothing on 
 the facts to induce me to suppose that either this gentlemen as guar- 
 dian, or the courts of Austria, in exercise of their rights over their own 
 subjects, have at all abandoned these children, merely because they 
 have allowed them to be educated for some four or five years in this 
 country, where it was thought they could best be educated. To hold 
 otherwise would render it most unwise for any foreign country to send 
 her subjects to this country, as this court might say that the Queen of 
 
 40
 
 626 NUGENT V. VETZERA. [CHAP. XI. 
 
 England, a,s pare7is patrice^ can see to the education of children better 
 than the Emperor of Austria, as parens patrice within his own domin- 
 ions, can. The same authority which we claim here on behalf of the 
 Crown as parens patrice^ is claimed by every other independent State, 
 and should not be interfered with except on some grounds which I do 
 not think it necessary to specify, guarding myself, however, against 
 anything like an abdication of the jurisdiction of this court to appoint 
 guardians. With respect to the English guardians of these children I 
 hold that the court has power to appoint them, and I continue those 
 that have been appointed. The case may well happen of foreign chil- 
 dren in this countr}' without an}' one to look after or care for them, or 
 who may require the protection of this court to save them from being 
 robbed and despoiled b}^ those who ought to protect them. These 
 children, on the other hand, seem to have met with nothing but kind- 
 ness from their relations on all sides, but it ma}- be desirable that, so 
 long as they remain in this countr}-, they should have the protection of 
 guardians living within the jurisdiction. Out of respect to the autho- 
 rity of the Austrian courts, by which this gentlemen has been ap- 
 pointed, I reserve to him, in the order I am about to make, all such 
 power and control as might have been exercised over these children in 
 their own country' if they were there, and had not been sent to Eng- 
 land for a temporar}' purpose. Taking that view of the case 1 have 
 not asked to see the children. I could not be influenced by anything I 
 might hear from them. I assume that they are most anxious to remain 
 here, and not to go back to their own country, but I have no right to 
 deprive the guardian appointed b}' the foreign court over them of the 
 control which he has lawfully and properly acquired, has never relin- 
 quished and never abandoned, and under which authoritj* alone they 
 have remained here, and been maintained and supported here. 
 
 As regards the service of the bill on those children who are out of 
 the jurisdiction, I must take it on the present bill, as no demurrer has 
 been filed, that the order has been properly made. It is alleged that 
 all the debts, funeral, and testamentary expenses of the testator have 
 been paid, that part of his property is invested in this countr}-, and 
 that by the law of Austria these funds are divisible in given shares 
 among the plaintiffs, and other children abroad wlio are interested in 
 them, and therefore it has been tliought right that they should be 
 served with a cop}' of the bill, in order tliat they ma}- come in in re- 
 spect of their interest in the stock. I should be the more indisposed to 
 disturb that order, as it is not asked to grant any proceeding against 
 them, but that tliey should come in upon their common interest with 
 the plaintiffs. I think, therefore, as things stand on the present state 
 of the record, tliat I am not at liberty to discharge that order, and it 
 follows, as a mere matter of course, that I ought to appoint a guardian 
 ad liteyn for the purpose of answering.^ 
 
 1 Compare Dawson u. Jay, 3 D. M. & G. 764 ; Johnstone v, Beattie, 10 CI. <i F. 150 ; 
 Stuart V. Marquis of Bute, 9 H. L.C. 440. —Ed.
 
 CHAP. Xll.j WATERS V. BARTON. 627 
 
 CHAPTER Xn. 
 PROPERTY. 
 
 WATERS V. BARTON. 
 
 Supreme Court of Tennessee. 1860. 
 [Reported 1 Coldwell, 450.] 
 
 McKiNKET, J. The complainant, Elizabeth, is the cnl}^ child of 
 David A. Barton, who died in Texas, in December, 1844, leaving 
 the complainant, his only distributee, then an infant of about eleven 
 months old. 
 
 This bill was filed originally, in the name of her next friend, to re- 
 cover two slaves, named Henry and Mack, claimed to have been the 
 property of said D. A. Barton, who died intestate. 
 
 The allegations and proof, in regard to the ownership of said slaves, 
 by David A. Barton, is contradictory. For the complainants, it is 
 alleged that Joshua Barton, the father of David A., made a parol gift 
 of the slaves to him. The defendants deny the gift, and allege that 
 the slaves were merely loaned by the father to his son, for the period of 
 two years, at the expiration of which time they were to be returned. 
 
 The proof shows, that in September, 1842, the intestate, David A., 
 whose residence was in Texas, was on a visit to his father's family, who 
 resided in Cannon County, Tennessee, and that, about to return home, 
 Joshua Barton, his father, placed said two slaves in his possession, 
 to take with him to Texas; that he did take them with him to his 
 home, in Texas, where he arrived about the 15th of October, 1842; 
 and that he retained possession of the slaves, and claimed them as his 
 own property, from that date until his death, which happened on the 
 20th December, 1844, being a period of more than two years ; and 
 that after his death, they came into the possession of the adminis- 
 trator of his estate, who delivered them into the custody of the guar- 
 dian of the complainant, with whom they remained until November, 
 1845, when by the procurement of Joshua Barton, they were enticed 
 away and brought to Tennessee, and taken possession of by Joshua 
 Barton, who claimed them as his property; and who, shortly after- 
 wards, delivered the slave, Mack, into the possession of his son-in-law, 
 the defendant, Ramsey, who still has him in his possession ; and at a
 
 628 WATERS V. BARTON. [CHAP. XII. 
 
 later period, he disposed of Henry, to his son, the defendant, William, 
 who still retains him. 
 
 Joshua Barton died in the spring of 1858 ; the defendant, William, 
 is the personal representative of his estate, and the other defendants 
 are the legatees and devisees under his will. 
 
 We do not deem it necessary' to comment upon the conflicting testi- 
 mony, in detail, with the view of sustaining our conclusion as to its 
 effect. Suffice it to say, that upon a review of all the evidence, and more 
 especially the declarations of Joshua Barton, as proved by Stokes and 
 Farmer, at the time the slaves were brought back from Texas, in Novem- 
 ber, 1845, the preponderance of the proof, in our opinion, is, that the 
 transaction was a gift, and not a loan, of the slaves, by Joshua Barton, 
 to his son, David A. 
 
 This brings us to the question of law, arising upon the facts stated ; 
 namely : Whether or not, under the Statute of Limitations of Texas, 
 David A. Barton acquired such a title to the slaves as will entitle the 
 complainants, suing in his right, to recover them in the courts of this 
 State. 
 
 By the Statute of Texas, suit must be commenced, in a case like this 
 present, " witliin two 3ears, next after the cause of such action, or suit, 
 and not after." See Plartley's Dig., Art. 2377; and this statute " ap- 
 plies no less to foreign than to domestic claims." lb., Art. 2398. 
 
 In the construction of this statute, it has been declared by the Su- 
 preme Court of that State, that its efl'ect is, not only to bar the rights 
 of action of the former owner, but also to extinguish his right ; and to 
 vest the right of property absolutel}- in the adverse possession, so that 
 if, after the bar had been completed, the former owner should regain 
 the possession, the possessor might maintain an action against him for 
 the recovery of the propert}'. See 9 Tex. Rep. 123. 
 
 For the defendants, it is insisted, that, inasmuch as by the statute of 
 this State, where the suit is brought, an adverse possession of three 
 years is required to give title, under a void parol gift of slaves, our own 
 law, and not that of Texas, must govern tl;e decision of the case. 
 
 The counsel on both sides refer to Story's Conflict of Laws, § 582 ; 
 but they differ in their understanding of the import of that authority. 
 
 The counsel for the defendants admit that if both parties had been 
 resident within the jurisdiction of Texas, during the whole period pre- 
 scribed by the law of that State, to complete the bar, the title thus 
 acquired by the possessor might be set up by the complainants, in our 
 courts, in the present case, and a recovery of the slaves be effected by 
 force thereof. 
 
 But, forasmuch as .Joshua Barton was a resident of Tennessee, and not 
 subject to tlie jurisdiction or laws of Texas, during the jieriod the slaves 
 were in adverse possession of David A. Barton, in that State, it is de- 
 nied that any such effect can be predicated of the statute of tliat State. 
 IMr. Story put this case : Suppose personal property is adversely held 
 in a State, for a period beyond that prescribed l)y the laws of that
 
 CHAP. XII.] WATEKS V. BARTON. 629 
 
 State ; and after that period has elapsed, the possessor should remove 
 into another State, which has a longer period of prescription, or is with- 
 out any prescription, could the original owner assert a title there against 
 the possessor, whose title, by the local law, and the lapse of time, had 
 become tinal and conclusive before the removal? It has certainlv been 
 thought, says the author, that, in such a case, the title of the possessor 
 cannot be impugned. See section 582 and cases referred to in note 2. 
 
 The case supposed above, as we understand the author, is, in prin- 
 ciple, precisely the present case. Every sovereignty possesses the 
 undoubted power to regulate the rights of property situate within 
 its own jurisdiction. 
 
 It may limit all rights of action to certain prescribed periods, and 
 ma}' ordain that, after the expiration of the periods thus prescribed, 
 not only the right of action, but the claim or title likewise, shall be 
 extinguished. 
 
 And if a positive title to property be then acquired and perfected by 
 the local law of the place, where situate at the time, upon what sound 
 principle can it be maintained that such title can be effected or defeated 
 by the removal of the property to another country, by the possessor, or 
 by its removal bj' another, without his consent? 
 
 In such a case, can it be material whether or not the former owner 
 was resident within the jurisdiction, by whose local law the possessor 
 had become vested with an absolute title to the property ? If it be said 
 that the former owner, by residing within the jurisdiction, during the 
 period prescribed, voluntarilj- subjected himself to the operation of the 
 local laws of the place, and therefore cannot complain that his right is 
 taken away by those laws, as the result of his own laches, may it not be 
 said with quite as much reason, and force of argument, that, by know- 
 ingly suffering his property to be taken, and to remain within the 
 jurisdiction, during the period prescribed b}- the local law, he thereby 
 voluntarily subjected his property and rights to the operation of such 
 local laws ? 
 
 In the latter case, as much as in the former, the loss of his right is 
 the result of his own laches. 
 
 Our conclusion, therefore, is, that under the law of Texas, the title 
 of Joshua Barton — though not a resident of that State — was extin- 
 guished, and the title perfected in David A. Barton ; and that the title 
 thus acquired may be set up b}- the complainants, in the courts of this 
 State, against those claiming thb slaves, by the subsequent disposition 
 of them made by Joshua Barton. 
 
 Decree affirmed} 
 
 Ace. Shelby v. Guy, 11 Wheat. 361 ; Eabun v. Rabun, 15 La. Aun. 471 ; Sessions 
 V. Little, 9 N. H. 271 ;" Sleeper v. Pa. R. R., 100 Pa. 259. —Ed.
 
 6S0 EDGERLY V. BUSH. [CHAP. XII. 
 
 EDGERLY v. BUSH. 
 Court of Appeals, Kew York. 1880. 
 
 [Reported 81 New York, 199.] 
 
 This action was brought for the alleged couversion of a span of 
 horsus. 
 
 The facts, as found b}' the referee, are as follows : — 
 One Stephen Baker was born in Lower Canada and resided there till 
 1873. In that year he went to Moriah, in New York, engaged there in 
 business and resided there. While a resident of Moriah he executed 
 to the plaintiff, a resident also of Moriah, on the 9th day of March, 
 1875, a chattel mortgage on property including the span of horses in 
 question. This mortgage was duly filed March 10, 1875. The sum 
 was payable in monthly instalments, the first payment to be made 
 June 1, 1875. The mortgage contained a clause that in case of non- 
 payment, or in case the mortgagor or any other person should remove, 
 secrete, or dispose of the property, or if the mortgagee deemed it neces- 
 sary, he might take possession, otherwise the property was to remain in 
 the mortgagor's possession until the time for the first payment. No 
 part of the sum secured has ever been paid. On the 10th of Ma}-, 1875, 
 Baker returned to Lower Canada, taking the property with him, and there 
 he has resided ever since. In November, 1875, at St. Jean Chrysos- 
 tom, in Lower Canada, one Francis De Lisle, of that place, a regular 
 trader, dealing in horses, sold the horses in question to one Bromley, a 
 resident of Plattsburgh, in this State. Bromley made the purchase in 
 good faith and in ignorance of the plaintiff's claim. The horses were in 
 De Lisle's possession at the time and were at once delivered to Bromley 
 and immediately broiTght by him to Plattsburgh. It does not appear 
 how the horses came into the possession of De Lisle. On the 10th of 
 December, 1875, Bromley learned that the plaintiff claimed to have a 
 mortgage on the horses. To prevent their seizure, by the plaintiff, he 
 immediately removed them to Canada for the purpose of trading back 
 with De Lisle. On the 13th of December, 1875, in Canada, Bromley 
 sold the horses to the defendant. At that time the defendant was a 
 resident of this State. The horses in question remained in Canada, 
 and since then they had not been brought into this State up to the time 
 when tliis action was commenced. The defendant was informed by 
 Bromley that he had run the horses into Canada to avoid a claim or 
 seizure under a mortgage. PlaintilT made a demand for the horses but 
 defendant refused to deliver. Plaintiff did not reimburse, or oflTer to 
 reimburse to defendant, the amount paid by him or by Bromley for the 
 horses. L'^nder the laws of Lower Canada, if an article of personal 
 property, lost or stolen, be sold in a fair or market, or at a public sale, 
 or purchased from a trader dealing in similar articles, the owner can-
 
 CHAP. XII.] EDGERLY V. BUSH. C3T. 
 
 not reclaim it without reimbursing to the purchaser the price paid 
 by him.^ 
 
 FoLGER, C. J. This is an action for the conversion of chattels. It 
 is clear that if the plaintiff had the title to them, or the right to take 
 immediate possession of them, the defendant exerted such dominion 
 over them as was in law a conversion of them. It is also clear that 
 the plaintiff had the title to the property by the laws of this State, and 
 the right to the immediate possession of it. 
 
 The defendant must make his defence, if he may at all, upon a title 
 got by Bromle}' from De Lisle, to which he has succeeded. De Lisle 
 was a resident of Canada, and a trader dealing in articles like the prop- 
 erty in contest, and had actual possession of this property there as the 
 proprietor of it. Bromley bought it of him in good faith, gave value for 
 it, and had not actual notice of the plaintiff's right to it. The plaintiff 
 has never reimbursed to Bromley or to the defendant the price paid for 
 it b}' Bromley, nor has he offered so to do. 
 
 We think that these facts make a title in Bromley that the law of 
 Lower Canada would uphold in that jurisdiction. We deem it un- 
 necessary to go into the detail of the interpretation. The questioa 
 remaining is, which law is to prevail in determining this contest — 
 that of Lower Canada, or that of this State? 
 
 We take note that the plaintiff, and Baker from whom the plaintiff 
 got title, were residents of this State when the transfer was made be- 
 tween them ; that it was a transfer of property which was then here, 
 whence it was taken witliout the consent of the plaintiff; that the trans- 
 fer was made by mutual consent, and was executed and valid here ; that 
 the consideration for the transfer existed and passed here ; that the 
 plaintiff and defendant were and are residents of this State ; and 
 that the forum in which they stand is here. Thus the law of the dom- 
 icil, and the law of the then situs of the property, and the law of the 
 forum in which the remed\- is sought, all concur to sustain the right of 
 the plaintiff. The law of the domicil of the owner of personal property, 
 as a general rule, determines the validity of ever^- transfer made of it 
 b}' him. B3' that law, as it exists in this case, the plaintiff became the 
 owner of this propeitj' before it was taken beyond its operation. Bv 
 that law, too, an owner of property may not be divested of it without 
 his consent, or b}' due process of law ; plainly not by a dealing with 
 it by others without his knowledge, assent, or procurement. Still, 
 another State may make provision by statute in respect to personal 
 propert}' actually within its jurisdiction. Though a transfer of personal 
 property-, valid b}- the law of the domicil, is valid everywhere as a gen- 
 eral principle, there is to be excepted that territory in which it is 
 situated and where a different law has been set up, when it is necessary 
 for the purpose of justice that the actual situs of the thing be examined. 
 Green v. Van Buskirk, 7 Wall. 139. Yet the statutes of that land 
 have no extraterritorial force proprio vigore, though often permitted 
 i Arguments of couusel are omitted. — Ed.
 
 632 EDGERLY V. BUSH. [CHAP. XII. 
 
 by comity to operate in another State for the promotion of justice, 
 where neither the State nor its citizens will suffer an}- inconvenience 
 from the application of them. The exercise of comit}' in admitting or 
 restraining the application of the laws of another countr}' must rest in 
 sound judicial discretion, dictated b}' the circumstances of the case. 
 Per Parker, Ch. J., Blanchard v. Russell, 13 Mass. 6. It is plain 
 that on no principle applicable to this case could the sale of the plain- 
 tiffs property b}' another having no authorit}' from him, to his wrong 
 indeed, be upheld, save that it was authorized b}' the statute of Lower 
 Canada. So that the question is one entirelv of the comity to be shown 
 by the courts of this State to the enactments of another countr}-. Those 
 statutes not only enact the rule of market-overt as it prevails in general 
 in England, but carry it further, and make, as in the city of London, 
 every sale b}' a trader dealing in like articles as good as a sale at mar- 
 ket-overt. 
 
 That rule does not obtain in this State. It has not been our policy to 
 establish it. Our policy has been, and is, to protect the right of owner- 
 ship, and to leave the bu3'er to take care that he gets a good title. It 
 would be to the contravention of that polic}', and to the inconvenience 
 of our citizens, if we should give effect to the statutes of Lower Canada, 
 to the divesting of titles to movables lawfully acquired and held by our 
 general and statute law, without the assent or intervention, and against 
 the will of the owner by our law. Notions of property are slight, when 
 a bona fide purchase of stolen goods gives a good title against the 
 original owner. Per Kent, Ch. J., Wheelwright t'. Depe3-ster, 1 Johns. 
 470. We are not required to show comity to that extent, especially as 
 it is to our citizens alone that we are administering justice. 
 
 There are judgments to the end that the law of the situs of the mov- 
 able propert}' will determine who is entitled to it, and the matter of 
 comit}' is not taken into account. A notable one is Cammell v. Sewell, 
 in the Exchequer Chamber, 5 II. & N. 728. But there the property 
 had not been in England until after the sale in Norway, and had never 
 been in the possession of the English owners. We doubt whether, in 
 a case like this, where, after a title to propert}' has been acquired by 
 the law of the domicil of the vendor, and of the situs of the thing, 
 and of the forum in which the parties stand, in a contest between citi- 
 zens of the State of that forum, it has ever been adjudged that such 
 title has been divested by the surreptitious removal of the thing into 
 another State, and a sale of it there under different laws. There are 
 decisions that it has not, however. See Taylor v. Boardman, 25 Vt. 
 5«1 ; Martin /■. Hill, 12 Barb. 631; French v. Hall, 9 N. II. 137; 
 Langworthy v. Little, 12 Cush. 109. It is sought to distinguish these 
 cases from that in hand ; but they went upon a principle that is not inap- 
 plicable here. In them, as here, a right to movable property had been 
 acquired in one State in a mode efficient thereto In' its laws. The 
 property had lieen taken into another State where that mode was not 
 sufficient by its law to create a right. But the right acquired by that
 
 CHAP. XII.] EDGEKLY V. BUSH. 633 
 
 mode was upheld. In all the cases the propert}' was taken away from 
 under the laws which gave the right, and placed under the operation of 
 laws that denied the right. We perceive no difference in those cases 
 from this that we have, save that in those a creditor was seeking to 
 recover his debt out of the property, in invitum the right thus acquired. 
 Here there is a sale of the property between third parties despite the 
 right. In those it was sought to take awa}' the right by a public judi- 
 cial sale. In this it is urged that the right has been destroyed by a 
 private sale. Bv the laws of those other States the creditors would 
 have succeeded. So here the third parties would succeed by the law of 
 Lower Canada. But in those cases the law of the State where the 
 right was acquired was recognized, and force given to it in another 
 State, and under different law. Why should it not be in this case? 
 
 Such cases as Cranch v. McLachlin, 4 Johns. 34, and The Helena, 
 4 Rob. Ad. 3, do not conflicts In them there were in the foreign country 
 legal proceedings in rem, or analogous thereto, so that the question was 
 of respect for tlie judicial proceedings of another country. The case of 
 Greenwood v. Curtis, 6 Mass. 358, recognized the principles upon which 
 our judgment proceeds, but held that the facts did not call for the appli- 
 cation of them. 
 
 The order of the General Term should be reversed, and judgment on 
 report of the referee be affirmed. 
 
 All concur, except Rapallo, J., not voting. 
 
 Order reversed and Judgment affirmed.
 
 634 CAMPBELL V. TOUSEY. [CHAP. XIIL 
 
 CHAPTER XIII. 
 INHERIT AXCE. 
 
 CAMPBELL V. TOUSEY. 
 Supreme Court, Xew York. 1827. 
 
 [Reported 7 Cowcn, 64.] 
 
 Assumpsit for money lent to the testator of the defendant. Pleas : 
 (1) JVo?i assumpsit; (2) iVe unqiies executor; (5) ATo assets. The 
 plaintift" on the trial proved his claim to $94.42, and that the defend- 
 ant's testator resided and died in Pennsylvania in 1823. He also 
 proved assets to about $700, which the defendant had received in 
 Pennsylvania and brought from that State to this ; and that he had 
 received a certain amount in tliis State. The defendant proved that 
 he was appointed executor by the will of Booth, and had taken out 
 letters testamentary in Pennsylvania. The judge charged the jury 
 that the defendant was liable as executor for all the assets he still 
 retained in his hands, or had expended or disposed of here, unless in 
 the due course of administration, whether they were received here or 
 brought from Pennsylvania. That his appointment as executor in that 
 State would not, per se, protect him; but he must show also that the 
 assets received by him there and here had been disposed of under that 
 appointment, or in the payment of Booth's debts in this State. Having 
 failed to do either, he was liable as executor, de son tort, to the amount 
 of the plaintiff's claim, if the assets in his hands amounted to so much. 
 Verdict for the plaintiff for $94.42.^ 
 
 Sutherland, J. The testator resided and died in Pennsylvania, and 
 there the will was proved. The defendant received assets of the estate 
 in Pennsylvania, and brought them with him into this State. He also 
 in this State received debts due to the testator to a considerable 
 amount. The judge charged the jury that the defendant was liable 
 for all the assets which he still retained in his hands, or which he 
 had expended or disposed of in this State, unless in the due course 
 of administration, whether they were received in this State or originally 
 received in Pennsylvania and brought from there here. That the fact 
 
 1 Tho statement of facts is slightly condensed. Arguments of counsel and part of 
 the opinion are omitted. — Ed.
 
 CHAP. Xm.J JUDY V. KELLEY. 635 
 
 of his having been appointed executor in Pennsylvania would not of 
 itself protect him here ; but that it was incumbent on him to show that 
 the assets which he had received in Pennsylvania and brouglit into this 
 State, as well as those which he had received here, had been disposed 
 of in a due course of administration in Pennsylvania, or in the pay- 
 ment of the debts of the testator in this State. That having failed to 
 do either, he was liable as executor de son tort to the amount of those 
 assets. 
 
 We see no error in this charge of the judge. If a foreign executor 
 is liable to be sued here, of which we apprehend there can be no ques- 
 tion, he must, from the very nature of the case, prima facie, be re- 
 sponsible for the assets which are shown to have been in his possession 
 within this State, no matter where they ma}" have been received. And 
 in order to discharge himself from that responsibilit}', he must show 
 that those assets have been applied in a due course of administration 
 to the pa3-ment Of the debts of the testator. It is the onl}' wa}' in which 
 an executor, under such circumstances, can be reached. He cannot be 
 compelled to account here, even in relation to the assets received in 
 this State ; for having taken no letters of administration here, he is not 
 amenable in that way to an}' of our courts. He cannot be reached in 
 Pennsylvania, because both his person and the assets are beyond its 
 jurisdiction ; and if he is not liable when sued here for the assets 
 received there, he never can be compelled to apply them to the debts 
 of his testator. . . . 
 
 The defendant was clearly an executor de son tort, and the action 
 was properly brought against him as executor generally. Com. Dig. 
 Administrator, C. 1, 2, 3 ; Toller's Ex., 17, 369. 
 
 It is well settled that if an executor de son tort plead ne nnques 
 executor, as was done in this case, and it be found against him, he 
 shall be charged as any other executor, de bonis propriis. Toller, 369. 
 
 The motion for a new trial must be denied. 
 
 New trial denied. 
 
 JUDY V. KELLEY. 
 Supreme Court, Illinois. 1849. 
 
 [Reported 11 Illinois, 211.] 
 
 Treat, C. J.- This is an action of debt, on a judgment recovered 
 in the State of Ohio by Kelley, against the administrators of William 
 Alliugton. It appears from the record of the proceedings in Ohio that 
 
 1 Statute having done away with executors de son tort, it was held that a foreign 
 executor found in New York with assets could not be sued. Field v. Gibson, 20 Hun, 
 274. — Ed. 
 
 2 Part of the opinion, discussing other questions, is omitted. — Ed.
 
 636 JUDY V. KELLEY. [CHAP. XIII. 
 
 the suit was there brought against Allington in his lifetime, and set 
 vice of process had on him. At a succeeding term, the plaintiff sug- 
 gested the death of Allington, and obtained leave to revive the suit, 
 against his personal representatives. At a subsequent term, the present 
 plaintiff's in error entered their appearance, and pleaded to the action 
 as administrators of Allington ; and a trial of the cause resulted in the 
 judgment now the subject of controversy. The presumption from that 
 record is, that the plaintiffs in error obtained letters of administration 
 on the estate of Allington in Ohio. To repel this presumption, the 
 second plea alleges that they were appointed administrators in this 
 State, and that administration was never granted them elsewhere. 
 This presents the question whether a judgment recovered in another 
 State against an administrator appointed in this State can be here 
 enforced against the estate. A grant of administration in one country 
 does not confer on an administrator any title to the property of the 
 intestate situated in another country. He has no authority over, nor 
 is he responsible for any effects of, the estate that may be beyond the 
 jurisdiction. In administering the estate, he acts only in reference to 
 the effects within the jurisdiction, and the debts that may there be pre- 
 sented against the estate. In his official capacity-, he can neither sue 
 nor be sued out of the countr}' from which he derives his authority, 
 and to which he is alone amenable. If he wishes to reach property, or 
 collect debts belonging to the estate in a foreign country, he must there 
 obtain letters of administration, and give such security and become 
 subject to such regulations as its laws may prescribe. So, if a creditor 
 wishes to bring a suit in order to satisfy his del)t out of j)roperty 
 in another jurisdiction, administration must there be first obtained. 
 See Stor3''s Conflict of Laws, § 513, and the numerous authorities 
 there cited. There are a few cases in this country to the effect tiiat a 
 foreign executor may be sued in anotlier jurisdiction, and be tliere 
 made liable to the extent of the assets he ma}- iiave with him ; but the 
 cases go no farther than to sustain the action for the purpose of sub- 
 jecting such assets to the payment of the particular debt. Campbell v. 
 Tousey, 7 Cow. 64 ; Swearingen's Ex'rs r. Pendleton's Ex'rs, 4 Serg. 
 & R. 389 ; Evans v. Tatem, 9 Serg. & R. 252 ; Bryan v. McGee, 
 2 Wash. C. C. R. 337. It may be doubted whether these decisions 
 can be supported on principle or anthority ; but conceding their cor- 
 rectness, they have no direct bearing on this case. The attempt here 
 is to enforce against an estate a judgment rendered in Ohio against 
 administrators appoitiied in this State. It is clear that the State of 
 Ohio could not rightfully extend her jurisdiction over the plaintiffs in 
 error, in their official character, while within her limits, further than to 
 compel them to account for such assets as they might there have. The 
 plaintiffs in error derived their authority" from this State, and tliey are 
 to be made responsible here only for their acts. That State may grant 
 letters of administration on the estate, and in that way have the effects 
 found v/ithiu her territory administered; but she cannot, by proceed-
 
 CHAP. XIII.] JUDY V. KELLEY. 637 
 
 ings in her own courts, reach the assets in this State, or establish 
 claims against the estate that will here be enforced. The debts against 
 the estate are to be adjusted, and the effects belonging to it distributed, 
 according to our own laws. 
 
 But it is insisted that the plaintiffs in error, by entering their ap- 
 pearance to the action in Ohio, submitted themselves to the jurisdiction 
 of the court, and cannot now question its authorit}' to pronounce the 
 judgment. This position would be correct if the proceedings there had 
 been against them personally ; but as respects them in their represen- 
 tative capacity', we think the eft'ect is otherwise. The grant of admin- 
 istration in this State gave them no control over the estate in Ohio. 
 It did not confer on them any authority to appear and defend the 
 action ; an}' power to go into another jurisdiction, and there permit 
 claims to be adjudicated against the estate. Their authority is limited, 
 and when the}' exceed it their acts will not bind the estate. The ap- 
 pearance being wholly unauthorized by our laws, the judgment that 
 resulted from it is not binding on the estate. If binding here, for any 
 purpose, it is against the plaintiffs in error personally. If the judg- 
 ment had been obtained against an administrator duly appointed in 
 Ohio, the record would not be evidence of indebtedness, in an action 
 against the administrators, in this State. " Where administrations are 
 granted to different persons in different States, they are so far regarded 
 as independent of each other that a judgment obtained against one will 
 furnish no right of action against the other, to affect assets received 
 by the latter, in virtue of his own administration ; for, in contempla- 
 tion of law, there is no privity between him and the other adminis- 
 trator."' Story's Conflict of Laws, § 522. 
 
 We are of the opinion that the judgment, if the allegations of the 
 plea are true, cannot be liere enforced against the estate. The demand 
 against the intestate has not been adjusted in pursuance of our laws, 
 but in defiance of them. If the creditor wishes to secure any share of 
 the assets in this State, he must sue on his original cause of action. 
 This conclusion is not in conflict with the case of Davis v. Connelly's 
 Ex'rs, 4 B. Mon. 136. That was an action brought in Kentucky against 
 executors appointed in that State, on a judgment obtained against 
 them in Ohio. The executors pleaded that they had never adminis- 
 tered in Ohio ; and the plaintiff replied that the defendants, acting as 
 executors and professing to be such, entered their appearance in the 
 original action, and thereby became executors de son tort, and are 
 estopped to deny that they were executors in Ohio. The court sus- 
 tained the replication, and decided that the defendants were chargeable 
 as executors in their own wrong. In this case the plaintiffs in error 
 are not sued as executors de son tort; but the object of the suit is 
 to enforce the judgment against the estate, and satisfy it out of the 
 assets. . . . Judgment reversed} 
 
 1 In most jurisdictions it is held that a foreign executor or administrator cannot be 
 sued as such under any circumstances, eveu if he resides in tlie State or is found there
 
 638 • JOHNSON v.. WALLIS. [CHAP. XIIT. 
 
 JOHNSON V. WALLIS. 
 
 Court of Appeals, Xew York. 1889. 
 
 [Reported 112 Nciv York, 230.] 
 
 •Finch, J.^ This is an action in equit}- to compel the specific per- 
 formance by the vendors of a contract to sell and assign a judgment 
 recovered by John McAnerney and others, in the Supreme Court of 
 this State, against a corporation known as the Hudson River Iron 
 Compan}'. The judgment was assigned to one Alexander H. Wallis, 
 who was a resident of New Jersey, and died leaving a last will and 
 testament, which has been duly proved in that State, and by which the 
 defendants were appointed executors. They have qualified, and en- 
 tered upon the performance of their trust. They thereafter made a 
 written contract with one Jacob Russell, all whose rights have passed 
 to the present plaintiff, to sell and assign to him such judgment for 
 a price to be fixed as follows. The judgment was a lien, or supposed 
 to be a lien, upon certain lands under the waters of the Hudson 
 River, near Poughkeepsie, in this State, and had no value beyond 
 
 with assets. Caldwell v. Harding, 5 Blatcli. 501; Security Ins. Co. v. Taylor, 2 Biss. 
 446 ; Melius v. Thompson, 1 Cliff. 125 ; Hedenberg v. Hedenberg, 46 Conn. 30 ; Jack- 
 son V. Johnson, 34 Ga. 511 ; Strauss v. Phillips, 189 111. 1, 59 N. E. 560 ; Mason v. 
 Nutt, 19 La. Ann. 41 ; Campbell v. Sheldon, 13 Pick. 8 ; Boyd v. Lambeth, 24 Miss. 
 433 ; Durie v. Blauvelt, 49 N. J. L. 114 ; Ferguson v. Harrison, 29 N. r . Misc. 380, 
 58 N. Y. Supp. 850 ; Sparks v. Wliite, 7 Humph. 86 ; Dorsay v. Connell, 22 N. B. 
 564. And this is true, even though by statute a foreign representative may sue. Fair- 
 child V. Hagel, 54 Ark. 61 ; Sloan v. Sloan, 21 Fla. 589. And even though the ad- 
 ministrator consents to be sued in the foreign State. Jefferson v. Beall, 117 Ala. 436, 
 23 So. 44 ; Elting v. First Nat. Bank, 173 111. 368, 50 N. E. 1095 ; Fiandrow v. Ham- 
 mond, 13 App. Div. 325, 43 N. Y. Supp. 143. It is therefore no devastavit for an 
 administrator, when sued in a foreign State, to suffer default. Davis v. Smith, 5 Ga. 
 274. 
 
 In a few States, however, a foreign representative may under some circumstances 
 be sued as such. Thus it is sometimes held that an administrator who has come to 
 reside within a foreign State may be sued there. Colbert v. Daniel, 32 Ala. 31 4 ; 
 Manion v. Titsworth, 18 B. Mon. 582 ; Baker v. Smith, 3 Met. (Ky.) 264. In other 
 States it is held that if an administrator is found in a foreign State liaving assets, he 
 may be sued there. Laughlin v. Solomon, 180 Pa. 181, 36 Atl. 704; Tunstall v. Pol- 
 lard, 11 Leigh, 1 ; Fugate v. Moore, 86 Va. 104.'>, 11 S. E. 1063. And a few cases 
 appear to hold that suit may be brought against any foreign administrator upon whom 
 process may be served. Evans r. Tatem, 9 S. & R. 252; Armstrong !'. Newey, 17 
 Vict. L. R. 734. It is sometimes held that suit may be brought against a foreign 
 representative if all parties in interest consent. Newark Sav. Inst. v. Jones, 35 N. J. 
 E(i. 406; Ellis v. Northwestern Mut. L. Ins. Co., 100 Tenn. 177, 43 S.W. 766. 
 
 Where a foreign executor or administrator holds adversely within the State assets 
 of the estate, he may be made to account in enuity as constructive trustee. Cloyiton v. 
 Booker, 27 Ark. 482; Johnson v. Jackson, 56 Ga. 326 ; Patton v. Overton, 8 Humph. 
 92. — Ed. 
 
 1 Part of the opinion, discussing the correctness of the arbitrators' valuation, is 
 omitted. — Ed.
 
 CHAP. XIII.] TALMAGE V. CHAPEL. 639 
 
 such li&n. Arbitrators were chosen to fix the value of one acre of 
 the upland, and that value, multiplied by the number of acres subject 
 to the lien, was to be the purchase-price of the judgment. That value 
 was ascertained, the price tendered, and a deed duly demanded, which 
 was refused, and thereupon this action was brought. The plaintiff 
 had judgment which the General Term affirmed, and the defendants 
 appealed to this court. 
 
 They rely mainly upon the proposition that as foreign executors 
 the}' could not sue or be sued in this State, and acquire all their 
 rights from and owe their responsibilities to another jurisdiction. 
 That is the general rule, but in this State at least is confined to claims 
 and liabilities resting wholly upon the representative character. In 
 Lawrence v. Lawrence (3 Barb. Ch. 74), the rule was declared to be 
 applicable only to suits brought upon debts due to the testator in his 
 lifetime or based upon some transaction with him, and does not 
 prevent a foreign executor from suing in our courts upon a contract 
 made with him as such executor. Of course where he can sue upon 
 such a contract he may be sued upon it. The remed}- must run to each 
 part}' or neither. In the present case the action is not founded upon 
 any transaction with the deceased but upon a contract which the de- 
 fendants themselves made. By force of the will and their appoint- 
 ment they became owners of the judgment. Their title, although 
 acquired under the foreign law, was good. In Peterson v. Chemical 
 Bank (32 N. Y. 21) the foreign executor sold an obligation of the estate 
 and his assignee sued upon it. The action was sustained on the ground 
 that the title of tlie foreign executor was good and he could transfer it, 
 and while he could not have sued upon it his assignee was not pre- 
 vented. In this case, therefore, the defendants were owners of the 
 judgment and could lawfully contract for its sale. Having done so 
 they were liable upon that contract, which could be enforced against 
 them because they made it, and it did not derive its existence from any 
 act or dealing of their testator. We agree, therefore, with the courts 
 below that the action could he maintained. . . . 
 
 The judgment should be aflJrmed, with costs. 
 
 All concur. Judgment affirmed.^ 
 
 TALMAGE v. CHAPEL. 
 
 Supreme Judicial Court of Massachusetts. 1819. 
 
 [Reported 16 Massachusetts, 71.] 
 
 The plaintiff declares as administrator of the estate of George 
 Clinton, in debt upon a judgment recovered by him in his said capacity 
 
 1 But see Marrett v. Babb (Ky.), 15 S. W. 4, where it was held that a foreign ex- 
 ecutor could uot enforce specific performance of a contract made by him on behalf of 
 the estate.
 
 640 JOHNSON V. POWKES. [CHAP. XIII. 
 
 against the defendants, in the Court of Common Pleas for the county 
 of Oneida, in the State of New York. 
 
 The defendants plead in bar, that the parties, at the time of ren- 
 dering the said judgment, were all inhabitants of the State of New 
 York, and that the plaintiff was appointed administrator in that State, 
 and has not been so appointed within tliis commonwealth. To which 
 the plaintiff demurred, and the defendants joined in demurrer.^ 
 
 CuuiA. We think the plea in bar bad. The case of Goodwin v. 
 Jones (5 Mass. 514), cited by the counsel for the defendants, does not 
 apply. The action there was brought for money due to the intestate 
 on a contract made with him ; here the action is on a judgment already 
 recovered by the plaintiff, and it might have been brought by him in 
 liis own name, and not as administrator. For the debt was due to 
 him, he being answerable for it to the estate of the intestate ; and it 
 ought to be considered as so brought, his style of administrator being 
 merelv descriptive, and not being essential to his riglit to recover. It 
 is important to the purposes of justice tliat it should be so ; for an 
 administrator appointed here could not maintain an action upon this 
 judgment, not being privy to it. Nor could he maintain an action on 
 the original contract ; for the defendants might plead in bar the judg- 
 ment recovered against them in New York. The debt sued for is in 
 truth due to the plaintiff m his personal capacity. For he makes him- 
 self accountable for it b}- bringing his action ; and he may well declare 
 that the debt is due to himself There are many cases which show 
 ttiat, where the debt becomes due after the death of the intestate, the 
 administrator may sue for it in his own name ; some of which have 
 been cited by the plaintiff's counsel. 
 
 Defendants^ plea had? 
 
 JOHNSON V. POWERS. 
 
 Supreme Court of the United States. 1891. 
 
 [neporled 139 U-ntted States, 156.] 
 
 Gray, J. Tliis is a bill in equity, filed in the Circuit Court of the 
 United States for the Northern District of New York, by George K. 
 
 1 Arguments of counsel are omitted. — Ed. 
 
 2 Ace. In re ]\IacnichQl, L. R. 19 Eq. 81 ; Newberry v. Robiuson, 36 Fed. 841 ; 
 Lewis V. Adams, 70 Cal. 403, 11 Pac. 833 ; Barton v. Hig<,'ins, 41 Md. 539 ; Paicks v. 
 Taylor, 49 Miss. f)5'2 (semble) ; Tittman v. Thornton, 107 Mo. 500, 17 S. W. 979. 
 Qmtra Morcfield v. Harris, 126 N. C. 626, 36 S. E. 125. 
 
 So an administrator de bonis non may sue his predecessor in a foreign State for the 
 balance found by his own court to be due from liim. Moore v. Fields, 42 Pa. 467. 
 
 Similarly, where an administrator is sued and gets judgment against the plaintiff 
 for costs, he may sue upon the judgment in another Slate. Green t;. Heritage, 63 
 N. J. L. 455, 43 Atl. 698. — Ed.
 
 CHAP. XIII.] JOHNSON V. POWERS. 641 
 
 Johnson, a citizen of Michigan, in behalf of himself and of all other 
 persons interested in the administration of the assets of Nelson P. 
 Stewart, late of Detroit in the county of Wa3-ne and State of Mich- 
 iijan, against several persons, citizens of New York, alleged to hold 
 real estate in New York under convej-ances made by Stewart in fraud 
 of his creditors. 
 
 The bill is founded upon the jurisdiction in equit}^ of the Circuit 
 Court of the United States, independent of statutes or practice in any 
 Slate, to administer, as between citizens of different States, any de- 
 ceased person's assets within its jurisdiction. Payne v. Hook, 7 Wall. 
 425; Kennedy v. Creswell, 101 U. S. 641. 
 
 At the threshold of the case, we are met by the question whether the 
 plaintiff shows such an interest in Stewart's estate as to be entitled to 
 invoke the exercise of this jurisdiction. 
 
 He seeks to maintain his bill, both as administrator and as a cred- 
 itor, in behalf of himself and all other creditors of Stewart. 
 
 The only evidence that he was either administrator or creditor is a 
 duly certified copy of a record of the probate court of the county of 
 Wayne and State of Michigan, showing his appointment by that court 
 as admininistrator of Stewart's estate ; the subsequent appointment by 
 that court, pursuant to the statutes of Michigan, of commissioners to 
 receive, examine, and adjust all claims of creditors against the estate ; 
 and the report of those commissioners, allowing several claims, includ- 
 ing one to this plaintiff, '' George K. Johnson, for judgments against 
 claimant in Wayne Circuit Court as endorser," and naming him as 
 administrator as the party objecting to the allowance of all the claims. 
 
 The plaintiff certainly cannot maintain this bill as administrator of 
 Stewart, even if the bill can be construed as framed in that aspect ; be- 
 cause he admits that he has never taken out letters of administration in 
 New York ; and the letters of administration granted to him in Mich- 
 igan confer no power beyond the limits of that State, and cannot 
 authorize him to maintain any suit in the courts, either State or national, 
 held in any other State. Stacy v. Thrasher, 6 How. 44, 58 ; Noouan 
 V. Bradley ,*^ 9 Wall. 394.1 
 
 1 The foreign representative of a deceased creditor (whether executor or adminis- 
 trator) cannot sue on the claim of the deceased. Tourton v. Flower, 3 P. Wms. 369 ; 
 Allen V. Fairbanks, 36 Fed. 402 ; Lewis v. Adams (Cal.), 8 Pac. 619 ; Hobart v. Turn- 
 pike Co., 15 Conn. 145 : Navlor v. Moody, 2 Blackf. 247; Gregory v. McCormick, 
 120 Mo. 657, 25 S. W. 565 {semble) : Butfs i-. Price, C. & N. 68 ; Chapman v. Fish, 
 6 Hill, 554 ; Graeme v. Harris, 1 Dall. 456 ; Dodge v. Wetmore, Brayt. 92 ; Dickinson 
 /. M'Craw, 4 Rand. 158. Thus an administrator appointed in Maryland before the 
 session of the District of Columbia to the United States cannot sue in the District 
 after cession. Fenwick v. Sears, 1 Cr. 259. If a foreign administrator sues in Massa- 
 chusettsand is allowed to recover judgment, which is satisfied, suit by a Massachusetts 
 administrator, subsequently appointed, is not barred. Pond v. Makepeace, 2 Met. 
 
 114. . . , 
 
 So a forei^ executor or administrator cannot bring a bill of revivor in a suit befran 
 by the deceased before his death. Barclift v. Treece, 77 Ala. 528 ; Greer .;. Ferguson, 
 ^ 41
 
 642 
 
 JOHNSON V. POWERS. [CHAP. XIII. 
 
 The question remains whether, as against these defendants, the 
 plaintiff has proved himself to be a creditor of Stewart. The only 
 evidence on this point, as already observed, is the record of the pro- 
 ceedino-s before commissioners appointed by the Probate Court in 
 Michio-an. It becomes necessary therefore to consider the nature and 
 the effect of those proceedings. 
 
 Thev were bad under the provisions of the General Statutes of Mich- 
 igan (2 Howell's Statutes, §§ 5888-5906), " the general idea " of which 
 as stated by Judge Cooley, "is that all claims against the estates of 
 deceased persons shall be duly proved before commissioners appointed 
 to hear them, or before the Probate Court when no commissioners are 
 appointed. The commissioners act judicially in the allowance of 
 claims, and the administrator cannot bind the estate by admitting their 
 correctness, but must leave them to be proved in the usual mode." 
 Clark V. Davis, 32 Mich. 154, 157. The commissioners, when once 
 appointed, become a special tribunal, which, for most purposes, is 
 independent of the Probate Court, and from which either party may 
 appeal to the Circuit Court of the county ; and, as against an adverse 
 claimant, the administrator, general or special, represents the estate, 
 both before the commissioners and upon the appeal. 2 Howell's Stat- 
 utes, §§ 5907-5917; Lothrop v. Conely, 39 Mich. 757. The de- 
 cision of the commissioners, or of tlie Circuit Court on appeal, should 
 properly be only an allowance or disallowance of the claim, and not in 
 the form of a judgment at common law. La Roe v. Freeland, 8 Mich. 
 530. But, as between the parties to the controversy, and as to the 
 payment of the claim out of the estate in the control of the Probate 
 Court, it has the effect of a judgment, and cannot be collaterally im- 
 peached l)y either of those parties. Shurbun v. Hooper, 40 Mich. 503. 
 
 Those statutes provide that when the administrator declines to ap- 
 peal from a decision of the commissioners, any person interested in 
 the estate may appeal from that decision to the Circuit Court ; and that, 
 when a claim of the administrator against the estate is disallowed by 
 the commissioners and he appeals, he shall give notice of his appeal 
 to all concerned by personal service or by publication. 2 Howell's Stat- 
 utes, §§ 591 G, 5917. It may well be doubted whether, within the 
 spirit and intent of these provisions, the administrator, when he is also 
 the claimant, is not bound to give notice to other persons interested in 
 the estate, in order that they may have an opportunity to contest his 
 claim before the commissioners ; and whether an allowance of his claim, 
 as in this case, in the absence of any impartial representative of the 
 
 56 Ark. 324 ; Goodwin v. Jones, 3 Mass. 514. And therefore a foreign executor may 
 not dismiss a suit begun by his testator. Warren v. Eddy, 13 Abb. Pr. 28. 
 
 In Michigan it has been held that a foreign e.vecutor may bring and maintain a suit 
 npon a claim of the testator, provided he obtains letters of administration in Mich- 
 igan before trial. Gray v. Franks, 86 Mich. 382, 49 N. W. 130. See also Hodges v. 
 Kimball, 91 Fed. 845. In .several States a foreign executor is allowed to sue by statute. 
 Lawrence t;. Nelson, 143 U. S. 215; Bell v. Nichols, 38 Ala. 678. — Ed.
 
 CHAP. XIII.] JOHNSON V, POWERS. 643 
 
 estate, and of other persons interested therein, can be of any binding 
 effect, even in Michigan. See Lothrop v. Conely, above cited. 
 
 But we need not decide that point, because upon broader grounds it 
 is quite clear that those proceedings are incompetent evidence, in this 
 suit and against these defendants, that the plaintiff is a creditor of 
 Stevrart or of his estate. 
 
 A judgment in rem binds only the property within the control of the 
 court which rendered it; and a judgment in personam binds only the 
 parties to that judgment and those in privity with them. 
 
 A judgment recovered against the administrator of a deceased per- 
 son in one State is no evidence of debt, in a subsequent suit by the 
 same plaintiff in another State, either against an administrator, whether 
 the same or a different person, appointed there, or against any other 
 person having assets of the deceased. Aspden v. Nixon, 4 How. 467 ; 
 Stacy V. Thrasher, 6 How. 44; McLean v. Meek, 18 How. 16 ; Low 
 V. Bartlett, 8 Allen, 259. 
 
 In Stacy v. Thrasher, in which a judgment, recovered in one State 
 against an administrator appointed in that State, upon an alleged debt 
 of the intestate, was held to be incompetent evidence of the debt in 
 a suit brought by the same plaintiff in the Circuit Court of the 
 United States held within another State against an administrator there 
 appointed of the same intestate, the reasons given by Mr. Justice 
 Grier have so strong a bearing on the case before us, and on the argu- 
 ment of the appellant, as to be worth quoting from : — 
 
 " The administrator receives his autlioritj- from the ordinary, or 
 other officer of the government where the goods of the intestate are sit- 
 uate. But coming into such possession by succession to the intestate, 
 and encumbered with the (\\xt\ to pa}- his debts, he is considered in law 
 as in privity with him, and therefore bound or estopped by a judgment 
 against liim. Yet his representation of his intestate is a qualified one, 
 and extends not I^eyond the assets of which the ordinary had jurisdic- 
 tion." 6 How. 58. 
 
 In answering the objection that to applj- these principles to a judg- 
 ment obtained in another State of the Union would be to den}- it the 
 faith and credit, and the effect, to which it was entitled by the Consti- 
 tution and laws of the United States, he observed that it was evidence, 
 and conclusive by way of estoppel only between the same parties, or 
 their privies, or on the same subject-matter when the proceeding was 
 in rem ; and that the parties to the judgments in question were not the 
 same ; neither were they privies, in blood, in law, or by estate ; and 
 proceeded as follows : 
 
 "An administrator under grant of administration in one State 
 stands in none of these relations to an administrator in another. 
 Each is privy to the testator, and would be estopped by a judgment 
 against him ; but they have no privity with each other, in law or in 
 estate. They receive their authority from different sovereignties, and 
 over different property. The authority of each is paramount to the
 
 544 JOHNSON V. POWERS. [CHAP. XIII. 
 
 Other. Each is accountable to the ordinar}- from whom he receives his 
 authority. Nor does the one come by succession to the other into 
 the trust of the same property, encumbered by the same debts." 
 6 How. 59, 60. 
 
 " It is for those wlio assert this privity to show wherein it lies, ana 
 the argument for it seems to be this : That the judgment against the 
 administrator is against the estate of the intestate, and that his estate, 
 wheresoever situate, is liable to pay his debts ; therefore the plaintiff, 
 having once established his claim against the estate by the judgment of 
 a court, should not be called on to make proof of it again. This argu- 
 ment assumes that the judgment is in rem, and not in personam^ or 
 that the estate has a sort of corporate entity and unity. But t-his is 
 not true, either in fact or in legal construction. The judgment is 
 against the person of the administrator, that he shall pay the debt of 
 the intestate out of the funds committed to his care. If there be another 
 administrator in another State, liable to pay the same debt, he may be 
 subjected to a like judgment upon the same demand, but the assets in 
 his hands cannot be affected by a judgment to which he is personally a 
 stranger." " The laws and courts of a State can only affect persons 
 and things within their jurisdiction. Consequently, both as to the ad- 
 ministrator and the property confided to him, a judgment in another 
 State is res inter alios acta. It cannot be even prima facie evidence 
 of a debt; for if it have any effect at all, it must be as a judgment, 
 and operate by way of estoppel." 6 How. 60, 61. 
 
 In Low V. Bartlett, above cited, following the decisions of this court, 
 it was held that a judgment allowing a claim against the estate of a 
 deceased person in Vermont, under statutes similar to those of Mich- 
 igan, was not competent evidence of debt in a suit in equity brought 
 in Massachusetts by the same plaintiff against an executor appointed 
 there, and against legatees who had received money from him ; the 
 court saying : " The judgment in Vermont was in no sense a judgment 
 against them, nor against the property which they had received from 
 the executor." 8 Allen, 266. 
 
 In the case at bar, the allowance of Johnson's claim by the commis- 
 sioners appointed by the Probate Court in Michigan, giving it the utmost 
 possible effect, faith, and credit, yet, if considered as a judgment in rem, 
 bound only the assets within the jurisdiction of that court, and, con- 
 sidered as a judgment inter jxtrfes, bound only the parties to it and 
 their privies. It was not a judgment against Stewart in his lifetime, 
 nor against his estate wherever it might be ; but only against his assets 
 and his administrator in Michigan. The only parties to the decision 
 of the commissioners were Johnson, in his personal capacity, as claim- 
 ant, and Johnson, in his representative capacity, as administrator of 
 those assets, as defendant. The present defendants were not par- 
 ties to that judgment, nor in privity with Johnson in either capacity. 
 If any other claimant in those proceedings had been the plaintiff here, 
 the allowance of his claim in Michigan would have been no evidence
 
 CHAP. XIII.] VANQUELIN V. BOUAIID. 645 
 
 of any debt due to him from the deceased, in this suit brought in New 
 York to recover alleged property of the deceased in New York from 
 third persons, none of whom were parties to those proceedings or in 
 privity with either party to tliera. The fact that this plaintiff was him- 
 self the only party on both sides of those proceedings cannot, to say 
 the least, give the decision therein any greater effect against these 
 defendants. 
 
 The obiection is not that the plaintiff cannot maintain this bill without 
 first recovering judgment on his debt in New York, but that there is no 
 evidence whatever of his debt except the judgment in Michigan, and 
 that that judgment, being res inter alios acta, is not competent evi- 
 dence against these defendants. 
 
 This objection being fatal to the maintenance of this bill, there is no 
 occasion to consider the other questions, of law or of fact, mentioned 
 in the opinion of the Circuit Court and discussed at bar. 
 
 Decree affirmed.^ 
 
 Beown, J., dissenting.2 
 
 VANQUELIN v. BOUARD. 
 Common Pleas. 1863. 
 
 [Heported 15 Common Bench, New Series, 341. J 
 
 Erle, C. J.' — Upon the argument of these demurrers, several ques- 
 tions have been raised with reference to the French law. The founda- 
 
 1 Ace. Taylor i'. Brown, 35 N. H. 484. And so a Massachusetts executor cannot 
 prove in the Massachusetts Probate Court a balance allowed him on an accounting as 
 ancillary administrator in a foreign court. Ela v. Edwards, 13 All. 48. 
 
 So generally a judgment obtained in one State against the representative of the 
 deceased there appointed will not be recognized in another State in a suit against the 
 representative there. Aspden v. Nixon, 4 How. 467 ; McLean v. Meek, 18 How. 16 ; 
 Dent V. Ashley, Hemph. 54 ; Arizona Cattle Co. v. Huber (Ari.), 33 Pac. 555; Turner 
 V. Risor, 54 Ark. 33 ; Lewis v. Adams, 70 Cal. 403, 11 Pac. 833; McGarvey v. Dar- 
 nall, 134 111. 367, 25 N .E. 1005 ; Creswell v. Slack, 68 la. 110 ; Low v. Bartlett, 8 AIL 
 259; Braithwaite v. Harvey, 14 Mont. 208,36 Pac. 38 ; Brodie v.Bickley, 2 Eawle, 431 ; 
 King V. Clarke, 2 Hill Eq. 611 ; Jones v. Jones, 15 Tex. 463 ; Price v. Mace, 47 Wis. 23 ; 
 Tighe V. Tighe, Ir. R. 11 Eq. 203. Contra, Creighton v. Murphy, 8 Neb. 349, 1 N. W. 
 138, where process was served on the deceased before his death. This is true even 
 though the foreign administrator was the same person as the domestic representative. 
 Johnson v. McKinnon, (Ala.) 29 So. 696 ; S. v. Fulton, (Tenn. Ch.) 49 S. W. 297. 
 
 In Louisiana it has been held that judgment against an executor may be enforced 
 acfainst him in any other State in which he has also been appointed executor. Turley 
 V. Dreyfus, 33 La. Ann. 885. And in a few States it has been held that where judg- 
 ment has been obtained against a executor he may be sued on it personally in another 
 State. Latine v. Clements, 3 Ga. 426 ; White v. Archbill, 2 Sneed, 588. — Ed. 
 
 2 The dissenting opinion is omitted. — Ed. 
 
 ' Tlie statement of facts, arguments of counsel, and part of the opinion, in which 
 the validity of certain pleas is discussed, are omitted. Williams and Keating, JJ., 
 delivered concurrin-g opinions. — Ed.
 
 646 VANQUELIN V. BOUARD. [CHAP. XIII. 
 
 tion of the litigation was certain bills of exchange of which the deceased, 
 Jacques Alexander Franqois Vanquelin, was drawer, the defendant the 
 acceptor, and one Bolli tlie indorsee. Bolii brought an action against 
 both drawer and acceptor in the Court of the Tribunal de Commerce 
 of the department of the Seine, and obtained judgment against them. 
 Vanquelin, the drawer, died : his widow, the now plaintiff, in accord- 
 ance with the laws of France, became the donee of the universality of 
 the real and personal estates belonging to the succession of the deceased 
 at his death ; and she alleges that thereby and according to the laws of 
 France all rights, claims, and causes of action, and all liabilities and 
 obligations of the deceased vested in her personally and absolutely, and 
 she became, according to the said laws, liable personally upon the said 
 judgment, and also entitled personally and in her own name to sue for 
 and enforce all the rights and claims of the deceased, and that she was 
 according to the said laws substituted for and placed in the same posi- 
 tion with respect to the defendant, as regarded the said bills of ex- 
 change and the judgment thereon, to all intents and purposes, as the 
 deceased had been in his lifetime. The count then goes on to allege 
 that afterwards, and whilst the judgment was in full force and unsatis- 
 fied, and the plaintiff and defendant were both liable thereupon, the 
 plaintiff, in accordance with the laws of France, was obliged to pay and 
 did pay the full amount of the judgment and all interest due thereon, 
 and that thereupon Bolli delivered to her the said bills of exchange and 
 the record of the said judgment, and the plaintiff then became and still 
 was according to the laws of France entitled to the benefit of all the 
 rio-hts of Bolli upon the said judgment against the defendant, and en- 
 titled to enforce the same against the defendant, and to be substituted 
 for Bolli in all his rights against the defendant in respect of the said 
 judgment; and that the defendant became indebted and liable to pay 
 her the amount so paid by her upon the said judgment, with 6 per cent 
 interest thereon until payment. The count then goes on to allege that 
 the plaintiff, having these rights, in order to keep alive the liability of 
 the defendant, and to prevent the same from being barred by lapse of 
 time, and in order to give efl'ect to and enforce her claim against the 
 defendant, took proceedings in the Tribunal Civil of the First Instance 
 of the department of the Seine, and that thereupon, according to the 
 practice and procedure of the said court, on the 2d of April, 1862, by 
 adjudication of the said court an injunction was made to the defendant 
 to pav certain sums of money for principal, interest, and costs, and it 
 was adjudged and notified to the defendant that he would be constrained 
 to do so by all lawful means and by arrest of his body. That is the 
 substance of the first count. The substance of the second count is, 
 that certain bills of exchange were drawn upon the defendant by the 
 deceased, and accepted by him, and dishonoured ; that the deceased 
 died, and the plaiutitf was according to the laws of France the donee 
 of the universality of the personal and real estates belonging to the 
 succession of the deceased, and thereupon became entitled to all debts,
 
 CHAP. XIII.] VANQUELIN V. BOUAKD. Q4:7 
 
 claims, and causes of action wbicli tlie deceased was entitled to, and 
 tlie same became and were according to tlie said laws vested in llie 
 plaintiff personal!}' and absolutely, in the same manner to all intents 
 and purposes as they were vested in the deceased, and the plaintiff was 
 entitled to demand and sue for the same in her own name and in her 
 own right, and the claims and rights of the deceased upon the said 
 bills became vested in the plaintiff, and she became entitled to sue the 
 defendant thereupon in her own name and in her own right ; and she 
 demands payment of the amount thereof and interest. The ground 
 of the demurrer to these two counts, is, that the plaintiff is in effect 
 suing in a representative character, which she cannot do without hav- 
 ing obtained letters of administration in this country. The allegation 
 in both counts is, that, being donee of the universality of the personal 
 and real estates belonging to the succession of her deceased husband, 
 the plaintiff became according to the laws of France entitled to all the 
 property and rights of the deceased absolutely in her own right, and 
 not in an}' representative capacity I am of opinion that that aver- 
 ment, if it were necessary to stand upon it, must be taken to be true, 
 and so it appears upon the record that the law of France, in which 
 countr}' all the parties were domiciled, would give her a locus standi to 
 sue there in her personal capacity. But it is not necessar}' to rest 
 upon that. The first count shows, that, after the death of her hus- 
 band, the plaintiff paid the amount due to Bolli in respect of the bills 
 and the judgment ; and that, it seems, would give her the right to sue 
 in the courts of France in her own name and in her own right, as in- 
 deed it would in this countrj' also. It has on many occasions been 
 held that an executor or administrator has his election to sue either in 
 his own right or in his representative character in respect of transac- 
 tions arising since the death of the testator or intestate, although what 
 is recovered would be assets in his hands. Here, the alleged cause of 
 action is founded mainly upon what was done b}' the plaintiff after the 
 death of her husband. There is a further answer to the demurrer to 
 the first count, viz. that the rights of the plaintiff were confirmed by 
 the second adjudication or injunction obtained by her in the Tribunal 
 Civil of the First Instance of the department of the Seine, which en- 
 titled her to execution against the defendant in that countr}-. It seems 
 to me, therefore, that there is abundant on the first count to show that 
 the plaintiff has a good cause of action against the defendant in her 
 individual capacity, without having recourse to the special matter before 
 adverted to. As to the demurrer to the second count, it is clear that 
 the plaintiff took the bills on the death of her husband, and, if nothing 
 more appeared, she could only enforce them here by clothing herself 
 with the character of his representative. But the law of doraicil at- 
 taches to these parties ; and there is a distinct averment that the 
 plaintiff was, according to the laws of France, " the donee of the uni- 
 versality of the personal and real estates belonging to the succession 
 of the deceased, and thereupon became entitled to all debts, claims,
 
 648 CURRIE V. BIKCHAM. [CHAP. XIII. 
 
 and causes of action which the deceased was entitled to, and the same 
 became and were according to the said laws vested in the plaintiff per- 
 sonall}' and absolutel}- in the same manner to all intents and purposes 
 as they were vested in the deceased, and the plaintiff was and is en- 
 titled to demand and sue for the same in her own name and in her 
 oivfi right, and the claims and rights of the deceased upon the said 
 bills became vested in the plaintiff, and the plaintiff became entitled 
 to sue the defendant thereupon in her ow?i name and in her own 
 right." I think it sufficiently appears upon this record that the plain- 
 tiff was entitled to sue upon these bills in her own right; the fact of 
 her being the donee of the universality of the personal and real estates 
 belonging to the succession of her deceased husband giving her by the 
 law of France rights different from those which an executor or an ad- 
 ministrator has in this country. I am therefore of opinion that the 
 l)laintiff is entitled to our judgment upon the demurrers to both counts 
 of the declaration.^ 
 
 CURRIE V. BIRCHAM. 
 
 King's Bench. 1822. 
 
 [Reported 1 Dowling <Si Ryland, 35.] 
 
 Assumpsit for money had and received by the defendants to the 
 plaintiff's use. The defendants pleaded the general issue ; the statute of 
 limitations ; and several special pleas. The question at the trial arose 
 upon the plea of the general issue. At tlie trial before Abbott, C. J., 
 at the Guildhall Sittings after last Michaelmas Term, the case proved 
 in evidence was this : In the year 1806, Norman Newby, quarter- 
 master of the 84th regiment of foot, went out to India, indebted 
 to the plaintiff, a laceman in London, and to other tradesmen, for 
 his military equipments, and other property of considerable value. 
 Shortly after his arrival in India, he died intestate. His wife took 
 
 1 Where by the law of tlie domicil of the deceased a universal successor legally be- 
 comes entitled at the death to all his ii<ihts and subject to all his liabilities, such suc- 
 cessor may sue or be sued upon sucli rights or liabilities in a foreign State. Beavan 
 V. Hastings, 2 K. & J. 724; King v. Martin, 67 Ala. 177. 
 
 A representative may sue in a foreign State upon any right wliich did not form part 
 of the estate of the deceased, but accrued to him after the death, even though he will 
 be accountable as such representative to his court for wliat he recovers. Perkins v. 
 Stone, 18 Conn. 270 •, Steitler v. Helenbush, (Ky.) 61 S. W. 701. Thus he may sue 
 upon a note running to hnn as administrator : Rittenhouse v. Ammerman, 64 Mo. 
 197 ; Tillman v. Walkup, 7 S. C. 60 ; ui)on a judgment assigned to him as adminis- 
 trator : Rucks V. Taylor, 49 Miss. 552 ; upon a policy of insurance taken out by him 
 on the property of the estate : Abbott v. Miller, 10 Mo. 141 ; to recover a ch'posit he 
 has made as administrator in a foreign bank : Bingham v. Marine Nat. Bank, 112 
 N. Y. 661, 19 X. E. 416; to recover dividends on stuck in a foreign corporation: 
 Smith V. Cuyler, 73 Ga. 654, 3 S. E. 406. — Ed.
 
 CHAP. XIII.] CURRIE V. BIRCHAM, 649 
 
 out letters of administration of his effects in tlie Recorder's Court at 
 Bomba}' ; and, having collected some of his effects, realized the pro- 
 ceeds in government bills, drawn on England, and returned to this 
 country, leaving a brother officer of her husband to collect the 
 remainder of his effects, and remit the proceeds in like manner, for her 
 account, after she quitted India. The defendants' testator, John 
 Moore, had been Mr. Newb3-'s agent, and all the bills in question came 
 to his hands through the medium of Mrs. Newb}-, and as was alleged, 
 converted by him into cash. The plaintiff being unalde to obtain pay- 
 ment of his debt, in the year 1816, took out letters of administration 
 of the estate and effects of Mr. Newby, as his creditor, in the Preroga- 
 tive Court of the Archbishop of Canterbury, and filed a bill in Equity 
 against Mr. Moore, and Mrs. Newby (who was then married to another 
 husband), to account for the money which had come into their hands, 
 the property of the intestate. In his answer to this bill, filed in 1817, 
 Mr. Moore stated, that he had paid over all the money which had come 
 to his hands, to Mrs. Newby, as the administratrix of her husband's 
 effects and as her agent, with the exception of a sum of £170 which he 
 retained for a debt contracted with him by the intestate when living. 
 Mr. INloore afterwards died, and by his will appointed the defendants 
 bis executors, against whom the present action was brought. At the 
 trial, the plaintiff's claim was reduced to the sum of £170 which Mr. 
 Moore, in his answer to the bill in Chancery, admitted he had retained 
 in his hands for a debt due to him from the intestate. The question 
 was. as to the plaintiff's right to sue. It was objected, that the letters 
 of administration granted by the Recorder's Court at Bombay to Mrs. 
 Newbv, must prevail against the administration granted to the plaintiff 
 in this country, and that if any action lay against Moore's executors, 
 it must be at the suit of Mrs. Newby, he having been her agent. Of 
 this opinion was Abbott, C. J., who nonsuited the plaintifl', but gave 
 him leave to move to enter a verdict for the sum of £170 above-men- 
 tioned, if the court should be of opinion that the action was well 
 brought. 
 
 Marrvat now moved accordingly to set aside the nonsuit, and enter 
 a verdict for the plaintiff for £170. He contended, that the plaintiff 
 was entitled to maintain this action by virtue of the letters of adminis- 
 tration granted to him in this country. Admitting that the letters of 
 administration granted to Mrs. Newby, in the Recorder's Court of Bom- 
 bay-, to be valid and effectual in that country, still they could not operate 
 here ; and therefore it was incumbent on Mrs. Newby, if she meant to 
 act as administratrix of her husband's effects, to have taken out letters 
 of administration in this country. This she had not done ; and the 
 letters granted to her in India could not prevail against those which had 
 been granted to the plaintiff by the Prerogative Court. The operation 
 of her letters had ceased on her quitting India. Then, as the effects of 
 Newby were not realized until they reached this country, when the bills 
 were converted into cash, the plaintiff was entitled to administer that
 
 650 PETERSEN V. CHEMICAL BANK. [CHAP. XIII. 
 
 mono}- b}' virtue of the administration which he had obtained, and con- 
 sequentl}' this action was well brought. Vide Tourton v. Flower, 3 P. 
 Wins. 369 ; Jannery v. Sealey, 1 Vent. 39 ; and 26 Geo. III. c. 57. 
 
 Per Curiam. We are of opinion that this action will not lie at the 
 suit of this plaintiff. The wife of the intestate is entitled to all the 
 effects of which her husband died possessed in India, by virtue of 
 the letters of administration granted to her in that country. It is not 
 suggested that the sum of money in question was not a part of the pro- 
 ceeds of the intestate's effects. The effects are remitted to this country 
 by her in the shape of bills, and they come to the hands of her agent 
 Moore. He receives the money to her use, and in her own right as 
 administratrix. If she has any claim upon the money, which it is 
 alleged that Moore retained in his hands, she may maintain an action, 
 but it will not lie at the suit of this plaintiff, under the letters of 
 administration which he has obtained. 
 
 Hule refused} 
 
 PETERSEN V. CHEMICAL BANK. 
 Court of Appeals, New York. 1865. 
 
 [Reported 32 New York, 21.] 
 
 This action was brought in the Superior Court of New York to 
 recover the sum of $32,321.24, being an amount standing to the credit 
 of Aaron Cohen, as a dealer on the books of the defendants' bank in 
 New York. Cohen died at the city of New Haven in Connecticut, on 
 the 27th day of July, 1862. He left a last will and testament, exe- 
 cuted in New York, on the 11th June, 1861, which was duly attested 
 by two witnesses, by which he appointed David McCoard and Cohen M. 
 Soria of New Orleans, executors. The will was proved and admitted 
 to record in the Probate Court of the District of New Haven, in 
 September, 1862 ; and the executors not appearing to qualify, and 
 one of them having renounced, administration with the will annexed 
 was granted to David J. Peck of New Haven, he giving a bond with 
 several sureties, in the penalty of $200,000, conditioned to make an 
 inventory, and to account, etc. He demanded of the defendants the 
 above amount standing to the credit of Cohen, presenting an authenti- 
 cated copy of his appointment, but payment was declined. He then, 
 on the 2d December 1862, made a transfer under his hand and seal of 
 the debt due from the defendants to the i)laiutilf in this action. The 
 
 1 Arc. ■Williamson i'. Branch Bank, 7 Ala. 906 : Holcomh t'. Phelps, 16 Conn. 127 ; 
 Norton V. Palmer, 7 Cash. 523 ; Dorsay v. Connell, 22 X. B. 564. Contra, Naylor v. 
 Moffatt, 29 Mo. 126. And see Bond v. Graham, 1 Hare 482. 
 
 Where personal property is broufrlit into a State after the death of the deceased, the 
 (?xecutor or administrator appointed in the State where the y>roperty was at the death 
 may sue in the former State for injury to the property. Clark v. Holt, 16 Ark, 257 ; 
 Enihry i;. Millar, 1 A. K. Marsh. 300.— Ed.
 
 CHAP. XIII.] PETEESEN V. CHEMICAL BANK. 651 
 
 instrument is expressed to be in consideration of $32,321.24 received 
 to the assignor's full satisfaction ; and it contains proper words of 
 sale and assignment, and a guarant}- of the collection of the amount, 
 and a promise to indemnify the plaintiff against loss by reason of the 
 purchase. The plaintiff called at the bank with this instrument, pre- 
 senting his own check and also that of Peck, and demanded the 
 money. He also exhibited an instrument, signed by all the legatees 
 named in the will, with the exception of one who resided in an in- 
 surgent State, and who was entitled to one-sixth of the residue, 
 requesting that the money might be paid over to Peck as adminis- 
 trator ; but the defendant persisted in refusing payment, on the ground, 
 apparentl}-, that it could not safely be paid, except to an administrator 
 appointed under the laws of this State, 
 
 The controverted questions of fact to which the evidence on the 
 trial was directed, related to the domicil of Cohen at the time of his 
 death, and to the circumstances under which the transfers to the 
 plain tiflf were made.^ 
 
 It was very clearly proved that he owed no debts in New York, and 
 only a few very small sums in New Haven. The legatees in his will, 
 besides S15,000 to a friend in New York and $5,000 to another in 
 New Orleans, and $5,500 to his servants, were his brothers and sisters 
 in New York, New Orleans, and Philadelphia. 
 
 In regard to the transfer, the evidence was that the plaintiff was one 
 of the sureties of Peck in the administration bond, and had acted as 
 his agent in the settlement of the estate. The consideration did not 
 appear to have been paid absolutely. The amount was advanced by 
 the plaintiff, and, together with other moneys of the estate, was 
 deposited in a bank in the name of the plaintiff as trustee, he having, 
 however, by the arrangement, no right to claim it, except by the direc- 
 tion of Peck, the intention apparently being that it should be paid out 
 in the course of administration. 
 
 The defendant's counsel moved for the dismissal of the complaint, 
 on the grounds that an action would not lie by an assignee of a foreign 
 administrator; that there was no consideration for the transfer, and 
 that it was made to evade the laws of this State, and that the Probate 
 Court in Connecticut had not jurisdiction ; and the counsel also insisted 
 that the question as to the domicil of Cohen should, at least, be 
 submitted to the jury. The motion was denied, and the judge in- 
 structed the jury to find for the plaintiff. The defendant's counsel 
 excepted. It was directed that the exceptions be heard, in the first 
 instance, at the General Term. The verdict was for the plaintiff for 
 the amount claimed, with interest ; and judgment for the plaintiff was 
 rendered thereon at the General Term, upon which the defendant 
 brought this appeal. 
 
 1 So much of the statement of facts' and opinion as involve the decision of this ques- 
 tion of fact is omitted. The arguments of counsel and concurring opinion of PoTTEB, 
 J., are also omitted. — Ed.
 
 652 PETEESEN V. CHEMICAL BANK. [CHAP. XIIL 
 
 Denio, C. J. The evidence was quite conclusive that the domicil 
 of Cohen at the time of his death was at New Haven. ... A foreign 
 executor or administrator (and one appointed under the laws of a 
 sister State of the Union is foreign in the sense of the rule), cannot 
 sue in his representative character in the courts of this State. The 
 question whether a party deriving title to a chose in action by transfer 
 from such an executor or administrator, can prosecute the debtor 
 residing here, in our courts, has been variously decided in the cases to 
 which we have been referred. In the Supreme Court in the first 
 district, the Merchants' Bank of New York was sued for refusing to 
 transfer to the plaintiff one hundred shares of its stock, to wiiich the 
 latter made title by transfers from the executors of one Robert Middle- 
 brook, in whose name the stock stood on the books of the bank. He 
 died at his residence in Connecticut, and his will had been proved, and 
 letters testamentary had been issued by the Probate Court of the 
 proper district in that State. The plaintiff was a legatee of a certain 
 amount of the testator's stock, and the shares in controversy had been 
 assigned to him in satisfaction of the legacy. The court held that 
 the executors became vested with the title to the stock, and tliat the 
 plaintiff, though he derived his title under them, could enforce his 
 right against the bank in our courts, and judgment was accordingly 
 given in his favor. Middlebrook v. The Merchants' Bank, 27 How. 
 Pr. 474 ; s. c. at Special Term, 24 How. Pr. 267. 
 
 A different rule has been established in the courts of New Hamp- 
 shire and of Maine. Thompson r. Wilson, 2 N. H. 291 : Stearns v. 
 Burnham, 5 Greenl. 261. In each of these cases the defendant was 
 sued as the maker of a promissory note, by parties claiming as in- 
 dorsees under indorsements by the executors of the payees who were 
 respectively residents of Massachusetts, and whose wills were proved 
 and letters thereon issued in that State. The defendants prevailed in 
 each case, on the objection that the respective plaintifTs were subject 
 to the same disability to sue which would have attached to the ex- 
 ecutors if they had attempted to prosecute in another State than that 
 imder whose laws their letters testamentary were granted. In the first 
 case the judgment was placed upon the English ecclesiastical law, by 
 which probates of wills and grants of administration are void when 
 not made by the ordinary of the proper diocese, a doctrine which I do 
 not think applicable to questions arising between different States, as 
 it makes no allowance for the principles of international comity. In 
 the case in Maine, it was thought that allowing a recovery would be 
 an indirect mode of giving operation in Maine to the laws of jNIassa- 
 chusetts, and also that the effects of the deceased might thereby he with- 
 drawn froni the State, to the i)rcjudice of creditors residing there. 
 
 The precise case now before us came before the Supreme Court 
 of the United States in Harper r. Butler (2 Pet. 239). The suit was 
 brought in Mississippi, on a chose in action, originally existing in 
 fever of a citizen of Kentucky, who died there, and whose executor
 
 CHAP. XIIL] PETERSEN V. CHEMICAL BANK. 653 
 
 having letters testamentarj' issued in that State, assigned it to the 
 plaintiff. In Mississippi, choses in action are assignable so as to 
 permit the assignee to sue in his own name, as is now the case in this 
 State. The question arose on demurrer to the complaint, and the 
 District Court sustained the demurrer. The judgment was reversed 
 upon a short opinion by Chief Justice Marshall, which merely states 
 the point, and contains no general reasoning. No counsel appeared on 
 behalf of the defendant. 
 
 The case in Maine has been made the subject of comment in Stor3''s 
 Treatise on the Conflict of Laws (§§ 258, 259), and is decidedly dis- 
 approved by the learned writer. He says, that upon the reasoning 
 of the case a promissory note would cease to be negotiable after the 
 death of the payee, which, he observes, would certainly not be an 
 admissible proposition. 
 
 It seems clear to me that there are no precedents touching the 
 question which are binding upon this court, or which can relieve it 
 from the duty of examining the question upon principle. There are 
 certain legal doctrines, now very well established, which have a strong 
 bearing upon the point. It is verj- clear, in the first place, that 
 neither an executor or administrator, appointed in a foreign political 
 jurisdiction, can maintain a suit in his own name in our courts. 
 Foreign laws have no inherent operation in this State ; but it is not 
 on this account solely or principally that we deny foreign representa- 
 tives of this class a standing in our courts. The comity of nations, 
 which is a part of the common law, allows a certain effect to titles 
 derived under and powers created by the laws of other countries. 
 Foreign corporations maj- become parties to contracts in this State, 
 and may sue or be sued in our courts on contracts made here or 
 within the jurisdiction which created them. The only limitation of 
 that right is the inhibition to do anything in its exercise which shall be 
 hostile to our own laws or policy. Bank of Augusta v. Earle, 13 Pet, 
 519 ; Bard v. Poole, 2 Kern. 495, 505, and cases cited. And yet 
 nothing can be more clearl}' the emanation of sovereign political power 
 than the creation of a corporation. Again, the receivers of insolvent 
 foreign corporations, and assignees of bankrupt and insolvent debtors, 
 under the laws of other States and countries, are allowed to sue 
 in our courts. It is true their titles are not permitted to overreach 
 the claims of domestic creditors of the same debtor, pursuing their 
 remedies under our laws; but in the absence of such contestants they 
 fully represent the rights of the foreign debtors. Story's Conf. 
 Laws, § 112; Hoyt v. Thomasen, 1 Seld. 320; s. c. 19 N. Y. 
 207 ; Willets v. Waite, 25 N. Y. 584. It is not therefore because 
 the executor or administrator has no right to the assets of the 
 deceased, existing in another country, that he is refused a standing in 
 the courts of such country, for his title to such assets, though conferred 
 by the law of the domicil of the deceased, is recognized everywhere. 
 Reasons of form, and a solicitude to protect the rights of creditors and
 
 654 PETERSEN V. CHEMICAL BANK. [CHAP. XIIL 
 
 others, resident in the jurisdiction in which the assets are found, have 
 led to the disability' of foreign executors and administrators, which 
 disabiUty, however inconsistent with principle, is very firmly estab- 
 lished. We have lately decided that if the debtors of the deceased 
 will voluntarily pay what they owe to the foreign executor, such pay- 
 ment will discharge the debts, and the moneys so collected will be 
 subject to the administration of such foreign executor. Parsons v. 
 Lyman, 20 N. Y. 103. 
 
 But the principle of law which I think governs this case is, that the 
 succession to the personal estate of a deceased person is governed by 
 the law of the country of his domicil at the time of his death. This 
 is so whether the succession is claimed under the law providing for 
 intestacy or for transmission by last will and testament. See Parsons 
 V. Lyman, supra, and authorities cited at p. 112. It is not so held 
 because the foreign legislature or the local institutions have any extra- 
 territorial force, but from the comity of nations. Accordingly, it is a 
 necessary supplement to the doctrine that, if the law-making power of 
 the State where the property happens to be situated, or the debtor 
 of the deceased reside, to subserve its own policy, has engrafted 
 qualifications or restrictions upon the rights of those who would suc- 
 ceed to the estate by the law of the domicil, they must take their 
 rights subject to such restrictions. One of the most natural, as well as 
 the most usual of these qualifications is that which is intended to 
 secure the creditors of the deceased residing in the country where the 
 assets exist. It is in part to subserve this policy that the personal 
 representatives are not permitted to prosecute the debtor or parties 
 who withhold his effects in our courts. But the protection to the 
 creditor is further secured by the remedy which is provided by allow- 
 ing them to take out administration in the jurisdiction where the assets 
 are. If the deceased have any relatives in this State who would be 
 preferably entitled, they can be summoned, and if they elect to take 
 out letters themselves, they will be compellable to give bond, and the 
 creditors will be then made secure in their rights, or if the relatives 
 refuse to assume that responsibility, then the creditors may themselves 
 be appointed, and thus qualified to take possession of the assets here 
 upon the same terms. 2 R. S. 73, §§23, 24. If the debtors of the 
 estate elect to pay to tlie former representative, or to deliver to him 
 the movable assets, before the granting of administration in this State, 
 the domestic creditors are put to the inconvenience of asserting their 
 rights in the courts of the country of their debtor's domicil against his 
 re[)resentativcs appointed under the laws of that country, just as they 
 would have been compelled to do if all his effects had been situated 
 there. Another general princi|)le of law necessary to be averted to is, 
 that the executor of a testator, as soon at least as he has clothed 
 himself with the commission of the Probate Court, is vested willi the 
 title to all the movable property and rights of action which the de- 
 ceased possessed at the instant of his death. The title of the executor,
 
 CHAP. XIII.J PETEESEN V. CHEMICAL BANK. 655 
 
 it is true, is fiduciary and not beneficial. That title is, however, per- 
 fect against every person except the creditors and legatees of the 
 deceased. The devolution of ownership is direct to the representative, 
 and the beneficiaries take no title in the specific property which the 
 law can recognize. An administrator with the will annexed, has the 
 same rights of propertj' as the executor named in the will would have 
 had if he had qualified. 2 R. S. 72, § 22. 
 
 The law of maintenance while it existed, prohibited the transfer of 
 the legal property in a chose in action, so as to give the assignee a 
 right of action in his own name. But this is now abrogated, and such 
 a demand as that which is asserted against the defendant in this suit 
 may be sold and conveyed so as to vest in the purchaser all the legal, 
 as well as the equitable rights of the original creditor. Code, § 111. 
 Though such demands are not negotiable in precisely the same sense 
 as commercial paper, since the assignee is subject to ever}' substantial 
 defence which might have been made against the assignor, yet where, 
 as in this case, no such defence exists, the transfer is absolute and 
 complete. The title which is vested in the executor carries with it the 
 jus disponendi which generally inheres in the ownership of propert}'. 
 " It is a general rule of law and equit}'," says Judge Williams, in his 
 treatise on executors, " that an executor or administrator has an 
 absolute power of disposal over the whole personal effects of his 
 testator or intestate, and that they cannot be followed by creditors, 
 much less by legatees, either general or specific, into the hands of the 
 alienee." Treatise, p. 796 ; see also Whale v. Booth, 7 Term R. 
 625, in note to Farr v. Newman ; Sutherland v. Breesh, 7 Johns. Ch. 
 17 ; Rawlinson v. Stone, 3 Wils. 1 ; Harper v. Butler, supra. 
 
 It follows that the plaintiff presented himself to the Superior Court 
 as the owner b}' purchase and assignment of the debt against the 
 defendant, from a person holding the title and hence having authority 
 to sell. He claimed to recover, not as the representative of any other 
 part}-, but as the substituted creditor of the defendants' bank. He 
 had, it is true, to make title through the will of Cohen, and the pro- 
 ceedings of the Probate Court of Connecticut. But the validit}' of that 
 title depended upon the law of Connecticut, that being the place of 
 the domicil of the former owner of the demand. The validity of 
 every transfer, alienation, or disposition of personal property depends 
 upon the law of the owner's domicil. Story on Conf. of I^aws, 
 § 383. In the absence of proof to the contrary, we assume the law 
 of Connecticut respecting the alienation of choses in action to be the 
 same as our own. If Cohen had, at his death, been a resident of this 
 State, and his administrator with the will annexed had sold and 
 assigned to the plaintiff his demand against the bank, there is no 
 manner of doubt but that the assignee, upon the refusal of the bank to 
 pay the amount, could haA'e maintained this action. 
 
 Hence there is not. I think, any reason whv the plaintiiT should be 
 precluded from maintaining his action, on account of his making title
 
 656 PETERSEN V. CHEMICAL BANK. [CHAP. XIIL 
 
 through a foreign administration. The rule is not that our courts 
 do not recognize titles thus acquired. It is simply that a foreign 
 executor or administrator can have no standing in our courts. The 
 plaintiff does not occupy that position. He sues in his own right and 
 for his own interest, and represents no one. In my opinion, the 
 disability to sue does not attach to the subject of the action, but is 
 confined to the person of the plaintitf. If he is an unexceptionable 
 suitor, and there is no rule of form or of policy which repels him 
 from our courts, he is to Oe received, and he may make out his title 
 to the subject claimed, in any manner allowed by law ; and it has 
 been shown that title acquired through a foreign administration is 
 universally respected by the comity of nations. 
 
 It is pretty obvious from the evidence of the circumstances of the 
 transfer by Peck to the plaintiff", that its object was to avoid the 
 objection which might be taken if Peck had sued in his own name 
 as administrator, without taking out letters here. There was no other 
 conceivable motive for the plaintiff to purchase this moneyed demand 
 payable immediately, for its precise amount paid down. If his check 
 on the bank, drawn shortly after the transfer, had been answered, he 
 would have received the precise amount he had parted with, and the 
 transaction at the best would have been paying with one hand to 
 receiving the same amount back with the other. If he failed to realize 
 the amount, he was to be indemnified by Peck. This circumstance, 
 and the manner in which the assumed consideration was disposed of, 
 would doubtless have led the jury to find, that the form adopted was 
 resorted to in order to enable the administrator to avail himself of the 
 balance in the defendant's bank, without taking out administration 
 here. Still, as between the plaintiff and Peck, the interest in the 
 demand passed. Peck would have been estopped by his conveyance 
 under seal, containing an acknowledgment of the paj'ment of tlie 
 consideration, from setting up that nothing passed by the conveyance. 
 I am of opinion that the defendant cannot make a question as to the 
 consideration. If all the parties had been residents of this State, a 
 transfer of the demand, good as between the parties to that transfer, 
 would have obliged the defendant to respond to the action of the 
 transferee. Then if we bold, as I think we should, that the objection 
 to the suit of the administrator was in the nature of a personal dis- 
 al)ility to sue, and not an infirmity inhering in the subject of the suit, 
 the fact that the transfer was made for the purpose of getting rid of 
 the objection, should not prejudice the plaintifl!'. The cases which have 
 been referred to upon this point have considerable analogy. The 
 Constitution and laws of the United States confer upon the courts of 
 the Union jurisdiction in suits between citizens of different States, 
 with an exception contained in an act of Congress, of one suing as the 
 assignee of a chose in action, of a party whose residence was such as 
 not to permit him to sue. In an action by an assignee concerning the 
 title to land, which was not within the exception, it was held not to
 
 CHAP, XIII.] PETERSEN V. CHEMICAL BANK. 657 
 
 be an objection which the defendant could take, that the assignment 
 was made for the purpose of removing the difficulty as to jurisdiction. 
 Briggs r. French, 2 Sumn. 251. In a late case in this court against 
 a foreign corporation, which could not be prosecuted here except by 
 a resident of this State, unless the cause of action arose here or the 
 subject of the action was situated here, it was held that the objection 
 — that the assignment of the demand by one not qualified by his 
 residence to sue, 'to the plaintiff who was thus qualified, was made 
 for the purpose of avoiding the difficulty — could not be sustained. 
 McBride v. The Farmers' Bank, 26 N. Y. 450. 
 
 I have not thus far referred to the circumstance, that Cohen was 
 shown not to have owed any debts in this State. That fact was proved 
 as strongly as in the nature of the case such a position could be 
 established. The administrator, whose business it was to ascertain 
 the existence of debts, and the confidential servant of Cohen who was 
 ver}' familiar witli his transactions, affirmed that there were none ; 
 and the defendant gave no evidence on the subject. The motive of 
 policy for forbidding the withdrawal of assets to the prejudice of 
 domestic creditors, did not therefore exist in this case. Still, if the 
 rule is that neither the foreign administrator or his assignee can main- 
 tain an action in our courts to collect a debt against a debtor residing 
 here, on account of its tendency to prejudice domestic creditors, the 
 exceptional features of the present case would not change the prin- 
 ciple. It would often be more difficult than in this case to disprove the 
 existence of such debts. But I am of opinion that the objection 
 should be regarded as formal, and that it does not exist where the 
 plaintiff is not a foreign executor or administrator but sues in his own 
 right, though his title may be derived from such a representative. 
 
 I am in favor of affirming the judgment of the Supreme Court. 
 
 Judgment affirmed?- 
 
 1 Ace. Harper v. Butler, 2 Pet. 230 ; Camp v. Simon, (Utah) 63 Pac. 332; Munson 
 V. Exchange Nat. Bank, 19 Wash. 12.5, 52 Pac. 1011. But see Heyward v. Williams, 57 
 S. C. 235, 35 S. E. 503. Where negotiable paper, part of the estate, is transferred by 
 the representative appointed in the State of domicil of the deceased, the transferree 
 may sue in another State in Iiis own name. Campbell v. Brown, 64 la. 425; Rand v. 
 Hubbard, 4 Met. 252 (semblc) ; Owen v. Moody, 29 Miss. 79 ; Gove v. Gove, 64 N. H. 
 503, 15 Atl. 121 (see Thompson v. Wilson, 2 N. H. 291); Mackay v. St. Mary's 
 Church, 15 R. I. 121, 23 Atl. 108. Contra, Stearns v. Burnham, 5 Me. 261 ; McCarty 
 V. Hall, 13 Mo. 480. So a foreign representative may sue in his own name on a note 
 payable to bearer. Knapp v. Lee, 42 Mich 41, 3 N. W. 244. And if he is allowed by 
 statute to sue, in a foreign State, he may sue on a note payable to the deceased, though 
 there is a local representative. Eells v. Holder, 2 McCrary, 622, 12 Fed. 668. So a 
 foreign executor may present a note payable to his testator for payment or protest. 
 Rand v. Hubbard, 4 Met. 252. 
 
 When the representative at the domicil of the deceased transfers stock, the trans- 
 ferree may have the stock transferred to his name on the books. Brown v. S. F. Gas- 
 light Co., 58 Cal. 426 ; Luce v. R. R., 63 N. H. 589, 3 Atl. 618 ; Middlebrook v. 
 Merchants' Bank, 3 Keyes, 135, 3 Abb. Dec. 295. And a foreign executor has a right 
 to vote on stock belonging to his testator. In re Election of Cape May, &c. Nav. Co., 
 51 N. J. L. 78, 16 Atl. 191. — Ed. 
 
 42
 
 658 STEVENS V. GAYLORD. [CHaP. XIT. 
 
 CHAPTER XIV. 
 
 THE ADlVnNISTRATION OF ESTATES. 
 
 SECTION I. 
 
 ESTATES OF DECEASED. 
 
 STEVENS V. GAYLORD. 
 Supreme Judicial Court of Massachusetts. 1814. 
 
 \Tieported,\\ Massachusetts, 256. J 
 
 Jackson, J.^ The determination of this cause depends on the suffi- 
 ciency of the defendant's second plea in bar. In that plea he admits, 
 in effect, that he was indebted to the intestate, as alleged in the declar- 
 ation, and that the plaintiff is administrator, duly appointed in this 
 State, of the effects of the deceased ; but he alleges, in his defence, 
 that before the plaintiff was so appointed administrator, he, the defend- 
 ant, and one Philemon Gaylord, who were both inhabitants and residents 
 in Connecticut, were duly, and according to the laws of Connecticut, 
 appointed administrators of the effects of the said deceased, by a cer- 
 tain judge of probate there, who had the power of granting such ad- 
 ministrations ; that the}' gave bond to the said judge, with condition to 
 exhibit an inventoiT, and to render their account to him ; that they 
 did accordingly exhibit an inventory of all the effects of the deceased, 
 which had come to their knowledge, including therein all the monej's 
 due from the defendant to the deceased on the notes and demands 
 specified in tlie plaintiffs declaration; by means of all which the de- 
 fendant is holden and obliged to account to the said judge of probate 
 in Connecticut for all the said moneys. 
 
 The plaintiff assigns, as a special cause of his demurrer to this plea, 
 that it is not alleged therein that tlie said Til)bals, at the time of his 
 decease, or at any lime before, resided or had his home in Connecticut ; 
 and, on examining the other parts of this record, it appears that such 
 an averment was made in another plea ; and l)eing traversed, the issue 
 was found for the plaintiff. 
 
 1 Part of the opinion is omitted. — Ed.
 
 SECT. I.] STEVENS V. GAYLORD. 659 
 
 We are well satisfied that this point is wholly immaterial in the de- 
 cision of this cause. The right of granting administration is not con- 
 fined to the State or country in which the deceased last dwelt. It is 
 very common, and often necessary', that administration be taken out 
 elsewhere. If a foreigner, or a citizen of any other of the United 
 States, dies, leaving debts and effects in this State, these can never be 
 collected b}" an administrator appointed in the place of his domicil ; 
 and we uniformly grant administration to some person here for that 
 purpose. This is the rule of the common law, and it is adopted, as we 
 understand, in most of the United States. [Goodwin v. Jones, 3 Mass. 
 Rep. 514; Dawes v. Boylston, 9 Mass. Rep. 337; Borden ?'. Borden, 
 5 Mass. Rep. 67; Langdon et al. v. Potter, 11 Mass. 313.] 
 
 In such case, however, the administration granted here is considered 
 as merely ancillary to the principal administration, granted in the juris- 
 diction where the deceased dwelt. It is true that such ancillary admin- 
 istration is not usuall}' granted until an administrator is appointed in 
 the place of the deceased's domicil. But this cannot be a necessar}- 
 prerequisite ; for if so, and it should happen that administration is 
 never granted in the foreign State, the debts due here, under such cir- 
 cumstances, to a deceased person could never be collected ; and the 
 debts due from him to citizens of this State might remain unpaid. 
 
 The time of granting the respective letters of administration is also 
 immaterial in this case. The administrators in Connecticut, if dulj' 
 appointed, must collect all the effects of the deceased in that State, 
 whilst the plaintiff will do the like here ; and the residue, after paying 
 the debts of the deceased, wherever collected or remaining, must be 
 distributed according to the laws of the State in which the deceased 
 dwelt. If it should appear, upon due examination in our Probate 
 Court, that Tibbals had his home in Connecticut, we should cause the 
 balance remaining in the hands of the administrator here to be dis- 
 tributed according to the laws of Connecticut, or transmitted for dis- 
 tribution b}' the administrator in Connecticut, under the decree of the 
 Probate Court there. And we cannot doubt that the courts in Con- 
 necticut would, under like circumstances, adopt the same principle of 
 comity and justice. Ambler, 25 ; 2 Yesey, 35 ; 2 B. & P. 229, in notis ; 
 Bruce r. Bruce, 9 Mass. Rep. 337 ; Dawes, Judge, &c. v. Boylston ; 
 [Harvey v. Richards, 1 Mason, 381 ; Dawes v. Head, 3 Pick. 128, 2 
 Kent. 344 ; Decouche v. Savetier, 3 Johns. Ch. 310 ; Dixon v. Ram- 
 say, 3 Cran. 319; United States v. Crosby, 7 Cran. 115; Bruce v. 
 Bruce, 2 B. & P. 229.] 
 
 Having disposed of these two subordinate points, the great question 
 in the cause still remains, — whether, if the debtor of an intestate be 
 duh' appointed administrator in another State, that circumstance, 
 together with the others stated in this plea, furnishes a sufficient 
 defence.^ . . . 
 
 It was suggested in the argument, that the notes on which this action 
 
 ^ The learned judge held that the defence stated in the plea was a good one. — Ed.
 
 660 FAT V. HAVEN. [CHAP. XIV. 
 
 is brought were in this State at the death of the intestate. This fact 
 does not appear on the record ; and, if material, it should have been 
 pleaded. But if the notes were here, the debtor being a citizen of 
 Connecticut, might be effectuall}' discharged bj' a release from any ad- 
 ministrator in Connecticut having lawful authority to receive the debt. 
 And, further, the notes, under such circumstances, could never be re- 
 covered, in the ordinary course of things, without being sent to Con- 
 necticut, and demanded by an administrator duly appointed there. 
 
 The circumstance of the defendant's having come into this State, so 
 as to expose himself to this action, cannot affect the general principle. 
 The law would be the same if that contingenc}^ had not happened ; in 
 which case the debtor could never be compelled to pay but to an ad- 
 ministrator duly authorized in Connecticut ; and of course a release 
 given to him b}' such an administrator would bar any subsequent action 
 for the same debt. 
 
 Another reason why this money should be accounted for in Connecti- 
 cut is, that all the effects of the deceased are liable, in the first instance, 
 to his creditors there. No principle of comity requires of that govern- 
 ment to lend their aid in collecting the effects of the deceased, and to 
 send those effects out of their country, whilst any of their citizens have 
 just and legal claims upon the fund. This debt, then, was assets, liable 
 to the claims of all creditors, citizens of Connecticut, and they ought 
 not to be deprived of this advantage merely because the debtor is him- 
 self appointed administrator. . . . Defendant's plea good.^ 
 
 FAY V. HAVEN. 
 Supreme Judicial Court of Massachusetts. 1841. 
 
 [Reported 3 Metcalf, 109.] 
 
 Debt on a probate bond, dated September 1, 1835, given by Thomas 
 Haven, as principal, and the other defendants, as sureties, for the faithful 
 performance by Haven of his duties as administrator of the estate of 
 Samuel Livermore, late of New Orleans in the State of Louisiana. ^ 
 
 1 Tlie appointment of an ancillary administrator will not be made (in the absence 
 of a statute requiring it) if it is not necessary for the proper distribution of the assets. 
 Washburn's Estate, 45 Minn. 242, 47 N. W. 790. The principal administrator can- 
 not demand tlie ajjpointment. Li re Estate of Neubert, 58 S. C. 469, 36 S. E. 908. 
 
 A testator may, however, name two executors, one to act in each of two States ; and 
 each will then have, in tlie State in which he is named to act, such right to act as any 
 executor named. Sherman v. Page, 21 Hun, 65. 
 
 The cases, almost without exception, treat a foreign executor and administrator in 
 the same way. The few cases which suggest a distinction, in some resp-^cts, between 
 their powers' probably do not represent the law. See, for instance, Winchester i>. 
 Bank, 2 O. & J. 80 ; Grant v. Reese, 94 N. C. 720. — Ed. 
 
 2 Statement of facts is omitted. — Ed.
 
 SECT. I.] ' FAY V. HAVEN. 661 
 
 Dewey, J. That this action may be maintained for such a breach 
 of this bond as will authorize a judgment for nominal damages, seems 
 to us to be very clear. The Rev. Sts. c. 68, § 25, authorize such action, 
 *' if any executor or administrator shall neglect to render and settle his 
 accounts in the probate court within six months after the return made 
 by the commissioners, or after the final liquidation of the demands of 
 the creditors, or within such further time as the judge of probate shall 
 allow therefor, so as to delay a decree of distribution." The facts 
 stated in the case show such neglect of the administrator to render and 
 settle his accounts within the time limited by the statute. 
 
 It was suggested by the defendants' counsel, that an executor or 
 administrator is not liable to an action unless he has neglected to ren- 
 der and settle his account, after having been first cited by the judge of 
 probate to render it. Such is the provision of c. 67, § 9, providing the 
 remedy for neglect to render and settle the accounts of administrators 
 in cases of solvent estates ; but we think it does not apply to cases like 
 the present, which seem to be specially provided for in c. 68, § 25, and 
 where the mere neglect to render the account, within the period pre- 
 scribed by the statute, subjects the administrator to a suit, without any 
 previous citation from the judge of probate. 
 
 The question of more difficulty in the present case is that which arises 
 upon the claim of the plaintiff, in behalf of the creditors in Massaclm- 
 setts, to hold the defendant responsible upon this bond for certain 
 property of said Livermore, deceased, which came into the hands of 
 said Haven (the principal in this bond), in the State of Louisiana, by 
 virtue of his appointment as one of the executors of said Livermore, 
 and his subsequent appointment, by the court of probate there, as tutor 
 to his children, who were legatees under the will. 
 
 By the facts stated by the parties, it appears, that Samuel Liver- 
 more had been for many years a resident in New Orleans, and had his 
 domicil there at the time of his decease ; that said Haven and one 
 Ogden were constituted executors of his will and duly autliorized to 
 act, as such, under the laws of Louisiana, and that the property, for 
 which it is now attempted to make the defendants chargeable, on the 
 bond, to the plaintiff as judge of probate for the county of Middlesex, 
 is the avails of certain personal and real estate, which came to the 
 hands of said Haven in the State of Louisiana, under the authority of 
 the Probate Court of New Orleans, received and held by him, either in 
 the capacity of executor in Louisiana, or as a tutor legally constituted 
 there, to hold the same for the benefit of his children, or to a small 
 amount, held as payment of a legacy to his wife under the said will. 
 No specific property of said Livermore is or has been in the hands of 
 said Haven in this Commonwealth, except the valuable collection of 
 books received by the corporation of Harvard College, by virtue of a 
 specific bequest to them by Mr. Livermore (and which the executors 
 transmitted from Louisiana), and certain real estate which was duly 
 returned in the inventory taken here.
 
 652 ^^^ '^'- HAVEN. [chap. XIV. 
 
 It is ver}' obvious that the disposition of both the personal and real 
 estate of Livermore, the avails of which came to the hands of Haven, 
 was to be regulated by the Laws of Louisiana ; personal estate being 
 always to be disposed of according to the lex domicilii, and the real 
 estate by the lex loci rei sitce. Story's Conflict of Laws, 403, 404. The 
 administration granted in Massachusetts was merely ancillary, and the 
 only duty devolving upon such administrator would be to collect 
 the assets here, and appropriate so much of the avails of the same to 
 the payment of debts due to our citizens, as would be authorized 
 by the general solvency or insolvency of the estate of the deceased, and 
 remit the balance to the place of principal administration. Davis v. 
 Estev, 8 Pick. 475. It has been, I apprehend, the uniform doctrine of 
 this court, that any other administration than that granted where the 
 deceased had his domicil must be considered as an ancillary admin- 
 istration. Stevens v. Gaylord, 11 Mass. 256. Such ancillary admin- 
 istrator would not lie obliged to account here for assets received in the 
 place of principal administration, although he had filed a copy of the 
 will and taken letters of administration in this Commonwealth. Select- 
 men of Boston V. Boylston, 2 Mass. 384. Carapliell v. Sheldon, 13 
 Pick. 23. But, contrary to this doctrine, it is now contended that the 
 administrator ma}- be required to account, at the place of the ancillary 
 administration, for the property of the deceased which was found at 
 the place of his domicil and principal administration, for the purpose 
 of subjecting it to the paj'ment of debts due to creditors in Massa- 
 chusetts ; and this too after the property has been changed in its specific 
 character, and the proceeds thereof have been, b}- order of the Probate 
 Court in Louisiana, vested in tlie defendant, Haven, in another and 
 different capacity from that of executor. 
 
 The position, thus urged b}' the counsel for the plaintiff, seems, as 
 alreadv suggested, at variance with the principles which are recognized 
 by the authorities already cited, as well as other cases that may be 
 referred to. Richards v. Dutch, 8 Mass. 506 ; Dawes v. Boylsto.n, 
 9 Mass. 337 ; Jennison v. Hapgood, 10 Pick. 78 ; Vaughan v. Northup, 
 15 Pet. 1. 
 
 The rule seems to have been very generally sanctioned, that as to 
 the property in the hands of the executor or administrator, acquired 
 without the jurisdiction of the principal administration, he is to be held 
 accountable for its proper application only to the legal tribunals of the 
 State in which the principal administration was taken. 
 
 The questions which have been sometimes raised, and which have 
 been of more difficult solution, have been as to the authority of the 
 ancillary administrator to retain and apply the property, received within 
 bis local jurisdiction, to tlie payment of debts or legacies due to creditors 
 and legatees residing within that jurisdiction. 
 
 Some reliance was placed by the counsel for tlie plaintiff upon thu 
 decision of the Supreme Court of New York, in tlie case of Campbell v. 
 Tousey, 7 Cow. 64, where it was held, that if a foreign executor, coming
 
 SECT. I.] FAY V. HAVEN. 663 
 
 into that State, without filing a copy of the will and taking an appoint- 
 ment under the authoritj' there, should intermeddle with the goods of 
 the deceased in New York, and thus make himself an executor de son 
 tort, he should also be charged with the assets remaining in his hands, 
 though received in a foreign country. This decision, as well as the 
 general question of conflicting administrators, is considered by Mr. 
 Justice Story, in his learned commentaries on the Conflict of Laws, 
 424-429. He doubts the correctness of the decision in Campbell v. 
 Tousey, and says " there is great difficulty in supporting it, to the 
 extent of making the foreign executor or administrator liable, in such 
 State, for assets received abroad and brought into the State by him. 
 It is not easy to perceive how he can be sued in such State for assets 
 in his hands received abroad under the sanction of a foreign adminis- 
 tration, and by the authority of the foreign government to which he is 
 accountable for all such assets." 
 
 It seems to be highly reasonable and proper that the accountability 
 of the administrator, for all assets received under an appointment in 
 one State, should be exclusivelj- under the laws and judicial decisions 
 of the State conferring upon him the power and authorit}' to act in this 
 behalf; and that all questions as to the faithful or unfaithful discharge 
 of his duties as such administrator should be limited to the same local 
 jurisdiction. If it were not so, obviouslj- great confusion would arise, 
 and conflicting decisions might be made, requiring inconsistent duties 
 of the administrator. Nor can we think that the omission in the 
 statutes of Louisiana, of the requisition of bonds from the adminis- 
 trator for the faithful discharge of his trust, can vary the general prin- 
 ciple. The nature and extent of the securitv to be given in such cases 
 must necessarily be regulated by the local law. We are to presume 
 that such laws are in force in Louisiana, as furnish reasonable security 
 to the parties in interest, and that in some form, through the aid of 
 legal process, the avails of the estate of one deceased ma}- be reached, 
 or the executor be restrained in any attempt to withdraw the same, or 
 to place himself be^-ond the jurisdiction of her courts, while his liabili- 
 ties to creditors are undischarged. Indeed the records of the court of 
 probate of New Orleans, in this case, and the civil code of Louisiana, 
 to which we have been referred, both show various proceedings in the 
 cases of settlement of estates, having for their object the proper appli- 
 cation of the assets to the pa3-ment of the debts of deceased persons. 
 The remedy, it is true, may be lost b}' delay or laches of the creditor 
 in enforcing his claim, and the proceedings may be closed in a shorter 
 time than would be consonant with the laws of Massachusetts ; but 
 this cannot affect the general principle as to the liabilities of the 
 foreign administrator in our courts. 
 
 Upon the whole matter, the court are of opinion that the defendants 
 are not liable upon this bond to the judge of probate in this county, 
 for any assets received in the State of Louisiana ; the property thus 
 received, having been already administered upon in that State. If the
 
 664 ADAMS V. BATCHELDEB. [CHAP. XIV. 
 
 settlement of the estate is not closed there, proceedings may be insti- 
 tuted there against the legal representatives to enforce any valid claims 
 existing on behalf of creditors. If not enforced in due time, the 
 creditors may have lost tlieir remedy by their own laches. 
 
 The books in possession of Harvard College were transmitted to the 
 donees from Louisiana, and the estate at the place of principal admin- 
 istration being solvent, they were properly transmitted by the executors, 
 agreeably to the bequest of the testator ; and this being a proper and 
 legal disposition of them under the authority and laws of Louisiana, 
 they are not assets to be accounted for by the administrator in this 
 Commonwealth. 
 
 The administrator is not to be charged with the real estate returned 
 'in the inventory, or be made liable by reason of any neglect to procure 
 license to sell the same ; this court having, upon an application duly 
 made by him for such license, refused to grant it. Livermore v. Haven, 
 23 Pick. IIG. The result is, therefore, that the plaintiff is entitled to 
 a judgment for only nominal damages.^ 
 
 ADAMS V. BATCHELDER. 
 Supreme -Judicial Court of Massachusetts. 1899. 
 
 [Reported 173 Massachusetts, 258.] 
 
 Holmes, J. This is an action of contract brought upon a New 
 Hampshire judgment obtained by a man domiciled in New Hampshire, 
 upon a debt contracted in New Hampshire, against a resident of 
 Massachusetts, The judgment creditor died, and the present plaintiff, 
 also a resident of New Hampshire, was appointed his administratrix 
 there. On April 18, 1881, the plaintiff was appointed ancillary admin- 
 istratrix in Massachusetts. On January 21, 1891, the defendant 
 received a discharge in insolvency in Massachusetts. At the trial 
 there was evidence that the debt never had been paid, but the judge 
 ruled that the discharge was a bar to the action. The case is here 
 upon an exception to that ruling. 
 
 The ruling raises the question whether the debt is to be regarded as 
 due to a person resident in Massachusetts, within the meaning of Pub. 
 
 1 Ace. Preston v. Melville, 8 CI. & F. 1; Lewis v. Grognard, 17 N. J. Eq. 425; 
 Freeman's Appeal, 68 Pa. 151 ; Hamilton v. Carrin<,'ton, 41 S. C 385. 19 S. E. 616 
 (but see Cureton v. Mills, 13 S. C. 409). Compare Grant v. Reese, 94 N. C. 720. 
 
 If without securing an appointment in another State an aduiinistrator takes assets 
 there, it seems clear that he is accountable for the assets to the court which appointed 
 him. McPike v. McPike, 111 Mo. 216, 20 S. W. 12. Contra, Mothlan.l v. Wireman, 
 3 Pen. & W. 185. The sureties on his bond have also been held accountable for such 
 assets. Andrews v. Avory, 14 Grat. 229. Contra, Fletcher v. Sanders, 7 Dana, 345 
 (sureties of an aucillary administrator).
 
 SECT. I.J ADAMS V. BATCHELDER. 665 
 
 Sts. c. 157, § 81. The defendant's position is that, as the debt could 
 not be collected except by taiilug out ancillary administration here, 
 it must be taken to be due to the plaintitf in her capacity of ancillary 
 administratrix, and not as a natural person ; and that, as that office has 
 its birth and Ufe in Massachusetts, the plaintirt" in that capacity has 
 her residence here, just as a corporation has its domicil in the State 
 which created it. Bergn^r & Engel Brewing Co. i;. Dreyfus, 172 Mass. 
 154. But this argument is working a fiction too hard. An executor 
 or administrator is not a corporation sole. He gets his title or his 
 succession to the rights of the deceased by his appointment, it is true. 
 Nowadays he holds those rights in a fiduciary capacity, and he must 
 account for what he receives. But there is no absolute separation 
 of his artificial from his natural personality, as is shown by the fact 
 that a suit against an executor may end in a judgment de bonis pro- 
 priis, either at common law or under Pub. Sts. c. 166, § 10, and very 
 frequently may lead to a personal judgment for costs, as also that in 
 general his contracts as such bind him only personally, even when 
 he is entitled to indemnity from the estate. Durkin v. Langley, 167 
 Mass. 577. A judgment recovered by an administrator is payable 
 to him personally, and may be sued on by him in another State. 
 Talmage v. Chapel, 16 Mass. 71. And it has been held that, when 
 a chattel is taken from an administrator wrongfully, he may sue for it 
 in another State into which it has been carried. Crawford v. Graves, 
 15 La. Ann. 243. Story, Confl. of Laws, § 515. Dicey, Confl. of Laws, 
 459, 460. See Commonwealth v. Griffith, 2 Pick. 11, 18. What is 
 true of an executor is even more plainly true of an ancillary adminis- 
 trator. And as one person can have but one domicil, unless the law 
 for this purpose treats the woman and the ancillary administratrix as 
 two persons, the plaintiff is a resident of New Hampshire, since no one 
 would contend that her residence was changed for all purposes by her 
 merely accepting an appointment here. 
 
 In the present case there is also another consideration. The debt 
 was not suspended until the appointment of the ancillary administra- 
 trix. It was the property of the principal administratrix so far that a 
 payment to her would have been a bar to the present action : AVilkins 
 V. EUett, 9 Wall. 740; s. c. 108 U. S. 256 ; see Story, Confl. of Laws, 
 § 515, n. ; Dicey, Confl. of Laws, 461 ; or that the debt could have 
 been sued for and collected there before the ancillary letters were 
 issued, and that, if collected in Massachusetts, it would be transmitted 
 to New Hampshire and accounted for there, unless there happened to 
 be local claims against the estate. We presume that the right to sue 
 the debtor in New Hampshire, if service could be got there, was not 
 affected by the ancillary appointment. As is said in Wilkins v. Ellett, 
 108 U. S. 256, 258, the objection to the principal administratrix's 
 bringing an action here " does not rest upon any defect of the admin- 
 istrator's title in the property, but upon his personal inca|)acity to 
 sue as administrator beyond the jurisdiction which appointed him."
 
 666 STERN V. QUEEN. [CHAP. XIV. 
 
 See Hutchins f. State Bank, 12 Met. 421,425; Anthony v. Anthon}-, 
 161 Mass. 343, 351, 352; Swift, C. J., in Slocum v. Sanford, 2 Conn. 
 533, 535. 
 
 Perhaps this branch of the argument so far is not unanswerable. 
 But there is the further fact that the debt already had been reduced to 
 judgment. Whatever may be the law as to simple contract debts, it 
 •was laid down three centuries ago, and still is repeated, that judgments 
 are bo)ia notahilia where the judgment was given. As applied to this 
 case, at least, we may accept the statement. Sir John Needham's case, 
 in note to Daniel v. Luker, Dyer, 305 ; Kegg v. Horton, 1 Lutw. 399, 
 401 ; Gold V. Strode, 3 Mod. 324 ; Adams v. Savage, Ld. Raym. 854 ; 
 Attorney-General r. Bouwons, 4 M. & W. 171, 191 ; Holcomb v. 
 Phelps, 16 Conn. 127, 135; 1 Wms. Saund. 274 a, n. 3. Taking all 
 the elements into account, it seems to us that in this case, if ever, •' the 
 [administratrix] here is only the deputy or agent of the [administra- 
 trix] abroad." Dawes v. Head, 3 Pick. 128, 141, 142. See also 
 Merrill v. New England Ins. Co., 103 Mass. 245, 248. 
 
 Whichever of the foregoing lines of thought we pursue, we are led 
 to the conclusion that the debt is not barred. If we treat the debt as 
 due to the ancillary administratrix, we cannot so far distinguish between 
 her natural and her artificial person, in the present state of the law, as 
 to say that she resides in Massachusetts as administratrix when as a 
 •woman she resides in New Hampshire. If we are to consider the 
 question of title more nicely, the debt belongs to the principal admin- 
 istratrix, although she may not receive it except subject to local debts 
 of the estate. iJxceptions sustained. 
 
 STERN V. QUEEN. 
 High Court of Jcstice, Queen's Bench Division. 1896. 
 
 [Reported [1S96] 1 Queens Bench, 211.] 
 
 This was a petition of right brouglit by the suppliants, executors of 
 Baron Herman de Stern, for a return of the sum of £8,187, being tiie 
 amount of probate duty paid upon certain shares in American rail- 
 way companies, the certificates for which shares were in England at 
 the testator's death. ^ 
 
 Wright, J. In this matter the case finds that the certificates, the 
 value of which is in question in this petition of riglit, were documents 
 of title held by the shareholders in certain foreign companies, which 
 certificates certify that tlic person therein named is entitled to the num- 
 ber of shares named, and so forth. Upon every certificate there is 
 
 1 This short statement is substituted for that of tlie Rj[iorter. Arguments of couu- 
 sel are omitted. — Ed.
 
 SECT. I.J PINNEY V. McGREGORY. 667 
 
 indorsed a form of transfer and a power of attorney in blank. Then 
 paragraph 8 repeats with regard to this case most of the judicial state- 
 ments of fact or inferences of fact which were drawn in the House of 
 Lords in the case of Colonial Bank v. Cadj-, 15 App. Cas. 267. I think 
 that the true inference to be drawn from the statements made in the 
 case is that the dut}' has properl}- been claimed and paid upon these 
 documents. It is not a matter that is susceptible of an}' lengthened 
 statement ; but the waj- I put it is this. There is in this country with- 
 in the jurisdiction of the Ordinary (now the Probate Court) a document 
 the existence of which vouches and is necessary' for vouching the title 
 of some one to the foreign share, so that in the absence of that docu- 
 ment no one at all could establish a title to the share. It is found by 
 the case that the certificates are currentl}' marketable here as securities 
 for that share and the dividends payable on that share ; it is found, in 
 fact, that the delivery of the certificate in this countr}' ipso facto affects 
 the title in a sense that it entitles the transferee to all the transferor's 
 rights. It follows that the certificate itself has some operative power 
 here, and it seems to me not to be within tlie ancient rule that a simple 
 contract debt or mere evidences of a simple contract debt are supposed 
 to exist onl}' at the place of the debtor's residence. It being a mar- 
 ketable security operative, though not completely operative, to pass the 
 title, and having a marketable value here, I think that it is itself a docu- 
 ment which is a document of value in the hands of the executors within 
 thejurisdiction of the Ordinary. Therefore I think that the Crown is 
 entitled to succeed. 
 
 Kennedy, J. I agree, and for the same reasons. 
 
 Judgment accordingly. 
 
 PINNEY V. McGREGORY. 
 Supreme Judicial Court of Massachusetts. 1869. 
 
 [Reported 102 Massachusetts, 186.] 
 
 CoxTRACT by the plaintiff as administrator of the estate of Rufus G. 
 Pinne}', late of Stafford in the State of Connecticut, upon several prom- 
 issory notes made by the defendants, payable to the order of the intes- 
 tate and overdue. The notes were found in Connecticut after the death 
 of the intestate. The plaintiff was appointed administrator by the pro- 
 bate court for the county of Hampden in this Commonwealth. One of 
 the defendants was a resident of the county at the time administration 
 was granted, but not at the death of the intestate. Tlie judge at the 
 trial ruled that no action could be maintained by the plaintiff because 
 the probate court had no jurisdiction ; and directed a verdict for the 
 defendants. If this ruling was correct, judgment was to be entered
 
 ()68 PINNEY V. M( GREGORY. [CHAP. XIV. 
 
 upon the verdict, otherwise the verdict to be set aside and judgment 
 entered for the plaintiff.^ 
 
 Gkay, J. . . . We prefer to rest the jurisdiction of the Probate Court 
 upon tlie residence of a debtor to the intestate in this county at the 
 time of the grant of administration. 
 
 By the law of England, simple contract debts due to the deceased are 
 bona notabilia in the diocese where the debtor resides.'^ It is said in- 
 deed in the text-books of approved authority, that the debtor must 
 have resided there at the time of the intestate's death, though we do 
 not find that this has been expressly adjudged. 1 Williams on Execu- 
 tors, 279, and authorities cited. The canons of 1 James I. (1603) 
 upon the subject, however, speak of the deceased being '' at the time of 
 his death " possessed of goods and chattels or good debts in any otlier 
 diocese or peculiar jurisdiction than that in which he died. lb. 267, 
 268. But it is observable that, in the leading cases in the courts of 
 common law, in which the administration granted in one county was 
 declared void, the allegation was that the debtor resided in another 
 county not only at the time of his death, but also ever since, or at the 
 time of the grant of administration. Yeomans v. Bradshaw, Garth. 
 373 ; s. c. 3 Salk. 70, 164, 12 Mod. 107, Comb. 392, Holt, 42 ; Hil- 
 liard v. Cox, 1 Salk. 37 ; s. c. 2 Salk. 747, 1 Ld. Raym. 562, 3 Ld. 
 Raym. 313. And in the case of Yockney v. Foyster, cited and ap- 
 
 1 This short statement is substituted for that of the Reporter. Only so much of 
 the opinion is given as deals with the subject of jurisdiction based on residence of the 
 defendants. — Ed. 
 
 2 A simple contract debt is assets where the debtor resides : Arnold v. Arnold, 62 
 Ga. 627 ; Burbank v. Payne, 17 La. Ann. 15 ; Emery v. Hildreth, 2 Gi-ay, 228 ; Sayre 
 V. Helme, 61 Pa. 299 ; and this, though a bill or note has been given for the amount 
 of it : Yeoman v. Bradshaw, Carth. 373, 3 Salk. 70 ; Wyman v. Halstead, 109 U. S. 
 6.".4; Slocum v. Sanford, 2 Conn. 533; Chapman v. Fish, 6 Hill 554; but see Mc- 
 Namara v. McNamara, 62 Ga. 200; Thorman v. Broderick, 52 La. Ann. 1298, 27 So. 
 735 ; Goodlett v. Anderson, 7 Lea, 289. So of a judgment debt. Morefield v. Harris, 
 126 N. C. 626, 36 S. E. 125 ; Swancy v. Scott, 9 Humph. 327 ; see Du Val v. Marshall, 
 30 Ark. 230. So of a claim to a share of the profits of a partnership. Shaw's Estate, 
 81 Me. 207, 16 Atl. 662 (scmblc) ; Jones v. Warren, 70 Miss. 227, 14 So. 25. So of 
 a right to recover damages. Hartford k N. H. R. R. v. Andrews. 36 Conn. 213 ; 
 Missouri Pacific R. R. v. Lewis, 24 Nob. 848 ; contra, Jeffersonville R. K. v. Swayne, 
 26 Ind. 477 ; Perry v. S. J. & W. R. R., 29 Kan. 420. 
 
 A bond, on the otlier hand, is assets where it is found. Daniel v. Luker, Dyer, 305 ; 
 Barclift v. Treece, 77 Ala. 528 ; Beers v. Shannon, 73 N. Y. 292 ; and see Grant v. 
 Rogers, 94 N. C. 755. In Cooper v. Beers, 143 111. 25, 33 N. E. 61, it was held that 
 notes and bonds found within a State were not " property in this State" within the 
 meaning of a statute. See Speed i;. Kelly, 59 Miss. 47. 
 
 Shares of stock in a corporation are usually held to be assets where the stock-books 
 an- kept. Attorney-General v. New York Breweries Co., [1898] 1 Q. B. 205; Gray- 
 son V. Robertson, 122 Ala. 330, 25 So. 229 : Arnold v. Arnold, 62 Ga. 627 ; Wa.sh- 
 burn's E.state, 45 Minn. 242, 47 N. W. 790 {semhk). In Russell v. Hooker, 67 Conn. 
 24, 34 Atl. 711, they were held to be assets at the domicil of the deceased, where they 
 were found. 
 
 In Epping I'. Robinson, 21 Fla. 36, bills and notes and written contracts were held 
 bona nutabilia where found. — Ed,
 
 SECT. I.] PINNEY V. McGREGORY. 669 
 
 proved by Sir John NichoU in Scarth v. Bishop of London, 1 Hagg. 
 Eccl. 636, 637, in which the only effects within the province were brought 
 there after the death of the party, Sir William Wynne held that, if the 
 court of chancery had held a grant of probate there to be necessary in 
 order to file a bill in equity to recover the property-, the ecclesiastical 
 court "• in aid of justice " might grant letters of administration. 
 
 Our statute declares that '' the Probate Court for each county shall 
 have jurisdiction of the probate of wills, granting administration of the 
 estates of persons who at the time of their decease were inhabitants of 
 or resident in the count)', and of persons who die without the State, 
 leaving estates to be administered within such count}-." Gen. Sts. c. 
 117, § 2, It does not in terms say " leaving estate in such county at 
 the time of their decease." The section embodies the Rev. Sts. c. 64, 
 § 3, and c. 83, § 5, which were substantial re-enactments of the St. of 
 1817, c. 190, §§ 1, 16. In Picquet, Appellant, 5 Pick. 65, the court 
 held that the earliest of these statutes should receive a liberal construc- 
 tion to enable the representatives of deceased foreign creditors to col- 
 lect the debts of the deceased here in the only way in which by our laws 
 they could be recovered, that is to say, through the power of adminis- 
 tration granted by the laws of this Commonwealth ; and that a debt 
 due from a citizen of this Commonwealth to a foreign subject at tlie 
 time of his death should therefore be deemed estate left by him in this 
 Commonwealth, within the meaning of that statute. The same rule of 
 construction must be applied to this case. 
 
 Indeed the St. of 1817, c. 190, § 16 (which included the estates of 
 intestates alread}- deceased, as well as of those who might die in the 
 future), would seem to point to the time of a petition for administration 
 rather than the time of the death, as the time at which there must be 
 estate within the county, in order to give jurisdiction ; for the words 
 are, "■ when any person who has died or shall die intestate without the 
 Commonwealth shall leave estate of any description within the same to 
 be administered," letters of administration may be applied for as if he 
 had died within the Commonwealth, and the judge of probate of any 
 county " wherein such estate shall be found " shall have power to grant 
 them. But it is not necessary to rely upon so narrow an argument. 
 
 Before that statute, the probate courts of the Commonwealth exer- 
 cised the jurisdiction of granting administration on property belonging 
 or debts due to persons residing abroad, in order to enable them to be 
 collected in this State, because without such appointment no suit could 
 be brought in our courts for the assets or debts of the deceased, either 
 in the courts of the Commonwealth or of the United States. Goodwin 
 V. Jones, 3 Mass. 514 ; Stevens v. Gaylord, 11 Mass. 256 ; Picquet v. 
 Swan, 3 Mason, 469 ; Noonan v. Bradley, 9 Wall. 394. In Dawes 
 V. Boylston, 9 Mass. 337, and Wheelock v. Pierce, 6 Cush. 288, it 
 seems to have been assumed that a debtor or goods of the intestate 
 coming or being brought into the Commonwealth after the death of the 
 testator would give jurisdiction to support an administration. The
 
 670 WILKINS V. ELLETT. [CHAP. XIV. 
 
 dictum of Mr. Justice Bigelow in Bowdoin v. Holland, 10 Cusb. 18, 
 that " it is undoubtedly true that if the deceased bad at the time of bis 
 death neither domicil nor assets within the Commonwealth, the judge 
 of probate had no jurisdiction in the premises," is not to be taken in 
 its strictest sense. It was there held that jyrima facie evidence that a 
 deceased nonresident had conveyed real estate in this Commonwealth 
 in fraud of his creditors was sufficient to warrant the grant of adminis- 
 tration here, even if no similar grant had been made in the State of his 
 domicil ; and the question asked by the learned judge upon that point 
 is equally applicable to this. " If the will is never proved in the place 
 of the testator's domicil, and is purposely withheld from probate, have 
 creditors in this State no means of procuring administration on their 
 deceased debtor's estate, and thereby reaching liis property here?" 
 To limit the power of granting administration to cases in which the 
 goods are or the debtor resides in the Commonwealth at the time of the 
 death of the intestate would be to deny to the creditors and representa- 
 tives of the deceased, whether citizens of this or of another State, all 
 remedy whenever goods ai'e brought into this State, or a debtor takes 
 up his residence here, after the death of the intestate. The more liberal 
 construction of the atatate is necessary to prevent a failure of justice.^ 
 
 WILKINS V. ELLETT. 
 
 Supreme Court of the United States. 1883. 
 
 [Reported 108 Uiiited States, 256.] 
 
 Gray, J. This is an action of assumpsit on the common counts, 
 brought in the Circuit Court of the United States for the Western 
 District of Tennessee. The plaintiff is a citizen of Virginia, and sues 
 as administrator, appointed in Tennessee, of the estate of Thomas N. 
 Quarles. The defendant is a citizen of Tennessee, and surviving part- 
 ner of the firm of F. H. Clark & Company. The answer sets up that 
 Quarles was a citizen of Alabama at the time of his death ; that the sum 
 sued for has been paid to William Goodloe, appointed his administrator 
 in that State, and has been inventoried and accounted for by him upon a 
 
 1 Ace. Saunders V. Weston, 7-i Me. 85; Low v. Horner, 10 Hawaii, 531. So ad- 
 ministration may be granted upon chattels brought into the State, whether rightfully 
 or wrongfully, after the death of the owner. Stearns v. Wright, 51 N. H. 600 ; In re 
 Hughes, 95 N. Y. 55 ; Morefield v. Harris, 126 N. C. 626, 36 S. E. 125 (scmble) ; Green 
 V. Rugely, 23 Tex. 539. Contra, Embry v. Millar, 1 A. K. Marsh, 300. 
 
 But where the propei'ty is taken into the foreign State by an agent of the domiciliary 
 administrator for a temporary jjurpose, as for sale or transmission, the State into which 
 it is taken can exercise no control over it as against the domiciliary administrator. 
 Crescent City Ice Co. v. Stafford, 3 Woods 94, Fed. Cas. 3387 ; Wells v. Miller, 45 111. 
 382 ; In re Schley's Estate, 11 Phila. 139. This is clearly true where the goods are 
 returned or sold before an ancillary administrator is appointed. Christy v. Vest, 36 
 la. 285 ; Martin v. Gage, 147 Mass." 204, 17 N. E. 310. — Ed.
 
 SECT. I.] WILKINS V. ELLETT. 671 
 
 final settlement of his administration ; and that there are no creditors 
 of Qiiarles in Tennessee. The undisputed facts, appearing by the bill 
 of exceptions, are as follows : — 
 
 Qiiarles was born at Richmond, Virginia, in 1835. In 1839 his 
 mother, a widow, removed with him, her only child, to Courtland, 
 Alabama. They lived tliere togetlier until 1856, and she made her 
 home there until her death in 1864:. In 1856 he went to Memphis, 
 Tennessee, and there entered the employment of F. H. Clark & 
 Company, and continued in their employ as a clerk, making no invest- 
 ments himself, but leaving his surplus earnings on interest in their 
 hands, until January, 1866, when he went to the house of a cousin in 
 Courtland, Alabama, and while there died by an accident, leaving 
 personal estate in Alabama. On the 27th of January, 1866, Goodloe 
 took out letters of administration in Alabama, and in February, 1866, 
 went to Memphis, and there, upon exhibiting his letters of administra- 
 tion, received from the defendant the sum of money due to Quarles, 
 amounting to S3, 455.22 (which is the same for which this suit is 
 brought), and included it in his inventory, and in his final account, 
 which was allowed by the Probate Court in Alabama. There were no 
 debts due from Quarles in Tennessee. All his next of kin resided in 
 Virginia or in Alabama ; and no administration was taken out on his 
 estate in Tennessee until June, 1866, when letters of administration 
 were there issued to the plaintiff. 
 
 There was conflicting evidence upon the question whether tho 
 domicil of Quarles at the time of his death was in Alabama or in Ten- 
 nessee. The jury found that it was in Tennessee, under instructions, 
 the correctness of which we are not prepared to affirm, but need not 
 consider, because assuming them to be correct, we are of opinion that 
 the court erred in instructing the jury that, if the domicil was in 
 Tennessee, they must find for the plaintiff ; and in refusing to instruct 
 them, as requested by the defendant, that the payment to the Alabama 
 administrator before the appointment of one in Tennessee, and there 
 being no Tennessee creditors, was a valid discharge of the defendant, 
 without reference to the domicil. 
 
 There is no doubt that the succession to the personal estate of a 
 deceased person is governed by the law of his domicil at the time of 
 his death ; that the proper place for the principal administration of his 
 estate is that domicil ; that administration ma}- also be taken out in any 
 place in which he leaves personal property ; and that no suit for the 
 recovery of a debt due to him at the time of his death can be brought 
 by an administrator as such in any State in which be has not taken out 
 administration. 
 
 But the reason for this last rule is the protection of the rights of 
 citizens of the State in which the suit is brought ; and the objection 
 does not rest upon any defect of the administrator's title in the property, 
 but upon his personal incapacity to sue as administrator beyond the 
 jurisdiction which appointed him.
 
 672 WILKINS V. ELLETT. [CHAP. XIV. 
 
 If a debtor, residing in another State, comes into tlie State in which 
 the administrator has been appointed, and there pays him, the payment 
 is a valid discharge everywhere. If the debtor being in that State, 
 is there sued bj- the administrator, and judgment recovered against iiim, 
 the administrator may bring suit in liis own name upon tliat judgment 
 in tiie State wliere tiie debtor resides. Tahnage v. Cliapel, IG Mass. 
 71 ; Biddle v. Willcins, 1 Pet. 68G. 
 
 Tlie administrator, by virtue of his appointment and authority' as 
 sucli, olitains the title in jjromissory notes or other written evidences of 
 debt, held by the intestate at the time of his deatli, and coming to ,tlie 
 possession of the administrator ; and may sell, transfer, and indorse the 
 same; and the purchasers or indorsees may maintain actions in their 
 own names against the debtors in another State, if the debts are 
 negotiable promissory notes, or if the law of the State in which the 
 action is brought permits the assignee of a chose in action to sue in his 
 own name. Harper v. Butler, 2 Pet. 239; Shaw, C. J., in Pand ik 
 Hubbard, 4 Met. 252, 258-260 ; Petersen v. Chemical Bank, 32 N. Y. 
 21. And on a note made to the intestate, pa3able to bearer, an 
 administrator appointed in one State maj* sue in his own name in an- 
 other State. Barrett v. Barrett, 8 Greenl. 353 ; Pobinson v. Crandall, 
 9 Wend. 425. 
 
 In accordance with these views, it was held by this court, when this 
 case was before it after a former trial, at which the domicil of the 
 intestate appeared to have been in Alabama, that the paj-ment in 
 Tennessee to the Alabama administrator was good as against the ad- 
 ministrator afterwards appointed in Tennessee. Wilkins v. EUett, 9 
 ^Yall. 740. 
 
 Tlie fact that the domicil of the intestate has now been found by 
 the jury to be in Tennessee does not appear to us to make any difference. 
 There are neither creditors nor next of kin in Tennessee. Tlie Ala- 
 bama administrator has inventoried and accounted for the amount of 
 this debt in Alabama. The distribution among the next of kin, 
 whether made in Alabama or in Tennessee, must be according to the 
 law of the domicil ; and it has not been suggested that there is any dif- 
 ference between the laws of the two States in that regard. 
 
 The judgment must therefore be reversed, and the case remanded 
 with directions to set aside the verdict and to order a uVew trials 
 
 1 Ace. Selleck v. Rusco, 46 Conn. 370; Citizens' Nat. Bank v. Sharp, 53 Md. 
 521 ; Dexter v. Berge, 76 Minn. 216, 78 N. W. 1111 ; Riley v. Moseley, 44 Miss. 37; 
 Parsons v. Lyman, 20 N. Y. 103; Gray's Appeal, 116 Pa. 256; 11 Atl. 66. Contra, 
 Vaughn v. Barret, 5 Vt. 333. As against later claims of domestic creditors such pay- 
 ment is not a good discharge. Ferguson v. Morris, 67 Ala. 389. 
 
 But where an English company transferred shares of an American testator to his 
 executor, the latter was held executor dc son tort and liable to probate duty in England. 
 Attorney-General v. New York Breweries Co., [1898] 1 Q. B. 205. Contra, Citizens' 
 Nat. Bank v. Sharp, 53 Md. 521. And where a foreign administrator took assets, he 
 was held in an early case as exrxutor de son tort in favor of the creditors. Riley v. 
 Riley, 3 Day 74. See Hopkins v. Town, 4 B. Mon. 124. — Ed.
 
 SECT. I.] SHAKESPEARE V. FIDELITY INSURANCE, ETC. 67< 
 
 SHAKESPEARE v. FIDELITY INSURANCE, TRUST & SAFE 
 
 DEPOSIT CO. 
 
 Supreme Court of Pennsylvania. 1881. 
 
 [Reported 97 Pennsylvania, 173.] 
 
 This was an action of trover by the administrator de bonis non, cum 
 testamento annexo of the estate of John B. Ackley deceased, against 
 The Fidelity Insurance, Trust and Safe Deposit Compan}' of Phila- 
 delphia, for certain United States coupon bonds deposited with the de- 
 fendants by the testator in his lifetime for safe-keeping on special 
 certificate of deposit which by its terms must be surrendered upon with- 
 drawal of the deposit. The testator left the certificate, at his death, in 
 NewJerse}', hisdomicil, audit was presented by the New Jersey execu- 
 tor to the defendant, and the bonds surrendered in exchange for it. The 
 plaintiff having been appointed administrator in Pennsylvania, demanded 
 the bonds, and upon refusal brought this suit. The court entered judg- 
 ment for the defendant upon the point reserved, viz.. Is the plaintiff 
 entitled to recover upon these facts ? The plaintiff took a writ of error.^ 
 Sharswood, C. J. We do not consider that the United States coupon 
 bonds which are the subjects of this controversy were, at the time of 
 the death of the decedent, any part of his estate in this Commonwealth. 
 The defendants were the mere depositaries of the bonds for safe-keeping. 
 They were, therefore, in the possession of the decedent. He held the 
 certificate of their deposit. The defendants were bound to restore the 
 bonds at any time to the lawful holder of the certificate. It was as if 
 the bonds had been placed in a fire-proof of the defendants, of which the 
 decedent possessed the key. In point of fact, the certificate was in the 
 actual possession of the widow of the decedent in New Jersey. She 
 surrendered it as she was bound to do, to the foreign executor. She could 
 not have withheld it. The New Jersey executor could have sued her, 
 and compelled its delivery to him. The Pennsylvania administrator 
 certainly could not. By the terms of the certificate it might be trans- 
 ferred b}' assignment indorsed thereon and approved by the company. 
 The foreign executor could have so assigned it, and his assignee could 
 have sued for the delivery of the bonds, in his own name. The assign- 
 ment would have been a sale of the bonds, which were payable to 
 bearer, and passed b}' delivery. Whoever showed a legal title to the 
 certificate had a right to the possession of the bonds. The case, then, 
 is within the principle of Moore v. Fields, 6 Wright, 471, where it was 
 held that, where a debt fixed by a decree or judgment of the court of 
 
 ^ This short statement is substituted for that of the Reporter. Part of the opinion, 
 in which the statute fixing the powers of foreign executors was held not to apply, is 
 omitted. — Ed. 
 
 ■13
 
 674 , AMSDEN V. DANIELSON. [CHAP. XIV. 
 
 another State in favor of a foreign administrator, is due by citizens of 
 Pennsylvania to the estate of a decedent, the administrator of the fo^ 
 eign domicil may sue for and recover it in his own name. 
 
 Judgment affirmed} 
 
 AMSDEN V. DANIELSON. 
 
 Supreme Court of Rhode Island. 1895 
 
 [Reported 18 Rhode Island, 787.] 
 
 Stiness, J. The plaintiff, executor of the will of Lucretia C. 
 Danielson, late of Providence, deceased, sues the defendant, a resident 
 of Killingly, Connecticut, upon a promissory note, made by him, dated at 
 said Killingly, and payable to the testatrix. The action was com- 
 menced January 12, 1894, by an attachment of real estate of the 
 defendant in the city of Providence in this State. It appears by the 
 defendant's plea that after said will was probated here, and since 
 the commencement of this suit, a copy of the will was recorded in 
 Killingly and William H. ChoUar was appointed administrator, who has 
 qualified, and to whom the defendant has made payment of the amount 
 due on the note. To this the plaintiff replies that there was no property 
 in Connecticut except a trifling amount of furniture, which had been 
 fully administered by him before the application to record the will in 
 Killingly ; that there were no creditors in Connecticut ; that the de- 
 fendant, knowing the intention of the plaintiff to bring suit here, induced 
 the plaintiff to forbear his suit by promising to pay the debt on a cer- 
 tain day, and thereupon, contriving to prevent said attachment and to 
 evade the payment of the note, took advantage of the plaintiff's forbear- 
 ance and procured the recording of the will and the appointment of 
 Chollar as administrator in Connecticut ; that the note is and has been, 
 since the death of the testatrix, in the plaintiff's possession, upon which 
 the defendant paid him the sum of $234.20 in October, 1893, and that 
 the defendant had notice of the attachment before he made the payment 
 to Chollar as administrator. The defendant demurs to the replications. 
 
 The main question raised by the pleadings is whether under these 
 circumstances the suit can be maintained in Rliode Island, after the 
 payment to the administrator in Connecticut. We think it can be 
 maintained. First the fact is set up that this was a voluntary and col- 
 lusive payment, which upon denuirrer must betaken to be true. Wliile 
 a party will be protected from paying a second time that which he lias 
 once in good faith been compelled to pay, it is clear that these facts do 
 
 1 In McCully v. Cooper, 114 Cal. 258, 40 Pac. 82, whciv a iow'v^n administnitor 
 liaviricj a certificate of dejiosit demaiided jiaynu'iit iiml was refused, it was held to be 
 his duty to surrender the certificate to the domestic administrator, that the latter might 
 sue ujion it. — Ed.
 
 SECT. I.] AMSDEN V. DANIELSON. 675 
 
 not make such a case. A person cannot oust the court of one State 
 of jurisdiction by a coUusive judgment, and much less by a voluntary 
 payment, in another. So it has been held that where a man, by wilful 
 default, has suffered judgment to go against him as garnishee, in an- 
 other State, when he might have prevented it, a payment is no bar 
 in the State where a suit upon the claim had been previously commenced. 
 Whipple V. Bobbins, 97 Mass. 107 ; Wilkinson v. Hall, 6 Gray, 568. 
 See also Hull v. Blake, 13 Mass. 153, 157, and Stevens v. Gaylord, 
 11 Mass. 256. 
 
 Passing over the question whether the promise of the defendant 
 made a new cause of action, about which there seems to be little room 
 for doubt, we come, second, to the main question which has been 
 argued, viz., whether the executor in Rhode Island can sue at all for 
 the amount due upon the note. The argument is that the note was pay- 
 able in Killingly, the domicil of the defendant, and hence its proceeds 
 were assets in Connecticut and not in Rhode Island. This argument is 
 sustained by Finney v. McGregory, 102 Mass. 186 ; Abbott v. Coburn, 
 28 Vt. 663 ; and Wyman v. Halstead, 109 U. S. 654. Admitting that 
 the note was payable in Killingly, the fact does not control this case. If 
 it were necessary to bring suit upon it in Connecticut of course an 
 administrator would be appointed there. But it does not follow that it 
 cannot be collected elsewhere. The plaintiff having the note, and find- 
 ing property of the defendant in this State, had as much riglit to pro- 
 ceed to collect it here, as though it had been his own debt. It would 
 be a most absurd rule of law which would require him to go to another 
 State, record the will, secure the appointment of an administrator and 
 go through all the requirements of a probate court in order to bring a 
 suit where possibly there might be no property, when he could attach 
 property here and secure his judgment without trouble. The cases 
 cited by the defendant do not hold this. Slocum v. Sanford, 2 Conn. 
 533, appears to have been a case where the defendant, in 1813, had 
 proved his claim against the estate of the payee, before insolvent 
 commissioners in Rhode Island, fi'om which the amount of the note 
 sued upon had been deducted and the administrator in Rhode Island 
 had given him a discharge from it before the suit was brought in Con- 
 necticut, but certainly before the trial in 1816, wherein this fact was 
 held to be a good defence. Undoubtedlj' the bona fide settlement of a 
 debt with a foreign administrator is a bar. In Stevens v. Gaylord, 11 
 Mass. 256, the defendant had been appointed administrator in Connec- 
 ticut before an administrator had been appointed and suit brought in 
 Massachusetts. It is indeed held in both these cases that the debt 
 was assets in the State where the debtor resided, and this is the point 
 to which they are cited. But that is not the question before us. As- 
 suming this to be so, the question is whether the administrator may 
 collect the debt in another State if he has the chance to do so. Upon 
 this question we have no doubt. It is well settled that ^ bona fide 
 voluntary payment to a foreign administrator is a good discharge of a
 
 676 AMSDEN V. DANIELSON. [CHAP. XIV. 
 
 flebt: Mackay v. Saint Mary's Church, 15 R. I. 121 ; and if this be so, 
 an involuntary judgment, based upon an attachment of property, cannot 
 be less valid. As said by Wells, J., in Merrill r. New England Ins. 
 Co., 103 j\Iass, 245, 248 : " Having possession of, and a legal title to, the 
 instrument, or evidence of the demand, and finding the debtor or his 
 property wiihin the jurisdiction of his appointment, he may enforce it 
 there, without the necessity of any resort to the foreign jurisdiction. 
 The debtor is equally responsible in either, if means of enforcing pay- 
 ment can be reached." The same doctrine was announced in Perkins 
 V. Stone, 18 Conn. 270, 274, where debtors resident in Massachusetts 
 were sued by an administrator in Connecticut. " Had it been necessary 
 for the plaintiff to go into the State of Massachusetts to bring his 
 action, it is conceded that he must have taken out letters there, to 
 enable him to sue in his representative capa(;it3-. But as he is under 
 no necessitj- of invoking the aid of the courts of that State, his case is 
 not brought within tlie operation of the rule which precludes an ad- 
 ministrator ai)pointed in one State from suing in the courts of another." 
 The case which comes most closely to opposing these cases is that of 
 Pond V. Makepeace, 2 Met. 114. There, a Rhode Island administrator 
 had brought suit in Massachusetts and obtained judgment b}' default, 
 under which execution was levied on real estate, and it was sold in 
 satisfaction of the judgment. It was held that the suit was no bar to 
 a subsequent suit b}' a Massachusetts administrator, because the Rhode 
 Island administrator had no power to sue in that State and so could 
 pass no title to the real estate under the levy and sale. But that is not 
 like this case. Here, the plaintiff is suing in Rhode Island, the State 
 in which he holds his letters testamentar}'. 
 
 We see no reason why he may not so sue. The cases we have quoted 
 from sustain the right and we know of none which deny it. The reason 
 upon which the right is based is satisfactory and we therefore decide 
 that the plaintiff has that right under the pleadings in this case. 
 
 The demurrers of the defendant in the plaintiff's replications are 
 overruled.^ 
 
 ^ In spite of the doctrine that the existence of a promissory note given for a debt 
 does not alter the situs of the debt, which is assets, for jjurpose of administration, at 
 the domicil of the debtor, the courts appear to uphold a payment only to such ad- 
 ministrator as can produce the note. Thus : 1. Payment to the administrator of the 
 maker's State, without surrender of the note, is not a legal discharge as against the 
 domiciliary administrator who has the note. McCord v. Thompson, 92 Ind. 565; 
 Amsdcn v. Daniclson, 19 R. I. 533, 35 Atl. 70 (affirming the decision above after with- 
 drawal of the demurrer and rejoinder fded denying collusion); St. John v. Hodges, 
 9 Baxt. 334. See Bull v. Fuller, 78 la. 20, 42 N. \V. 572, where payment to a domicil- 
 iary administrator without surrender of the note was upheld against tlie ancillary ad- 
 ministrator with the note, on the ground that no creditor of the estate was interested, 
 and " to compfd a second payment, and re([uire the debtor to seek repayment from the 
 administrator in Vermont, when the money is already in the hands of a re])resentative 
 of the estate, merely in the interest of a double administration would indeed be a bur- 
 lesque upon the administration of justice.'' 
 
 2. Payment to the domiciliary administrator who has uot the note is not a legal
 
 SECT. I.] MERRILL V. NEW ENGLAND MUT. LIFE INS. CO. 677 
 
 MERRILL V. NEW ENGLAND MUTUAL LIFE 
 INSURANCE CO. 
 
 Supreme Judicial Court of Massachusetts. 1869. 
 
 [Reported 103 Massachusetts, 245.] 
 
 Contract by the plaintiff as administrator of the estate of Howard 
 M. Merrill, on a polic}' of insurance issued by the defendants upon the 
 life of the intestate. The answer alleged that the defendants had been 
 sued on the policy in Illinois by the administrator of Merrill appointed 
 in that State. Merrill was domiciled in Illinois ; the policy was pledged 
 by him to the plaintiff as security for a loan which had not been paid. 
 The defendant was a Massachusetts corporation.^ 
 
 "Wells, J. There can be no doubt that the appointment of the 
 administrator in Massachusetts was legal and proper. A debt due to 
 the intestate from an}' party having a domicil in this State, or any de- 
 mand or right, requiring legal authority for its enforcement, is sufficient 
 to give jurisdiction for such an appointment. Gen. Sts. c. 117, § 2 ; 
 rinney v. McGrcgory, 102 Mass. 186; Picquet, Appellant, 5 Pick. 65; 
 Emery v. Hildreth, 2 Gray, 228. Such administration is auxiliary only, 
 when the domicil of the intestate was elsewhere at the time of his de- 
 cease, if there is an administrator at the place of domicil. It extends to 
 all assets found within the State ; and, within the jurisdiction where 
 granted, it is exclusive of all other authorit}'. The administrator ap- 
 pointed at the place of domicil of the deceased is the principal admin- 
 istrator ; and personal securities, in the possession and control of the 
 intestate at the time of his decease, vest in him. He can do no legal 
 act for their collection in another jurisdiction, without an ancillary ap- 
 pointment there. And, if another has already been appointed auxili- 
 ar}' administrator, the collection can be made, within that jurisdiction, 
 only through him. But the principal administrator may always dispose 
 of or collect such securities, if he can do so without being obliged to 
 resort to the domicil of the debtor. Hutchins v. State Bank, 12 Met. 
 421. Having possession of, and a legal title to, the instrument, or 
 evidence of the demand, and finding the debtor or his property within 
 
 discharge as against the administrator of the maker's State who has the note. Young 
 V. O'Neal, 3 Sneed, 55 ; and see Riley v. Moseley, 44 Miss. 37. 
 
 3. Payment to the domiciliary administrator who holds and surrenders the note is a 
 good bar to a suit previously brought by the administrator of the maker's State who 
 has not tho note. Thorman v. Broderick, 52 La. Ann. 1298, 27 So. 735 ; Goodlett v. 
 Anderson, 7 Lea, 286. See Mcllvoy v. Alsop, 45 Miss. 365, where the administrator of 
 the maker's State was allowed to foreclose a lien upon land in that State given to 
 secure the payment of the note, though the note was in the hands of the foreign domi- 
 ciliary administrator who refused to surrender it. — Ed. 
 
 1 This short statement of facts is substituted for that of the Reporter. Arguments 
 of coiinsel are omitted. — Ed.
 
 673 MERRILL V. NEW ENGLAND MDT. LIFE INS. CO. [CHAP. XIV. 
 
 the jurisdiction of his appointment, he may enforce it there, without the 
 necessity of any resort to the foreign jurisdiction. The debtor is 
 equally responsible in either, if means of enforcing payment can be 
 reached. 
 
 The appointment by the insurance company of a general agent, with 
 authority to accept, in behalf of the principal, service of legal process 
 in Illinois, subjects the defendant to the suit brought by the principal 
 administrator in the courts of that State. Gillespie v. Commercial In- 
 surance Co., 12 Gray, 201. As that suit was first brought, and appar- 
 ently embraces the whole cause of action, so that a judgment therein 
 would merge all liabilities of the defendant upon the policy, we should 
 be inclined to hold that it was exclusive of any other remedy, so that 
 no action could be prosecuted in any other court upon the same con- 
 tract at the same time, if the administrator in Illinois had then had the 
 legal title and possession of the policy, or the absolute right of posses- 
 sion. Whipple V. Robbins, 97 Mass. 107; Newell v. Newton, 10 
 Pick. 470; Wallace r. McConnell, 13 Pet. 136; Embree v. Hanna, 
 5 Johns. 101 ; American Bank v. Rollins, 99 Mass. 313. 
 
 It is said by Mr. Justice Dewey in Colt v. Partridge, 7 Met. 574, 
 that "whether a plea in abatement that another action between the 
 same parties, and for the same cause, is pending in another State, is 
 good, has not been decided here." It is also said by Mr. Justice 
 Foster in American Bank r. Rollins, that the doctrine of that case and 
 of Wallace r. McConnell, Embree r. Hanna, and Whipple v. Robbins, 
 " constitutes an important exception to the ordinary rule that Us psn- 
 dens in a foreign court is not a good plea." 
 
 The present case does not depend upon the ordinary rule in regard to 
 lis ^yendens; nor is it within the exception to that rule, if the decisions, 
 above referred to, do constitute an exception. The administrator 
 in Illinois and the administrator in Massachusetts are not the same 
 party. They are not even in privity with each other. Low v. Bartlett, 
 8 AUen. 259 ; Ela r. Edwards. 13 Allen, 48. The authority and right 
 of each is independent and exclusive within the jurisdiction of his own 
 appointment. If, therefore, the policy had been in the legal custody 
 and control of the principal administrator, the institution of proceed- 
 ings for the collection of its proceeds by him. in the courts of Illinois, 
 and jtu-isdiction of the defendant oi- its proi)erty obtained thereon, 
 would have been such an appropriation of the claim as a part of the 
 assets of the estate subject to administration there, as would have 
 excluded the ancillary administration from any authority over it. 
 
 But, upon the facts stated, we are satisfied that the intestate had 
 parted with the possession of the policy, ui)on a valuable and legal con- 
 sideration, in his lif(.'time ; sj that, at his decease, he had no right of 
 possession, and none passed to his .administrator, except subject to 
 such rights as had been conferred by the pledge and delivery of the 
 policy by the intestate to his uncle Thomas T. Merrill. The agreed 
 statement shows a distinct and uneciuivocal pledge of the policy to
 
 SECT. I.] MERRILL V. NEW ENGLAND MUX. LIFE INS. CO. 679 
 
 secure the intestate's note for seven hundred dollars, given for money 
 lent to him by Thomas T. Merrill upon the assurance and condition 
 that it should be so secured. The policy was delivered in pursuance 
 of that agreement, and remained in the possession of Thomas T. 
 Merrill until he was appointed administrator. This was sufficient to 
 constitute a good pledge of the instrument, giving to the pledgee an 
 equitable interest in the proceeds of it. Angell on Insurance, §§ o27- 
 340; Palmer v. Merrill, 6 Cash. 282; Dunn o\ Snell, 15 Mass. 481 ; 
 Currier v. Howard, 14 Gra}', 511. 
 
 In that state of facts, if tlie principal administrator had himself 
 received the ancillary appointment in Massachusetts, he could not have 
 reclaimed the polic}' from the hands of Thomas T. Merrill without pay- 
 ment of the note in redemption of the pledge. It is unnecessary to con- 
 sider now, whether, beyond this, the claim of the parents of the intestate 
 would be protected against the general interests of the estate. It is 
 sufficient that there was a right of possession in Thomas T. Merrill, 
 superior to that of the intestate or his administrator, and which he might 
 pass over to the administrator in Massachusetts upon such terms as he 
 saw fit, consistent with his limited rights. His interest in the policy is 
 not a mere order for a part of the proceeds, but extends to the whole 
 polic}' alike. With his concurrence the auxiliar}- administrator may 
 maintain a suit and collect the proceeds of the policy. Without it 
 neither he nor the principal administrator could control the possession 
 or collect the proceeds. The pledge makes it no longer a question of 
 jurisdiction, as affected by priority of suit, comit}- between the States, 
 or otherwise, but one merely of the right of the respective parties 
 claiming an interest in the policy. The right of the plaintiff in this 
 suit is superior to that of the principal administrator in Illinois, because 
 he represents the equitable interest and right of immediate possession 
 and control of the pledgee, as well as the legal capacity to sue, which 
 remains in the representatives of tlie estate of Howard M. Merrill. 
 That legal right to sue is held by the administrators of Howard M. 
 Merrill, wherever appointed, in trust for the benefit of the equitable 
 assignee of the claim. The assignee is entitled to control an}' suit 
 brought for its recovery. His right would be protected bj' the courts 
 against any attempt of tiie administrators to collect or release the 
 demand in disregard of his interests. Jones r. Witter, 13 Mass. 304; 
 Eastman r. Wright, 6 Pick. 316: Grover i\ Grover, 24 Pick 261; 
 R(jckwood r. Brown, 1 Grav, 261 ; Bates i\ Kempton, 7 Gra}', 382. 
 Upon the same principle, it would be equally protected against pre- 
 judice from any attempt to anticipate him bv means of a suit instituted 
 by such administrator in his own behalf and without recognition of the 
 rights of the assignee. Within the same jurisdiction, the respective 
 rights of the assignor and assignee ma}- be readily adjusted, and suits 
 controlled. The difflcultv arises from the existence of suits in separate 
 and independent jurisdictions. There is a class of decisions, referred to 
 by the defendant, particularly affecting questions of jurisdiction between
 
 680 HARVEY V. RICHARDS. [CHAP. XIV. 
 
 the federal and State courts, to the effect that a subject-matter once 
 brought within the jurisdiction of a court of general jurisdiction, 
 whether by suit in personam or proceeding in rem, or even b}- process 
 of attachment, is in the custody of that court, and cannot be withdrawn 
 or controlled by any process or proceeding of any other court. But 
 that doctrine is explained and narrowly limited by Mr. Justice Miller 
 in Buck v. Colbath, 3 Wall. 334. It does not apply to this case, for 
 reasons already indicated ; because the policy, having been pledged 
 and delivered to another in the lifetime of the intestate, was never in 
 the legal possession of his administrator in Illinois, and therefore was 
 never properly brought within the jurisdiction of the courts in that 
 State, either as assets subject to administration, or as a cause of action 
 which the administrator there could maintain. He could not, by com- 
 mencing a suit there, transfer to those courts the determination of the 
 rights of the pledgee, so as to compel him to seek them by intervening 
 in such suit. The pledgee had an independent title, accompanied by 
 possession of the policy ; and by bill in equity in his own name, or by 
 suit in the name of the administrator, in Massachusetts, could enforce 
 his claim. Neither the administrator in Massachusetts nor the admin- 
 istrator in Illinois would be allowed to defeat the prosecution of such a 
 suit. Against either administrator, seeking to collect the amount of 
 the policy by other proceedings or means, the insurance company have 
 a sufficient defence. That defence stands not merely upon the juris- 
 diction and judgment of the court, but equally well upon the title of 
 the pledgee, yielded to by the insurance company without suit.^ .... 
 Upon the agreed statement, being satisfied that the plaintiff, as 
 administrator of the intestate's estate in Massachusetts, and represent- 
 ing also the equitable interest and possessory right of the pledgee of 
 the policy, is entitled' to its control and collection, in preference to the 
 principal administrator in Illinois, we feel bound to render judgment 
 accordingly for the amount due from the defendant by the terras of the 
 policy. Judgment for the plaintiff.'^ 
 
 HARVEY V. RICHARDS. 
 Circuit Couut of the United States. 1818. 
 
 [Reported 1 Mason, 381.] 
 Story, J. The question which has now been argued lies at the very 
 foundation of the plaintiff's suit, and is of great importance and no in- 
 
 1 Part of the opinion, in wliich the effect of the assignment is discussed, is omitted. 
 — Ed. 
 
 2 But see Steele v. Conn., Gen. L. I. Co., 31 App. Div. 389, 52 N. Y. Supp. 373 
 (affirmed 160 N. Y. 703). A New York man whose life was insured in a Connecticut 
 com{)any pledged his yiolicy to the company in Connecticut and died. His adminis- 
 trator in New York brought suit ; then the company voluntarily paid the Connecticut 
 administrator. This payment was lield no bar to the New York suit. — Ed.
 
 SECT. I.] HARVEY V. KICHARDS. 
 
 681 
 
 considerable difficulty. I have taken time to consider it ; and after a 
 full consideration of all the authorities, commented on with so much 
 learning and ability b}- the counsel, I am now to pronounce the result 
 of m}- own judgment on the case. 
 
 For the purposes of the argument, it is assumed or conceded that 
 the testator (dying intestate as to the residue of his estate, of which 
 distribution is now sought) was at his decease domiciled at Calcutta, 
 in the East Indies ; that liis will has been duly proved, and adminis- 
 tration there taken upon his estate by liis executor ; that the defendant 
 has under the directions of tluit executor taken administration of the 
 testator's estate in Massachusetts, and in virtue thereof has received a 
 large sum of money, which now remains in his hands ; that no part of 
 this money is wanted at Calcutta for the payment of any debts or lega- 
 cies under the will; and that the plaintiff is a citizen of Rhode Island, 
 and domiciled there ; and as one of the next of kin of the testator is 
 entitled to a moiety of the undevised residue of the testator's estate. 
 The question then is, whether, under these circumstances, this court as 
 a court of equity can proceed to decree an account and distribution of 
 the property so in the hands of tlie defendant, or is bound to order it 
 to be remitted to Calcutta, to be distributed by the proper tribunal 
 there. 
 
 There are some points involved in the argument which may be dis- 
 posed of in a few words. In the first place the distribution, whether 
 made here or abroad, must be according to the law of the place of the 
 testator's domicil. This, although once a question vexed with much 
 ingenuity and learning in courts of law, is now so completely settled by 
 a series of well considered decisions, that it cannot be brought into 
 judicial doubt. In the present case, the law of Calcutta, or rather of 
 the province of Bengal, is, as I apprehend, the law of England ; and 
 as that is the same as the law of Massachusetts, the distribution would 
 be the same as if the testator had died domiciled here. In the next 
 place, the court of chancery has an ancient and settled jurisdiction to 
 decree an account and distribution of a testator's and an intestate's 
 estate, on the application of the legatees or next of kin ; and supposing 
 this to be a fit case for the application of its authorit}-, the present 
 suit would fall completely within that jurisdiction. In the next place, 
 the equity powers and authorities of the courts of the United States are, 
 in cases within the limits of their constitutional jurisdiction, co-equal 
 and co-extensive, as to rights and remedies, with those of the court of 
 chancery. The present is a suit between citizens of different States 
 over whom this court has an unquestionable right to entertain jurisdic- 
 tion ; and it will follow of course, that the plaintiff is entitled to the 
 relief she prays for, if it be competent and proper for any court of 
 equity to grant it. 
 
 Having disposed of these preliminar}' points, we may now return to 
 the consideration of the great question in controversy. Stated in broad 
 terms it comes to this, whether a court of equity here has competent
 
 682 HARVEY V. RICHARDS. [CHAP. XIV. 
 
 authority to decree distribution of intestate property collected under an 
 administration granted here, the intestate having died domiciled abroad, 
 and the distribution being to be made according to the law of his for- 
 eign domicil. The counsel for the defendant deny such authority, 
 under any circumstances ; the counsel for the plaintiff as strenuously 
 assert it. 
 
 This is a question involving the doctrines of national comit}', or, 
 what may be more fitly termed, international law. And looking to it 
 as a question of principle, it would not seem to be attended with any 
 intrinsic difficult}-. The property' is here, the parties are here, and the 
 rule of distribution is fixed. What reason then exists vfhy the court 
 should not proceed to decree according to the rights of the parties? 
 Whv should it send our own citizens to a foreign tribunal to seek that 
 justice which it is in its own power to administer without injustice to 
 an}' other person? I sa}' without injustice, because it may be admitted 
 that a court of equity ought not to be the instrument of injustice, and 
 that if in the given case such would be the effect of its interposition, it 
 ought to withhold its arm. This, however, would be an objection, not 
 to the general authorit\', but to the exercise of it under particular cir- 
 cumstances. The argument, however, goes the length of denying tlie 
 existence of that authority, whatever may be the circumstances of the 
 case. Yet cases ma}' be readily imagined in which it might not be 
 inequitable to interfere, nay, in which there might be very cogent 
 reasons for interference. Suppose there are no debts abroad, and no 
 heirs or legatees abroad, but all are here, and apply to the court for a 
 decree of distribution, is the court bound to remit for the vain purpose 
 of putting the legatees or distributees to great expense and delay in 
 seeking their rights in a foreign tri^bunal? Suppose two executors are 
 appointed by the testator, one abroad and one here (and such cases are 
 not uncommon), and the bulk of the property is collected here, and all 
 the legatees are here, shall the court direct the domestic executor to 
 remit the whole property to the foreign executor because it is to be 
 distributed according to the law of the foreign domicil? Suppose fur- 
 ther, the executor here is himself the residuary legatee, or, in case of 
 intestacy, the administrator here is the next of kin and entitled to the 
 surplus, shall he be required to remit the property abroad, that he may 
 be there decreed to receive it again? Suppose legacies, payable out of 
 particular funds here, or a specific legacy of property here, shall not the 
 legatee be entitled to recover of the administrator or executor here, 
 because the testator was domiciled in a foreign country? Suppose a 
 legacy to charitable uses in this country, good by our law, but which, 
 from motives of policy, the courts of the foreign country decline to en- 
 force, shall it be said that our courts are bound to enforce, by remit- 
 ting the property there, a policy by which they are injured? Whatever 
 may be thought of the last case, there can be no doubt that tlie others 
 present circumstances where equity would strongly persuade us that 
 it would be the duty of our courts to entertain jurisdiction and decide
 
 SECT. I.] HARVEY T. RICHARDS. 
 
 683 
 
 on the rights of the parties. There are many other cases in which it 
 would seem fit to vindicate and assert the proper rights of our own cit- 
 izens and our own laws. This very case, under one aspect, would have 
 pi'esented a question of which our own tribunals might as justly have 
 claimed an exclusive cognizance, and which, I trust, they would have de- 
 cided with as much impartiality as the tribunals of the testator's dom- 
 icil. Major Murra}' was an American citizen, born in Rhode Island ; 
 and if he left no lawful heirs (as has been argued in a former part 
 of this case) his property here, supposing he had acquired no foreign 
 domicil, would have undoubtedly fallen as an escheat to that State ; 
 and it would deserve consideration whether the change of domicil 
 would work any alteration in that respect. Under such circumstances, 
 would it be proper to send the State of Rhode Island to solicit its rights 
 from a foreign tribunal in the East Indies? 
 
 I One objection urged against the exercise of the authority of the court 
 is, that as national comity requires the distribution of the property ac- 
 cording to the law of the domicil, the same comity requires that the 
 distribution should be made in the same place, j This consequence, 
 however, is not admitted ; and it has no necessary connection with the 
 preceding proposition. The rule, that distribution shall be acc ording 
 to the law of the domicil of the deceased is not founded me rf^lj' "p*^" — 
 the notion that movables have no situs, and therefore follow the per- 
 son of the proprietor, even interpreting that maxim in its true sense, 
 that personal property is subject to that law which governs the person 
 of the owner. Nor is it, perhaps, founded upon the presumed intention 
 of the deceased, that all his property should be distributed according 
 to the law of the place of his domicil with which he is supposed to be 
 best acquainted and satisfied ; for the rule will prevail even against the 
 express intention of the deceased, unless the mode in which that inten- 
 tion is expressed would give it legal validity as a will. It seems, in- 
 deed, to have had its origin in a more enlarged policy, founded upon the 
 general convenience and necessities of mankind ; and in this view the 
 maxim above stated flows from, rather than guides, the application of that 
 policy. Tiie only reason wh}' any nation gives effect to foreign laws 
 within its own territory is the endless embarrassment which would 
 otherwise be introduced in its own intercourse with foreign nations. 
 The rights of its own citizens would be materialU' imj)aired, and, in 
 many instances, totally extinguished, b}- a refusal to recognize and sus- 
 tain the doctrines of foreign law. The case now under consideration 
 is an illustration of the perfect justice and wisdom of this general prac- 
 tice of nations. A person ma}' have movable property and debts in 
 various countries, each of which may have a different system of succes- 
 sion. If the law rei sitce were generally to prevail, it would be utterly 
 impossible for any such person to know in what manner his property 
 would be distributed at his death, not only from the uncertainty of its 
 situation from its own transitory nature, but from the impracticability 
 of knowing, with minute accuracy, the law of succession of every
 
 68-i HARVEY V. RICHARDS. [CHAP. XIV. 
 
 country in which it might then happen to be. He would be under the 
 same embarrassment if he attempted to dispose of his property by 
 a testament ; for he could never foresee where it would be at his death. 
 Kay more, it would be in the power of his debtor, by a mere change of 
 his own domicil, to destroy the best digested will; and the accident of 
 a moment might destroy all the anxious provisions of an excellent 
 parent for his whole family. Nor is this all. The nation itself to 
 which the deceased belonged might be serioush- affected by the loss 
 of his wealth from a momentary absence, although his true liome was 
 in the centre of its own territor}'. These are great and serious evils 
 pervading every class of the community, and equally affecting every 
 civilized nation. But in a maritime nation, depending upon its com- 
 merce for its glory and its revenue, the mischief would be incalculable. 
 The common and spontaneous consent of nations, therefore, established 
 this rule from the noblest policy, the promotion of general convenience 
 and happiness, and the avoiding of distressing difficulties, equally sub- 
 versive of the public safety and private enterprise of all. It flowed 
 from the same spirit that dictated judicial obedience to the foreign com- 
 missions of the admiralty. Sab mutuce vicissitudinis obtentu, damns 
 jyetimusque vicissim, is the language of the civilized world on this sub- 
 ject. There can be no pretence that the same general inconvenience 
 or embarrassment attends the distribution of foreign effects according 
 to the foreign law by the tribunals of the country where they are situ- 
 ate. Cases have been already stated in which great inconvenience 
 would attend the establishment of any rule excluding such distribution. 
 It may be admitted also, that there are cases in which it would be 
 highly convenient to decline the jurisdiction and remit the parties to 
 ihe forum domicUli. Where there are no creditors here, and no heirs 
 or legatees here, but all are resident abroad, there can be no doubt 
 that a court of equity would direct the remittance of the property upon 
 the application of any competent party. 
 
 The correct result of these considerations upon principle would seem 
 to be, that whether the court here ought to decree distribution or remit 
 the property abroad, is a matter, not of jurisdiction, but of judicial dis- 
 cretion, depending upon the particular circumstances of each case. 
 That there ought to be no universal rule on the subject, but that every 
 nation is bound to lend the aid of its own tribunals for the purpose of 
 enforcing the rights of all persons having title to the fund, when such 
 interference will not be i)roductive of injustice or inconvenience, or con- 
 flicting equities. 
 
 It is farther objected, that a rule which is to depend for its applica- 
 tion upon the particular circumstances of each case, is too uncertain to 
 ho considered a safe guide for general practice. But this objection 
 affords no solid ground fen- declining the jurisdiction, since there is an 
 infinite variety of cases in which no general rule has been or can be 
 laid down, as to legal or equitable relief, in the ordinary controversies 
 before judicial tribunals, in many of these the difficulty is iutriusic in
 
 SECT. I.] HARVEY V. RICHARDS. 685 
 
 the subject-matter ; and where a general rule cannot easil}' be extracted, 
 each case must, and indeed ought to, rest on its own particular circum- 
 stances. The uncertainty, tlierefore, is neither more nor less than be- 
 longs to many other complicated transactions of human life where the 
 law administers relief ex ceqico et bono. 
 
 Another objection, addressed more pointedly to a class of cases like 
 the present, is the difficulty of settling the accounts of the estate, ascer- 
 taining the assets, what debts are sperate, what desperate, and, finallj", 
 ascertaining what is the residue to be distributed, and who are the next 
 of kin entitled to share. And to add to our embarrassment, we are 
 told that we cannot compel the foreign executor to render an}- account 
 in our courts. I agree at once that this cannot be done if he is not 
 here ; but I utterly deny that the administrator here cannot be com- 
 pelleu .L^ account to any competent court for all thi; assets which he 
 has received under the authorit}' of our laws. And if the foreign exec- 
 utor chooses to lie by, and refuses to render any account of the foreign 
 funds in his hands, so far as to enable the court here to ascertain 
 whether the funds are wanted abroad for the payment of debts or lega- 
 cies or not, he has no right to complain if the court refuses to remit 
 the assets and distributes them among those who may legally claim 
 them. And as to settling the estate, or ascertaining who are the dis- 
 tributees, there is no more difficulty than often falls to our lot in many 
 cases arising under the ordinary prol)ate proceedings. 
 
 All these objections are, in fact, reasons for declining to exercise the 
 jurisdiction in particular cases, rather than reasons against the exist- 
 ence of the jurisdiction itself. It seems, indeed, admitted by the 
 learned counsel for the defendant, that if there be no foreign adminis- 
 tration, it would be the duty of the court to grant relief upon an ad- 
 ministration taken here. Yet ever}- objection already urged would 
 apply with as much force in that as in the present case. The property 
 would be to be distributed according to the foreign law of the de- 
 ceased's domicil. The same difficult}' would exist as to ascertaining 
 the debts and legacies, and the assets and distributees entitled to share. 
 But it is said in the case now put, the administration here would be the 
 principal administration, whereas in the case at bar it is only sm 
 auxiliary or ancillary administration. I have no objection to the use 
 of the terms principal and auxiliary, as indicating a distinction in fact 
 as to the objects of the different administrations ; but we should guard 
 ourselves against the conclusion that therefore there is a distinction 
 in law as to the rights of parties. There is no magic in words. Each 
 of these administrations may be properly considered as a principal one, 
 with reference to the limits of its exclusive authority ; and each might, 
 under circumstances, justly be deemed an auxiliary administration. If 
 the bulk of the property and all tiie heirs and legatees and creditors 
 were here, and the foreign administration were only to recover a few 
 inconsiderable claims, that would most correctly be denominated a 
 mere auxiliary administration for the beneficial use of the parties here,
 
 686 , HARVEY V. RICHARDS. [CHAP. XIV. 
 
 although the domicil of the testator were abroad. The converse case 
 would of course produce an opposite result. But I am yet to learn 
 what possible difference it can make in the rights of parties before the 
 court whether the administration be a principal or an auxiliary admin- 
 istration. They must stand u[)on the authorit\- of the law to administer 
 or den}' relief, under all the circumstances of tlieir case, and not upon 
 a mere technical distinction of very recent origin. 
 
 I have already intimated my opinion as to the true principle that 
 ought to regulate cases of this nature ; and I have endeavoured to an- 
 swer the most pressing objections satisfactorily at least to my mind. 
 If, therefore, the question were res Integra^ I should have no dtfflculty 
 in deciding that whether distribution ought or ought not to be decreed 
 should depend upon the circumstances of each case ; that no universal 
 rule ought to be laid down on the subject ; or at least, that the rule 
 should be flexible, and depend for its application upon the equity of the 
 particular case presented to the court. . . . ^ 
 
 I have made some researches in the works of foreign jurists for the 
 purpose of ascertaining what is the practice of nations governed b}- the 
 civil law. Those researches have not been verj- satisfactory ; but the}' 
 leave little room to doubt that foreign tribunals sustain suits to enforce 
 distribution of assets collected there under auxiliary administrations 
 upon the doctrines so familiar in those courts, that the situs ret, as well 
 as the presence of the party, confers a competent jurisdiction. 2 Hub. 
 p. 2, lib. 5, tit. 1, § 43 ; 1 Hub. p. 1, lib. 3, tit. 13, § 20, sub finem\ 
 1 Domat, 531, note ; Constit. Frederii. Imp., tit. 1, § 10 ; Bynk. Quest. 
 Priv. Jur., lib. 1, ch. 16. 
 
 Upon the whole my judgment (though delivered with the greatest 
 deference for a different judgment entertained b}- others) is, tliat a 
 court of equity here has authority to decree distribution in cases like the 
 present, according to the lex domicilii, upon the application of the lega- 
 tees or the next of kin or other competent parties ; that whether it will 
 decree distribution must depend upon the circumstances of each case ; 
 and that it is incumbent on those who resist the distribution to estab- 
 lish in the given case, that it may work injustice or pul)lic mischief. 
 This doctrine is, as I think, sustained by principles of public policy, 
 and is perfectly consistent with international comity. It stands also 
 commended by its intrinsic equity ; and although the authorities are 
 not uniformly in its favor, yet they leave the court at liberty to pro- 
 nounce that judgment which, if the question were entirely new, it 
 would be disposed to entertain. Vide Toller's Law of Executors, 387 ; 
 1 Woodes Lect. 384, 385. ^ 
 
 1 Tilt! Ifiarneil imli^'e h(;rc examined several Massachusetts and Enfjlish cases. — Ed. 
 
 2 Ace. Ewing v. Orr Kwin^', 10 App. Cas. 453; Fretwell v. McLcmore, 52 Ala. 124; 
 Gibson V. Dowel], 42 Ark. 164 {sanbUy, Casilly v. Meyer, 4 Md. 1 ; Succession ot 
 
 WBaines, 46 La. Ann., 14 So. 602 ; Parsons v. Lyman, 20 N. Y. 103 ; In re Hughes, 95 
 N. Y. 55; Carr w. Lowe, 7 Heisk. 84; Porter v. Heydock, 6 Vt. 374; Moses v. Hart, 
 25 Grat. 795; Estate of Youinans, 10 Hawaii, 207. Contra, Richards v. Dutch, 8 Mass.
 
 SECT. I,] EMERY V. BATCHELDER. 687 
 
 EMERY V. BATCHELDER. 
 
 Supreme Judicial Court of IMassachusetts. 1882. 
 
 [Reported 132 Massachusetts, 452.] 
 
 Morton, C. J. This is a bill to require tlie defendants, as executors 
 of the will of Daniel Austin, to reserve and set apart out of the estate 
 of said Austin a fund sufficient to pay the plaintiff an annuity of four 
 hundred dollars a year, given to her by the will. 
 
 It appeared at the hearing that the testator was a citizen of the State 
 of Maine ; that he died in December, 1877, in Kittery in that State ; 
 that his will was duly proved there in March, 1878, and the defendants 
 were duly appointed and qualified as executors ; that the defendants, 
 who are residents of this Commonwealth, proved, in June, 1878, the 
 will in the Probate Court for the county of Suffolk, and ancillary 
 letters testamentary v.ere issued to them ; that, in October, 1880, the 
 said executors filed their final account in the Probate Court for Suffolk 
 County, showing that the balance in their hands was paid to said 
 executors as executors under the appointment of the Probate Court in 
 Maine, which account was allowed. 
 
 It also appeared that the estate now in their hands as such executors 
 is not sufficient to pay all the legacies in full ; and the question which 
 the plaintiff desires to raise by this bill is, whether the annuity given 
 to her is to abate in common with the other legacies, or is to be paid 
 in full in preference to them. 
 
 It is too well settled, as a general rule, to admit of any doubt, that 
 an executor or trustee appointed by judicial decree of a court of an- 
 other State is accountable only in the courts of that State for the due 
 execution of the trust, and the trust cannot be enforced in this Com- 
 monwealth, although the executor or trustee resides here. Jenkins v. 
 Lester, 131 Mass. 355, and cases cited. 
 
 The plaintiff contends that this case is taken out of the general rule 
 by the fact that the will was proved here, and ancillary letters testa- 
 mentary issued to the defendants. Whether, if the defendants had now 
 in their hands as such ancillary executors any balance for which they 
 are liable to account to the Probate Court of Suffolk County, this court 
 could and would entertain jurisdiction of a bill like this, which affects 
 the rights of all the other legatees and the marshalling and distribution 
 
 506. In Pennsylvania there appear to be two lines of authority. One line holds that 
 the court of ancillary administration must transmit the balance to the court of princi- 
 pal administration for final distribution. Appeal of Barry, 88 Pa. 131. The other line 
 holds that such transmission is discretionary with the court. Welles's Estate, 161 Pa. 
 218, 28 Atl. 1116. These conflicting authorities have not been reconciled. Laughlia 
 V. Solomon, 180 Pa. 177, 180. 
 
 The court should not retain the balance until it is satisfied that the foreign assets 
 are sufficient to pay all clauus against the estate. Hutton v. Hutton, 40 N. J. Eq. 
 461; Hamiltou v. Levy, 41 S. C. 374, 19 S. E. 610. —Ed.
 
 688 COWDEN V. JACOBSON. [CHAP. XIV. 
 
 of the whole estate, is a serious question which we are not required to 
 consider. The defendants have not in their hands any funds as execu- 
 tors appointed in this State. They have transmitted the balance of 
 the estate which was in their hands as such executors to themselves as 
 executors in Maine, and this has been allowed and approved by the Pro- 
 bate court of Suffolk County. 
 
 Our statutes provide that, where ancillarj' administration is taken 
 out in this State, upon the settlement of the estate, after the payment 
 of the debts for which it is liable in this State, the residue of the per- 
 sonal estate maybe distributed according to the will, " or in the discre- 
 tion of the court it may be transmitted to the executor or administrator, 
 if there is any, in the State or country where the deceased had his 
 domicil, to be disposed of according to the laws thereof." Gen. Sts. 
 c. 101, §§ 38, 39. 
 
 The allowance of the final account, in which the defendants credited 
 themselves with the residue in their hands as paid to the executors in 
 Maine, was in effect an order of the court that such residue should be 
 transmitted to the defendants as principal executors appointed in 
 Maine. If the executors in the two States had been different persons, 
 it is clear that the executors here could not be held accountable in our 
 courts after the}' had, under an order of the Probate Court, transmitted 
 the balance in their hands to the executors in Maine. They then would 
 have fully administered the estate here, and there would be nothing 
 upon which a decree of the court here could act. 
 
 The principle is the same where the executors in the two States are 
 the same persons. They act in each State in a different capacity, and 
 are in law regarded as different persons. When the defendants acting 
 as executors in Massachusetts transmitted the estate in their hands, as 
 such executors, to themselves, acting as executors in Maine, they had 
 performed all their duties in Massachusetts, and were no longer ac- 
 countable as executors here. They thereby placed the whole of the 
 estate of the testator within the jurisdiction and control of the courts 
 of Maine, and are accountable for it there. We are of opinion that this 
 jurisdiction is exclusive, and that this court cannot entertain a bill in 
 equity, for the purpose of construing the will and marshalling and dis- 
 tributing the estate. 
 
 Bill dismissed. 
 
 COWDEN V. JACOBSOX. 
 
 Supreme Judicial Court of Massachusetts. 1896. 
 
 [Reported 1G5 Massachusetts, 240.] 
 
 Morton, J. This is an appeal In- an administrator from a decree of 
 the Probate Court in Worcester County disallowing certain items in his
 
 SECT. I.] COWDEN V. JACOBSON. 
 
 689 
 
 account. At the hearing before the Chief Justice, the appellee desired 
 to contest other items in the account besides those involved in the ap- 
 peal of the administrator, but the court ruled that it was not open to 
 her to contest other independent items. The appellee does not ques- 
 tion now the correctness of the ruling, and we think that it clearl}- 
 was right. Boynton v. Dyer, 18 Pick. 1 ; Harris v. Harris, 153 Mass. 
 439. 
 
 The principal matter in dispute relates to the disallowance of the 
 payment b\- the administrator of a note held against the intestate at 
 her decease by Walter B. Chase of Sutton in this State, an heir at law. 
 The intestate lived in Connecticut, where she possessed real and per- 
 sonal estate. She also possessed real estate in Sutton. The appel- 
 lant, who lives in Worcester, was appointed administrator in both 
 States. The next of kin were Walter B. Chase aforesaid, a brother, 
 and one Hattie H. Jacobson of Portland, Maine, a half sister. B}' the 
 laws of Connecticut kindred of the wliole blood take to the exclusion 
 of the half blood. There were debts of the intestate in this State, 
 consisting of the note to Chase, and of unpaid taxes on the estate in 
 Sutton. During the settlement of the estate in Connecticut the note 
 was presented by Chase to the judge of probate, as it is provided by 
 the Connecticut statutes may be done with claims when the adminis- 
 trator lives out of the State (Gen. Sts. of Conn, of 1888, § 582), and 
 he, on learning that there was estate of the deceased in this Common- 
 wealth, declined to allow it on the same grounds as debts due Con- 
 necticut creditors, and the note was not allowed, and does not seem to 
 have been presented again to that court. Subsequently the adminis- 
 trator in Connecticut, having settled his account with the estate in the 
 Probate Court there, and having in his hands for distribution, as ap- 
 peared from said account, §1,425.13 in personal estate, was ordered 
 by the Probate Court under the statute for such cases made and pro- 
 vided (Gen. Sts. of Conn, of 1888, § 628) to pay the same to said Chase 
 as the heir-at-law, and did so. The estate in Sutton was sold by the 
 administrator pursuant to hcense from the Probate Court, and the note 
 was paid out of the proceeds. The appellee, who was a minor, had 
 notice of the petition to sell the real estate in Sutton, and also of the 
 action of the court in Connecticut in regard to distribution, but made 
 no objection to the proceedings until the administrator presented his 
 account for allowance to the Probate Court of Worcester County. 
 
 The appellee contends that the note should have been paid by the 
 administrator out of the personal estate in Connecticut, and she relies 
 on Livermore r. Haven, 23 Pick. 116, and also on Fa}' v. Haven, 
 3 Met. 109, where another question growing out of the same contro- 
 versy was considered. But in Livermore v. Haven, as was observed 
 in substance in Prescott v. Durfee, 131 Mass. 477, the question was 
 whether the court in its discretion should grant a license under the 
 circumstances to sell real estate in this Commonwealth for the payment 
 of debts. In this case the license has been granted by a court of com- 
 
 44
 
 690 COWDEN V. JACOBSOX. [CHAP. XIV. 
 
 pelent jurisdiction, after due notice, and the sale has been made, and 
 neither those proceedings nor the validity of the appointment of the 
 administrator can now be attacked collaterally by the appellee. Pierce 
 V. Prescott, 128 Mass. 110. It does not appear that the payment by 
 the administrator was not made in good faith, or that there was any 
 collusion between him and Chase in regard to the settlement of the 
 estate in Connecticut, or the sale here. 
 
 If there were collusion or bad faith the case might stand differently. 
 Stevens v. Gaylord, 11 Mass. 256, 266. The distribution of the estate 
 in Connecticut was made under an order of the Probate Court, which 
 has not been impeached in any respect. The administrator was bound 
 to comply with it, and for aught that appears would have been liable 
 to a suit on his bond if he had failed to do so. Though administrator 
 of both estates, he could not have been compelled to apply tlie personal 
 property in Connecticut to the payment of debts here, nor have been held 
 accountable for it here. Boston /•. Boylston, 2 Mass. 384 ; Hooker v. 
 Olmstead, 6 Pick. 481 ; Fay c. Haven, 3 Met. 109, 114; Wheelock v. 
 Pierce, 6 Cush. 288 ; Norton r. Palmer, 7 Cush. 523. If it was neces- 
 sary, in order to justify the payment of the note out of the proceeds of 
 the real estate sold here, for the administrator to show that tlie creditor 
 had used some diligence to collect the note out of the personal estate 
 in Connecticut, and that he had met with some legal impediment there, 
 we think it sufficiently appears that he had done so. He presented his 
 claim to the proper tribunal, which declined to allow it except subject 
 to the priorities of Connecticut creditors. It certainly would be going 
 very far to hold that, under such circumstances, he was bound to wait 
 upon and follow the settlement of the Connecticut estate, instead of 
 resorting to the real estate here. 
 
 In Prescott v. Durfee, iibi supra, it was held that a Massachusetts 
 creditor of a New York intestate, who died possessed of real estate 
 here but no personal estate, might procure the appointment of an ad- 
 ministrator in this State, and attach the real estate to recover the pa}'- 
 ment of his demand. It appeared that an administrator had been 
 appointed in New York, and that there was personal estate there more 
 tlian sufficient to pay all the debts, and there was nothing to show that 
 the creditor had made any effort to collect his debt out of the personal 
 estate in New York. But neither fact appears to have been regarded 
 as material.^ 
 
 If there had been different administrators in Connecticut and Mas- 
 sachusetts, and tlie same course had been pursued by them in regard to 
 the respective estates tliat has been followed by the present adminis- 
 trator, we presume that it hardly would l)e contended tliat tlie payment 
 of Chase's note by the administrator in this State should be disallowed. 
 We do not see that it makes any difference on principle that the same 
 person was administrator in both jurisdictions. As already ob- 
 
 1 Ace. Rosenthal v. Renick, 44 111. 202 ; and see Hobson v. Payne, 45 111. 158 ; In 
 re Gable'i Estate, 79 la. 178, 44 X. W. 352. — Ed.
 
 SECT. I.] COWDEN V. JACOBSON. 691 
 
 served, he is not accountable here by reason of that fact for the estate 
 in Connecticut. See State v. Osboru, 71 Mo. 86. If he has not ad- 
 ministered the estate in Connecticut according to law, doubtless he is 
 liable there upon his bond. This court cannot revise his actions as 
 administrator of that estate. Jennison v. Hapgood, 10 Pick. 77 101. 
 If he has administered it according to law, still less can his conduct be 
 made the foundation of liability by reason of the payment of Chase's 
 note out of the proceeds of the real estate in Sutton. The appellee's con- 
 tention would seem to go the length of requiring him to maintain that, 
 although the administrator administrated the estate in Connecticut in 
 good faith, and distributed it according to the direction of the court 
 having jurisdiction of it, the payment of Chase's note should be disal- 
 lowed because the admiiiistrator did not see that it was paid out of the 
 personal estate in Connecticut. If that be so, then, without adverting 
 to other considerations, the converse of the proposition must be equally 
 true ; namek, that the creditor was bound to obtain payment out of 
 the personal estate in Connecticut, and had no light to resort to the 
 real estate here, which would be at variance with Prescott v. Durfee, 
 ubi supra. We do not think that either proposition can be maintained 
 •when applied to the circumstances of this case. It is not contended 
 that it was the duty of the administrator in Connecticut to see that 
 creditors presented their claims and were paid out of the personal 
 estate there, and -we assume that he committed no breach of his bond 
 b}' failing to do so, or to appeal from the ruling of the Probate Court 
 disallowing the note. In the absence of personalty in this State, the 
 real estate constituted a fund for the payment of debts here. The 
 administrator was not bound to see that either estate was exonerated 
 at the expense of the other. He was required to administer and dis- 
 pose of each estate in good faith according to the law of the State 
 where it was situated. In respect to this item there is nothing to show 
 that he has not done so. We think that the payment to Chase should 
 have been allowed. 
 
 The two remaining items relate to the burial of the deceased whose 
 remains were brought into this Commonwealth and consist of the under- 
 taker's services and tlie cost of digging the grave. They were incurred 
 before but not paid till after the settlement of the account in Connecti- 
 cut, and were not included in it. No doubt, if there had been but one 
 administrator, and he in Connecticut, these items would have been 
 allowed in his account if dulv presented to and paid bj^ him. Jennison 
 V. Hapgood, 10 Pick. 77, 86, 87. But though the administration here 
 was ancillary to that in Connecticut, we think that these expenses 
 must be regarded as incurred b^' the ancillary administrator in the due 
 course of his administration of the estate in this Commonwealth, and 
 that as such they should be paid out of the property available here for 
 the payment of demands due to creditors residing in that State. 
 
 A majorit}' of the court think that the decree of tlie Probate Court 
 should be reversed in respect to the items appealed from, and affa-med 
 in other particulars, and it is So ordered.
 
 692 
 
 IN KE KNIGHT. [CHAP. XIV. 
 
 SECTION II. 
 wardships. 
 
 In re knight. 
 
 Court op Appeal. 1898. 
 
 [Reported [1898] 1 Chancery, 257.] 
 
 In August, 1894, Agnes Maria Knight, widow, a resident in the 
 Island orjersej', was found by an order of the Royal Court of Jersey 
 a person of unsound mind, and a gentleman resident in Jersey was, 
 under the laws of the island, appointed curator of her property and 
 person. The personal estate of tlie lunatic comprised a sum of Con- 
 sols and also shares in an English bank and an English Uraited 
 company all standing in her name. The curator accordingly presented 
 a petition in Lunacy under section 134 of the Lunacy Act, 1890, ask- 
 ing for an order for transfer of the stock and shares into his name. 
 Upon the petition coming before the judge in Lunacy, it was supported 
 by an affidavit by the curator showing that the property required to 
 be transferred was to be used for the maintenance or sole benefit of 
 the lunatic; but the judge made a note that the affidavit "did not 
 show that the money was needed for maintenance or for any other 
 purpose of the lunatic." The curator, however, contended that, having 
 been appointed in Jersey and having undertaken to get in the property 
 of the lunatic, he was entitled as of right to have the stock and shares 
 transferred to him, and that the court had no jurisdiction to deal 
 with the lunatic's property beyond ordering a transfer of it to him, the 
 curator, who was responsible to the Jersey court for the due applica- 
 tion thereof. The curator then filed a further affidavit stating that 
 according to the law of Jersey the whole personal estate of a person 
 to whom a curator had been appointed by the royal court of Jersey 
 vested absolutely in such curator, who was able to deal with the same 
 absolutely as directed by his electors, being persons who in the present 
 case had, under the direction of the Jersey court, made an inquiry 
 into the mental condition of the lady. Upon the petition coming 
 before him again on that affidavit the judge ordered the petition to be 
 adjourned into court for argument on the question of jurisdiction.^ 
 
 LiNDLKY, M. R. We all take the same view of this case. It was 
 urged before the judge in Lunacy, sitting in chambers, that he had no 
 jurisdiction in the matter, and the case was adjourned into court to 
 have that point decided. I am clearly of opinion that Mr. Wood has 
 put his case too high, and that it is not our duty to make an order 
 parting with the possession of the lunatic's property without exercising 
 some discretion in the matter. The section of the Lunacy Act, 1890, 
 
 1 Aif'uuieuts of counsel are omitted. — Ed.
 
 SECT. II.] IN RE KNIGHT. 693 
 
 dealing with this property, that is, with stock that cannot be trans- 
 ferred without an order, is section 134, which runs tlms : [His Lord- 
 ship read the section, and continued: — ] 
 
 Now, Mr. "Wood has brought himself within this section so far as 
 it gives him the right to make this application. In In re Brown this 
 court put an extensive rather than a restrictive interpretation on the 
 words "vested in a person appointed for the management" of the 
 property of the lunatic; and having regard to that decision, we are 
 quite right in saying that the personal property- of this lady has 
 become "vested" in the applicant according to the law of Jersey 
 within section 134 and the decision in In re Brown, [1895] 2 Ch. 
 666. 
 
 Then comes the question, What ought we to do? "We should be 
 running counter to what has been the established practice for the last 
 one hundred years or more, if we were to hold that the court has no 
 discretion in such a case as this. Mr. Wood has referred us to Julius 
 v. Bishop of Oxford, 5 App. Cas. 214 ; but that case does not appear 
 to carrj' him through at all. If we have property of a lunatic here, 
 it is, to my mind, clear almost to demonstration that we have a discre- 
 tion under section 134 as to granting or refusing such an application as 
 this. Section 90 says, in sub-section 1, that "The judge in Lunacy 
 ma}' upon application by order direct an inquisition whether a person is 
 of unsound mind and incapable of managing himself and his affairs." 
 Then sub-section 2 says: "Where the alleged lunatic is within the 
 jurisdiction, he shall have notice of the application and shall be 
 entitled to demand an inquiry before a jur}-." Then section 96 savs : 
 " Where the alleged lunatic is not within the jurisdiction it shall not 
 be necessary to give him notice of the application for inquisition, and 
 the inquisition shall be before a jur}'." The section, it will be ob- 
 served, says " shall." Now just consider the effect of those sections. 
 The law is not new : it is as old as the time of Lord Hardwlcke, that 
 in the case of a person resident abroad and having property in this 
 country, the court has jurisdiction to direct an inquisition as to such 
 person and to appoint a committee of that propert}'. So that, if 
 anybody were to apply here for an inquisition as to the sanitv of this 
 lad}", the court would have jurisdiction to appoint a committee of the 
 property of this lady within the jurisdiction, and to administer her 
 estate. How, then, can it be incumbent upon this court, without 
 exercising any discretion at all, to hand over this property to a foreign 
 curator? If Mr. Wood's contention is right, the court would lose the 
 jurisdiction which it clearly has over a foreign lunatic's property in 
 this country. The real truth is that the jurisdiction of the court over 
 lunatics who have property within the jurisdiction cannot be oirsted by 
 such ambiguous words as we find in section 134. The point was to 
 some extent considered in In re Brown, supra, where it was said that 
 the court must be cautious not to hand over the property unless a proper 
 case was made out. There the court was satisfied that the property
 
 694 DIDISHEIM V. LONDON AND WESTMINSTER BANK. [CHAP. XIV. 
 
 was, in fact, required for the maintenance and support of the lunatic, 
 who was resident in Victoria, and, tlierefore, made an order under 
 section 134 for a transfer of funds in this country' belonging to the 
 lunatic to the Master in Lunacy in Victoria. 
 
 For the reasons I have given, and having regard to the terms of 
 section 134 and comparing the terms of section 134 with sections 90 
 and 96, and also having regard to the long-establislied practice as to 
 the jurisdiction of this court, I am clearly of opinion that Mr. Wood 
 has put his case too high, and that the court has jurisdiction to 
 exercise its discretion as to making an order such as is now asked 
 for. This case was adjourned into court to have the question of 
 jurisdiction decided. The application must stand over in order that 
 the applicant may l)e at liberty to file further evidence showing that 
 the fund is required for the maintenance of the lunatic according to 
 the law of Jersey, and the grounds upon which the transfer of the 
 stock should be made. 
 
 RiGBY, L. J. I am of the same opinion. We should not onlv be 
 overruling, if not extinguishing, long-established authorities, but de- 
 ciding something quite novel, if we were to hold that under section 
 134 the court has no discretion. No doubt, prima facie the proceed- 
 ings in Lunac}' abroad should be treated with all respect here, and in 
 this case it may very well be that, acting upon our discretion, we may 
 ultimate]}' make the order asked for under section 134 ; that, however, 
 must depend upon the nature of the further evidence tliat ma}' 
 be filed by the applicant. But, in my opinion, the point, wliich is the 
 onl}- one now before us, namely, whether we have a discretion, must 
 be decided against the applicant. 
 
 Vaughan Williams, L. J. I am of the same opinion. 
 
 LiNDLEY, M. K. We give the applicant leave to bring in a further 
 affidavit. It is his duty to get in as much of the lunatic's property as 
 he can. 
 
 DIDISHEIM V. LONDON AND WESTMINSTER BANK. 
 
 CouuT OF Appeal. 1900. 
 
 [Reported [1900] 2 Chancery, 15.] 
 
 LiNDLEY, M. R. ^ Tiiis action is by M. Didisbeim and b}* Madame 
 Goldschraidt ; bv liini as her ne.Kt friend. The object is to obtain a 
 large sum of casli and also share and stock certificates and scrip for 
 bearer bonds and shares of great value from the defendants. The 
 defendants are quite ready to pay and deliver these up provided the}' 
 
 1 Part of the opinion only is given. —Ed.
 
 SECT. II.] DIDISHEIM V. LONDON AND WESTMINSTER BANK. 695 
 
 can safeh' do so. The bulk of the propertN' sought to be recovered 
 formed part of the assets of M. Goldschmidt, a deceased gentleman, 
 domiciled and resident in Belgium. He died some time ago, and his 
 widow, the plaintiff, Madame Goldschmidt, obtained letters of admin- 
 istration with his will annexed. By her directions most of the property' 
 in the hands of the defendants has been placed in their books in her 
 name. She is domiciled in Belgium and is resident abroad. She has 
 become insane and is in a foreign lunatic asylum. M. Didisheim has 
 been duly appointed her " administrateur provisoire," with power to 
 collect and get in all her personal estate. He is also now the legal per- 
 sonal representative of M. Goldschmidt, having obtained letters of 
 administration to his personal assets left unadministered by Madame 
 Goldschmidt. He and she together, therefore, are clearly entitled 
 to all the property sought to be obtained from the defendants. They 
 do not deny M. Didisheim's right as administrator to such assets 
 of the deceased as have not become Madame Goldschraidt's propertj- ; 
 but thej' say that, owing to what she did when sane, all his assets 
 in their hands became hers, and they are now accountable to her 
 alone for them. As to the cash, certificates and scrip which are the 
 propert}' of Madame Goldschmidt, the defendants say they cannot 
 safelv hand them over to M. Didisheim, as the ownership of them 
 is still vested in her and has not been legally vested in M. Didisheim, 
 North, J. has held that, unless an order is made in lunac\' requiring 
 or authorizing the defendants to deliver the property of Madame 
 Goldschmidt to M. Didisheim, they cannot safely deliver such property 
 to him. 
 
 The relations and friends of Madame Goldschmidt are particularly 
 desirous of avoiding an\- formal adjudication of "lunacy, and this 
 appeal has been brought on purpose to avoid the necessity- of such 
 an adjudication. The title of the plaintiffs, it will be observed, is 
 a purely legal title ; there is no trust in the case. Under the old 
 practice one action could not have been maintained to enforce a claim 
 b}' M. Didisheim as administrator and also a claim by Madame 
 Goldschmidt to recover her own property. Two separate actions of 
 detinue or trover would have been necessary. Our modern practice, 
 however, is less rigid, and the defendants have raised no objection 
 to the two claims being joined in one action. The court, therefore, 
 can properl}- entertain the action and decide the real question raised 
 b}' the defendants, which is whether, in an action brought by M. 
 Didisheim in his own name and in the name of Madame Goldschmidt 
 and as her next friend the High Court ought to make an order for 
 the delivery to him of her property. The question may be put in 
 another wa}', whether he is entitled in an action so framed to demand 
 deliver}' of her property to him. We are of opinion that he is. 
 
 In Scott V. Bently, 1 K. (Ss J. 281, a person resident in Scotland 
 was entitled to an annuity charged on land in England and secured by 
 a covenant entered into with himself The annuitant became lunatic,
 
 696 DIDISHEIM V. LONDON AND WESTMINSTEK BANK. [CHAP. XIV. 
 
 and a curator bonis was appointed according to Scottish law. Whether 
 he was judicially declared a lunatic does not distinctly' appear; nor 
 does it appear that the ownership of his personal property was by 
 Scottish law divested from him and vested in his curator.C We rather 
 infer that tlie curator merely had power to collect it and get it in.) 
 The annuity being in arrear, the curator brouglit a suit in Chancer}' in 
 his own name against the executrix and devisee in trust of the grantor 
 of the annuity for payment of the arrears and for paj'ment of the 
 annuit}' in future. It is to be observed that the demand of the plain- 
 tiff was a purely legal demand. He sought to enforce the legal riglit 
 of the annuitant under the covenant and grant. But the arrears seem 
 to have been. set apart as a trust fund, and this was held enough to 
 give the Court of Chancer}' jurisdiction to entertain the suit. Wood, 
 V.-C, made an order as prayed by the bill. This decision has been 
 much questioned ; but unless it be that the suit ought in strictness to 
 have been in the name of the lunatic by his curator as next friend, we 
 see no ground for doubting the correctness of the decision. 
 
 Scott V. Bentley, siqyra, has been questioned mainly because it pro- 
 ceeded to some extent on the supposed authorit}' of a decision in the 
 House of Lords on an appeal from Scotland, in In re Morrison's 
 Lunacy, Islov. Diet. 4595, 1 Cr. St. & P. 454. This case appears to 
 have been to some extent misunderstood. The Vice-Chancellor refers 
 to it as an unreported case cited in Johnstone v. Beattie, (1843) 10 
 CI. & F. 42, and in Sill v. Worswick, (1791) 1 H. Bl. 677-8, 2 R. R. 
 816. In Johnstone /'. Beattie, 10 CI. & F. 97, Lord Brougham refers 
 to Morrison's Case, supi'a, as cited in the note to Sill o. Worswick, 
 8upra^ and as an authorit}' for the proposition that the legally ap- 
 pointed curator in one country' was held entitled to act in another. 
 Tliis, it is plain, was also Wood, V.-C.'s, view of Morrison's Case, as 
 is apparent from his remark (1 K. &, J. 285) that in Morrison's Case 
 the curator sued alone. But the reports of that case to which we have 
 referred, supra, show that the decision of the House of Lords in 
 Morrison's Case did not go that length, and Lord Campbell was not 
 satisfied that it did (10 CI. & F. 133). We understand the decision as 
 showing that a committee appointed in England of a Scotsman resi- 
 dent in England could not sue in Scotland simply in his own name 
 and as committee for the recovery of the lunatic's personal estate ; 
 but that such committee could sue there in the name of the lunatic 
 for the recovery of the lunatic's personal estate. Morrison's Case, 
 therefore, did not go so far as Wood, V.-C, thought, but it goes a 
 long way to sliow that the proceedings in this action are properl}' 
 framed ;|for this action is brought, not only by M. Didisheim in his 
 double capacity of administrator of Madame Goldschmidt and curator 
 of Madame Goldschmidt, but also by her in her own name suing by 
 M. Didisheim us her next friend. \ In Scott r. Bentley, si/pra, Wood, 
 V.-C, did not by any means base his judgment only on the supposed 
 decision in In re Morrison's Lunac}', sujira, and after making every
 
 SECT. II.] DIDISHEIM V. LONDON AND WESTMINSTER BANK. 697 
 
 allowance for his misapprehension in that case, Scott v. Bentley was^ 
 in our opinion, well decided, although we cannot help thinking that, 
 if Wood, V. -C, had known the form of the order made in Morrison's 
 Case, he would have directed the bill to be amended bj' making it in 
 form a bill by the lunatic b}' his curator and next friend. 
 
 In Alivon v. Furnival, 1 C. M. & R. 277, 286, 40 R. R. 561, Parke, 
 B. expressed a clear opinion to the effect that a foreign curator could 
 sue here in his own name for goods and chattels of a person of unsound 
 mind. 
 
 Scott V. Bentle}', supra, is consistent with and is really supported 
 b^'^ several other cases cited by Mr. Haldane, and of which Re Tarratt, 
 51 L. T. 310, III re De Linden, [1897] 1 Ch. 453, and Thiery v. 
 Chalmers, Guthrie & Co., [1900] 1 Ch. 80, are the most recent and 
 important. In In re De Linden, an application was made on behalf of 
 a Bavarian lunatic lady for pa3-ment out to two foreign gentlemen of 
 some mone}' in court belonging to her. The application was by her in 
 her own name by her next friend, who was a Bavarian judge and one 
 of two persons appointed by a Bavarian court to take charge of her 
 and her propert}-. The order was made as asked — that is, for pa\'- 
 ment, not to her, but to the two persons appointed as above men- 
 tioned. The lady had been judicially declared lunatic, but there was 
 no judicial vesting of her propert}' in the curators. 
 
 Thier}' v. Chalmers, Guthrie «&; Co., supra, was a similar case. The 
 lunatic there was a French subject declared lunatic in France, and 
 whose property was placed under the care of a duly appointed tuteur. 
 An action was brought in this country by the lunatic by a next friend 
 and b}' the tuteur as a co-plaintiff to recover money and securities in 
 the hands of the lunatic's bankers. An order was made for the 
 delivery of them to the tuteur. Kekewich, J., thought that the tuteur 
 might have sued alone in his own name. He regarded the decision in 
 2)1 re Brown, [1895] 2 Ch. 666, as an authority for so holding, inas- 
 much as both in In re Brown and in Thiery v. Chalmers, Guthrie & 
 Co. the lunatic had been formally so declared by the foreign court. 
 But In re Brown was not an action ; it was an application to the Court 
 in Lunacy under section 134 of the Lunacy Act, and we doubt whether 
 the action in Thiery v. Chalmers, Guthrie & Co. would have been 
 rightly framed if brought by the tuteur as sole plaintiff. 
 
 An alteration in the status of a lunatic appears to be necessary 
 in order to enable the Court in Lunacy to exercise the jurisdiction 
 conferred upon it by section 134 of the Lunacy Act, 1890 ; but it by no 
 m eans follows that persons, whose status has not been altered by their 
 b eing judicially declared lunatic cannot sue by themselves by a next 
 friend for the recovery of their own property. In re Knight, [1898] 
 1 Tnrr2o77~Eurned on the discretion which the court had under section 
 134 of the Lunacy Act, and throws no real light on this case. 
 
 The only difficulty in the way of the plaintiffs is occasioned by In re 
 Barlow's Will, 36 Ch. D. 287. In that case a colonial statute vested
 
 698 DIDISHEIM V. LONDON AND WESTMINSTER BANK. [CHAP. XIV. 
 
 in a Master in Lunacy the care and custody of the propert}' of lunatic 
 patients — that is, of persons confined in hinatic asyUims but not judi- 
 cially declared lunatic. A colonial lady, contined in a lunatic asylum 
 in the colony, was entitled to some funds in the hands of trustees in 
 this countr}-, and the colonial Master in Lunacy claimed these funds. 
 The trustees paid them into court under the Trustee Relief Act. The 
 colonial Master and the lady by her next friend presented a petition 
 for the transfer of the funds in court to the colonial Master in Lunacy. 
 The court made an order for the payment out of capital of some past 
 maintenance and for the payment of the income to the master whilst 
 the lady continued in an asylum. But the court would not order the 
 rest of the corpus to be paid over to the master. It is to be observed 
 that the general statutory authority given by the Colonial Act to the 
 master as an officer of the colonial court was not supplemented by any 
 order giving the master any express authorit}-, as the lunatic's attorney-, 
 to get in any property' not locally within the jurisdiction of the court ; 
 and, as we understand Cotton, L. J.'s judgment, he was much influenced 
 by the omission of an}- such order. If the master's authority derived 
 from the colonial statute was unsatisfactory, it is obvious that such 
 authorit}- was not improved by his assumption of the right to use the 
 lunatic's name. In that view of the case, the fact that the lunatic 
 petitioned in her own name by her next friend did not remove the 
 difficulty. Having decided that the master was not entitled as a 
 matter of right to demand payment to himself, it became necessary 
 for the court, acting as trustees, to consider what it was the duty of 
 trustees to do in such a case as that before them ; and they considered 
 that in such a case the trustees ought not to part with the trust fund 
 without seeing to its application, and ought not to part with the fund 
 to the master further than the}' were satisfied that the interests of the 
 lunatic rendered it necessarv to do so. This was the view taken in lyi 
 re Garnier, L. R. 13 Eq. 532, where, however, the lunatic was a 
 domiciled Englishman, and we see no reason to dissent from it where 
 the authorit}- of the foreign curator to get in the trust property is 
 regarded by the court as unsatisfactor}-. But where it is not, the 
 considerations which weighed with the court in In re Barlow's Will, 
 supra, do not arise. A person absolutely entitled to trust money is 
 entitled to have it paid to him or to any one duly appointed by him 
 to receive it, and the trustees or the court acting for them have no 
 discretion to refuse payment. The same principle is, in our opinion, 
 applicable to the case in which trust money belongs to a lunatic and a 
 person is duly appointed by a competent authority to get in sucli money 
 f(jr the lunatic. If the title of the lunatic is clear, and the authority to 
 act for him is equally clear, we fail to see what discretion the court, 
 acting for the trustees, has in the matter. The trustees may properly 
 say that they cannot safely act without the sanction of the court, but 
 we fail to see what other discretion there is. Where the lunacy juris- 
 diction is being exercised, as it was in In re Stark, 2 Mac. & G. 174,
 
 SECT, II.] DIDISHEIM V. LONDON AND WESTMINSTER BANK 699 
 
 other considerations at once arise. If, as in In re Garnier, supra., 
 the kinatic were an Englishman temporarily abroad, and confined as a 
 kinatic abroad, we should feel considerable difHculty in holding that 
 the courts of this country were bound to recognize the title of a 
 foreign curator to sue in this country. But here we are dealing with 
 an alien domiciled ab road, and over whom the courts of this country 
 have no jurisdiction except such as is conferred by the fact that she 
 has property here. All that the court here has to do is to see that the 
 person claiming it is entitled to have it. 
 
 In this case the order of the Belgian court of November 25, 1899, 
 removes all doubt as to M. Didisheim's authority to take these proceed- 
 ings and to obtain and give a good discharge for the propertv which he 
 seeks to recover. On general principles of private international law, 
 the courts of this country are bound to recognize the authority con- 
 ferred on him by the Belgian courts, unless lunac}- proceedings in this 
 country prevent them from doing so. What ought to be done in lunacy 
 has not to be considered, and we say nothing on this subject. In our 
 opinion, the appeal should be allowed, and an order be made as asked 
 by the claim. But the plaintiffs must pay all the costs ; for tlie bank 
 was perfectly justified in not complying with M. Didisheim's demands 
 without an order of the High Court — that is, without proving his title 
 in such a way as to make it unreasonable for the bank to refuse to 
 recognize it. Under the old practice an action of detinue or trover 
 might have failed ; for under the general issue the defendants could 
 have given in evidence facts excusing delivery to a person rightfully 
 entitled, but whose title was not such as the defendants could safely 
 recognize. See per Blackbui-n, J., in Hollins ?;. Fowler, (1875) L. R. 
 7 H. L. 766, and the cases there cited. But in practice, if in such 
 a case the plaintiff proved his title to the satisfaction of the court 
 and paid the defendant's costs, the plaintiff always obtained delivery. 
 Under the modern practice, if this case had been tried by a jury there 
 would be no difficulty, we apprehend, in ordering delivery to JI. Didis- 
 heim, and, in a proper case like this, giving the defendants the costs of 
 the action — that is, there would be good cause for making the plain- 
 tiffs pay the costs, although they succeeded in estabhshing their title. 
 See Gleddon r. Trebble, 9 C. B. (n. s.) 367. If the action were tried 
 without a jur}-, whether in the Chancery Division, as this was, or in 
 the Queen's Bench Division, the costs would be in the discretion of 
 the judge, and there would be no difficulty in ordering delivery to the 
 plaintiffs and ordering them to pay the costs. However tried, any 
 other result would be very unjust. 
 
 Mr. Terrell suggested that the order of the court would not protect 
 the bank if the lunatic were to recover and were to sue the bank for her 
 money and property after the bank had paid and delivered it to M, 
 Didisheim, We do not entertain any misgiving on this point. The 
 High Court clearly had jurisdiction to entertain the action and to 
 decide the questions raised in it, and to make the order which this
 
 700 MAY V. WANNEMACHER. [CHAP. XIV 
 
 court now declares it ought to have made ; and this court clearly has 
 jurisdiction to entertain this appeal. This being clear, and the Belgian 
 court having had jurisdiction to make the order which it made, the 
 bank would unquestionably have a perfectly good defence to any action 
 which the lunatic could bring against it, either by another next friend 
 or by another official curator, or by herself if she should recover-^ 
 
 SECTION III. 
 
 Insolvent Estates. 
 MAY V. WANNEMACHER. 
 Supreme Judicial Court of Massachusetts. 1872 
 {Reported 111 Massachusetts, 202.] 
 
 Trustee process against Charles Wannemacher and Joseph Max- 
 field, surviving partners of the firm of N. Sturtevant & Company, on 
 promissory notes indorsed by the firm. John Borrowscale was sum- 
 moned as trustee of the defendants. Writ dated June 6, 1865. 
 
 The case, as it appeared from the answer of the trustee and an 
 agreed statement of facts, upon which it was submitted to the judgment 
 of the Superior Court, was as follows : — 
 
 The firm of N. Sturtevant & Company was composed of the defend- 
 ants, both of whom were domiciled in Philadelphia in the Common- 
 wealth of Pennsylvania, and were citizens of Pennsylvania, and of 
 Noah Sturtevant, who was domiciled in Boston and was a citizen of 
 Massachusetts. The firm did business both in Philadelphia and 
 
 Boston. 
 
 The following indenture was executed on the day of its date. [The 
 substance of the indenture was a conveyance by N. Sturtevant & Com- 
 pany, and by each member of the firm, of all their property to Joseph 
 A. Clay of Philadelphia, for the benefit of their creditors.] 
 
 It was agreed by the parties " that general assignments by debtors 
 for the ben'efit of their creditors were recognized by the law of Pennsyl- 
 vania at the time the assignment in this case was made, by an act of 
 the Assembly of Pennsylvania of June 14, 1836 ; that by subsequent 
 acts all preferences in such assignments, except for wages of labor to a 
 limited amount, are avoided, and the assignments enure to the benefit 
 of all the creditors equally, with the above exception, so far as the 
 laws of Pennsylvania have force ; that the assignment of October 25, 
 1861, to Clay, was general and without preferences, so far as the laws 
 
 1 Followed in case of a lunatic residing' abroad, though domiciled iu Euglaud. New 
 York Security 4. Trust Co. v. Keyscr, [1901] 1 Ch. 666. — Ed.
 
 SECT. III.] MAY V. WANNEMACHER. 701 
 
 of Pennsj'lvania have force, and conformable to the laws of Pennsyl- 
 vania ; that Cla}', the assignee, filed his first account November 17, 
 1863 ; that it was referred to John N. Campbell, a master, for audit 
 and distribution ; that claims of creditors were proved prior to April 
 14, 1864, to the amount of $412,027.18 ; that Campbell filed his report 
 on that day, and declared a dividend of oxV per cent, which has been 
 paid as demanded ; that on December 30, 1864, Campbell filed a sup- 
 plementary report, admitting a claim of §2,645.37, to a dividend, and 
 some small claims were proved afterwards ; that Clay subsequently 
 filed his second account, exhibiting a balance of $11,613.77, which, 
 with some little accrued interest, will suffice for a further dividend of 
 between two and three per cent ; that there is an apparently hopeless 
 claim against a bankrupt estate still outstanding, but nothing else re- 
 coverable by the assignee, unless the claim in the present case can be 
 enforced ; that by the laws of Pennsylvania creditors only recognize 
 the assignment by proving their claims and accepting dividends, as 
 they have done in tliis case to the extent above mentioned, and they 
 have no remedy against the assigned property except this ; and that no 
 judgment or execution binds or can be levied on the estate after the 
 assignment, and the assignment is valid against them in every way, so 
 far as the laws of Pennsylvania have force." 
 
 Borrowscale, who was a citizen of Massachusetts, was employed by 
 Clay, assignee, under the laws of Pennsylvania, of the firm of N. 
 Sturtevant & Company, to collect certain amounts due that firm ; and 
 he did collect certain sums, of which he paid over part to Clay, and 
 held the balance in his hands at the time when he was summoned as 
 trustee. 
 
 The plaintiff was a citizen of Massachusetts, domiciled there at the 
 time of the assignments to Clay and of the bringing of this suit, and 
 also at the time of the making of the notes sued on, which were made 
 and delivered in Massachusetts ; and the plaintiff never proved his 
 claim under the assignments to Clay, or in any manner recognized or 
 assented to the said assignments, or to the action of Clay under the 
 same, or to the doings of the other creditors in regard to said assign- 
 ments. Noah Sturtevant died before this action was brought. 
 
 The Superior Court discharged the trustee, and the plaintiff appealed. 
 
 Wells, J. The St. of 1836, c. 238, having been repealed, this case 
 is not affected by any considerations arising from that statute, or from 
 the general policy of the insolvent laws of Massachusetts. National 
 Mechanics' & Traders' Bank v. Eagle Sugar Refinery, 109 Mass. 38. 
 
 Independently of tliose laws, it has always been held that voluntary 
 assignments by a debtor, in trust for the payment of debts, and with- 
 out other adequate consideration, are invalid as against attachment, 
 except so far as assented to by the creditors for whose benefit they 
 were made. If assented to by creditors, such assignments are good at 
 common law, and will protect the property or fund from attachment to 
 the extent of the amount due to creditors thus assenting ; unless, by
 
 702 MAY V. WANNEMACHER. [CHAP. XIV. 
 
 the conditions of tlie assignment, it is made to take effect only upon 
 the assent of all, or a prescribed number of creditors. 
 
 The assent of creditors will not be presumed on the ground that it is 
 apparently for their interest; but must be shown by some form of 
 adoption or affirmative acquiescence. Russell v. Woodward, 10 Pick. 
 408. 413. 
 
 In cases of assignment by a tripartite instrument, it is generally 
 necessary that creditors should execute the instrument in order to give 
 it full effect, because such is the intent with which it is made. But 
 when this is not required by the form of the instrument of assignment, 
 it is only necessary that creditors should give such assent to its pro- 
 visions as will recognize and affirm the acceptance and possession of 
 the property by the assignee, as made and held for their benefit and in 
 their behalf, in accordance with the terms of the assignment. Russell 
 V. Woodward, 10 Pick. 408; Everett v. Walcott, 15 Pick. 94. 
 
 If creditors present their claims to the trustees for allowance for the 
 purpose of a distribution, in accordance with the terms of the assign- 
 ment, they thereby assent to the trust; and the trustee thereafter 
 holding the property in their behalf holds it upon a legal consideration, 
 and his title is perfected. The effect is the same if they present their 
 claims to commissioners or other persons appointed for that purpose, 
 in accordance with the terms of the assignment. And it can make no 
 difference, in this particular, if those persons are appointed under pro- 
 visions of local public law, with reference to which the instrument of 
 assignment was made. 
 
 The foregoing propositions meet and cover the present case. The 
 assignment was made with reference to the laws of Pennsylvania. It 
 is agreed that, by those laws, such an assignment is recognized as 
 valid ; and the proof and allowance of claims, and the distribution, are 
 conducted as judicial proceedings. Creditors, to an amount largely 
 exceeding the total assets, have presented and proved their claims and 
 accepted dividends upon them, thereby signifying their adoption of the 
 assignment for their benefit. 
 
 The question is made how far the courts of this Commonwealth are 
 bound to recognize assignments of this kind, made in a foreign juris- 
 diction, when set up against our own citizens claiming to hold, by 
 attachment, property of the insolvent debtor found within this jurisdic- 
 tion. 
 
 Such assignments made by commissioners of bankruptcy, or by 
 judicial or legislative authority merely, without the act and assent of 
 the debtor, are not held as binding upon the courts of another State. 
 Taylor r. Columbian Ins. Co., 14 Allen, S.oS. 
 
 An assignment made by the debtor himself in another State, which, 
 if made here, would be set aside for want of consideration or delivery, 
 or as fraudulent, or contravening the policy of the law of this Com- 
 monwealth, will not be sustained here against an attachment, although 
 valid in the State or country where made. Zipcey v. Thompson,
 
 SECT. III."! MAY V. WANNEMACHEK. 703 
 
 1 Gray, 243; Fall River Iron Works Co. v. Croade, 15 Pick. 11; 
 Ingraham v. Gej-er, 13 Mass. 146 ; Osborn v. Adams, 18 Pick. 245. 
 
 In each case above mentioned, to sustain the assignment would be to 
 give force and effect here to the foreign law, which has none suo vigore. 
 That is a matter of comity, and not of right. But in each case the 
 assigiiment is always sustained so far as it affects property which was 
 at the time within the jurisdiction where it was made : Benedict v. 
 Parmenter, 13 Gray, 88 ; Wales v. Alden, 22 Pick. 245 ; and also as 
 against all citizens of that jurisdiction, even when seeking a remedy 
 here against property found here. Rhode Island Central Bank r. Dan- 
 forth, 14 Gray, 123 ; Martin v. Potter, 11 Gray, 37 ; Richardson v. 
 Forepaugh, 7 Gray, 546 ; Whipple v. Thayer, 16 Pick. 25; Daniels v. 
 Willard, lb. 36. 
 
 This assignment is made by the debtors themselves. No fraud is 
 shown or suggested. It in no respect contravenes the policy of law as 
 established in this Commonwealth. It is assented to by creditors suffi- 
 ciently to give it a valid consideration and full legal effect, if it had 
 been made here. The effect of that assent does not depend at all upon 
 the judicial proceedings in Pennsylvania. Giving no force whatever to 
 the judicial authority of those proceedings, or to the local law, we find, 
 in the acts of the parties sufficient to constitute a legal and valid as- 
 signment, which should be held to be good wherever made, and effectual 
 to pass the rights of the debtors even to property not subject to the 
 local laws of Pennsylvania. JNIcans v. Hapgood, 19 Pick. 105 ; Newman 
 V. Bagley, 16 Pick. 570. The judgment therefore must be 
 
 Trustee discharged.
 
 704 IN THE MATTER OF THE ACCOUNTING OF WAITE. [CHAP. XIV, 
 
 In the Matter of the Accounting of WAITE. 
 
 Court of Appeals, New York. 1885. 
 
 [Reported 99 New York, 433 ] 
 
 Earl, J. On the loth day of October, 1881, Ilaynes & Sanger, a 
 firm doing business in the city of New York, having become insolvent, 
 made a general assignment, for the benefit of their creditors, to Charles 
 Waite, who was a member of the firm of Pendle «& Waite, and in their 
 assignment preferred that firm as creditors for a large amount. Pendle 
 & Waite did business in New Y'ork and London, Waite being a citizen 
 of this country residing in the city of New Y^ork and having cliarge of 
 the business of his firm there, and Pendle being a citizen of England 
 and having charge of the firm business there. That firm became in- 
 solvent and suspended business in P^ngland in Fel)ruary, 1882, and 
 Waite then went to England, and there he and Pendle filed a petition 
 in the London Court of Bankruptcy, in which they recited their in- 
 ability to pay their debts in full, and that they were "desirous of 
 instituting proceedings for the liquidation of their affairs by arrange- 
 ment or composition with their creditors, and hereb}- submit to the 
 jurisdiction of this court in the matter of such proceeding." Waite 
 signed the petition in person, and through his counsel at once secured 
 the appointment of Schofield as receiver, in bankruptcy, of the firm 
 property. 
 
 Liquidation by arrangement or composition is a proceeding under 
 the English bankruptcy act which provides that the filing of such a 
 petition is an act of bankruptcy ; that a compromise proposition may 
 be made by a debtor, and that if such proposition shall be accepted by 
 the creditors at a general meeting, and then confirmed at a second 
 general meeting, and registered by the court, it becomes binding and 
 may be carried out under the supervision of the court ; that if it ap- 
 pears to the court on satisfactory evidence that a composition cannot 
 in consequence of legal difficulties, or for any other sufficient cause, 
 proceed without injustice or undue delay to the creditors, or the debtor, 
 the court may adjudge the debtor a Ijunkrupt and proceedings may be 
 had accordingly, and that the title of the trustee in bankruptcy, when 
 appointed, relates back to the time of the commission of the act of 
 bankruptcy. 
 
 For reasons which it is unnecessary now to consider or relate, the 
 composition failed, and then upon the application of creditors, which 
 was oi)posed by Waite, Pendle & Waite were adjudged bankrupts, and 
 Schofield was appointed trustee of the firm property. By the English 
 law, the due appointment of a trustee in bankruptcy, under the English 
 bankruptcy act, transfers to the trustee all the personal property of 
 the bankrupt wherever situated, whether in Great Britain or elsewhere. 
 
 Notwithstanding his bankruptcy, Waite continued to act as assignee
 
 SECT. Ill} IN THE MATTER OF THE ACCOUNTING OF WAITE. 
 
 ro5 
 
 of Haynes & Sanger and converted the assets of that firm into money, 
 and under the preference given to his firm paid himself for the firm of 
 Pendle & Waite the sum of 814,333.70. He paid no portion of that 
 sum to Pendle or to the creditors of his firm, the American creditors 
 of such firm having been fully paid from other assets of the firm. 
 
 After all this, Waite filed his petition in the Court of Common Pleas 
 of the city of New York for a settlement of his accounts as assignee, 
 and citations were issued, served, and published for that purpose, 
 and a referee was appointed to take and state his accounts. In his 
 accounts he entered and claimed a credit for the sum paid to himself as 
 above stated. Schofield, through his attorney, appeared upon the 
 accounting and as trustee objected to the credit and claimed that sum 
 should be paid to him. The referee ruled that the law of this State 
 does not recognize the validity of foreign bankruptcy proceedings to 
 transfer title to property of the bankrupt situated here, and for that 
 reason held that the payment by Waite, as assignee, to himself as a 
 member of the firm of Pendle & Waite, was valid, and that he was 
 entitled to the credit claimed. The same view of the law was taken 
 at the special and general terms of the common pleas, and then 
 Schofield appealed to this court. 
 
 We have stated the facts as found by the referee, and as the respond- 
 ent did not and could not except to the findings, and is therefore in no 
 condition to complain of them, we must assume that they were based 
 upon suflScient evidence. 
 
 The transfer of the property of Pendle & Waite to Schofield as 
 trustee was in invitum, solely by operation of the English bankrupt 
 law. While the proceeding first instituted by the bankrupts to ar- 
 range a composition with their creditors was voluntary, the final pro- 
 ceeding through which the adjudication in bankruptcy was had, and 
 the trustee appointed was adversary and against their will, having no 
 basis of voluntary consent to rest on. Willitts v. Waite, 25 N. Y. 
 577. 
 
 If the transfer effected by the bankruptcy proceedings is to have the 
 same effect here as in England, then the title to the money due to the 
 bankrupts from Haynes & Sanger was vested in the trustee. Schofield 
 was appointed receiver of the property of the bankrupts in March, 1882, 
 and then the title passed out of them. That title continued in him as 
 receiver until he was appointed trustee. After he was appointed re- 
 ceiver and before or after he was appointed trustee (which does not 
 appear), Waite as assignee paid himself as a member of the firm of 
 Pendle & Waite the sum of money in controversy. He had notice of 
 the bankruptcy proceedings and knew that the title to the money due 
 from Haynes & Sanger and from himself as their assignee had passed 
 out of the bankrupts to Schofield, and hence he had no right to make 
 payment to them. Schofield became substituted in their place, and 
 Waite was bound to make payment to him, and cannot, therefore, have 
 credit for a payment wrongfully made. And Schofield, standing in 
 
 45
 
 706 IN THE MATTER OF THE ACCOUNTING OF WAITE. [CHAP. XIV. 
 
 the place of the original creditors of Hayues & Sanger, had the right 
 to appear upon the accounting and object to the erroneous payment 
 made in disregard of his rights. But the alleged payment was merely 
 formal, not real. Waite, the assignee, still has the money and is 
 accountable for it to the proper party. It is not perceived how it can 
 be claimed that Schofield was bound at any time before the account- 
 ing to make any demand upon the assignee. He was a creditor 
 holding the claim originally due to Pendle & "Waite, and as such he 
 could appear upon the accounting, with all the rights of an}' other 
 creditor, to protect his interests, and he could not be prejudiced by 
 a payment alleged to have been made b}' the assignee to himself. 
 All this is upon the assumption that the transfer to Schofield as 
 trustee is to have the same force and effect here as against the bank- 
 rupts as in England ; and whether it must have, is the important and 
 interesting question to be determined upon this appeal. 
 
 It matters not that Waite was a citizen of this country, domiciled 
 here. He went to England and invoked and submitted to the jurisdic- 
 tion of the bankruptc}' court there and is bound by its adjudication to 
 the same extent as if he had been domiciled there. The adjudication 
 estopped him just as every party is estopped by the adjudication of 
 a court which has jurisdiction of his person and of the subject-matter. 
 
 We have not a case here where there is a conflict between the 
 foreign trustee and domestic creditors. So fat as appears no in- 
 justice whatever will be done to any of our own citizens, or to any 
 one else, by allowing the transfer to have full effect here. Indeed 
 justice seems to require that this money should be paid to the foreign 
 trustee for distribution among the foreign creditors of the bankrupts. 
 
 The effect to be given in any counUy to statutory m invitiim trans- 
 fers of propert}' through bankruptcy' proceedings in a foreign country 
 has been a subject of much discussion among publicists and judges, 
 and unanimity of opinion has not and probablj' never will be reached. 
 We shall not enter much into the discussion of the subject and thus 
 travel over ground so much marked by the footsteps of learned jurists. 
 Our main endeavor will be to ascertain what, bj' the decisions of the 
 courts of tliis State, has become tlie law here.^ 
 
 In Willitts V. Waite (25 N. Y. 577), it was lield that statutory re- 
 ceivers appointed in Ohio could not enforce their title to the propert}' 
 of the insolvent in this State against creditors subsequently attaching 
 it here, under our laws. In that case, while Sutherland, J., was of 
 opinion that from comity the courts of this State should recognize and 
 allow some effect to a foreign involuntary bankrupt proceeding, yet he 
 erroneousl}' said that he understood that a title under such proceedings 
 
 ^ The learned judge here examined the following cases: Bird r. Caritat, 2 Johns. 
 342; Raymond v. Johnson, 11 Johns. 488; Holmes v. Remsen, 4 Johns. Ch. 460 ; 
 Holmes v. Remsen, 20 Johns. 229 ; Plcstoro v. Aliraham, 1 Paige, 236, 3 Wend. 538 ; 
 Johnson v. Hunt, 23 Wend, 87 ; Hoyt v. Thompson, 5 N. Y. 320, 19 N. Y. 207. — 
 Ed.
 
 SECT. III.] IN THE MATTER OF THE ACCOUNTING OF WAITE. 707 
 
 " would not be recognized by the courts of this State, even when the 
 question arises entirely between the bankrupt and his assignees and 
 creditors all residing in the country under whose laws the assignment 
 was made." Allen, J., writing in the same case, said: '■^ A quasi 
 effect may be given to the law (of a foreign State) as a matter of 
 comit}- and interstate or international courtes}', when the rights of 
 creditors or bona fide purchasers, or the interests of the State do not 
 interfere, by allowing the foreign statutory or legal transferee to sue 
 for it in the courts of the State in which the propert}' is ; " and that 
 '* the State will do justice to its own citizens so far as it can be done 
 by administering upon propertj- within its jurisdiction, and will yield 
 to comit}' in giving effect to foreign statutory assignments only so far 
 as may be done without impairing the remedies or lessening the securi- 
 ties which our laws have provided for our own citizens." The rule, as 
 stated by Judges Piatt, Ruggles, Allen, and other eminent jurists, 
 whose opinions we have quoted, were also fully recognized in the fol- 
 lowing cases : Peterson v. Chemical Bk., 32 N. Y. 21 ; Kelly lu Crapo, 
 45 N. Y. 86 ; Osgood v. Maguire, 61 N. Y. 524 ; Hibernia Bk. v. La- 
 combe, 84 N. Y. 367 ; Matter of Bristol, 16 Abb. Pr. 184 ; Runk v. St. 
 John, 29 Barb. 585; Barclay v. Quicksilver Mining Co., 6 Lans. 25; 
 Hooper v. Tuckerman, 3 Sandf. 311 ; Olyphant v. Atwood, 4 Bosw. 
 459 ; Hunt v. Jackson, 5 Blatchf. 349. 
 
 From all these cases the following rules are to be deemed thoroughly 
 recognized and established in this State : (1) The statutes of foreign 
 States can in no case have any force or effect in this State ex propria 
 vigore, and hence the statutorj- title of foreign assignees in bankruptcy 
 can have no recognition here solely by virtue of the foreign statute. 
 (2) But the comit}' of nations which Judge Denio in Peterson v. 
 Chemical Bank (supra) said is a part of the common law, allows a cer- 
 tain effect here to titles derived under, and powers created by the laws 
 of other countries, and from such comity the titles of foreign statutory 
 assignees are recognized and enforced here, when the}- can be, without 
 injustice to our own citizens, and without prejudice to the rights of 
 creditors pursuing their remedies here under our statutes ; provided 
 also that such titles are not in conflict with the laws or the public policy 
 of our State. (3) Such foreign assignees can appear and, subject to 
 the conditions above mentioned, maintain suits in our courts against 
 debtors of the bankrupt whom they represent, and against others who 
 have interfered with, or withhold the property of the bankrupt. 
 
 If it be admitted, as it must be under the authorities cited, that 
 Schofield can, as assignee of Pendle & Waite, have a standing in our 
 courts, and that his title will be so far recognized here that he can 
 sue the debtors of that firm to recover the amount owing to the firm, 
 whv may he not sue the bankrupts? If the assignee could sue Haynes 
 & Sanger to recover what they owed the bankrupts, why can he not be 
 permitted to sue the bankrupts for money or property' placed in their 
 hands to pay the debt? If he could su-^ Haynes & Sanger, why could
 
 708 IN THE MATTER OF THE ACCOUNTING OF WAITE. [CHAP. XIV. 
 
 not he sue their assignee, although a member of the bankrupt firm, to 
 recover the mone}- placed in his hands to pa}' their debt? No prin- 
 ciple of justice, no public polic}' requires the courts of this State to 
 ignore the title of this assignee at the instance of one of the bank- 
 rupts. No injustice will be done to Waite if this money be taken to 
 pay his creditors, and public polic}' does not require that the courts 
 of this State should protect him in his efforts either to cheat his 
 creditors or his partner. If it be conceded, as it must be, that the title 
 of a foreign statutory assignee is good in this State for any purpose 
 against anybod}', it seems to us that it ought to be held good against 
 the bankrupt against whom an adjudication in bankruptcy has been 
 pronounced which is binding upon him. 
 
 Before such an adjudication can be held to be efficacious in a foreign 
 country to transfer title to propert}-, the bankrupt court must have had 
 jurisdiction of the bankrupt either because made in the country of his 
 domicil or because he, although domiciled elsewhere, submitted to the 
 jurisdiction or in some other way came under the jurisdiction of the 
 bankrupt court. Here Pendle & Waite did most of their business in 
 England. Most of their assets and of their creditors were there, and 
 while Pendle alone was domiciled there, Waite went there and sub- 
 mitted to the jurisdiction of the bankrupt court and exposed himself to 
 the operation of English law. He is therefore bound by the adjudica- 
 tion of the court as he would have been if domiciled there, and the 
 judgment had been in a common law court upon any personal cause of 
 action. 
 
 The decisions in the federal courts, and in most of the other States, 
 are in harmony with the views we have expressed ; and so are the doc- 
 trines of all the great jurists who have written upon the subject of 
 private international law. 2 Bell's Comm. 681, 687; Wheaton's Int. 
 L. [8th ed., by Dana], §§ 89, 90, 91, 144 and note; 2 Kent's Comm. 
 405; Wharton's Confl. of Laws, §§ 353, 368, 391, 735, 736; Story's 
 Confl. of Laws, §§ 403, 410, 412, 414, 420, 421. 
 
 There are but two cases in this State which really hold anything in 
 conflict with these views, and the}' are Mosselraan v. Caen (34 Barb. 
 66; N. Y. Sup. Ct. [4 T. & C] 171). In the first case the action 
 was by foreign trustees, appointed in bankruptcy proceedings, to re- 
 cover goods in the possession of the defendant in this country, and the 
 plaintiffs recovered. The defendant appealed, and sought to reverse 
 the judgment upon the ground that the plaintiffs did not, as trustees, 
 have any title to the property. The judgment was affirmed, on the 
 ground that the defendant did not raise the question of title at the 
 trial. But the judges writing were of opinion that the plaintiffs did 
 not have any title to the bankrupt's property located here, and one of 
 them (Sutherland, J.) stated that the case of Abraham r. Plestoro 
 (3 Wend. 538), confirmed by Johnson i\ Hunt, " woald seem to be con- 
 clusive upon the question, whether our courts will recognize or enforce 
 a right or title acquired under a foreign bankrupt law or foreign bank-
 
 SECT. III.] SECURITY TRUST COMPANY V. DODD, MEAD & CO. 709 
 
 ruptc}' judicial proceedings. The case of Abraham v. Plestoro was cer- 
 tainly very broad in its repudiation of foreign bankruptcy proceedings, 
 and went much further than the case of Holmes v. Remsen (20 Johns. 
 229) ; but I think it must be deemed conclusive authority for saying, 
 that had the defendant raised the question by demurrer, or ou the trial, 
 it must have been held that the plaintiffs could not maintain this 
 action." In the second case Davis, P. J., writing the opinion of the 
 court, said : " It seems to be the settled law of this State that our 
 courts will not recognize or enforce a right or title acquired under a 
 foreign bankrupt law, or foreign bankrupt proceedings, so far as affects 
 property within their jurisdiction, or demands against residents of the 
 State." These two cases are unsupported by authority, and are, we 
 think, opposed to sound principles, and are in conflict with the current 
 of authority in this State. 
 
 We are, therefore, of opinion that Schofield was competent to appear 
 upon the accounting to protect the interests of the bankrupt estate 
 which he represented, and that, upon the facts as they appear in this 
 record, his objection to the allowance of the pa^'ment made b}' the 
 assignee to himself ought to have prevailed, and that he should be re- 
 cognized as a creditor for the amount of such pa3'ment. 
 
 It follows that the orders of the General and Special Terms should 
 be reversed, and, as the facts may be varied or more full}' presented 
 upon a new hearing, the matter should be remitted to the Special Term 
 for further proceedings upon the same or new evidence, in accordance 
 with the rules of law herein laid down, and that the appellant should 
 recover from the respondent costs of the appeals to the General Term 
 and to this court. 
 
 All concur. Ordered accordingly. 
 
 SECURITY TRUST COMPANY v. DODD, MEAD & CO. 
 
 Supreme Coukt of the United States. 1899. 
 
 [Reported 173 United States, 624.] 
 
 This was an action originally instituted in the District Court for the 
 Second Judicial District of Minnesota, by the Security Trust Company, 
 as assignee of the D. D. Merrill Company, a corporation organized 
 under the laws of Minnesota, against the firm of Dodd, Mead & Corn- 
 pan}', a partnership resident in New York, to recover the value of 
 certain stereotyped and electrotyped plates for printing books, upon 
 the ground that the defendants had unlawfully converted the same to 
 their own use. The suit was duly removed from the State court to the 
 Circuit Court of the United States for the District of Minnesota, and 
 was there tried. Upon such trial the following facts appea'-ed : —
 
 710 SECUKITY TRUST COMPANY V. DODD, MEAD & CO. [CHAP. XIV. 
 
 The D. D. Merrill Company having become insolvent and unable to 
 pay its debts in the usual course of business, on September 23, 1893, 
 executed to the Security Trust Company, the plaintiff in error, an as- 
 signment under and pursuant to the provisions of chapter 148 of the 
 laws of 1881 of the State of Minnesota, which assignment was properly 
 filed in the office of the clerk of the District Court. The Trust Company 
 accepted the same, qualified as assignee, took possession of such of the 
 property as was found in Minnesota, and disposed of the same for the 
 benefit of creditors, the firm of Dodd, Mead & Company having full 
 knowledge of the execution and filing of such assignment. 
 
 At the date of this assignment, the D. D. Merrill Company was 
 indebted to Dodd, Mead & Company of New York in the sum of 
 $1,249.98, and also to Alfred Mudge & Sons, a Boston co-partnership 
 in the sum of §126. 80, which they duly assigned and transferred to 
 Dodd, Mead & Company, making the total indebtedness to them 
 $1,376.78. 
 
 Prior to the assignment, the D. D. Merrill Company was the owner 
 of the personal property for the value of which this suit was brought. 
 This property was in the custody and possession of Alfred Mudge & 
 Sons at Boston, Massachusetts, until the same was attached by the 
 sheriff of Suffolk County, as hereinafter stated. 
 
 The firm of Alfred Mudge and Sons was, prior to March 8, 1894, 
 informed of the assignment by the Merrill Compan}', and at about the 
 date of such assignment a notice was served upon them by George E. 
 Merrill to the effect that he Merrill, took possession of the property 
 in their custody for and in behalf of the Security Trust Company, as- 
 signee aforesaid. 
 
 On March 8, 1894, Dodd, Mead & Company commenced an action 
 against the D. D. Merrill Compan}^ in the superior court of the count}' 
 of Suffolk, upon their indebtedness, caused a writ of attachment to be 
 issued, and the propert}' in possession of Mudge & Sons seized upon 
 such writ. A summons was served by publication in the manner pre- 
 scribed by the Massachusetts statutes, although there was no personal 
 service upon the Merrill Company. The Security Trust Companv, its 
 assignee, was informed of the bringing and pendency of this suit and 
 the seizure of the property, prior to the entering of a judgment in said 
 action, which judgment was duly rendered August 6, 1894, execution 
 issued, and on September 27, 1894, the attached property was sold at 
 public auction to Dodd, Mead & Company, the cj^ecution creditors, for 
 the sum of $1,000. 
 
 Upon this state of facts, the Circuit Court of Appeals certified to 
 this court the following questions : — 
 
 '' First, Did the execution and delivery of the aforesaid deed of 
 assignment by the I). D. Merrill Company to the Security Trust Com- 
 pany and the acceptance of the same by the latter company and its 
 qualification as assignee thereunder, vest said assignee with the title 
 to the personal property aforesaid, then located in the State of Massa-
 
 SECT. III.] SECURITY TRUST COMPANY V. DODD, MEAD & CO. 711 
 
 cliusetts, and in the custody and possession of said Alfred Mudge & 
 Sons ? 
 
 " Second. Did the execution and deliver}- of said assignment and 
 the acceptance thereof by the assignee and its qualification thereunder, 
 in the manner aforesaid, together with the notice of such assignment 
 which was given, as aforesaid, to Alfred Mudge & Sons prior to March 
 8, 1894, vest the Security Trust Company with such a title to the per- 
 sonal propert}' aforesaid on said March 8, 1894, that it could not on 
 said da}' be lawfully seized by attachment under process issued by the 
 superior court of Suffolk County, Massachusetts, in a suit instituted 
 therein by creditors of the U. D. Merrill Company, who were residents 
 and citizens of the State of New York, and who had notice of the as- 
 signment but had not proven their claim against the assigned estate 
 nor filed a release of their claim ? " 
 
 Brown, J. This case raises the question whether an assignee of an 
 insolvent Minnesota corporation can maintain an action in the courts 
 of Minnesota for the conversion of property formerly belonging to the 
 insolvent corporation, which certain New York creditors had attached 
 in Massachusetts, and sold upon execution against such corporation. 
 The question was also raised upon the argument how far an assign- 
 ment, executed in Minnesota, pursuant to the general assignment law 
 of that State, by a corporation there resident, is available to pass per- 
 sonal property situated in Massachusetts as against parties resident in 
 New York, who, subsequent to the assignment, had seized such prop- 
 erty upon an attachment against the insolvent corporation. 
 
 The assignment was executed under a statute of Minnesota, the 
 material provisions of which are hereinafter set forth. The instrument 
 makes it the duty of the assignee " to pay and discharge, in the order 
 and precedence provided by law, all the debts and liabilities now due 
 or to become due from said party of the first part, together with all in- 
 terest due and to become due thereon, to all its creditors who shall file 
 releases of their debts and claims against said party of the first part, 
 according to chapter 148 of the General Laws of the State of Minne- 
 sota for the year 1881, and the several laws amendatory and supple- 
 mentary thereof, and if the residue of said proceeds shall not be 
 sufficient to pay said debts and liabilities and interest in full, then to 
 apply the same so far as they will extend to the payment of said debts 
 and liabilities and interest, proportionately on their respective amounts, 
 according to law and the statute in such case made and provided ; and 
 if, after the payment of all the costs, charges, and expenses attending 
 the execution of said trust, and the payment and discharge in full of 
 all the said debts of the party of the first part, there shall be any sur- 
 plus of the said proceeds remaining in tlic hands of the party of the 
 second part, then, Third, repay such surplus to the party of the first 
 part, its successors and assigns." 
 
 The operation of voluntary or common law assignments upon prop- 
 erty situated in other States has been the suliject of frequent discu*-
 
 712 SECURITY TRUST COMPANY V. DODD, MEAD & CO. [CHAP. XIV. 
 
 s\6n in the courts, and there is a general consensus of opinion to the 
 effect that sueli assignments will lie respected, except so far as they 
 come in conflict with the rights of local creditors, or with the laws or 
 public policy- of the State in which the assignment is sought to be en- 
 forced. The cases in this court are not numerous, but they are all 
 consonant with the above general principle. Black v. Zacharie, 
 3 How. 483 ; Livermore r. Jenckes, 21 How. 126; Green v. Van Bus- 
 kirk, 5 Wall. 3U7 ; Hervey v. R. I. Locomotive Works, 93 U. 8. 664 ; 
 Colo V. Cunningham, 133 U. S. 107 ; Barnett v. Kinney, 147 U. S. 476. 
 But the rule with respect to statutory assignments is somewhat dif- 
 ferent. While the authorities are not altogether harmonious, the pre- 
 vailing American doctrine is that a conveyance under a State insolvent 
 law operates only upon property within the territory of that State, and 
 that with respect to property in other States it is given only such effect 
 as the laws of such State permit ; and that, in general, it must give 
 way to claims of creditors pursuing tlieir remedies there. It passes no 
 title to real estate situated in another State. Nor, as to personal 
 property, will the title acquired by it prevail against the rights of at- 
 taching creditors under the laws of the State where the property is 
 actually situated. Harrison v. Sterry, 5 Cranch, 289, 302 ; Ogden 
 V. Saunders, 12 Wheat. 213; Booth v. Clark, 17 How. 322; Blak°e v. 
 AVilliaras, 6 Pick. 286; Osborn v. Adams, 18 Pick. 245; Zipcey v. 
 Thompson, 1 Gray, 243 ; Abraham v. Plestoro, 3 Wend. 538, over- 
 ruling Holmes v. Remsen, 4 Johns. Ch. 460; Johnson v. Hunt, 23 
 Wend. 87; Hoyt v. Thompson, 5 N. Y. 320; Willitts y. Waite, 25 
 N. Y. 577 ; Kelly v. Crapo, 45 N. Y. 86 ; Barth v. Backus, 140 N. Y. 
 230; Weider v. Maddox, 66 Tex. 372; Rhawn v. Pearce, 110 111. 
 350; Catlin v. Wilcox Silver Plate Co, 123 Ind. 477. As was said 
 by Mr. Justice McLean in Oakey v. Bennett, 11 How. 33, 44, ''A 
 statutable conveyance of property cannot strictly operate beyond the 
 local jurisdiction. Any effect which may be given to it beyond this 
 does not depend upon international law, but the principle of comity ; 
 and national comity does not require any government to give effect to 
 such assignment when it shall impair the remedies or lessen the secur- 
 ities of its own citizens. And this is the prevailing doctrine in this 
 country. A iiroceeding in rem against the property of a foreign bank- 
 rupt, under our local laws, may be maintained by creditors, notwith- 
 standing the foreign assignment." Similar language is used by Mr. 
 Justice Story in his Conflict of Laws, § 414.^ 
 
 The statute of Minnesota, under which this assignment was made, 
 provides in its first section that any insolvent debtor " may make an 
 
 1 Ace. Le Chevalier t>. Lynch, 1 Doug, im ; Reynolds v. Adden, 136 IJ. S. 348; 
 Betton V. Valentine, 1 Curt. 168 ; Paine i-. Lester, 44 Conn. 196 ; Rhawn v. Pearce, 
 110 111. S.^O- Johnson v. Parker, 4 Bush. 149 (scmblc) ; Metcalf v. Yeaton, 51 Me. 
 198 ; Wood r. Parsons, 27 Mich. 159; Beer v. Hooper, 32 Miss. 246 ; Hoyt v. Thomp- 
 son, 19 y. Y. 207 ; Bizzell v. Bedient, 2 Car. L. Rep. 254 ; Milne v. More'ton. 6 Binn. 
 353; Goodsell v. Benson, 13 R. I. 225 (semhlr) ; McClure v. Campbell, 71 Wis. 350, 
 37 N. W. 343. Contra, Long v. Girdwood, 150 Pa. 413, 24 Atl. 711. — ¥a).
 
 SECT. III.] SECURITY TKUST COMPANY V. DODD, MEAD & CO. 713 
 
 assignment of all his unexempt property for the equal benefit of all his 
 bofia fide creditors, who shall file releases of their demands against 
 such debtor, as herein provided." Thai such assignments shall be 
 acknowledged and filed, and if made within ten days after the assign- 
 or's propert}' has been garnished or levied upon, shall operate to vacate 
 such garnishment or levy at the option of the assignee, with certain 
 exce^jtions. The second section provides for putting an insolvent 
 debtor into involuntary bankruptcy on petition of his creditors, upon 
 his committing certain acts of insolvenc}', and for the appointment b}' 
 the court of a receiver with power to take possession of all his proi)- 
 ert}', not exempt, and distribute it among his creditors. Under either 
 section onlv those creditors receive a benefit from the act who file re- 
 leases to the debtor of all their demands against him. This statute 
 was held not to conflict with the Federal Constitution in Denny v. 
 Bennett, 128 U. S. 489. 
 
 The construction given to this act by the Supreme Court of Minnesota 
 has not been altogether uniform. In "Wendell v. Lebon, 30 Minn. 
 234, the act was held to be constitutional. It was said tliat '• the act 
 in its essential features is a bankrupt law;" but it was intimated that 
 it included all the debtor's property wherever situated; "and while 
 otiier jurisdictions might, on grounds of polic}', give preference to 
 domestic attaching creditors over foreign assignees or receivers in 
 bankruptc}', yet. subject to this exception, they would, on principles 
 of comity, recognize the rights of such assignees or receivers to the 
 possession of the propert}- of the insolvent debtor." 
 
 In III re Mann, 32 Minn. 60, the act was, in effect, again pro- 
 nounced " a bankrupt law, providing for voluntary bankruptcy by the 
 debtor's assignment;" and in this respect differing from a previous 
 assignment law. See also Simon v. Mann, 33 Minn. 412, 414. 
 
 In Jenks v. Ludden, 34 Minn. 482, it was held that the courts 
 of that State had no right to enjoin the defendant, who was a citizen 
 of Minnesota, from enforcing an attachment lien on certain real prop- 
 erty in "Wisconsin owned by the insolvent debtors, although the exe- 
 cution of the assignment might, under the Minnesota statute, have 
 dissolved such an attachment in that State; and that, even if the}' had 
 the power to do so, the}' ought not to exercise their discretion in that 
 case, where the only effect might be to enable non-resident creditors to 
 step in and appropriate the attached property. The court repeated 
 the doctrine of the former case, that the act was a bankrupt act ; the 
 assignee being in eflfect an officer of the court, and the assigned prop- 
 erty being in custodia legis, and administered by the court or under its 
 direction. The court added : ''"V\"e may also take it as settled that the 
 question whether property situated in Wisconsin is subject to attach- 
 ment or levy by creditors, notwithstanding any assignment made in 
 another State, is to be determined exclusively by the laws of Wiscon- 
 sin." To the same effect see Daniels v. Palmer, 35 Minn. 347 ; 
 Warner v. Jafl^ray, 96 N. Y. 248.
 
 714 SECURITY TRUST COMPANY V. DODD, MEAD & CO. [CHAP. XIV. 
 
 Upon the other hand, in Covey v. Cutler, 55 Minn. 18, an in- 
 solvent debtor who had made an assignment under this statute, liad a 
 certain amount of salt in Wisconsin, which the defendants had attached 
 in a Wisconsin court. The salt was sold upon the judgment, bid in by 
 them, and the assignee in Minnesota brought an action to recover the 
 value of the salt. Defendants answered, claiming that the assignee 
 never took possession of the salt, and that the Minnesota assignment 
 was ineffectual to transfer the title to property in Wisconsin as against 
 attaching creditors there. Plaintiff was held entitled to judgment upon 
 the ground that a voluntary conveyance of peisonal property, valid by 
 the law of the place, passed title wherever the property may be situated 
 and that such transfers, upon principles of comity, would be recognized 
 as effectual in other States when not opposed to public policy or repug- 
 nant to their laws. It is difficult to reconcile this with the previous 
 cases, or with that of Green v. Van Buskirk, 7 Wall. 139. The as- 
 signment was apparently treated as a voluntary or common law assign- 
 ment. This ruling was repeated in Hawkins v. Ireland, 64 Minn. 
 339, in which an assignment under this statute was said not to be in- 
 voluntary but voluntary', and that a court of equity had the power to, 
 and would, restrain one of its own citizens, of whom it had jurisdiction, 
 from prosecuting an action in a foreign State or jurisdiction, whenever 
 the facts of the case made it necessary to do so, to enable the court to 
 do justice and prevent one of its citizens from taking an inequitable 
 advantage of another. This accords with Dehon v. Foster, 4 Allen, 
 545, and Cunningham v. Butler, 142 Mass. 47 ; s. c, sub nom. Cole 
 V. Cunningham, 133 U. S. 107. 
 
 The earlier opinions of the Supreme Court of Minnesota to the effect 
 that the statute in question was a bankrupt act, were followed by 
 the Supreme Court of Wisconsin in McClure v. Campbell, 71 Wis. 
 350, in which it was held that the assignment could have no legal 
 operation out of the State in which the proceedings were had, and that 
 the decision of the Supreme Court of Minnesota that the act of 1881 
 was a bankrupt act was binding. The contest was between the as- 
 signee of the insolvent debtor and a creditor who had attached the 
 property of the insolvent in Wisconsin. The court held that the plaintiff, 
 the assignee, took no title to such property, and was not entitled to its 
 proceeds. In delivering the opinion tiie court said : "We think the 
 question is not affected by the fact that the property, when seized, 
 was in the possession of the assignee, or that the attacliing creditor is 
 a resident of the State in which the insolvency or bankruptc}- proceed- 
 ings were had. . . . While some of them" (the cases) " ma3% under 
 especial circumstances, extend the rule of comity to such a case, and 
 thus give an extraterritorial effect to somewhat similar assignments, 
 we are satisfied that the great weight of authority is the other way. 
 The rule in tliis countrv is, we think, tliat assignments by operation 
 of law in bankruptcy or insolvency proceedings, under which debts 
 may be comijulsoril}- discharged witliout full payment thereof, can
 
 SECT. III.] SECURITY TRUST COMPANY V. DODD, MEAD & CO. 715 
 
 have no legal operation out of the State in which such proceeding8 
 were had." 
 
 In Franzen v. Hutchinson, 94 Iowa, 95, 62 N. "W. Rep. 698, the 
 Supreme Court of Iowa had this statute of Minnesota under considera- 
 tion, and held that as the creditors received no benefit under the as- 
 signment, unless the}' first filed a release of all claims other than such 
 as might be paid under the assignment, it would not be enforced in 
 Iowa. It was said that the assignment, which was that of an insurance 
 compan}', was invalid, and that in an action by the assignee for pre- 
 miums collected by the defendants, who were agents of the compan}', 
 the latter could oflfset claims for unearned premiums held b}' policy 
 holders at the time of the assignment and by them assigned to defend- 
 ants after the assignment to plaintiffs. 
 
 Notwithstanding the two later cases in Minnesota above cited, we 
 are satisfied that the Supreme Court of that State did not intend to 
 overrule the prior decisions to the effect that the act was substantiall}' 
 a bankrupt or insolvent law. It is true that in these cases a broader 
 eflfect was given to this act with respect to property in other States 
 than is ordinarily given to statutory assignments, though voluntary in 
 form. But the court was speaking of its power over its own citi- 
 zens, who had sought to obtain an advantage over the general cred- 
 itors of the insolvent by seizing his property in another State. There 
 was no intimation that the prior cases were intended to be overruled, 
 nor did the decisions of the later cases require that they should be. 
 
 So far as the courts of other States have passed upon the question, 
 they have generally held that an}' State law upon the subject of assign- 
 ments, which limits the disti'ibution of the debtor's property to such of 
 his creditors as shall file releases of their demands, is to all intents and 
 purposes an insolvent law ; that a title to personal property acquired 
 under such laws will not be recognized in another State, when it comes 
 in conflict with the rights of creditors pursuing their remed}' there 
 against the property of the debtor, though the proceedings were insti- 
 tuted subsequent to and with notice of the assignment in insolvency. 
 The provision of the statute in question requiring a release from the 
 creditors in order to participate in the distribution of the estate, oper- 
 ates as a discharge of the insolvent from his debts to such creditors — 
 a discharge as complete as is possible under a bankrupt law. An as- 
 signment containing a provision of this kind would have been in man}', 
 perhaps in most, of the States void at common law. Grover v. Wake- 
 man, 11 Wend. 187 ; Ingraham v. Wheeler, 6 Conn. 277 ; Atkinson v. 
 Jordan, 5 Hamm. 293 ; Burrill on Assignments, 232 to 256. As 
 was said in Conkling v. Carson, 11 111. 503 : " A debtor in failing cir- 
 cumstances has an undoubted right to prefer one creditor to another, 
 and to provide for a preference by assigning his effects ; but he is not 
 permitted to say to any of his creditors that they shall not participate 
 in his present estate, unless they release all right to satisfy the residue 
 of their debts out of his future acquisitions." In Brashear v. West,
 
 716 SECURITY TEUST COMPANY V. DODD, MEAD & CO. [CHAP. XIV. 
 
 7 Pet. G08, an assignment containing a provision of this kind was up- 
 held with apparent reluctance solel}- upon the ground that in Penn- 
 sylvania, where the assignment was made, it had been treated as valid. 
 If the assignment contain this feature, the fact that it is executed vol- 
 untarily and not in invitum is not a controlling circumstance. In 
 some States a foreign assignee under a statutory assignment, good by 
 the law of the State where made, may be permitted to come into such 
 State and talie possession of the property of the assignor there found, 
 and withdraw it from the jurisdiction of that State in the absence of 
 any objection thereto by the local creditors of the assignor ; but in 
 such case the assignee takes the property subject to the equity of at- 
 taching creditors, and to the remedies provided by the law of the 
 State where such property is found. 
 
 A sonftwhat similar statute of Wisconsin was held to be an insolvent 
 law in Earth v. Backus, 140 N. Y. 230, and an assignment under such 
 statute treated as ineffectual to transfer the title of the insolvent to 
 property in New York, as against an attaching creditor there, though 
 such creditor was a resident of Wisconsin. A like construction was 
 given to the same statute of Wisconsin in Townsend v. Coxe, 151 111. 
 62. It was said of this statute (and tlie same ma}' be said of the 
 statute under consideration), "It is manifest from these provisions 
 that a creditor of an insolvent debtor in Wisconsin, who makes a vol- 
 untary assignment, valid under the laws of that State, can only avoid 
 a final discharge of the debtor from all liability on his debt, by declin- 
 ing to participate in any way in the assignment proceedings. He is, 
 therefore, compelled to consent to a dischai-ge as to so much of his 
 debt as is not paid by dividends in the insolvent proceedings or take 
 the hopeless chance of recovering out of the assets of the assigned 
 estate remaining after all claims allowed have been paid." To the 
 same effect are Upton v. Hubbard, 28 Conn. 274 ; Paine v. Lester, 44 
 Conn. 196; Weider r. Maddox, 66 Tex. 372; Catlin v. Wilcox Sil- 
 ver Plate Co., 123 Ind. 477 ; Boese v. King, 78 N. Y. 471. 
 
 In Taylor r. Columbia Insurance Co., 14 Allen, 353, it is broadly 
 stated that "■ when, upon the insolvency of a debtor, the law of the 
 State in which he resides assumes to take his property out of his con- 
 trol, and to assign it by judicial proceedings, without liis consent, to 
 trustees for distribution among his creditors, such an assignment will 
 not be allowed by the courts of anotlier State to prevail against any 
 remedy which the laws of the latter afford to its own citizens against 
 property within its jurisdiction." But the weight of authority is, as 
 already stated, that it makes no difference whether the estate of the 
 insolvent is vested in the foreign assignee under proceedings instituted 
 against the insolvent or upon the voluntary application of the insolvent 
 himself. The assignee is still the agent of the law, and derives from 
 It his authority. Upton r. Hubbard, 28 Conn. 274. 
 
 'While it may be true tliat the assignment in question is good as be- 
 tween the assignor and the assignee, and as to assenting creditors, to
 
 SECT. IV.] ANON V. LYNDSEY. 717 
 
 pass title to propert}' both within and without the State, and, in the 
 absence of objections b}' non-assenting creditors, may authorize the 
 assignee to take possession of the assignor's property wherever found, 
 it cannot be supported as to creditors who have not assented, and who 
 are at Hbertj- to pursue their remedies against such property of the as- 
 signor as the}' may find in other States. Bradford v. Tappan, 11 Pick. 
 76; Willitts v. Waite, 25 N. Y. 577; CatUu v. Wilcox Silver Plate 
 Co., 123 Ind. 477, and cases above cited. 
 
 We are therefore of opinion that tlie statute of Minnesota was in 
 substance and effect an insolvent law ; was operative as to property in 
 Massachusetts onlv so far as the courts of that State chose to respect 
 it, and that so far as the plaintiff, as assignee of the D. D. Merrill 
 Company, took title to such property, he took it subservient to the de- 
 fendants' attachment. It results that the property of the D. D. Mer- 
 rill Company found in Massachusetts was liable to attachment there by 
 these defendants, and that the courts of Minnesota are bound to re- 
 spect the title so acquired b}' them. 
 
 The second question must therefore be answered in the negative, 
 and as this disposes of the case, no answer to the first question is 
 necessary. 
 
 SECTION IV. 
 
 ESTATES IN THE HANDS OF RECEIVERS. 
 
 ANON. V. LYNDSEY. 
 Chancery. 1808. 
 
 [Reported 45 Vesey junior, 91.] 
 
 A MOTION was made for the appointment of a receiver upon an 
 
 estate in the East Indies. 
 
 The Lord Chancellor [Lord Eldon]. granting the motion, said, 
 the rents should be remitted to some person in England, who may pay 
 them into the bank. 
 
 Sir Samuel Romilbj, in support of the motion, suggested that as 
 a receiver in India would be out of the jurisdiction, some person in 
 this country should be the receiver, who might appoint his own agent 
 in India. 
 
 The Lord Chancellor approved that course, and said, there must
 
 718 LANGPORD V. LANGFORD. [CHAP. XIV. 
 
 be some provision to prevent the necessit}" of applying to ttie court 
 from time to time for permission to let. 
 
 A reference was accordingly directed to the Master to inquire what 
 should be the term beyond which the receiver should not be permitted 
 to let.^ 
 
 LANGFORD v. LANGFORD. 
 Rolls Court, Chancery. 1835. 
 
 [Reported 5 Law Journal, New Series, Chancery, 60.] 
 
 Lord Langford, the defendant in this cause, had executed a settle- 
 ment by which he charged his Irish estates in favor of the plaintiff, 
 Lady Langford, with the payment of an annuity during her life. 
 The annuity fell into arrear, and the defendant being in England, 
 Lad}' Langford instituted this suit for an account and a receiver. 
 The defendant resisted a motion for a receiver, on the ground that 
 there were incumbrances prior to the annuity; but in July, 1835, 
 the Master of the Rolls ordered a receiver, who was appointed in 
 October. The order appointing the receiver was dul}' served on the 
 tenants, with a notice to pay the rents to such receiver, and which 
 the\' were willing to do. Mr. Murphy, the agent of the defendant, 
 however, served notices on the tenants, to the effect " that the order 
 recently served upon them, as made by the English Court of Chancery, 
 was of no force or effect in Ireland, and that, notwithstanding the 
 service of the said order, his Lordship would require, and if necessary 
 enforce, payment of his rents as heretofore." The defendant, Lord 
 Langford, by his affidavit stated that he had given no authority 
 whatever to his agents in Ireland to demand payment of the rents 
 of the said estate, or to distrain upon the tenants of the said estate ; 
 but he admitted that he had instructed his solicitor in Ireland, after 
 giving him notice of the said order made b}- this court, to oppose, 
 as far as the law would permit, the receivers of such rents and profits 
 from receiving the same. The result of these proceedings was, that 
 the English receiver was unable to obtain payment of any of the 
 rents.^ 
 
 3Ir. Pemberton and 3fr. Bethel now moved on behalf of the plain- 
 tiff, that a commission of sequestration might issue, to sequester 
 the personal estate and the rents and property of the real estate of 
 the defendant, Lord Langford, for the contempt. 
 
 Mr. Bickersteth, contra. 
 
 1 A receiver was appointed to take charge of an estate abroad, in the following 
 cases: Davis v. Barrett, 13 L. J. N. S. Oh. 304 (real estate in West Indies); Hinton 
 V. Galli, 24 L. J. Ch. 121 (real and personal estate in Italy: unopposed). Contra, 
 Kittel V. Augusta, T. & G. R. R., 78 Fed. 855 ; Harvey v. Varney, 104 Mass. 
 436. — Ed. 
 
 * The statement of facts is slightly condensed. — Ed.
 
 SECT. IV.] SHIELDS V. COLEMAN. 719 
 
 Pepts, M. R. That this is a contempt I have no doubt. It is true 
 that this court has not the means of sending its officers to carry into 
 effect its orders in Ireland ; but it has jurisdiction over all persons 
 in this country, and can compel obedience to its orders. The defend- 
 ant sends to his solicitors in Ireland to oppose b}' all lawful means 
 the receiver appointed by this court from receiving the rents. If he 
 meant, by all lawful means in this counUy, there should be no resist- 
 ance at all; because a party is not justified in opposing the order 
 of the court; but he says, by all lawful means in Ireland — that is 
 to sa}', because this court cannot send its process into Ireland, there- 
 fore Lord Langford's agent is to use all means in Ireland to oppose 
 the order of the court here. His Honor said he hoped that Lord 
 Langford would see his error, and know that he could not resist the 
 order of this court ; and that the order for a sequestration must 
 therefore be made, unless his Lordship ceased to interfere with the 
 officer of the court. 
 
 A motion was made on the part of the defendant, before the Lords 
 Commissioners Shadwell and Bosanqdet, to discharge the order 
 of the Master of the Rolls ; when the same was refused, with costs.^ 
 
 SHIELDS V. COLEMAN. 
 
 Supreme Court of, the United States. 1895. 
 
 [Reported 157 United States, 168.] 
 
 The facts in this case are as follows : On June 6, 1892, in a suit in 
 the Circuit Court of the United States for the Eastern District of Ten- 
 nessee, brought by John Coleman against the Morristown and Cumber- 
 land Gap Railroad Compan}' and Allison, Shafer & Company, an order 
 was entered appointing Frank J. Ho^'le receiver of all the property of 
 the railroad compan}-. The bill upon which this order was made al- 
 leged that in 1890 the defendant railroad company had contracted with 
 its co-defendants, Allison, Shafer & Company, for the construction of 
 its line of railroad from Morristown to Cornton, a distance of about 
 fort}' miles, which work was partially- completed in February or March, 
 1892; that there was 3-et due from the railroad company to Allison, 
 Shafer & Company, more than SoO,000; that Allison, Shafer & Com- 
 pany were indebted to the complainant for work and labor done in the 
 construction of such railroad ; that notice, claiming a lien, had been 
 duly given the railroad compan}', and that it was insolvent, as were 
 also Allison, Shafer & Company. The prayer was for judgment 
 against Allison, Shafer & Company, that the amount thereof be de- 
 clared a lien upon the railroad property, and for the appointment of a 
 receiver pending the suit. 
 
 1 Ace. Sercomb v. Catlin, 128 111. 556. — Ed.
 
 720 SHIELDS V. COLEMAN. [CHAP. XIV. 
 
 In pursuance of this order the receiver took possession of the rail- 
 road. On June 8, 1892, the railroad compan}- appeared and filed a 
 petition for leave to execute a bond for whatever sum might be decreed 
 in favor of the complainant and that the order appointing the receiver 
 be vacated. This petition was sustained, the bond given and approved, 
 and an order entered discharging the receiver. Thereupon the receiver 
 turned the property over to the railroad company, receiving the receipt 
 of its general manager therefor. 
 
 On June 20, 1892, T. II. McKoy, Jr., filed his petition in the same 
 case, setting up a claim against the railroad company for services ren- 
 dered as an employe and vice-president of the railroad corapany, and 
 for expenses incurred on its behalf. On July 4 and July 7, 1892, 
 other petitions were filed setting up further claims against the railroad 
 company. 
 
 On July 27, 1892, each of the defendants filed a separate answer to 
 the complainant's bill. No further order was made by the Circuit 
 Court until November 12, 1892, when, as the record shows, a de- 
 murrer of the railroad company to the petitions filed on July 4 and 
 Jul}' 7 was argued and overruled, and leave given to answer on or 
 before December rules. 
 
 Upon complainant's motion for the restoration of the receivership, 
 W. S. Whitney was appointed temporary receiver of the railroad and 
 its property, and was ordered to take custody and control of the prop- 
 erty of the railroad company. On November 29, 1892 an amended 
 and supplemental bill was filed, which stated facts sufficient to justify 
 the appointment of a receiver. 
 
 On October 28, 1892, a bill was prepared addressed " to the Honor- 
 able John P. Smith, chancellor, etc., presiding in the chancer}- court 
 at Morristown, Tennessee." Tiiis bill was in the name of sundry 
 creditors of the railroad company against it, and other parties, setting 
 forth certain judgments in favor of the complainants against the rail- 
 road couipany ; its insolvency as well as that of the firm of Allison, 
 Shafer & Company; the existence of a multitude of unpaid claims, and 
 prayed the appointment of a receiver. This bill having been presented 
 to the Honorable Joseph W. Sneed, one of the judges of the State of 
 Tennessee, he issued, on the same day, an order appointing James T. 
 Shields, Jr., temporary receiver, and directed him to take possession 
 of all the property of the comi)any, and to operate the railroad. 
 
 This fiat was on the same day filed in the office of the clerk of the 
 chancery court, and the receiver therein named immediately took 
 possession of the railroad property and commenced the operation of 
 the road. His possession continued until November 14, 1892, when 
 the receiver appointed by the Circuit Court of the United States took 
 the property out of his hands. 
 
 On January 7, 1893, the Tennessee *court continued Shields as per- 
 manent receiver, and ordered him to intervene in the present suit. 
 
 On January 24, 1893, the receiver J. T. Shields, Jr., in obedience
 
 SECT. IV.J SHIELDS V. COLEMAN. 721 
 
 to the direction of the chancellor, filed his motion in the Circuit Court 
 of the United States, setting forth the facts herein stated, and praying 
 that court to vacate its order appointing W. S. Whitney receiver of the 
 road, and for an order restoring the possession to him. Tiiis motion 
 was on January 30, 1893, overruled, and exception duly taken. Sub- 
 sequent proceedings were had in the Circuit Court culminating on 
 January 31, 1894, in a final decree, which decree established certain 
 liens, and ordered the property to be sold. 
 
 Thereafter an appeal to this court was prayed for and allowed in 
 behalf of the receiver appointed b}' the State court. ^ 
 
 Brewer, J. The single question presented by this appeal is that of 
 the jurisdiction of the federal court to appoint a receiver, and take 
 the railroad property- out of the possession of the receiver appointed by 
 the State court. . . . 
 
 Hcd the Circuit Court of the United States, when this property was 
 in the possession of the receiver appointed by the State court, the 
 power to appoint another receiver and take the property out of the 
 former's hands? We are of opinion that it had not. For the purposes 
 of this case it is unnecessar}' to decide whether, as between courts of 
 concurrent jurisdiction, when proceedings are commenced in the one 
 court with the view of the appointment of a receiver, they maj- be con- 
 tinued to the completion of actual possession, and whether, while those 
 proceedings are pending in a due and orderly wav, the other court can, 
 in a suit subsequently commenced, b}' reason of its speedier modes of 
 procedure, seize the property, and thus prevent the court in which the 
 proceedings were first commenced from asserting its right to the pos- 
 session. Gaylord v. Fort Wayne, &c. Railroad, 6 Biss. 286-291, 
 cited in Moran v. Sturges, 154 U. S. 256-270 ; High on Receivers, 3d 
 ed. § 50. Of course, the question can fairly arise only in a case in 
 which process has been served, and in v.'hich the express object of the 
 bill, or at least one express object, is the appointment of a receiver, 
 and where possession by such officer is necessar\' for the full accom- 
 plishment of the other purposes named therein. The mere fact that, 
 in the progress of an attachment or other like action, an exigenc}' may 
 arise, which calls for the appointment of a receiver, does not make the 
 jurisdiction of the court, in that respect, relate back to the commence- 
 ment of the action. 
 
 In Heidritter v. Elizabeth Oil-Cloth Co., 112 U. S. 294, 301, a ques- 
 tion was pi'esented as to the time that jurisdiction attaches. Mr. Jus- 
 tice Matthews, after quoting from Cooper v. Reynolds, 10 Wall. 308, 
 and Boswell's Lessee v. Otis, 9 How. 336, observed: "But the land 
 might be bound, without actual service of process upon the owner, in 
 cases where the only object of the proceedings was to enforce a claim 
 against it specifically, of a nature to bind the title. In such cases the 
 land itself must be drawn within the jurisdiction of the court b}' some 
 
 1 The statement of facts has been abridged. Part of the opinion, discussing a ques- 
 tion of practice, and other part-s deaUng with the facts, are omitted. — Ed. 
 
 40
 
 722 SHIELDS V. COLEMAN. fCHAP. XIV. 
 
 assertion of its control and power over it. Ttiis, as we have seen, is 
 ordinarily done by actual seizure, but may be done by the mere bring- 
 ing of the suit in which the claim is sought to l)e enforced, whicli may, 
 by law, be equivalent to a seizure, being the open and public exercise 
 of dominion over it for the purposes of the suit." 
 
 Undoubtedly the Circuit Court had authority under the bill filed June 
 6, 1892, to make the order appointing the receiver and taking posses- 
 sion of the property. Even if it were conceded that the bill was im- 
 perfect and that amendments were necessary to make it a bill complete 
 in all respects, it would not follow that the court was without jurisdic- 
 tion. The purpose of the bill — the relief sought — was, among other 
 things, the possession of the property by a receiver to be appointed by 
 the court, and when the court adjudged the bill sufficient, and made 
 the appointment, that appointment could not be questioned by another 
 court, or the possession of the receiver thus appointed disturbed. The 
 bill was clearly sufficient to uphold the action then taken. 
 
 While the validity of the appointment made by the Circuit Court on 
 June 6, 1892, cannot be doubted, yet, when that court thereafter ac- 
 cepted a bond in lieu of the property, discharged the receiver, and 
 ordered him to turn over the property to the railroad, and such sur- 
 render was made in obedience to this order, the property then became 
 free for the action of an}' other court of competent jurisdiction. It will 
 never do to hold that after a court, accepting security in lieu of the 
 property, has vacated the order which it has once made appointino" a 
 receiver and turned the property back to the original owner, the mere 
 continuance of the suit operates to prevent an}- other court from touch- 
 ing that property. 
 
 It is true that the Circuit Court had the power to thereafter set 
 aside its order accepting security in place of the property and enter a 
 new order for taking possession by a receiver, 3-et such new order 
 would not relate back to the original filing of the bill so as to invalidate 
 action taken by other courts in the meantime. Accepting a bond and 
 directing the receiver to return the property to the owner was not 
 simply the transfer of the possession from one officer of the court to 
 another. The bond which was given was not a bond to return the 
 propert}- if the judgment to be rendered against the contractors was 
 not paid, but a bond to pay whatever judgment should be rendered. It 
 was, therefore, in no sense of the term a forthcoming bond. The 
 property ceased to be in citstodla legis. It was subject to any rightful 
 disposition by tlie owner or to seizure under process of any court of 
 competent jurisdiction. 
 
 The intervening petitions filed on June 20. July 1, and July 7 aie 
 not copied in the record, having been omitted therefrom by direction 
 of tlie Circuit Court. Evidently, therefore, there was nothing in them 
 which bears upon the question before us, and doubtless they were 
 simply intervening petitions, claiming so much money of the railroad 
 company' and containing no reference to the appointment of a receiver.
 
 SECT. IV.] HURD V. CITY OP ELIZABETH. 723 
 
 But it is said tliat tiie receiver lias no such interest in the property 
 as will give him a standing in the Circuit Court to petition for the 
 restoration of the property to his possession, or to maintain an appeal 
 to this court from an order refusing to restore such possession. This 
 is a mistake. He was the officer in possession by appointment of the 
 State court, the proper one to maintain possession and to take all 
 proper steps under the direction of the court to obtain the restoration 
 of the possession wrongfully taken from him. It is a matter of every- 
 da}- occurrence for a receiver to take legal proceedings, under the 
 direction of the court appointing him, to acquire possession of prop- 
 erty or for the collection of debts due to the estate of which he is 
 receiver. . . . 
 
 The case, therefore, imist be remanded to the Circuit Court for far- 
 ther proceedings not inconsistent with this opinion} 
 
 HURD V. CITY OF ELIZABETH. 
 Supreme Court of Judicature, New Jersey. 1879. 
 
 \Reported 41 New Jersey Law, 1.] , 
 
 The plaintiff brought this suit in his character of receiver of the 
 Third Avenue Savings Bank. The allegations touching his right to 
 sue were the following: " For that the said S. H. Hurd heretofore, 
 to wit, on the thirtieth dav of November, eighteen hundred and 
 seventy-five, at the city of Kingston, in the State of New York, to 
 wit, at Elizabeth, in said county of Union, was duly appointed receiver 
 of the Third Avenue Savings Bank, b}' the Supreme Court of the 
 State of New York, in pursuance of the laws of said State of New 
 York, and afterwards, to wit, on the day and year last aforesaid, 
 duly qualified as such receiver, and thereupon became empowered to 
 exercise and perform all the powers and duties imposed upon him 
 as receiver as aforesaid, by virtue of the laws of the State of New 
 York and said appointment, and particularly by said laws and his 
 said appointment, became seized and possessed of the personal prop- 
 erty and choses in action of the said the Third Avenue Savings Bank, 
 and entitled to sue for, collect, and receive all moneys then due to the 
 said the Third Avenue Savings Bank, and particularly the several 
 sums hereinafter mentioned." 
 
 The declaration then showed, in the form of common counts, sundry 
 moneys due, antecedently to the receivership, to the savings bank, 
 and concluded in the usual style. The defendant demurred. 
 
 Beasley, C. J. The plaintiff's right to stand as the actor in 
 this suit is derived wholly from the receivership that was conferred 
 
 1 See In re Schuyler's Steam Tow Boat Co., 136 N. Y. 169, 32 N. E. 623. — Ed.
 
 724 HURD V. CITY OF ELIZABETH. [CHAP. XIV. 
 
 upon him by the Supreme Court of the State of New York ; and on 
 the part of the defendant, such right is contested on the ground that 
 it is contrary to established rules for the courts here to lend their 
 assistance in carrying into effect an office created in the course of a 
 proceeding before a foreign tribunal. To countenance this contention 
 various authorities are cited, and notably among them that of Booth 
 V. Clark, 17 How. 322. But that case belongs to a train of decisions 
 which have been undoubtedly rightl}- decided, but which are not to be 
 regarded as ruling the precise point now in issue. The decisions thus 
 referred to will be found in High on Receivers, § 239, and they are 
 all cases involving a controvers}' between the receiver and the cred- 
 itors of the person whose property has been placed under the control 
 of such receiver. In such a posture of things it is manifest that dif- 
 ferent considerations should have force from those that are to control 
 when the litigation does not involve the rights of creditors in opposi- 
 tion to the claims of the receiver. That the officer of a foreign court 
 should not be permitted, as against the claims of creditors resident 
 here, to remove from this State the assets of the debtor, is a propo- 
 sition that appears to be asserted by all the decisions ; but that, 
 similarl}', he should not be permitted to remove such assets when 
 creditors are not so interested, is quite a different affair, and it may, 
 perhaps, be safely said that this latter doctrine has no direct authority 
 in its favor. There are certainly dicta that go even to that extent, 
 so that text-writers seem to have felt themselves warranted in declar- 
 ing that the powers of an officer of this kind are strictly circumscribed 
 b}- the jurisdictional limits of the tribunal from which he derives his 
 existence, and that he will not be recognized as a suitor outside of 
 such limits. But I think the more correct definition of the legal rule 
 would be that a receiver cannot sue, or otherwise exercise his func- 
 tions, in a foreign jurisdiction whenever such acts, if sanctioned, 
 would interfere with the policy established by law in such foreign 
 jurisdiction. There seems to be no reason why this should not be 
 the accepted principle. When there are no persons interested but the 
 litigants in a foreign jurisdiction, and it becomes expedient, in the 
 progress of such suit, that the property of one of them, wherever 
 it may be situated, should be brought in and subjected to such pro- 
 ceeding, I can think of no objection against allowing such a power 
 to be exercised. It could not be exercised in a foreign jurisdiction to 
 the disadvantage of creditors resident there, because it is the policy 
 of every government to retain in its own hands the i)roperty of a 
 debtor until all domestic claims against it have been satisfied. But 
 beyond this precaution, why should any restraint be put upon the 
 foreign procedure? The question thus raised has nothing to do with 
 that other inquiry that is frequently discussed in the books, whether 
 a receiver at common law is in point of fact clothed with the power 
 to sue in a foreign jurisdiction : that is a sultject standing by itself, 
 for the present argument relates to a case in which the officer is
 
 SECT, IV.] HURD V. CITY OF ELIZABETH. 725 
 
 authorized, so far as such power can be given by the tribunal appoint- 
 ing him, to gather in the assets, both at home and abroad. Conceding 
 that the officer is invested with this fulness of authoritj', it would 
 appear to be in harmony with those legal principles by which the 
 intercourse of foreign States is regulated for every government, when 
 its tribunals are appealed to, to render every assistance in its power in 
 furtherance of the execution of such authority, except in those cases 
 when, by so doing, its own policy would be displaced or the rights 
 of its own citizens invaded or impaired. After completely protecting 
 its own citizens and laws, the dictates of international comity would 
 seem to require that the officer of the foreign tribunal should be 
 acknowledged and aided. The appointment of a receiver, with full 
 powers to collect the property of a litigant, wherever the same might 
 be found, should be deemed to operate as an assignment of such prop- 
 erty to be enforced everywhere, subject to the exception just defined. 
 Such a rule is, I think, both practicable and just. If A., being the 
 only creditor of B., should sue him in a court of this State, and the 
 exigencies of justice should require that the property of B., wherever 
 the same might be situated, should be put under the control of the 
 forum in which the proceedings were pending, and such receiver 
 should be appointed and should be legally clothed with the requisite 
 authority to sue for, and take possession of such property, I can 
 find nothing in the rules of law or of good policy that should permit 
 tlie debtors of B. to set up that such judgment has no extraterritorial 
 force. To sanction such a plea would be to frustrate, as far as pos- 
 sible, the foreign procedure, simply for the purpose of doing so, the 
 single result being that a court would be baffled, and perhaps pre- 
 vented from doing justice. Such ought not to be the legal attitude 
 of governments towards each other. To the extent to which this 
 subject has been involved, it has, I think, been properly disposed of 
 in the adjudications already made in this State. Thus in Varnum v. 
 Camp, 1 Green, 326, it was decided that an instrument efficient at 
 the domicil of the maker to transfer his property could not dispose, 
 in a manner inconsistent with the policy of our laws, of his movables 
 situate here. In this case the duty of comity was admitted, but the 
 decision was put upon the ground that this State was not required, 
 by force of such duty, to abandon an established policy of its own 
 in favor of a different policy prevalent in another jurisdiction. Moore 
 r. Bonnell, 2 Vroom, 90, was decided on a similar principle, and it 
 has this additional feature, that while it in a general way rejects the 
 control of the foreign policy, it does this only to the extent rendered 
 necessary for the purpose of self-protection, for, beyond this limit, 
 it gives effect to and enforces the foreign law. And the same disposi- 
 tion to co-operate, as far as practicable, in sustaining an alien policy 
 is exhibited in the case of Norraand's Administrator v. Grognard, 
 2 C. E. Green, 425. The foregoing view will be found to be in accord 
 with the following cases: Hoyt v. Thompson, 1 Seld. 320; Runk v.
 
 726 HURD V. CITY OF ELIZABETH. [CHAP. XIV. 
 
 St. John, 29 Barb. 585; Taylor v. Columbian Insurance Co., 14 
 Allen, 353. 
 
 In view of these considerations and authorities mj- conclusion is, 
 that the legal etfect of the appointment of a receiver in a foreign 
 jurisdiction in transferring to him the right to collect the property 
 passing under his control by virtue of such office, will be so far recog- 
 nized by the courts of this State as to enable such officer to sustain 
 a suit for the recover}- of such property. 
 
 But it is also said that the declaration is substantial]}' defective. 
 It is certainly informal and so imperfect that upon motion it would 
 have been set aside ; and the only question is, whether, by force of 
 our statute, it may not be supported as against a general demurrer. 
 The defects of this pleading are very marked. For example : the 
 appointment of a receiver is a measure incidental to a suit, and yet 
 the pendency of such a suit is not shown, the curt averment being 
 that the plaintiff, at a certain date, was appointed to such office by 
 the Supreme Court of the State of New York. So the capacities of 
 the receiver and his right to sue is in the form rather of a deduction 
 of the pleader tliau the statement of a fact. I can find nothing 
 analogous to such a course in any of the precedents of pleading. 
 Still, as the imperfections of this declaration could readily have been 
 objected to on motion, which has taken the place of a special demurrer, 
 and as it is not entirely clear whether such imperfections are matters 
 of substance or matters of form, I have concluded that the demurrer 
 ought not to be sustained.
 
 SECT. IV.] CHICAGO, ETC. RAILWAY V. KEOKUK, ETC. PACKET CO. 727 
 
 CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY v. 
 KEOKUK NORTHERN LINE PACKET CO., Clubb, 
 Interpleader. 
 
 SuPRKME Court of Illinois. 1883. 
 
 [Reported 108 Illinois, 317.] 
 
 This was an attachment suit, brought by the Chicago, Milwaukee 
 and St. Paul Railwa}^ Company, against the Keokuk Northern Line 
 Packet Compan}-, in the Circuit Court of Adams County, in tiiis State. 
 The writ of attachment was, on the 21st day of April, 1881, levied 
 upon the barge " C W. Duncan," lying at Quinc}-, in said county, as 
 the property of the defendant. Samuel C. Clubb, under the provision 
 of section 29 of our Attachment Act, " that an}- person other than the 
 defendant claiming the property attached may interplead," etc., inter- 
 pleaded in the case, claiming the property so attached, under an ap- 
 pointment as receiver of the propert}' and effects of said packet 
 compan}-, by the Circuit Court of St. Louis, in the State of Missouri, in 
 a certain cause in said court wherein said packet company was defend- 
 ant. There was judgment in favor of the interpleader, Clubb, which, 
 on appeal, was affirmed b}' the Appellate Court for the Third District, 
 and the railway company appealed to this court. 
 
 The plaintiff in the attachment suit had first filed a replication to the 
 pleas of the interpleader, traversing the same, but afterward, on its 
 motion granted by the court, it withdrew the replication, as having 
 been filed b}' mistake, and then moved the court to file its plea in 
 abatement, which had been intended to be filed instead of the replica- 
 tion, denying the right to interplead as receiver under the appointment 
 of a foreign court, which motion the court overruled, whereupon said 
 plaintitr company filed the plea in abatement, which plea the court, on 
 motion of said Clubb, ordered to be stricken from the files. The 
 plaintiff company, then refiled its said replication, upon which issue 
 was joined and the trial had. The interpleader's first plea alleges the 
 barge was his own property at the time of the attachment of it ; the 
 second, that it was his property as receiver; the third, that at such 
 time it was in his possession as receiver. 
 
 The facts of the case shown by the evidence are, that at the October 
 term, 1880, of the Circuit Court of the city of St. Louis, in the State of 
 Missouri, Samuel C. Clubb was duly appointed receiver of the Keokuk 
 Northern Line Packet Company, an insolvent corporation of that State, 
 with power and authority to take possession of all the business and 
 property of the corporation, and to manage the affairs thereof, under 
 the orders of the court, the receiver giving bond in the sum of $200,000 
 for the faithful discharge of his duties. At the time of such appoint- 
 ment the barge " G. W. Duncan," in question, was lying at the land-
 
 728 CHICAGO, ETC. RAILWAY V. KEOKUK, ETC. PACKET CO. [CHAP XIV. 
 
 ing at St. Louis, within the State of Missouri, and within the jurisdiction 
 of said court. The receiver immediately took possession of the barge, 
 and afterward, on the 6th day of November, 1880, he chartered the 
 barge to the steamer "E. W. Cole," for a trip up the Mississippi 
 River and return. The barge was taken, under the charter, up the 
 river as far as Quincy, IlUnois, where it was detained by tlie ice, and 
 remained until the levy of the writ of attacliraent in this case upon it 
 on the 21st day of April, 1881. At the request of tlie captain of the 
 steamer " E. W. Cole," the receiver released him from the charter, and 
 took possession of the barge at Quinc}', and ever since, until the levy 
 of the attachment, retained such possession, having a watchman over 
 and guarding the barge against danger. The receiver made an effort 
 to have the barge removed to St. Louis as soon as the river was clear 
 of ice, having made a contract with a steamboat line for the purpose, 
 but did not succeed in having the removal made before the attachment. 
 The court which appointed the receiver, at its April term, 1881, made 
 an order authorizing the receiver to intervene in tlie attachment suit, 
 and take the necessary' steps to secure possession of the barge. ^ 
 
 Sheldon, C. J. "We will consider the case as properlj' presenting 
 by the pleadings the question of the right to interplead in the suit in 
 the capacity of receiver. 
 
 The general doctrine that the powers of a receiver are coextensive 
 onl}- with the jurisdiction of the court making the appointment, and 
 particularly that a foreign receiver should not be permitted, as against 
 the claims of creditors resident in another State, to remove from such 
 State the assets of the debtor, it being the polic}* of ever}* government 
 to retain in its own hands the property of a debtor until all domestic 
 claims against it have been satisfied, we fullv concede ; and were this 
 the case of property* situate in this State, never having been within 
 the jurisdiction of the court that appointed the receiver, and never 
 having been in the possession of the receiver, it would be covered by 
 the above principles, which would be decisive against the claim of the 
 appellee. But the facts that the property at the time of the appoint- 
 ment of the receiver was within the jurisdiction of the court making 
 the appointment, and was there taken into the actual possession of the 
 receiver, and continued in his possession until it was attached, take 
 the case, as we conceive, out of the range of the foregoing principles. 
 We are of o[)inion that by the receiver's taking possession of the barge 
 in question within the jurisdiction of the court that appointed him, he 
 became vested with a special propertj- in the barge, like that which a 
 sheriff acquires by the seizure of goods in execution, and that he was 
 entitled to protect this special property while it contimud, l)y action, 
 in like manner as if he had been the absolute owner. Having taken 
 the property in his possession, he was responsible for it to the court 
 that appointed him, and had given a bond in a large sum to cover his 
 responsibility as receiver, and to meet such liability he might maintain 
 ^ Arguments of counsel are omitted. — Ed.
 
 SECT. IV.] CHICAGO, ETC. RAILWAY V. KEOKUK, ETC. PACKET CO. 729 
 
 any appropriate proceeding to regain possession of tlie barge which 
 bad been taken from him. Boyle i-. Townes, 9 Leigh, 158; Singerly 
 V. Fox, 75 Pa. 114. It is well settled that a sheriff does, by the seiz- 
 ure of goods in execution, acquire a special property in them, and that 
 he may maintain trespass, trover, or replevin for them. 
 
 It is claimed that there was here an abandonment of the barge by 
 leasing it and suffering it to be taken out of the State, — that the pur- 
 pose in so doing was an unlawful one, and a gross violation of ofl3ciaI 
 duty. We do not so view it. The receiver was, by his appointment, 
 authorized to manage the affairs of the corporation under the orders of 
 the court. The business of the corporation was running boats on the 
 Mississippi River, and cliartering tlie barge for a trip up that river was 
 but continuing the employ of the barge in the business of the corpora- 
 tion, and therefrom making an increase of the assets to be distributed 
 among the creditors. Brownell v. Manchester, 1 Pick. 233, decides 
 that a sheriff in the State of ^Massachusetts, who had attached property 
 in that State, did not lose his special property by removing the attached 
 property into the State of Rhode Island for a lawful purpose. Dick v. 
 Bailey et al. 2 La. Ann. 974, holds otherwise in respect to propert}' 
 attached in Mississippi, and sent by the sheriff into Louisiana for an 
 illegal purpose. It is lai(j down in Drake on Attachment (5th ed.), 
 § 292, that the mere fact of removal b}' an officer of attached prop- 
 erty beyond his bailiwick into a foreign jurisdiction, without regard to 
 the circumstances attending it, will not dissolve the attachment ; that 
 if the purpose was lawful, and the possession continued, the attach- 
 ment would not be dissolved ; but if the purpose was unlawful, though 
 the officer's possession remained, or if lawful and he lost his possession, 
 his special property in the goods would be divested, — citing the two 
 cases above named. We do not consider that there was any unlawful 
 purpose here in the chartering and employing of the barge, as was 
 done. 
 
 It is insisted the possession of the barge was lost. There was cer- 
 tainly evidence tending to show possession by the receiver up to the 
 time of the attachment, and in support of the judgment of the Appel- 
 late Court we must presume that it found the existence of all the facts 
 necessar}' to sustain the judgment, where there was evidence tending 
 to show their existence, and that court's finding of fact is conclusive 
 upon us. By taking the barge into his possession within the jurisdic- 
 tion of the court that appointed him, a special property in the barge 
 became vested in the receiver, and it is the established rule that where 
 a legal title to personal property has once passed and become vested 
 in accordance with the law of the State where it is situated, the valid- 
 it}- of such title will be recognized everywhere. Caniwell v. Sewell, 
 5 Hurl. & N. 728 ; Clark v. Connecticut Peat Co., 35 Conn. 303 ; Tay- 
 lor v. Boardman, 25 Vt. 581 ; Crapo v. Kelly, 16 Wall. 610; Waters 
 V. Barton, 1 Cold. (Tenn.) 450. 
 
 Under this rule we hold that where a receiver has once obtained
 
 730 CHICAGO, ETC. RAILWAY V. KEOKUK, ETC. PACKET CO. [CHAP. XTV, 
 
 rightful possession of personal properU* situated witliin the jurisdiction 
 of his appointment, which he was appointed to take charge of, he 
 will not be deprived of its possession, though he take it, in the per- 
 formance of his dut}', into a foreign jurisdiction ; that while there 
 it cannot be taken from his possession by creditors of the insolvent 
 debtor who reside within that jurisdiction. Where a receiver of an 
 insolvent manufacturing corporation, appointed b}- a court in New 
 Jersey, took possession of its assets, and for the purpose of com- 
 pleting a bridge vvhich it had contracted to build in Connecticut, pur- 
 chased iron with the funds of the estate and sent it to that State, it 
 was decided that the iron was not open to attachment in Connecti- 
 cut by a creditor residing there. Pond v. Cooke, 45 Conn. 126. 
 And where C. was appointed, b}' a court in Arkansas, receiver of 
 property of T., a defendant in a suit, and ordered to ship it to Mem- 
 phis, for sale, and to hold the proceeds subject to the order of the 
 court, and did so ship it to Memphis, where it was attached by cred- 
 itors of T., it was held that C. could maintain an action of replevin 
 for the property in Tennessee. Cagill v. Wooldridge, 8 Baxter, 580. 
 Kilmer v. Hobart, 58 How. Pr. 452, decides that receivers appointed 
 jn another State, and operating a railway as such, but having property 
 in their hands as receivers in New York, cannot there be sued, — 
 that an attachment issued in such suit will be vacated. 
 
 This is not the case of the officer of a foreign court seeking, as 
 against the claims of creditors resident here, to remove from this 
 State assets of tlie debtor situate here at the time of the officer's 
 appointment, and ever since, and of which he had had no previous 
 possession. It is to such a case as that, as we understand, that the 
 authorities cited by appellant's counsel appl}', and not to a case like the 
 present, where the property was, at the time of the appointment of 
 the foreign receiver, within the jurisdiction of the appointing court, 
 and there taken into the receiver's possession, and subsequently suf- 
 fered b}- him to be brought into this State in the performance of his 
 duty, and his possession here wrongfully invaded, and he seeking but 
 redress for such invasion. 
 
 The judgment of the Appellate Court must be affn-med. 
 
 Judgment affirmed} 
 
 1 Ace. Robertson v. Stead, 135 Mo. 13.5, 36 S. W. 610 ; Osgood v. Maguire, 61 N. Y. 
 524; Cagill v. Wooldridge, 8 Raxt. 580; 16 Clunet, 725 (Denmark, 14 Feb. '87). 
 Contra, Humphreys v. Hopkins, 81 Cal. 551, 22 Pac. 892. Where a voluntary assign- 
 ment is made by the debtor to the reeeiver, it will be treated like any case of voluntary 
 assignment, and the re(;eiver's rights recognized. Graydon v. Church, 7 Mich. 36 ; 
 Parker v. Stoughton Mill Co., 91 Wis. 174, 64 N. W. 751. 
 
 A fortiori, when the light was never in the debtor, but accrued to the receiver, he 
 may sue in any jurisdiction upon his individual right. Thus he may sue for property 
 bought by him : Pond v. Cooke, 45 Conn. 126 ; upon a judgment obtained by him : 
 Wilkinson v. Culver, 25 Fed. 639 ; to foreclose a mortgage made to him : Inglehart v. 
 Pierce, 36 HI. 133; and to enforce the terms of a contract, made with the corpo- 
 ration of which he is the receiver, but performed on his side by liimself under au ar-
 
 SECT. I.J SAWYER V. MAINE FIRE AND MARINE INSURANCE CO. 731 
 
 CHAPTER XV. 
 
 JUDGMENTS. 
 
 SECTION I. 
 
 THE NATURE OF A JUDGMENT- 
 SAWYER V. MAINE FIRE AND MARINE INSURANCE CO. 
 Supreme Judicial Court of Massachusetts. 1815. 
 [Reported 12 Massachusetts, 291.] 
 
 This was an action of the case upon a policy of insurance, dated 
 March 20th, 1812, for $6,000 upon the brig " Lydia," vahied at S7,000, 
 at and from Portlantl to one or more ports in the West Indies, ixnc} at_, 
 and from thence t£Lii£iLIiQi:Ljaf.--diat;har ge in the Uni ted States, against 
 capture and coademnation DnJy. The plaintiffs declared for a total 
 loss by capture, in the first count, by a vessel unknown, belonging to 
 citizens of Hispaniola ; and in the second count by pirates, rovers, 
 &c., on the 19th of April, 1812. 
 
 On the trial before Putnam, J., at the sittings here by adjournment 
 of the last October term, it appeared that proof of the loss was made, 
 and an abandonment offered, on the 14th of May, 1812. The policy 
 and interest were admitted. 
 
 The plaintiffs proved that, at the time of making the insurance, it 
 was stated to the defendants that the vessel was bound to Port au 
 Prince. They also read the deposition of Elisha Sawyer (a copy of 
 which came up in the' case), stating that he was master of the said ves- 
 sel on the voyage insured : that on arriving in sight of Port au Prince 
 he was hailed bv an armed brig belonging to the king of Hayti, and 
 ordered to come on board. The captain then informed the witness 
 that he was fighting against Petion, who had possession of Port au 
 Prince, that the king of Hayti wanted his provisions, and that if he, 
 the witness, would go to St. Mark's, he should have a good price for 
 his cargo ; but that if he refused he should send him. On the witness 
 refusing, a prize master and five men were put on board the brig, and 
 an arm^e'd schooner accompanied her to St. Mark's. On his arrival 
 there he was ordered on shore, and was carried before the prince 
 Gonaive, who said he wanted the cargo, and would pay the witness 
 for it The prince then ordered the sails taken from the brig and 
 
 rangement with the other partv : Cook. v. Orange, 48 Conn. 401 ; and still more clearly 
 to enforce a contract made as well as ,.erforn,ed by himself: Merchants' Nat. Bank v. 
 Pennsylvania Steel Co., 57 N. J. L. 336, 30 Atl. 545. — Ed.
 
 732 SAWYEK V. MAINE FIKE AND MARINE INSURANCE CO. [CHAP. X\ 
 
 brought o n shore, and twelve men were placed on board. The witness 
 then went oiTboarHThe^vessel, and on tTieThTrd"73a3' after was, with all 
 his crew, ordered on shore ; and on being carried before the minister of 
 justice so called, he read to them a condemnation of the vessel and 
 cargo. The next day the vessel was sold and the cargo taken out and 
 put into the king's warehouse. The vessel was purchased by Messrs. 
 Dodge and Myers, of Philadelphia, for the master, at the price of 
 $4,000, and he went in her to Philadelphia, where he sold her. He 
 had never heard of the blockade of Port an Prince before his capture. 
 The king of Hayti and all his officers were black, except his majestj-'s 
 interpreter, who was a mulatto. The principal facts in the master's 
 deposition were confirmed by the testimony of the mate of the vessel. 
 The defendants produced a copy of the condemnation, which came up 
 in the case, and contended tliat it thereb\' appeared that the brig was 
 condemned for a violation of the blockade of Port au Prince by the 
 emperor of Hayti ; and that the decree was to be considered as conclu- 
 sive evidence of the facts thereby decided. 
 
 Th ere was no evidence th at Port au Prince was in fact blockaded a t 
 the time of the capture, other than_ what ari ses from the said decree of 
 condemnation. Nor was there any evidence that the brig was notified 
 of any blockade, or warned not to enter for that cause prior to the 
 capture. The collector of the customs for the district of Portland tes- 
 tified that, since the expiration of the law of the United States pro- 
 hibiting intercourse with St. Domingo, many clearances had been made 
 from the United States for Port au Prince, and many clearances from 
 Havti to the United States. It was in evidence that Christophe, 
 or Henry, was the sovereign de facto of Cape Francois and of that 
 part of the island ; and that Petion was the sovereign de facto of Port 
 au Prince ; t hat Petion and Christophe are at war with each otiiei %_each 
 declaring the other to be in rebellion against France ; l)ut_eaiilL_ciaiin- 
 i ljo; lo have autliority in his own dorn iimiii : tliat they have their cus- 
 tom houses and custom house officers : and shijjs of many natio ns, 
 En^hsh^.S4iaau*l^_A.inericani_&c. trad e there, and-bu&ines s is regularly 
 transacted ; tliat the United States have had a consul at Cape Fran- 
 qoTsT^Ince the government has been in rebellion against France : par- 
 ticularh' that Col. Lear was consul there when Toussaint was regent: 
 that protests, decrees, and other proceedings of the admiralty courts 
 from Cape Francois are frequently seen in the United States : and that 
 a proclamation of the blockade of Port au Prince by Christophe, or 
 king Henry, was published here in June, 1812.' 
 
 The judge instructed the jur}' that the decree must be considered as 
 conclusive evidence that the vessel was condemned for violation of 
 blockade. 
 
 1'ju' ji^iry ( ^ ('cordingU i-xcturned^ a verdict for the defendants,— wlikL 
 was take n subject to the opinion of th e_cou rt in the pr emises. If that 
 
 ' Part of the statement of facts and part of the opinion, involving the claim of 
 partial loss, are omitted. — Ed.
 
 SECT. I.] PAINE V. SCHENECTADY INSURANCE CO. 733 
 
 0|3inion^hould_be, thatjbbe said decree does deci de and is concl usive 
 evidence^of^ violation of blockade by the vessel t he verdict was to 
 stand : otherwise the defendantsjvYere^Jo bfi--de_fault_edj. and judgpaent 
 was t o be rendered for a total or partial loss, in such sum as, upon the 
 f acts before sta ted, the court should deter mine the plaintiff s ought to 
 recover. 
 
 Parker, C. J. The decree offered in this case, as conclusive evi- 
 dence of a violation of blockade by the vessel insured, cannot be held 
 so to operate. Indeed it may be doubtful whether it ought to have 
 been admitted at all. 
 
 Waiving all question as to the character of the government, under 
 which the seizure of the vessel and the decree of forfeiture took place, 
 it certainly is essentially defective when attempted to be applied to this 
 contract of insurance. 
 
 For it does not appear that any libel was filed, any monition issued, 
 an}' hearing had, or that an}' of those formalities had taken place, 
 which are necessary to give a conclusive operatiou to decrees of foreign 
 courts. For aught that appears from the cop}' of the proceedings be- 
 fore us, the forfeiture was decreed by mere arbitrary power, without 
 any trial ; and that some of the forms of justice, used in civilized 
 countries, had been assumed, without any regard to the substantial 
 requisites of a judicial inquiry. 
 
 Considering the decree then as not conclusive, the facts, which it 
 purports to establish, are abundantly disproved by the other testimony 
 in the case : so that the seizure of the vessel must be taken to have 
 been an act of unjustifiable violence, for which the underwriters are 
 undoubtedly answerable. . . . Defendants defaulted. 
 
 PAINE V. SCHENECTADY INSURANCE CO. 
 
 Supreme Court of Rhode Island. 1877. 
 [Reported 11 Rhode Ishnid, 411.] 
 
 DuRFEE, C. J. This is an action of assumpsit to recover damages 
 for breach of contract. It was commenced in the court of Common 
 Pleas, August 27, 1870. The plaintiff recovered judgment in that 
 court at the December Term, 1875. The defendant appealed to this 
 court at the March Term, 1876. May 13, 1876, the defendant filed a 
 plea puis darrein continuance^ setting forth that on the 8th May, 1876, 
 George T. Hanford, who had been duly appointed receiver of the goods 
 and effects of the defendant, had impleaded the plaintiff in the Supreme 
 Court, in the State of New York, and recovered judgment against him 
 for §1,878.11, and costs, " which still remains in full force and effect, 
 not in any wise reversed, annulled, discharged, or satisfied." The 
 plea sets forth the proceeding in the New York suit, showing that the 
 plaintiff therein pleaded in set-off the matters involved in this case, and
 
 734 PAINE V. SCHENECTADY INSURANCE CO. [CHAP. XV. 
 
 avers that the cause of action and the issue raised by the pleadings are 
 the same in both suits, and that the parties are identicah To this plea 
 the plaintiff demurs, assigning four causes of demurrer. 
 
 The first cause is, that the suit set forth in the plea is not alleged^ 
 h^ve hwn instituted before the commencement of the present suit 
 And in his brief, the counsel for the plaintiff contends that there is no 
 precedent for such a plea where the judgment was recovered by the de- 
 fendant, or was recovered in a suit commenced subsequently to the 
 suit in which it was pleaded. 
 
 We do not see that it makes any difl'erence which party has re- 
 covered judgment. The true question is, whether the controversy has 
 been determined by a competent tribunal having jurisdiction ; for, if it_ 
 has been, the defendant has the right to insist.that it shall not be further 
 prosecuted, unless for some teclniical reason lie cannot have the benefit 
 of the esloppeT The plaintiff says he cannot have the benefit of the 
 estoppel because the suit in this State was first commenced. Is this 
 so? We think not. The defendant had the right to sue the plaintiff 
 in New York, notwithstanding the plaintiff had sued him in Rhode 
 Island. The plaintiff, in defending against the New York suit, put 
 in issue the same controversy which was in issue in the Rhode Island 
 suit, and it was decided against him. Why should he not be con- 
 cluded, and, if concluded, why should not the defendant have the 
 benefit of the conclusion by plea 2^^^'^^ darrein ? If the judgment in 
 New York had been recovered before the suit in Rhode Island, the de- 
 fendant would certainly have been entitled to plead it. Indeed, such 
 a judgment would be pleadable in bar if recovered in a foreign country, 
 and a fortiori, under the Federal Constitution and law, when recovered 
 in a sister State. Ricardo v. Garcias, 12 CI. & Fin. 368 ; Bissell v. 
 Brigg, 9 Mass. 462 ; Mills y. Duryee, 7 Cranch, 481 ; 2 Am. Lead. Cas. 
 (5th ed.) 611 et seq., where this subject is discussed, and the cases 
 fully cited. 
 
 The two cases of Baxley v. Linah, 16 Pa. St. 241, and North Bank 
 V. Brown, 50 Me. 214, are closely in point. In Baxley v. Linah, 16 Pa. 
 St. 241, an action was commenced in Maryland, December 30, 1846, 
 and in Pennsylvania, for the same cause, June 2, 1847. The defend- 
 ant pleaded the prior pendency of the Maryland action in abatement 
 to the Pennsylvania action, and the plea was overruled, the plea of 
 prior pendency being available only when both actions are pending in 
 the same State. Bowne et al. v. Joy, 9 Johns. Rep. 221 ; Walsh et al. 
 V. Durkin, 12 Johns. Rep. 99. Subsequently, January 31, 1848, the 
 plaintiff recovered judgment against the defendant in the Maryland 
 action; and Decembers, 1849, the defendant pleaded it in bar puis 
 darrein continuance. The plaintiff denuirred. The court, however, 
 sustained the plea. 
 
 The only material difference between that case and the case at bar 
 is, that there tlie judgment was recovered first in the earlier case, here 
 in the later. But the judgment, whenever recovered, is still a judg-
 
 SECT. I.] PAINE V. SCHENECTADY INSURANCE CO. 735 
 
 ment ; and why, then, is it not pleadable as such? In North Bank 
 V. Brown, 50 Me. 214, the plaintiff commenced suit against the defend- 
 ant in Maine, January 11, 1858 ; and in New York for the same cause, 
 January 21, 1858. Jud gment was fi rst obtained in th_e J^jQaLj^ork 
 suit, and it was h eld to be a ggcd defence to the suit in Maine. 
 / Here the judgment does not appear to have been specially pleaded ; 
 but if it had been specially pleaded, we see no reason why the de- 
 cision would not have been the same. We think the first cause of de- 
 murrer is not sufficient.^ 
 
 The second cause is, that it does not appear that the New York suit 
 was prosecuted by or for the defendant corporation, or by its authority, 
 or for its benefit. 
 
 The plea sets forth that the New York suit was prosecuted by George 
 T. Hanford, as receiver of the goods and effects of the defendant, and 
 avers that the parties are identical ; meaning, doubtless, that they are 
 in legal eflfect the same. We infer from this that, under the laws of 
 New York, the receiver, for the purposes of his appointment, is virtu- 
 ally the corporation, and that therefore a suit by him as receiver is, 
 in legal effect, a suit by the corporation. We the more readily infer 
 that the law is so in New York, because it is so in this State. We 
 think, when the judgment of a sister State is pleaded, we ought not to 
 be too strict or technical ; but that we ought to administer the law in a 
 spirit of liberal comity, and to allow the plea every fair intendment, so 
 as not to defeat the consfltutionaT privilege of the judgmeht:_'Tf Ihi? 
 suit werepending iu^ewTdiTTsuch a judgment would doubtless be a 
 bar to it. We think, therefore, that the second cause of demurrer can- 
 not be sustained. 
 
 The third cause of demurrer is substantial!}' the same as the second, 
 and is for the same reason overruled. 
 
 The fourth cause is, that the cause of action in the two suits does not 
 appear to be identical. The plea avers that it is identical, and we do 
 not find, from an examination of the judgment as pleaded, any suflS- 
 cient reason to think it is not so. See Ricardo v. Garcias, 12 CI. 
 & Fin. 368, 401. 
 
 TIi£_4iLaiiitiff- sta tes in - his brtef^ 4ba^ an- appeal- -has- JDeen-takea 1mm 
 the judgment rendered in New York. The plea, however, does not 
 ^how this. Primd facie the judgment as pleaded appears to be final 
 and conclusive. Upon demurrer, we can only know what the plea dis- 
 closes. If the plaintiff desires us to decide upon the eflfect of the 
 appeal, he should bring the fact of the appeal before us by proper 
 pleading and proof. 
 
 Upon the question whether the court can take cognizance of the 
 
 1 Ace. Cox V. Mitchell, 7 C. B. n. s. 55 ; Memphis & C. R. R. v. Grayson, 88 Ala. 
 572, 7 So. 122; Seevers v. Clement, 28 Md. 426; Whitintj v. Burger, 78 Me. 287; 
 Laney. Hanson, 25 Can. 69. See the Santissima Trinidad, 7 Wheat. 283, 355 ; Lyman 
 V. Brown, 2 Curt. 559 ; Thorpe v. Sampson, 84 Fed. 63.— Ed.
 
 736 PAINE V. SCHENECTADY INSURANCE CO. [CIIAP. XV. 
 
 New York law as to the effect of an appeal, unless pleaded and 
 proved, see 2 Am. Lead. Cas. (5th ed.) 648 et seq. 
 
 Demurrer overruled. 
 
 After the foregoing opinion, the plaintiff replied to the plea puis 
 darrein continuance : — 
 
 1. That the judgment of the Supreme Court of New York set forth 
 in the plea had been appealed from, and that the suit wherein judgment 
 had been given was consequently pending in the Supreme Court of 
 New York. 
 
 2. That the receiver Hanford acted without authoritv, and did not 
 institute the New York suit in behalf of the defendant corporation but 
 for himself 
 
 3. That the cause of action in the New York suit was not that in 
 the present case. 
 
 All these replications concluded to the countrj-. The defendant de- 
 murred to them all. 
 
 DuRFEE, C. J. This is an action of assumpsit to which the de- 
 fendant pleads in bar a former judgment recovered in the Supreme 
 Court of the State of New York. The plaintiff replies tliat the judg- 
 ment has been appealed from by him, and the suit is still pending in 
 the court. The defendant demurs to the replication. 
 
 The defendant contends that by the law of New York an appeal does 
 not vacate the judgment appealed from, but leaves it, until annulled or 
 reversed, conclusive upon tlie parties. 
 
 Two questions arise upon the demurrers : — 
 
 1. The first question is, whether we can take judicial cognizance of 
 the law of New York, or must presume it to be the same as ours until it 
 is shown by averment and proof to be different. The decisions upon this 
 point are conflicting, but we think the decision of the Supreme Court of 
 Pennsylvania, in The State of Ohio v. Hinchman, 27 Pa. St. 479, rests 
 upon the better reason. The court there held that, when the judgment 
 impleaded is the judgment of a sister State, the court will notice ex 
 officio the law of the State in which it was rendered. The reason given 
 for this is, that, in such a case, the court acts under the Constitution 
 and laws of the United States, which require that the judgment shall 
 have in every State the same faith and credit which it has in the State 
 •where it was originally rendered. In such a case, it was said, the de- 
 cision of the State court is re('xaminnl)le in the Supreme Court of the 
 United States, which will, without averment or proof, take cognizance 
 of the law of the State in which the record originates. " It would be 
 a very imperfect and discordant administration," it was further said, 
 "for the court of original jurisdiction to adopt one rule of decision, 
 while the court of final resort was governed l)y another; and hence it 
 follows, that in questions of this sort we should" take notice of the local 
 laws of a sister State in the same manner the Supreme Court of the 
 United States would do on a writ of error to our judgment." See also
 
 SECT. I.] PAINE V. SCHENECTADY INSURANCE CO. 737 
 
 Baxley v. Linah, 16 Pa. St. 241 ; Rae v. Hulbert, 17 111. 572, 578; 
 Butcher v. The Bank of Brownsville, 2 Kans. 70 ; 2 Am. Lead. Cas. 
 648 et seq. We think the reasoning is sound, and that it is not sat- 
 isfactorily met by courts which adopt a different view. Rape v. 
 Heaton. '9 Wis. 328, 341. 
 
 2. The second question relates to the conclusiveness of the judg- 
 ment. We find, as claimed by the defendant, that by the law of New 
 York an ai)peal, though it may stay the execution when proper security 
 is given, does not affect the conclusiveness of the judgment so long as 
 it remains unreversed. A judgment so appealed from is a valid bar to 
 an action involving the same controversy. Sage v. Harpending, 49 
 Barb. S. C. 166; Harris v. Hammond, 18 How. Pr. 123; Ratlibone v. 
 Morris, 9 Ab. Pr. 213; Freeman on Judgments, § 328. If the judg- 
 ment would be a good bar to this action in New York, it is entitled to 
 have the same effect in this State. Mills v. Duryee, 7 Cranch, 481 ; 
 McElmoyle v. Cohen, 13 Pet. 312 ; Jacquette v. Hugunon, 2 McLean, 
 129. The case of Bank of North America v. Wheeler, 28 Conn. 433, is a 
 case exactly in point. After the commencement of that case in Con- 
 necticut, a judgment was recovered for the same cause of action in New 
 York, and it was held that the judgment, notwithstanding it had been 
 appealed from, was a good bar to the suit in Connecticut; it being 
 found that, by the law of New York, the appeal operated only as a pro- 
 ceeding in error and did not vacate the judgment. We think, there- 
 fore, that the demurrer to the first replication must be sustained. 
 
 We will add, however, as matter of practice, that we think the 
 pendency of the appeal in New York may be good ground for de- 
 laying judgment here until the appeal is disposed of; for otherwise 
 we may give the judgment here a permanently conclusive effect, whereas 
 in New York, if the appeal is successful, it will be conclusive only for 
 a short time. 
 
 There are two other replications which are demurred to ; but we 
 think they raise issues of fact, which the plaintiff is entitled to have 
 tried. The demurrers to them are, therefore, overruled.^ 
 
 1 Ace. Scott V. Pilkington, 2 B. & S. II ; Taylor v. Shew, 39 Cal. 536 ; Bank of 
 North America v. Wheeler, 28 Conn. 433 ; Tompkins v. Cooper, 97 Ga. 631, 25 S. E. 
 247 • Dow V. Blake, 148 111. 76, 35 N. E. 761 ; Faber v. Hovey, 117 Mass. 107 ; Loner- 
 gan v Lonerc^an, 55 Neb. 641, 76 N. W. 16 ; Merchants' Ins. Co. v. DeWolf, 33 Pa. 45 ; 
 Piedmont & A. L. Ins. Co. v. Ray, 75 Va. 821 ; Ferand v. Dreyfus (Naples), 1 Ann, 
 Giur. Ital. 1, 120. See Heckling v. Allen, 15 Fed. 196. —Ed. 
 
 47
 
 738 GODAKD V. GKAY. [CHAP. XV. 
 
 SECTION II. 
 
 THE OBLIGATION OF A JUDGMENT. 
 
 GODARD V. GRAY. 
 
 Court of Queen's Bench. 1870. 
 
 [Reported Law Reports, 6 Queen's Bench, 139.] 
 
 Blackburn, J.^ In this case the plaintiffs declare on a judgment of 
 a French tribunal, averred to have jurisdiction in that behalf. 
 
 The question arises on a demurrer to the second plea, which sets out 
 the whole proceedings in the French court. By these it appears that the 
 plaintiffs, who are Frenchmen, sued the defendants, wiio are Englishmen, 
 on a charterparty made at Sunderland, which charterparty contained 
 the following clause, " Penalty for non-performance of this agreement, 
 estimated amount of freight." The French court below, treating this 
 clause as fixing the amount of liquidated damages, gave judgment against 
 the defendants for the amount of freight on two voyages. On appeal, 
 the Superior Court reduced the amount to the estimated freight of one 
 vovao-e, giving as their reason that the charterparty itself ''fixait I'in- 
 dcmnite a laqucUe chacuno des parties aurait droit pour inexecution de 
 la convention par la fautc de I'autre ; que moyennant paiement de cette 
 indi-mnite cliacune des parties avait le droit de rompre la convention," 
 and the tribunal proceeds to observe that the amount tluis decreed was 
 after all more tlian sufficient to cover all the pUiintitTs' loss. 
 
 All parties in France seem to have taken it for granted that the 
 words in the charterparty were to be understood in tlieir natural sense; 
 but the English law is accurately expressed in Abbott on Shipping, 
 part 3, c. 1, s. 6, ath ed., p. 170, and had that passage been brought 
 
 ^ TliP statement of facts ami arguments of counsel are omitted. — Ed.
 
 SECT. II.] GODARD V. GRAY. 739 
 
 to the notice of the French tribunal, it would have known that in an 
 English charterpart}-, as is there stated, " Such a clause is not the ab- 
 solute limit of damages on either side ; the party ma}-, if he thinks fit, 
 ground his action upon the other clauses or covenants, and ma}', in such 
 action, recover damages beyond the amount of the penalt}-, if in justice 
 they shall be found to exceed it. On the other hand, if the party sue 
 on such a penal clause, he cannot, in effect, recover more than the dam- 
 age actually sustained." But it was not brought to the notice of the 
 French tribunal that according to the interpretation put by the English 
 law on such a contract, a penal clause of this sort was in fact idle and 
 inoperative. If it had been, they would, probably, have interpreted the 
 English contract made in England according to the English construc- 
 tion. No blame can be imputed to foreign lawyers for not conjecturing 
 that the clause was merel}' a brutum fulnien. The fault, if any, was 
 in the defendants, for not properly instructing their French counsel on 
 this point. 
 
 Still the fact remains that we can see on the face of the proceedings 
 that the foreign tribunal has made a mistake on the construction of an 
 English contract, which is a question of English law ; and that, in 
 consequence of that mistake, judgment has been given for an amount 
 probably greater than, or, at all events, diff"erent from that for which it 
 would have been given if the tribunal had been correctly informed what 
 construction the English contract bore according to English law. 
 
 The question raised by the plea is, whether this is a bar to the action 
 brought in England to enforce that judgment, and we are all of opinion 
 that it is not, and that the plaintiff is entitled to judgment. 
 
 The following are the reasons of m}' Brother Mellor and myself. My 
 Brother Hannen, though agreeing in the result, qualifies his assent to 
 these reasons to some extent, which he will state for himself. 
 
 It is not an admitted principle of the law of nations that a State is 
 bound to enforce within its territories the judgment of a foreign tri- 
 bunal. Several of the continental nations (including France) do not 
 enforce the judgments of other countries, unless where there are recip- 
 rocal treaties to that eff'ect. But in England and in those States which 
 are governed by the common law, such judgments are enforced, not by 
 virtue of an}' treaty, nor by virtue of any statute, but upon a principle 
 very well stated by Parke, B., in Williams v. Jones, 13 M. & W. 633 : 
 "Where a court of competent jurisdiction has adjudicated a certain sum 
 to be due from one person to another, a legal obligation arises to pay 
 that sum, on which an action of debt to enforce the judgment may be 
 maintained. It is in this way that the judgments of foreign and colonial 
 courts are supported and enforced." And taking this as the principle, 
 it seems to follow that anythimg which negatives the existence of that 
 legal obligation, or excuses the defendant from the performance of it, 
 must form a good defence to the action. It must be open, therefore, 
 to the defendant to show that the court which pronounced the judgment 
 had not jurisdiction to pronounce it, either because they exceeded the 
 
 ,•
 
 740 GODARD V. GRAY. [CHAP. XV. 
 
 jurisdiction given to tliem b}- tlie foreign law, or because lie, the defend- 
 ant, was not subject to tliat jurisdiction; and so far the foreign judgment 
 must be examinable. Probably the defendant may show that the judg- 
 ment was obtained by the fraud of the plaintiff, for that would show 
 that the defendant was excused from the performance of an obligation 
 thus obtained ; and it may be that where the foreign court has know- 
 ingly and perverseh" disregarded the rights given to an English subject 
 b}' English law, that forms a valid excuse for disregarding the obliga- 
 tion thus imposed on him ; but we prefer to imitate the caution of the 
 present Lord Chancellor, in Castrique v. Imrie, Law Rep. 4 IL L. 445, 
 and to leave those questions to be decided when they arise, only observ- 
 ing that in the present case, as in that, " the whole of the facts appear 
 to have been inquired into b}' the French courts, judicially, honestly, 
 and with the intention to arrive at the right conclusion, and having heard 
 the facts as stated before them they came to a conclusion which justified 
 them in France in deciding as they did decide." 
 
 There are a great many dicta and opinions of very eminent lavryers, 
 tending to establish that the defendant in an action on a foreign judg- 
 ment is at liberty to show that the judgment was founded on a mistake, 
 and that the judgment is so far examinable. In Houlditch v. Donegall, 
 2 CI. & F. 477, Lord Brougham goes so far as to say : "The language 
 of the opinions on one side has been so strong, that we are not war- 
 ranted in calling it merely the inclination of our lawyers ; it is tlieir 
 decision that in this country a foreign judgment is only jyritna facie, 
 not conclusive evidence of a debt." But there certainly is no case de- 
 cided on such a principle ; and the opinions on the other side of the 
 question are at least as strong as those to which Lord Brougham refers. 
 
 Indeed, it is difficult to understand how the common course of plead- 
 ing is consistent with any notion that the judgment was onl}- evidence. 
 If that were so, every count on a foreign judgment must be demurrable 
 on that ground. The mode of pleading shows that the judgment was 
 considered, not as vaaxeXy prima facie evidence of tiiat cause of action 
 for which the judgment was given, but as in itself giving rise, at least 
 prima facie, to a legal obligation to obey that judgment and pay the 
 sura adjudged. This may seem a technical mode of dealing with the 
 question ; but in truth it goes to the root of the matter. For if the judg- 
 ment were merely considered as evidence of the original cause of action, 
 it must be open to meet it by an}' counter evidence negativing the exist- 
 ence of that original cause of action. 
 
 If, on the other hand, there is Vi. prima facie obligation to obey the 
 judgment of a tribunal having jurisdiction over tlie party and the cause, 
 and to pay the sum decreed, the question would be, whether it was open 
 to the unsuccessful party to try the cause over again in a court, not sit- 
 ting as a court of appeal from that which gave the judgment. It is 
 quite clear this could not be done where the action is brought on the 
 judgment of an English tribunal; and, on principle, it seems tlie same 
 rule should apply, where it is brought on that of a foreign tribunal.
 
 SECT. II.] GODARD V. GRAY. '^'^^ 
 
 But we think it unnecessary to discuss this point, as the decisions of 
 tlie Court of Queen's Bench in Bank of Australasia r. Nias, IG Q. B. 717; 
 20 L. J. (C. P.) 284, of the Court of Common Pleas in Bank of Austral- 
 asia V. Harding, 9 C. B. 661, 19 L. J. (C. P.) 345, and of the Court of 
 Exchequer in De Cosse Brissac v. Rathbone, 6 H. & N. 301, 30 L. J. 
 (Ex.) 238, seem to us to leave it no longer open to contend, unless in 
 a court of error, that a foreign judgment can be impeached on the ground 
 fchat it was erroneous on the merits ; or to set up as a defence to an 
 action on it, that the tribunal mistook either the facts or the law. 
 
 But there still remains a question which has never, so far as we know, 
 been expressly decided in any court. 
 
 It is broadly laid down, by the very learned author of Smith's Lead- 
 ing Cases, in the original note to Doe v. Oliver, 2 Sm. L. C. 2d ed. 448, 
 that " it is clear that if the judgment appear on the face of the proceed- 
 ings to be founded on a mistaken notion of the English law," it would 
 not be conclusive. For this he cites Novelli v. Rossi, 2 B. & Ad. 757, 
 which does not decide that point, and no other authority ; but the great 
 learning and general accuracy of the writer makes his unsupported opin- 
 ion an'authoritv of weight; and accordingly it has been treated with 
 respect. In Scott v. Pilkington, 2 B. «S= S. 42 ; 31 L. J. (Q. B.) 89, the 
 court expressly declined to give any opinion on the point not then raised 
 before them. But we cannot find that it has been acted upon ; and it 
 is worthy of note that the present very learned editors of Smith's Lead- " 
 ing Cases have very materially qualified his position, and state it thus, 
 if the judgment "be founded on an incorrect view of the English law, 
 knowingly or perversely acted on ; " the doctrine thus qualified does not 
 apply to the present case, and there is, therefore, no need to inquire 
 how far it is accurate. 
 
 But the doctrine as laid down by Mr. Smith does apply here ; and 
 we must express an opinion on it, and we think it cannot be supported, 
 and that the defendant can no more set up as an excuse, relieving him 
 from the duty of paying the amount awarded by the judgment of a for- 
 eign tribunal" having jurisdiction over him and the cause, that the judg- 
 ment proceeded on a mistake as to English law, than he could set up 
 as an excuse that there had been a mistake as to the law of some third 
 country incidentally involved, or as to any other question of fact. 
 
 It can make no difference that the mistake appears on the face of the 
 proceedings. That, no doubt, greatly facilitates the proof of the mis- 
 take ; but°if the principle be to inquire whether the defendant is relieved 
 from a prima facie duty to obey the judgment, he must be equally re- 
 lieved, whether the mistake appears on the face of the proceedings or 
 is to be proved by extraneous evidence. Nor can there be any differ- 
 ence between a m"i3take made by the foreign tribunal as to English law, 
 and any other mistake. No doubt the English court can, without arro- 
 gance, say that where there is a difl'erence of opinion as to English law, 
 the opinion of the English tribunal is probably right ; but how would it 
 be if the question had arisen as to the law of some of the numerous per-
 
 742 GODARD V. GRAY. [CHAP. XV. 
 
 tioQS of the British dominions where the law is not that of P^ngland ? 
 The French tribunal, if incidentally inquiring into the law of Mauritius, 
 where French law prevails, would be more likely to be right than the 
 English court ; if inquiring into the law of Scotland it would seem that 
 there was about an equal chance as to which took the right view. If 
 it was sought to enforce the foreign judgment in Scotland the chances 
 as to which court was right would be altered. Yet it surely cannot be 
 said that a judgment shown to have proceeded on a mistaken view of 
 Scotch law could be enforced in England and not in Scotland, and that 
 one proceeding on a mistaken view of English law could be enforced in 
 Scotland but not in England, 
 
 If, indeed, foreign judgments were enforced by our courts out of 
 politeness and courtesy to the tribunals of other countries, one could 
 understand its being said that though our courts would not be so rude 
 as to inquire whether the foreign court had made a mistake, or to allow 
 the defendant to assert that it had, yet that if the foreign court itself 
 admitted its blunder they would not then act : but it is quite contrary 
 to every analogy to suppose that an English court of law exercises any 
 discretion of this sort. We enforce a legal obligation, and we admit 
 any defence which shows that there is no legal obligation or a legal 
 excuse for not fulfilling it ; but in no case that we know of is it ever 
 said that a defence shall be admitted if it is easil}' proved, and rejected 
 if it would give the court much trouble to investigate it. Yet on what 
 other principle can we admit as a defence that there is a mistake of 
 English law apparent on the fttce of the proceedings, and reject a de- 
 fence that there is a mistake of Spanish or even Scotch law apparent 
 in the proceedings, or that there was a mistake of English law not ap- 
 parent on the proceedings, but which the defendant avers that he can 
 show did exist. 
 
 The whole law was much considered and discussed in Castrique v. 
 Imrie, Law Rep. 4 H. L. 414, 448, where the French tribunal had made 
 a mistake as to the English law, and under that mistake had decreed 
 the sale of the defendant's ship. The decision of the House of Lords 
 was, that the defendant's title derived under that sale was good, not- 
 withstanding that mistake: Lord Colonsay pithily saying, "It appears 
 to me that we cannot enter into an inquirj- as to whether the French 
 courts proceeded correctl}', either as to their own course of procedure 
 or their own law, nor whether under the circumstances they took the 
 proper means of satisfying themselves with respect to the view they 
 took of the English law. Nor can we inquire whether they were right 
 in their views of the English law. The question is, whether under the 
 circumstances of the case, dealing with it fairly, the original tribunal 
 did proceed against the sliip, and did order the sale of the ship." 
 
 The question in Castrique v. Imrie, Law Rep. 4 H. L. 414, was as 
 to the effect on the property of a judgment ordering a ship, locally sit- 
 uate in France, to be sold, and therefore was not the same as tlie ques- 
 tion in this case as to what effect is to be given to a judgment ao^ainst
 
 SECT. II.] GODARD V. GRAY. 743 
 
 the person. But at least the decision in Castriqne v. Tmrie, sripraA 
 establishes this, that a mistake as to English law on the part of a for- j 
 eign tribunal does not operate in all cases so as to prevent the courts/ 
 of this country from giving effect to the judgment. 
 
 In the course of the arguments in that case the point now under con- 
 sideration was raised. In the opinion I delivered at the bar of the 
 House, Law R#p. 4 H. L. 434-435, the cases which are commonlj- re- 
 ferred to as authorities for the opinion expressed by Mr. Smith in his 
 note to Doe r. Oliver, 2 Sm. L. C. 2d ed. 448, are referred to. AVe 
 have nothing to add to what is there said. And in the case of Novelli 
 V. Rossi, 2 B. & Ad. 757, it will be found on perusing the judgment of 
 Lord Tenterden that it does not contain one word in support of the 
 doctrine for which it is cited. We think that case was rightly decided 
 for the reasons given in Castrique v. Imrie, Law Rep. 4 H. L. 435 ; 
 but at all events it does not bear out Mr. Smith's position. 
 
 For these reasons we have come to the conclusion that judgment 
 should be given for the plaintiffs. 
 
 Hannen, J. I agree that our judgment should be for the plaintiffs 
 in this case, but as I do not entirely concur in the reasoning by which 
 m}' Brothers Blackburn and Mellor have arrived at that conclusion, I 
 desire shortly to explain the ground on which mv judgment is founded. 
 
 I think that the authorities oblige us (not sitting in a court of error) 
 to hold that the defendants, by appearing in the suit in France, sub- 
 mitted to the jurisdiction of the French tribunal, and thereb}' created a 
 prima facie duty on their part to obey its decision ; but I do not think 
 that any authority binds us, nor am I prepared to decide that a defend- 
 ant, not guilty of any laches, against whom a foreign judgment in per- 
 sonam has been given, is precluded from impeaching it on the ground 
 that it appears on the face of the proceedings to be based on an incor- 
 rect view of the English law, even though there may be evidence that 
 the foreign court, knowingly or perversely, refused to recognize that 
 law. 
 
 I do not, however, enter at length upon the consideration of this 
 question, because I have arrived at the conclusion that the defendants 
 in this case were guilty of laches. It does not appear upon the face of 
 the proceedings, nor at all, that the French court was informed of what 
 the English law was. It was the duty of the defendants to bring to the 
 knowledge of the French court the provision of the English law on 
 ■which the}' now for the first time rely, and having failed to do so, they 
 must submit to the consequences of their own negligence. The French 
 courts, like our own, can only be informed of foreign law by appropri- \ 
 ate evidence, and the party wlio fails to produce it cannot afterwards ; 
 impeach the judgment obtained against him on account of an error into, 
 which the foreign court has fallen presumablj' in consequence of his own / 
 default. Suitors in our own courts, in similar circumstances, must 
 suffer a like penalty for their negligence. A defendant who has omit- 
 ted to produce evidence which was procurable at the trial of a cause
 
 744 HILTON V, GUYOT. [CHAP. XV. 
 
 cannot have a rehearing on that account ; and in an action on a judg- 
 ment of one of our own courts, we do not permit the defendant to plead 
 any facts which might have been pleaded in tlie original action. These 
 instances offer analogies b}- which I think the present case is governed, 
 and on this ground I am of opinion that the defendants are precluded 
 from impeaching the decision of the French tribunal, and that our judg- 
 ment should be for the plaintiffs. « 
 
 Judgment for the plaintiffs. 
 
 HILTON V. GUYOT. 
 Supreme Court of the United States. 1895. 
 
 [Reported 159 United States, 113.] 
 
 The first of these two cases was an action at law, brought December 
 18, 1885, in the Circuit Court of the United States for the Southern 
 District of New York, by Gustave Bertin Guyot, as official liquidator 
 of the firm of Charles Fortin & Co., and by the surviving members of 
 that firm, all aliens and citizens of the Republic of France, against 
 Henry Hilton and William Libbey, citizens of the United States and of 
 the State of New York, and trading as copartners, in the cities of New 
 York and Paris and elsewhere, under the firm name of A, T. Stewart 
 & Co. The action was upon a judgment recovered in a Frencli court 
 at Paris in the Republic of France by the firm of Charles Fortin & Co., 
 all whose members were French citizens, against Hilton and Libbey, 
 trading as copartners as aforesaid, and citizens of the United States 
 and of the State of New York. 
 
 The answer of the defendants alleged that they appeared in the 
 French court solely for the purpose of protecting tlieir property there; 
 that there were gross frauds in the accounts of Fortin & Co. ; that the 
 trial was not a fair one; that b}' the law of France if such a judgment 
 had been obtained in the United States the merits of it would be re- 
 examined in the French courts. 
 
 Tlie defendants, on June 22, 1888. filed a l)ill in equity against the 
 plaintiffs, setting forth the same matters as in their answer to tlie action 
 at law, and praying for a discovery, and for an injunction against tlie 
 prosecution of the action. To that bill a plea was filed, setting up the
 
 SECT. II.] HILTON V. GUYOT. 745 
 
 French judgments ; and upon a hearing the bill was dismissed. 42 Fed. 
 Rep. 249. From the decree dismissing the bill an appeal was taken, 
 which was the second case now l)efore this court. 
 
 The action at law afterwards came on for trial b}- a jurj'. The court 
 directed a verdict for the plaintiffs in the sum of $277,775.44, being the 
 amount of the French judgment and interest. The defendants, having 
 duly excepted to the rulings and direction of the court, sued out a writ 
 of error. 
 
 The writ of error in the action at law and the appeal in the suit in 
 equit}' were argued together in this court in January, 1894, and by 
 direction of the court were reargued in April, 1894.^ 
 
 Gray, i? In order to appreciate the weight of the various author- 
 ities cited at the bar, it is important to distinguish different kinds 
 of judgments. Every foreign judgment, of whatever nature, in order to 
 be entitled to any effect, must have been rendered by a court having 
 jurisdiction of the cause, and upon regular proceedings and due notice. 
 In alluding to different kinds of judgments, therefore, such jurisdiction, 
 pi'oceedings, and notice will be assumed. It will also be assumed that 
 they are untainted by fraud, the effect of which will be considered 
 later. 
 
 A judgment in rem, adjudicating the title to a ship or other movable 
 property within the custody of the court, is treated as valid everywhere. 
 As said by Chief Justice Marshall: "The sentence of a competent 
 court, proceeding in rem, is conclusive with respect to the thing itself, 
 and operates as an absolute ciiange of the property. B\- such sentence, 
 the right of the former owner is lost, and a complete title given to the 
 person who claims under the decree. No court of coordinate jurisdic- 
 tion can examine the sentence. The question, therefore, respecting its 
 conforrait}' to general or municipal law can never arise, for no coordi- 
 nate tribunal is capable of making the inquiry." Williams v. Armroyd, 
 7 Cranch, 423, 432. The most common illustrations of this are de- 
 crees of courts of admiralty and prize, which proceed upon principles 
 of international law. Croudson v. Leonard, 4 Cranch, 434 ; Williams 
 V. Armroyd, above cited ; Ludlow v. Dale, 1 Johns. Cas. 16. But the 
 same rule applies to judgments in rem under municipal law. Hudson 
 V. Guestier, 4 Cranch. 293 ; Ennis v. Smith, 14 How. 400, 430 ; Wis- 
 consin V. Pelican Ins. Co., 127 U. S. 265, 291 ; Scott v. McNeal, 154 
 U. S. 34, 46; Castrique v. Imrie, L. R. 4 H. L. 414; Monroe v. 
 Douglas, 4 Sandf. Ch. 126. 
 
 A judgment affecting the status of persons, such as a decree con- 
 firming or dissolving a marriage, is recognized as valid in ever}- countr}-, 
 unless contrary to the polic}' of its own law. Cottington's case, 
 
 1 The statement of facts is abridged, and arguments of counsel are omitted. Part 
 of the opinion of the court is omitted. — Ed. 
 
 2 Part of the opinion is omitted. See the opinion at large for an exhaustive collec- 
 tion of authorities., — Ed.
 
 746 HILTON V. GUYOT. [CHAP. XV. 
 
 2 Swans. 326; Roach v, Garvan, 1 Ves. Sen. 157; Harvey v. Far- 
 nie, 8 App. Cas. 43 ; Chcely v. Clayton, 110 U. S. 701. It was of a 
 foreign sentence of divorce, that Lord Chancellor Nottingham, in the 
 House of Lords, in 1688, in Cottington's case, above cited, said: " It 
 is against the law of nations not to give credit to the judgments and 
 sentences of foreign countries, till they be reversed by the law, and 
 according to the form, of those countries wherein they were given. 
 For what right hath one kingdom to reverse the judgment of another? 
 And how can we refuse to let a sentence take place till it be reversed? 
 And what confusion would follow in Christendom, if they should serve 
 us so abroad, and give no credit to our sentences." 
 
 Other judgments, not strictly in ron, under which a person has been 
 compelled to pay money, are so far conclusive that the justice of the 
 payment cannot be impeached in another country, so as to compel him 
 to pay it again. For instance a judgment in foreign attachment is con- 
 clusive, as between the parties, of the right to the property or money 
 attached. Story on Conflict of Laws (2d ed.), § 592 a. And if, on the 
 dissolution of a partnership, one partner promises to indemnify the 
 other against the debts of the partnership, a judgment for such a 
 debt, under which the latter has been compelled to pay it, is conclusive 
 evidence of the debt in a suit by him to recover the amount upon the 
 promise of indemnit}-. It was of such a judgment, and in such a suit, 
 that Lord Nottingham said : '' Let the plaintiff receive back so much 
 of the money brought into court as may be adequate to the sum paid on 
 the sentence for custom, the justice whereof is not examinable here." 
 Gold V. Canham (1689), 2 Swans. 325; s. c. 1 Cas. in Ch. 311. See 
 also Tarleton v. Tarleton, 4 M. «fe S. 20 ; Konitzky v. Meyer, 49 N. Y. 
 571. 
 
 Other foreign judgments which have been held conclusive of the 
 matter adjudged were judgments discharging obligations contracted in 
 the foreign countrv between citizens or residents thereof. Story's Con- 
 flict of Laws, §§ 330-341 ; May v. Breed, 7 Cush. 15. Such was the 
 case, cited at the bar, of Burroughs or Burrows v. Jamineau or Jemino, 
 Mos. 1 ; s. c. 2 Stra. 733 ; 2 Eq. Cas. Ab. 525, pi. 7 ; 12 Vin. Ab. 87, 
 pi. 9 ; Sel. Cas. in Ch. 69 ; 1 Dick. 48. 
 
 In that case, bills of exchange, drawn in London, were negotiated, 
 indorsed, and accepted at Leghorn in Italv, by the law of whicli an ac- 
 ceptance became void if the drawer failed without leaving effects in the 
 acceptor's hands. The acceptor, accordingl}', having received advices 
 that the drawer had failed before the acceptances, brought a suit at Leg- 
 horn against the last indorsees, to be discharged of his acceptances, 
 paid the money into court and obtained a sentence there, by which the 
 acceptances were vacated as against those indorsees and all the in- 
 dorsers and negotiators of the bills, and the money deposited was re- 
 turned to him. Being afterwards sued at law in England b}' subsequent 
 holders of the bills, he applied to the Court of Chancery and obtained a 
 perpetual injunction. Lord Chancellor King, as reported b}- Strange,
 
 SECT. II.] HILTOX V. GUYOT. 747 
 
 ♦'was clearly of opinion that this cause was to be determined according 
 to the local laws of the place where the bill was negotiated, and the 
 plaintiff's acceptance of the bill having been vacated and declared void 
 by a court of competent jurisdiction, he thought that sentence was con- 
 clusive and bound the Court of Chancery here ; " as reported in Viner, 
 that " the court at Leghorn had jurisdiction of the thing, and of the 
 persons ; " and, as reported by Mosely, that, though " the last indor- 
 sees had the sole property of the bills, and were therefore made the 
 only parties to the suit at Leghorn, yet the sentence made the accept- 
 ance void against the now defendants and all others." It is doubtful, 
 at the least, whether such a sentence was entitled to the efl'ect given to 
 it by Lord Chancellor King. See Novelli v. Rossi, 2 B. & Ad. 757 ; 
 Castrique v. Imrie, L. R. 4 H. L. 414, 435; 2 Smith's Lead. Cas. (2d 
 ed.) 450. 
 
 The remark of Lord Hardwicke, argimido, as Chief Justice, in 
 Boucher v. Lawson (1734), that "the reason gone upon by Lord 
 Chancellor King, in the case of Burroughs v. Jamineau, was certainly 
 right, that where any court, whether foreign or domestic, that has the 
 proper jurisdiction of the case, makes a determination, it is conclusive 
 to all other courts," evidently had reference, as the context shows, to 
 judgments of a court having jurisdiction of the thing ; and did not 
 touch the effect of an executory judgment for a debt. Cas. temp. 
 Hardw. 85, 89 ; s. c. Cunningham, 144, 148. 
 
 In former times, foreign decrees in admiralty in personam were 
 executed, even bv imprisonment of the defendant, by the Court of Ad- 
 miralty in England, upon letters rogatory from the foreign sovereign, 
 without a new suit. Its right to do so was recognized by the Court of 
 King's Bench in 1607 in a case of habeas corpus, cited by the plaintiffs, 
 and°reported as follows: " If a man of Frizeland sues an Englishman 
 in Frizeland before the Governor there, and there recovers against him 
 a certain sum; upon which the Englishman, not having sufficient to 
 satisfy it, comes into England, upon which the Governor sends his 
 letters massive into England, omnes magistratus infra regnum Anglue 
 rogans, to make execution of the said judgment. The Judge of the 
 Admiralty may execute this judgment by imprisonment of the party, and 
 he shall not be delivered by the common law ; for this is by the law of 
 nations, that the justice of one nation should be aiding to the justice of 
 another nation, and for one to execute the judgment of the other ; and 
 the law of England takes notice of this law, and the Judge of the Ad- 
 miralty is the "proper magistrate for this purpose ; for he only hath the 
 execution of the civil law within the realm. Pasch. 5 Jac. B. R., Weir's 
 case, resolved upon an habeas corpus, and remanded." 1 Rol. Ab. 530, 
 pi. 12 ; 6 Vin. Ab. 512, pi. 12. But the only question there raised or 
 decided was of the power of the English Court of Admiralty, and not 
 of the conclusiveness of the foreign sentence; and in later times the 
 mode of enforcing a foreign decree in admiralty is by a new libel. See 
 The City of Mecca, 5 P. D. 28, and 6 P. D. 106.
 
 748 HILTON V. GUYOT. [CHAF. XV. 
 
 The extraterritorial effect of judgments in personam, at law or in 
 equity, may differ, according to the parties to the cause. A judgment 
 of that kind between two citizens or residents of the country, and 
 thereby subject to the jurisdiction, in which it is rendered, may be held 
 conclusive as between them everywhere. So, if a foreigner invokes the 
 jurisdiction by bringing an action against a citizen, both may be held 
 bound by a judgment in favor of either. And if a citizen sues a for- 
 eigner, and judgment is rendered in favor of the latter, both may be 
 held equally bound. Ricardo v. Garcias, 12 CI. & Fin. 368 ; The Grief- 
 swald, Swabey, 430, 435 ; Barber v. Lamb, 8 C. B. (n. s.) 95 ; Lea v. 
 Deakin, 11 Biss. 23. 
 
 The effect to which a judgment, purely executory, rendered in favor 
 of a citizen or resident of the country, in a suit there brought by him 
 against a foreigner, may be entitled in an action thereon against the 
 latter in his own country — as is the case now before us — presents a 
 more difficult question, upon which there has been some diversity of 
 opinion. 
 
 Early in the last century, it was settled in England that a foreign 
 judgment on a debt was considered not, like a judgment of a domestic 
 court of record, as a record or a specialty, a lawful consideration for 
 which was conclusively presumed ; but as a simple contract only. . . . 
 In recent times, foreign judgments rendered within tlie dominions 
 of the English Crown, and under the law of England, after a trial 
 on the merits, and no want of jurisdiction, and no fraud or mistake, 
 being shown or offered to be shown, have been treated as conclusive 
 by the highest courts of New York, Maine, and Illinois. Lazier v. 
 Wescott (1862), 26 N. Y. 146, 150; Dunstan v. Higgins (1893), 138 
 N. Y. 70, 74; Rankin v. Goddard (1866), 54 Me. 28, and (1868) 55 
 Me. 389 ; Baker v. Palmer (1876), 83 111. 568. In two early cases in 
 Ohio, it was said that foreign judgments were conclusive, unless shown 
 to have been obtained by fraud. Silver Lake Bank v. Harding (1832), 
 5 Ohio, 545, 547; Anderson v. Anderson (1837), 8 Ohio, 108,' 110. 
 But in a later case in that State it was said that they were ov\\y prima 
 facie evidence of indebtedness. Pelton v. Platner (1844), 13 Ohio, 
 209, 217. In Jones v. Jamison (1860), 15 La. Ann. 35, the decision 
 was only that, by virtue of the statutes of Louisiana, a foreign jud^- 
 ^ent merged the original cause of action as against the plaintiff. . . . 
 In view of all the authorities upon the subject, and of the trend of 
 'judicial opinion in this country and in England, following the lead of 
 Kent and Story, we are satisfied that, where there has been opportunity 
 for a full and fair trial abroad before a court of co mpetent juri , § dif ;tion. 
 conducting the trial upon regular proceedingsV'aTter due citation or 
 voluntary appearance of the defendant, and undcr ^ a sy stcm^ of juris- 
 pruclencejjkek^to^ecu^^ 
 
 _.^£_citizens\)fMts^wt^^ and there 
 
 IS nothing to show'"eIther~prcjudice in~The~ court, "or in \^ svstem of 
 laws under which it was sitting, or fraud in procuring tlie judgment, or
 
 SECT. II.] HILTON V. GUYOT. 749 
 
 an}' other special reason why the comit}- of this nation should not 
 allow it full effect, the merits of the case should not, in an action 
 brought in this country upon the judgment, lie tried afresh, as on a 
 new trial or an appeal, upon the mere assertion of the part}' that the , 
 judgment was erroneous in law or in facL The defendants, therefore, i 
 caimot be permitted, upon that general ground, to contest the validity 
 or the effect of the judgment sued on. 
 
 But they have sought to impeach that judgment upon several other 
 grounds, which require separate consideration. 
 
 It is objected that the appearance and litigation of the defendants in 
 the French tribunals were not voluntary, but by legal compulsion, and 
 therefore that the French courts never acquired such jurisdiction over 
 the defendants, that they should be held bound by the judgment. 
 
 Upon the question what should be considered such a voluntary ap- 
 pearance, as to amount to a Submission to the jurisdiction of a foreign 
 court, there has been some difference of opinion in England. . . . 
 
 But it is now settled in England that, while an appearance by the 
 defendant in a court of a foreign country, for the purpose of protect- 
 ing his property already in the possession of that court, may not be 
 deemed a voluntary appearance, yet an appearance s r>lfly fr,v tho pur- 
 pose of protecting other propertv in tlmt, country from s eizure is 
 considere d as a voluntary .ippe.ir.inne. De Cosse Brissac v. Rathbone 
 (18(J0), (j Jrl. & N. 301 ; s. c. 20 Law Journal (n. s.), Exch. 238; 
 Schibsby r. Westenholz (1870), L. R. 6 Q. B. 155, 162; Voinet v. 
 Barrett (1885), 1 Cab. & El. 554; s. c. 54 Law Journal (n. s.), Q. B. 
 521, and 55 Law Journal (n, s.), Q. B. 39. 
 
 The present case is not one of a person travelling through or casu- 
 ally found in a foreign country. The defendants, although they were 
 not citizens or residents of France, but were citizens and residents of 
 the State of New York, and their principal place of business was in 
 the city of New York, yet had a storehouse and an agent in Paris, 
 and were accustomed to purchase large quantities of goods there, 
 although they did not make sales in France. Under such circum- 
 stances, evidence that their sole object in appearing and carrying on 
 the litigation in the French courts was to prevent property, in their 
 storehouse at Paris, belonging to them, and within the jurisdiction, but 
 not in the custody, of those courts, from being taken in satisfaction of 
 any judgment that might be recovered against them, would not, ac- 
 cording to our law, show that those courts did not^cquire jurisdiction 
 of the persons of the defendants. . . . 
 
 It is now established in England by well considered and strongly 
 reasoned decisions of the Court of Appeal, that foreign judgments 
 may be impeached, if procured by false and fraudulent representations 
 and testimony of the plaintiff, even if the same question of fraud was 
 presented to and decided by the foreign court.' . . . 
 
 1 Citing Abouloff v. Oppenheimer, 10 Q. B. D. 295 ; Vadala v. Lawes, 25 Q. B. D. 
 310 ; Crozat v. Brogden, [1894] 2 Q. B. 30. — Ed.
 
 750 HILTON V. GTIYOT. [CHAP. XV. 
 
 But whether these decisions can be followed in regard to foreign 
 judgments, consistently with our own decisions as to impeaching do- 
 mestic judgments for fraud, it is unnecessary in this case to determine, 
 because there is a distinct and independent ground upon which we 
 are satisfied that the comit\- of our nation does not require us to 
 give conclusive effect to the judgments of the courts of France ; and 
 that ground is, the want of reciprocity, on the part of France, as 
 to the effect to be given to the judgments of this and other foreign 
 countries. . . . 
 
 There is hardly a civilized nation on either continent, which, b}' its 
 general law, allows conclusive effect to an executory foreign judgme nt^ 
 for the r ec overy o f mj)ne y . In France, and in a few smaller States, — 
 Norway, Portugal, Greece, Monaco, and Hayti, — t]ie_JU£rits jif the 
 controvjii' sy are rev iewed, as of course, allo wing to the fore ign juclg- 
 ment^atj the most, no more effect than of being p rima ,/yYo!fc-tiv44feuce 
 6TiEe4^i^tice_0f_Jlie_claixru In the great majority of the countries on 
 the continent of Europe, — in Belgium, Holland, Denmark, Sweden, 
 Germany, in man}' cantons of Switzerland, in Russia and Poland, in 
 Roumania, in Austria and Hungary' (perhaps in Italy), and in Spain, 
 — as well as in Eg3pt, in Mexico, and in a great part of South Amer- 
 ica, the judgment rendered in a foreign country is allowed the same 
 effect only as the courts of that countr}' allow to the judgments of the 
 country in which the judgment in question is sought to be executed. 
 
 The prediction of Mr. Justice Story (in section 618 of his Commen- 
 taries on the Conflict of Laws, already cited) has thus been fulfilled, 
 and the rule of reciprocity has worked itself firml}- into the structure 
 of international jurisprudence. 
 
 T he reaso nable, if not the necessarv, conclusion appears to us to.bfi. 
 that judgments renclered in France, or m^anv otTier foreign coiintn, by 
 the law s of whijih our own judgments are reviewable upon the merits, 
 are not entitled to full credit and conclusive effect when sued upon in 
 this country, but SLve^pr ima facie evidence on ly of the justice of tlie 
 plaintiffs!_clai«j. 
 
 In holding such a judgment, for want of re ciprocity, not to be 
 conclusive evidence of the merits of the claim, w^do"~rrdt proceed 
 upon any theory of retaliation upon one person by reason of injustice 
 "done to another; but u|)on the broml ground that intiTiuitionid law is ^ 
 fbuncTed upon mutuality and reciprocity, and that by the principles of 
 international ^law recognized in most civilized nations, and by the 
 comit}' ofour^own country, which it is our judicial duty to know and 
 to declare, the judgment is not entitled to be considered conclusive. 
 
 By our hiw, at the time of the adoption of the Constitution, a forejgn 
 judgment was considered as prima facie evidence, and not conclusivel 
 Thcre is no statute of the United States, and no treaty of the United 
 States with France, or with any other nation, which has changed that 
 law, or has made any provision upon the subject. It is not to be 
 supposed that, if any statute or treaty had been or should be made,
 
 V(^^ 
 
 SECT. II.] HILTON V. GUYOT. 751 
 
 it would recognize as conclusive the judgments of any country, which 
 did not give like effect to our own judgments. In the absence of 
 statute or treat}', it appears to us equally unwarrantable to assume that 
 the comity of the United States requires anything more. 
 
 If we should hold this judgment to be conclusive, we should allow it 
 an effect to which, supposing the defendants' offers to be sustained by 
 actual proof, it would, in the absence of a special treaty, be entitled in 
 hardly any other country in Christendom, except the country in which 
 it was rendered. If the judgment had been rendered in this country, 
 or in any other outside of the jurisdiction of France, the French courts 
 would not have executed or enforced it, except after examining into its 
 merits. The very judgment now sued on would be held inconclusive 
 in almost any other country than France. In England, and in the 
 Colonies subject to the law of England, the fraud alleged in its procure- 
 ment would be a sufficient ground for disregarding it. In the courts 
 of nearly every other nation, it would be subject to re-examination, 
 either merely because it was a foreign judgment, or because judgments 
 of that nation would be re-examinable in tlie courts of France. 
 For these reasons, in the action at law, the 
 Judg-nient is reversed^ and the cause remanded to the Circuit Court 
 
 icith directions to set aside the verdict and to order a netv trial. 
 For the same reasons, in the suit in equity between these parties, 
 the foreign judgment is not a bar, and, therefore, the 
 
 Decree dismissing the bill is reversed, the plea adjudged bad, and 
 the cause remanded to the Circuit Court for further ^proceedings 
 not inconsistent with this opinion. 
 Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan, 
 Mr. Justice Brewer, and Mr. Justice Jackson, dissenting. 
 
 Plaintiffs brought their action on a judgment recovered by them 
 against the defendants in the courts of France, which courts had juris- 
 diction over person and subject-matter, and in respect of which judg- 
 ment no fraud was alleged, except in particulars contested in and 
 considered by the French courts. The question is whether under these 
 circumstances, and in the absence of a treaty or act of Congress, t he 
 judg ment is re-examinable upon thp merits. This question I regard as ^ 
 one to be determined by the ordinary and settled rule in respect of 
 allowing a party, who has had an opportunity to prove his case in a ^ 
 
 competent court, to retry it on the merits, and it seems to me that the // C* • 
 doctrine of res judicata applicable to domestic judgments should be 
 applied to foreign judgments as well, and rests on the same general 
 ground of public policy that there should be an end of litigation. 
 
 This application of the doctrine is in accordance with our own juris- 
 prudence, and it is not necessary that we should hold it to be required 
 by some rule of international law. The fundamental principle con- 
 cerning judgments is that disputes are finally determined by them, and 
 I am unable to perceive why a judgment in personam which is not 
 open to question on the ground of want of jurisdiction, either intrin- 
 
 >
 
 •J^'Z HILTON V. GUYOT. [CHAP. XV. 
 
 sically or over tue parties, or of fraud, or on any other recognized 
 ground of impeachment, should not be held inter partes, though 
 recovered abroad, conclusive on the merits. 
 
 Judgments are executory while unpaid, but in this country execution 
 is not given upon a foreign judgment as such, it being enforced through 
 a new judgment obtained in an action brought for that purpose. 
 
 The principle that requires litigation to be treated as terminated by- 
 final judgment properly rendered, is as applicable to a judgment pro- 
 ceeded on in such an action, as to any other, and forbids the allowanc e 
 to the ju dgment debtor of a retrial of the original cause of action, as of 
 rig ht, in disregard of the obligation to pay arising on the judgment and 
 of the rights acquirp i] by tlip j^iilo-niynt cred itor thereby. 
 
 That any other conclusion is inadmissible is forcibly illustrated by 
 the case in hand. Plaintiffs in error were trading copartners in Paris 
 as well as in New York, and had a place of business in Paris at the 
 time of these transactions and of the commencement of the suit against 
 them in France. The subjects of the suit were commercial transac- 
 tions, having their origin, and partly performed, in France under a 
 contract there made, and alleged to be modified by the dealings of the 
 parties there; and one of the claims against them was for goods sold 
 to them there. They appeared generally in the case, without protest, 
 and by counterclaims relating to the same general course of business, 
 a part of them only connected with the claims against them, became 
 actors in the suit and submitted to the courts tlieir own claims for 
 affirmative relief, as well as the claims against them. The courts were 
 competent, and they took the chances of a decision in their favor. As 
 traders in France they were under the protection of its laws and were 
 bound by its laws, its commercial usages, and its rules of procedure. 
 The fact that they were Americans and the opposite parties were citi- 
 zens of France is immaterial, and there is no suggestion on the record 
 that those courts proceeded on any other ground than that all litigants, 
 whatever their nationalit}', were entitled to equal justice therein. If 
 plaintiffs in error had succeeded in their cross suit and recovered judg- 
 ment against defendants in error, and had sued them here on that 
 judgment, defendants in error would not have been permitted to say 
 that the judgment in France was not conclusive against them. As 
 it was, defendants in error recovered, and I think plaintiffs in error 
 are not entitled to try their fortune anew before the courts of this 
 country on the same matters voluntarily submitted by them to the de- 
 cision of the foreign tribunal. We are dealing with the judgment of a 
 court of a civilized country, whose laws and system of justice recognize 
 the general rules in respect to property and rights between man and 
 man prevailing among all civilized peoples. Obviously the last persons 
 who should be heard to complain are those who identified themselves 
 with the business of that country, knowing that all their transactions 
 there would be subject to the local laws and modes of doing business. 
 The French courts appear to have acted "judicially, honestly, and
 
 SECT. II.] HILTON V. GUYOT. 753 
 
 with the intention to arrive at the right conclusion ; " and a result thus 
 reached ought not to be disturbed. 
 
 [The learned Chief Justice here recited extracts from the opinions 
 in Nouvion v. Freeman, 15 App. Cas. 1, and Godard r. Gray, L. R. 
 6 Q. B. 139, and continued :] 
 
 In any aspect, it is difficult to see why rights acquired under foreign 
 judgments do not belong to the category of private riglits acquired 
 under foreign laws. Now the rule is universal in this country tliat 
 private rights acquired under the laws of foreign States will be re- 
 spected and enforced in our courts unless contrary to the policy or 
 prejudicial to the interests of the State where this is sought to be done ; 
 and although the source of this rule ma}- have been the comity charac- 
 terizing the intercourse between nations, it prevails to-day by its own 
 strength, and the right to the application of the law to which the 
 particular transaction is subject is a juridical right. 
 
 And, without going into the refinements of the publicists on the 
 subject, it appears to me that that law finds authoritative expression 
 in the judgments of courts of competent jurisdiction over parties and 
 subject-matter. 
 
 It is held by the majority of the court that defendants cannot be 
 permitted to contest the validity and effect of this judgment on the 
 general ground that it was erroneous in law or in fact ; and the special 
 grounds rehed on are seriatim rejected. In respect of the last of 
 these, that of fraud, it is said that it is unnecessary in this case to 
 decide whether certain decisions cited in regard to impeaching foreign 
 judgments for fraud could be followed consistently with our own deci- 
 sions as to impeaching domestic judgments for that reason, " because 
 there is a distinct and independent ground upon which we are satisfied 
 that the comity of our nation does not require us to give conclusive 
 effect to the judgments of the courts of France, and that ground is the 
 want of reciprocity on the part of France as to the effect to be given to 
 the judgments of this and other foreign countries." And the conclu- 
 sion is announced to be " that judgments rendered in France or in an)- 
 other foreign country, by the laws of which our own judgments are 
 reviewable upon the merits, are not entitled to full credit and conclu- 
 sive effect when sued upon in this country, hut are lyrima facie evi- 
 dence only of the justice of the plaintiff's claim." In other words, that 
 although no special ground exists for impeaching the original justice of 
 a judgment, such as want of jurisdiction or fraud, the right to retry the 
 merits of the original cause at large, defendant being put upon proving 
 those merits, should be accorded in every suit on judgments recovered 
 in countries where our own judgments are not given full effect, on that 
 ground merely. 
 
 I cannot yield my assent to the proposition that because by legis- 
 lation and judicial decision in France that effect is not there given 
 to judgments recovered in this country which, according to our juris- 
 prudence, we think should be given to judgments wherever recovered, 
 
 48
 
 754 SADLER V. ROBINS. [cHAP. XV. 
 
 (subject, of course, to the recognized exceptions,) therefore we should 
 pursue the same line of conduct as respects the judgments of French 
 tribunals. The application of the doctine o^ res judicata does not rest 
 in discretion ; and it is for the government, and not for its courts, to 
 adopt the principle of retorsion, if deemed under any circumstances 
 desirable or necessar\". 
 
 As the court expressl}- abstains from deciding whether the judgment 
 is impeachable on the ground of fraud, I refrain from any observations 
 on that branch of the case. 
 
 Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Jackson 
 concur in this dissent. 
 
 SADLER V. ROBINS. 
 
 Nisi Prius, and Court of King's Bench. 1808. 
 
 [Reported 1 Campbell, 253.] 
 
 Assumpsit on a decree of the high Court of Chancery in the island 
 of Jamaica. The declaration stated, that on the 16th day of July, 
 1805, in a certain cause, wherein James Sadler and others were com- 
 plainants, and James Robins and others, executors of John Sadler 
 deceased, were defendants, it was by the said high Court of Chancery 
 orvlered, adjudged, and decreed, that the said James Robins and one 
 R. Haywood, since deceased, should on or before the first day of Janu- 
 ary then next ensuing pay unto the said James Sadler, or his lawful 
 attorney or attornies in the said island, the sum of £3,670 Is. 91(7. 
 current money of the said Island, with interest thereon from the 31st 
 day of December then last past, first deducting thereout the full costs 
 of the said defendants expended in the said suit, the same to be taxed 
 by George Howell., Esq., one of the masters of the said court ; and also 
 deducting thereout all and every further payment or payments which 
 the said James Sadler and R. Haywood or either of them might, on or 
 before the said 1st day of January, 1806, show to the satisfaction of 
 the said George Howell that they or either of them had pcid on account 
 of their said testator's estate. The declaration having then stated a 
 liability and promise in the words of the decree, and the amount of the 
 sum to be paid in sterling money with interest, went on to aver that 
 the said James Robins and R. Haywood did not nor did either of them 
 on or tiefore the 1st da}' of January, 1806, or at any subsequent time, 
 cause the costs by the said defendants in the said cause in the said 
 Court of Chancery expended in that suit to l)o taxed by the said George 
 Howell, Esq., or by any other of the masters of the said Court of 
 Ciiancery, but as well the said James Robins, and R. Haywood, in the 
 lifetime of the said R. Haywood, as the said James Robins since the 
 death of the said R. Haywood, have altogether neglected and refused
 
 SECT. II.] SADLER V. ROBINS. 755 
 
 SO to ck), nor did the said James Robins, and R. Haywood, in the life- 
 time of the said R. Haywood, on or before the said first day of January, 
 1806, show to the satisfaction of the said George Howell, or any other 
 master of the said court, that they or either of them had paid on 
 account of the said testator's estate any sura or sums of money what- 
 soever : Breach, for non-payment of the said sum of £3,670 Is. 9|o?. 
 current money, with interest due thereon, as mentioned in the decree. 
 Plea, the gejieral issue. 
 
 The Attorney General having opened the plaintiff's case, 
 Lord Ellenborodgh expressed himself of opinion that the action 
 was not maintainable ; as it did not appear what sum was actually due 
 to the plaintiff according to the terras of the decree. 
 
 The Attorney General contended that it lay upon the defendant to 
 reduce the sum below that awarded to be paid on the first of January, 
 1806, and that if he took no steps for this purpose, the whole sum of 
 £3,670 Is. 9ld. currency, became absolutely due on that day. It was 
 impossible for the plaintiff either to tax the costs of the defendants in 
 the suit, or to show what sums of money any of them has paid for 
 their testator ; and it was plain, from the words of the decree, that 
 before any deduction was to be made by the plaintiff, the acts of taxing 
 costs and proving payments were to be done by the opposite party. 
 
 Lord Ellenborough. " Deducting thereout the full costs of the 
 said defendants " is the same as " the full costs of the said defendants 
 first being deducted thereout ; "' and if the defendants did not appear 
 to tax their costs, the plaintiff might have proceeded ex parte. _At_ 
 present, the sum due on the decree is quite indefi nite. The operations | 
 Ito^ascertain it sliould ha"ve takeii~place in tTIel^rt of Chancery in j 
 Jamaica, and cannot be gone through here at insi prius. Had the 
 decree been perfected, I would have given effect to it, as well as to a 
 judsment at common law. The one may be the consideration for an 
 assumpsit equally with the other. ^ But the law implies a promise to 
 pay a definite, not an indefinite sum. 
 
 The Attorney General then urged strenuously, that the objection was 
 upon the record, and that if it was well founded, judgment might be 
 arrested. 
 
 Lord Ellenborough. If there is evidently no consideration to raise 
 a promise, so that the action cannot be supported, why should the 
 defendant be put to move in arrest of judgment? The plaintiff ought 
 not to have brought his action here, while the decree was in an incom- 
 plete state. The case we had at the sittings after last term, Buchanan 
 r. Rucker, 1 Camp. 63, shows with what facility these decrees and judg- 
 ments in the West India islands are obtained ; and they ought to be 
 examined with some strictness before they are put in force in this 
 country. In many other cases, when it is clear the action will not lie ; 
 although the objection appears on the record, and might be taken 
 1 Ace. Henderson v. Henderson, 6 Q. B. 288 ; Pennington v. Gibson, 16 How. 65 ; 
 Meyer v. Brooks, 29 Or. 203. — Ed.
 
 756 CHKISTMAS V. RUSSELL. [CHAP. XV. 
 
 advantage of by motion in arrest of judgment, or by writ of error, 
 judges are in tbe liabit of directing a nonsuit. 
 
 Tlie plaintiff was tlien called. 
 
 The Attorney General in the following term obtained a rule to show 
 cause why this nonsuit should not be set aside ; but cause being shown, 
 the judges were unanimously of opinion that it ought to stand. 
 
 Lord Ellenbokough. There appears to be due to the plaintiff upon 
 the decree a sum of money — x. Till the sum to be deducted is ascer- 
 tained, it is impossible to say how much is reall\- due. The plaintiff 
 ought to have taxed the costs ex parte. There is no court where this 
 proceeding is not allowed. At present no one can predicate how much 
 the defendant is decreed to pa}-. The decree is_th&i:£Jhj:ejj2ip£rfeci./and 
 ^cannot be the foundation of a n_assu Tnpsit. As to the payments on 
 account of the testator's estate, none being proved, it might be pre- 
 sumed that there were none ; but there had certainly been costs ex- 
 pended in the suit, and until they are deducted according to the terms 
 of the decree, an action cannot be maintained upon it. 
 
 Grose, J. The plaintiff shows what sum is not due to him, not 
 what sum is due. 
 
 Le Blanc, J. It is clear that the plaintiff is not entitled to the 
 whole sum mentioned in the decree ; and it was competent to him to 
 have had the costs taxed at something however small. 
 
 Bayley, J. Of the same opinion. 
 
 Hule discharged} 
 
 CHRISTMAS V. RUSSELL. 
 
 Supreme Court of the United Statp:s. 1867. 
 
 [Reported 5 Wallace, 290.] 
 
 Clifford, J. Wilson, on the eleventh day of November, 1857, re- 
 covered judgment in one of the count}- courts in the State of Kentucky, 
 against the plaintiff in error, for the sum of five thousand six hundred 
 and thirty-four dollars and thirteen cents, which, on the thirty-first day 
 of ]\Iarch, 1859, was affirmed in the Court of Appeals. Present record 
 shows that the action in that case was assumpsit, and tliat it was 
 founded upon a certain promissory note, signed by the defendant in 
 that suit, and dated at Vicksburg, in the State of Mississippi, on the 
 tenth da}' of March, 1840, and that it was payable at the Merchants' 
 Bank, in New Orleans, and was duly indorsed to the plaintiff by the 
 payee. Process was duly served upon the defendant, and he appeared 
 in the case and pleaded to the declaration. Several defences were set 
 up, but they were all finally overruled, and the verdict and judgment 
 were for the plaintiff. 
 
 1 Ace. Wliitaker v. Bramson, 2 Paine, 209. So of .in alternative judgment for a 
 return or tlie payment of money. Thorner v. Batory, 41 Md. 593. — Ed.
 
 SECT. II.] CHRISTMAS V. RUSSELL. 757 
 
 On the fourth day of June, 1854, the prevailing party in that suit 
 instituted the present suit in the court below, which was an action of 
 debt on that judgment, as appears bj- the transcript. Defendant was 
 duly served with process, and appeared and filed six pleas in answer 
 to the action. Reference, however, need only be particularly made to 
 the second and fourth, as they embody the material questions pre- 
 sented for decision. Substance and effect of the second plea were 
 that the note, at the commencement of the suit in Kentuck}', was 
 barred by the statute of limitations of Mississippi, the defendant 
 having been a domiciled citizen of that State when the cause of action 
 accrued, and from that time to the commencement of the suit. 
 
 Fourth plea alleges that the judgment mentioned in the declaration 
 was procured hy the fraud of the plaintiff in that suit. Plaintiff de- 
 murred to these pleas, as well as to the fifth and sixth, and the court 
 sustained the demurrers.^ . . . 
 
 4. Cases may be found in which it is held that the judgment of a 
 State court, when introduced as evidence in the tribunals of another 
 State, are to be regarded in all respects as domestic judgments. On 
 the other hand, another class of cases might be cited in which it is held 
 that such judgments in the courts of another State are foreign judg- 
 ments, and that as such the judgment is open to every inquiry to which 
 other foreign judgments may be subjected under th6 rules of the com- 
 mon law. Neither class of these decisions is quite correct. The}' cer- 
 tainly are not foreign judgments under the Constitution and laws of 
 Congress in any proper sense, because they " shall have such faith and 
 credit given to them in every other court within the United States as 
 they have b}' law or usage in the courts of the State from whence " 
 they were taken, nor are they domestic judgments in every sense, be- 
 cause they are not the proper foundation of final process, except in 
 the State where they were rendered. Besides, they are open to inquir}' 
 as to the jurisdiction of the court and notice to the defendant ; but in 
 all other respects they have the same faith and credit as domestic judg- 
 ments. D'Arcy v. Ketchum et al., 11 How. 165 ; Webster v. Reid, 11 
 How. 437. 
 
 Subject to those qualifications, the judgment of a State court is con- 
 clusive in the courts of all the other States wherever the same matter 
 is brought in controversy. Established rule is, that so long as tlie 
 judgment remains in force it is of itself conclusive of the right of the 
 plaintiff to the thing adjudged in his favor, and gives him a right to 
 process, mesne or final, as the case may be, to execute the judgment. 
 Voorhees v. United States Bank, 10 Pet. 449 ; Huff t'. Hutchingson, 14 
 How. 588. 
 
 5. Exactly the same point was decided in the case of Benton v. 
 Burgot (10 Sergeant & Rawle, 240) which, in all respects, was sub- 
 stantially like the present case. The action was debt on judgment 
 
 1 Only so much of the opinion as discusses the demurrer to the fourth plea is given. 
 — Ed.
 
 758 CHEISTMAS V. RUSSELL. [CHAP. XV. 
 
 rt'coveied in a court of another State, and the defendant appeared 
 and pleaded nil debet, and that the judgment was obtained by fraud, 
 imposition, and mistake, and without consideration. Plaintiff demurred 
 to those pleas, and the court of original jurisdiction gave judgment for 
 the defendant. Whereupon the plaintiff brought error, and the Su- 
 preme Court of the State, after full argument, reversed the judgment 
 and directed judgment for the plaintiff. Domestic judgments, say the 
 Supreme Court of Maine, even if fraudulently obtained, must never- 
 theless be considered as conclusive until reversed or set aside. Granger 
 V. Clark, 22 Me. 130. Settled rule, also, in the Supreme Court of 
 Ohio, is that the judgment of another State, rendered in a case in which 
 the court had jurisdiction, has all the force in that State of a do- 
 mestic judgment, and that the plea of fraud is not available as an 
 answer to an action on the judgment. Express decision of the 
 court is, that such a judgment can only be impeached by a direct pro- 
 ceeding in chancery. Anderson v. Anderson, 8 Ohio, 108. 
 
 Similar decisions have been made in the Supreme Court of Massa- 
 chusetts, and it is there held that a party to a judgment cannot be per- 
 mitted in equity, any more than at law, collaterally to impeach it on 
 the ground of mistake or fraud, when it is offered in evidence against 
 him in support of the title which was in issue in the cause in which it 
 was recovered. B. & W. Railroad v. Sparhawk, 1 Allen, 448 ; Homer 
 V. Fish, 1 Pick. 435. Whole current of decisions upon the sul)ject in 
 that State seems to recognize the principle that when a cause of action 
 has been instituted in a proper forum, where all matters of defence 
 •were open to the party sued, the judgment is conclusive until re- 
 versed b\' a superior court having jurisdiction of the cause, or until 
 the same is set aside by a direct proceeding in chancery. McRae 
 V. Mattoon, 13 Pick. 57. State judgments, in courts of competent 
 jurisdiction, are also held by the Su[)reme Court of Vermont to be con- 
 clusive as between the parties until the same are reversed or in some 
 manner set aside and annulled. Strangers, say the court, may show 
 that they were collusive or fraudulent ; but they bind i)artics and 
 privies. Atkinsons t'. Allen, 12 Vt. 624. 
 
 Redfield, Ch. J., said in the case of Hammond v. Wilder, 23 Vt. 
 346, that there was no case in which the judgment of a court of record 
 of general jurisdiction had been held void, unless for a defect of juris- 
 diction. Less uniformity exists in the reported decisions upon the sub- 
 ject in the courts of New York, but all those of recent date are to 
 the same effect. Take, for example, the case of Embury v. Conner, 
 3 Coms. 522, and it is clear that the same doctrine is acknowledged 
 and enforced. Indeed the court, in effect, sa}' that the rule is unde- 
 niable that the judgment or decree of a court possessing competent 
 jurisdiction is final, not only as to the subject thereliy determined, but 
 as to every otlicr matter which the parties might have litigated in the 
 cause, and which they might have iiad decided. Dobson v. Pearce, 
 2 Kern. 165. Same rule prevails in the courts of New Hampshire,
 
 SECT. II.] BULLOCK V. BULLOCK. 759 
 
 Rhode Island, and Connecticut, and in most of the other States. Hol- 
 lister V. Abbott, 11 Fost. 448; Rathbone r. Terry, 1 R. I. 77; Topp 
 V. The Bank, 2 Swan, 188 ; Wall v. Wall, 28 Miss. 413. 
 
 For these reasons our conclusion is, that the fourth plea of the de- 
 fendant is bad upon general demurrer, and that there is no error in 
 the record. The judgment of the Circuit Court is therefore, 
 
 Affirmed with costs. 
 
 BULLOCK V. BULLOCK. 
 
 Court of Errors and Appeals, New Jersey. 1894. 
 
 [Reported 52 New Jeisey Equity, 561.] 
 
 Magie, J.^ The appellant in this cause was the complainant below. 
 Her bill of complaint stated the following facts, viz., that she had 
 commenced an action in the Supreme Court of the State of New York, 
 which court had "jurisdiction in the case," against respondent, her 
 former husband, for the purpose of dissolving the marriage previously 
 entered into by them ; that respondent was personally served with pro- 
 cess and duly appeared in said action ; that such proceedings were had 
 thereon that a judgment was rendered in her favor, whereby it was ad- 
 judged that said marriage sliould be dissolved ; that respondent should 
 pay to her, as alimony, $100 on the first day of each month, commencing 
 June 1, 1892. and should execute a mortgage as security for such pay- 
 ments, upon lands in the State of New Jersey, of such form and con- 
 taining such provisions as the court should subsequently direct and 
 approve ; that said court, b}' a subsequent order, directed respondent 
 to execute, acknowledge, and deliver to appellant a mortgage of a 
 specified form and containing specified provisions, upon lands in this 
 
 * Part of this opinion and part of the dissenting opinion, in which is discussed 
 the jurisdiction of the New York court, are omitted. — Ed.
 
 760 BULLOCK V. BULLOCK. [cHAP. XV. 
 
 State which were particularly described in the order ; that respondent 
 had failed and refused to execute and deliver the mortgage as directed, 
 and made various mortgages and conveyances of said lands without 
 consideration and with the fraudulent purpose of defeating appellant's 
 
 rights. 
 
 It was charged in the bill that appellant, by virtue of the decree and 
 order of the New York court, acquired an equitable lien on said lands 
 prior to the lien and interest of the mortgagees and grantees of re- 
 spondent, and an equitable right to a mortgage on said lands in accord- 
 ance with the decree and order. 
 
 Upon these statements and charges the prayers of the bill were for 
 answer and discovery, for a decree setting aside the mortgages and 
 conveyances of respondent, and that he be " decreed, pursuant to the 
 said decree and order of the New York Supreme Court, to execute and 
 deliver " to her " the mortgage on said premises therein directed to be 
 made and delivered, according to the form therein provided." There 
 was a general prayer for relief. 
 
 Respondent moved the Court of Chancery to dismiss the bill pursuant 
 to the practice established by rule 215 of that court, upon the ground 
 that the bill exhibited no equity entitling appellant to the relief she 
 prayed for. The notice of the motion specifically set forth the grounds 
 of objection. 
 
 The motion was heard by Vice-Chancellor Bird, and upon his advice 
 a decree was made dismissing the bill. The opinion of the vice-chancel- 
 lor is reported in 6 Dick. Ch. Rep. 444. From this decree appellant 
 has prosecuted the appeal which is now to be decided. . . . 
 
 In my judgment it does not admit of doubt that the jurisdiction of 
 the Supreme Court of New York, if properly averred in the bill, was a 
 jurisdiction to make a decree as to alimony and its being secured by 
 mortgage on lands in New Jersey only in personam, and to enforce it 
 by any process against respondent which is proper in that State. Nor 
 was the decree which was pronounced by that court capable of any 
 other construction than one which shows it to have been within such 
 conceded jurisdiction. 
 
 From these considerations I deem it evident that the theory of this 
 bill that, by virtue of the decree and order of the Supreme Court of New 
 York, appellant acquired an equitable lien on lands in New Jersey and 
 a right to have such lands disposed in a certain manner, cannot be 
 sustained without a disastrous violation of fundamental principles. 
 The decree and order of that court does not pretend to have any 
 such purpose or effect, nor could that court be empowered to make 
 a decree having such an effect. 
 
 But it is ingeniously contended in this court that the decree and 
 order of the Supreme Court of New York imposed upon respondent a 
 personal obligation to do what thfl,t decree and order had directed him 
 to do, and tiiat a court of equity in New Jersey ought to compel him 
 to perform that obligation as it would compel him to perform his con-
 
 SECT. II.J 
 
 BULLOCK V. BULLOCK. 
 
 761 
 
 tract to convey or mortgage lands in its jurisdiction. Moreover^it is 
 contended that the provisions of section 1 of article 4 o f tlie Constitu- 
 tion of the United States, requiring full faith and credit to be given in 
 each State to the records and judicial proceedings of every other State 
 impart to this decree and order a conclusive force with respect to the 
 mortgage directed to be given on lands here, which compels our courts 
 to enforce it by degrees in conformity therewith. 
 
 Doubtless the judgment of the New York court must be accorded in 
 our courts a conclusive effect in certain respects. Thus it has con- 
 clusively determined the status of the parties to that action, and that 
 the marital relation previously existing between them has been abso- 
 lutely dissolved. If, by the direction to pay alimony an indebtedness 
 arises from time to tune as such pa^-raents become due, an action at 
 law would lie thereon, and the decree would furnish conclusive evidence 
 of such indebtedness. 
 
 But the question, upon the solution of which this case must turn, is 
 whether the courts of New Jersey must give conclusive effect to the 
 decree or judgment of the courts of New York made in a case where 
 the}- had acquired jurisdiction of the parties but affecting lands situated 
 here, and disposing of the title thereto in whole or in part. If this 
 question is to be answered in the affirmative, it seems evident that we 
 accord jurisdiction over lands in New Jersey to the courts of other 
 States, and, as was said b}- Chancellor Zabriskie, in Davis v. Headley, 
 22 N. J. Eq. 115, " leave to the courts of this State only the ministerial 
 dut}' of executing their decrees." For the doctrine that jurisdiction re- 
 specting lands in a foreign State is not in rem but onl}- in personam is 
 bereft of all practical force if the decree in personam, is conclusive and 
 must be enforced b}- the courts of the situs. 
 
 If such is the effect which must be given to the judgments and de- 
 crees of the courts of a sister State respecting lands situated here, it is 
 extraordinary that no trace of the doctrine can be found in text-books or 
 in adjudicated decisions. My researches have not disclosed any sup- 
 port of the doctrine by any text-writer of repute or by any decision in 
 point. The verj' industrious counsel who maintained this view in argu- 
 ment has produced no authority which, in my judgment, sustains his 
 position. . . . 
 
 The contention that such an order requiring lands in New Jersey to 
 be charged with alimony created a personal obligation on respondent 
 is, in my judgment, without force. It is a mis n gf ; of t<^r m s t '^ Cf41-4lif> 
 bui-den_tb ereby imposed on respondent a personal ol^licrnfiop At the 
 most, the decree and order imposed a duty on him, which duty he owed 
 to the court making them. That court can enforce the duty by its pro- 
 cess, but our courts cannot be required to issue such process or to 
 make our decrees operate as process. Moreover, the substantial part 
 of the decree is comprised in the dissolution of the marriage and the 
 direction to pay alimony. The charge of the alimony upon lands is 
 rather in the nature of process to enforce the substantial decretal order 
 for alimonv. 
 
 1
 
 762 BULLOCK V. BULLOCK. [CHAP. XY. 
 
 The establishment of the contrary doctri no would result in practically 
 depriving a State of that exclusive control over immovable property 
 therein which has always beei. '^ccoraed '^ov example, by our statutes, 
 contracts respecting lands, to be enioiccable, must be entered into and 
 evidenced in a particular mode, but our courts, upon equitable grounds, 
 sometimes enforce contracts that are without the statute. It is the 
 province of our legislature to prescribe the rule for such contracts and 
 for our courts to construe the rule so prescribed and to determine when 
 such contracts, whether within or without the statute, may be enforced. 
 It is true that the courts of another State, proceeding in personam to 
 enforce a contract for lauds in New Jerse}", would be bound to deter- 
 mine whether the contract was enforceable under our laws. But they 
 would construe those laws, and if their decree in jxirsonam may and 
 must be conclusive in our courts and compel a decree in conformity 
 therewith, it is obvious that the contract will be enforced according 
 to whatever construction the foreign court put upon our laws, and 
 not according to the construction of our own courts. Other examples 
 ■will occur to any one considering the subject. 
 
 For these reasons I shall vote to affirm the decree below. 
 
 Garrison, J. (concurring). 
 
 I concur in the result announced b}' Mr. Justice Magie, but not for 
 the reasons contained in the opinion just read, nor for those stated in 
 the conclusions of the learned equity judge who heard the cause in the 
 Court of Chancer3\ 
 
 The object of the complainant's bill is to execute, through the 
 medium of our Court of Chancery, an order made by the Supreme 
 Court of New York upon the defendant to secure his performance of 
 a decree rendered therein against him by mortgaging his lands in 
 New Jersey. The procedure in this State is justified under that 
 provision of the federal law that gives conclusive force in one State 
 to tlie records and judicial proceedings of another. The vice of this 
 deduction, in the case before us, is that it assumes that the order 
 made by the New York court to secure the performance by the de- 
 fendant of its decree against him is a '■'•judgment" of that State 
 within the meaning of the federal Constitution and the act of Con- 
 gress. 
 
 The transcendent force given by the federal law to the judicial pro- 
 ceedings of sister States is confined to such judicial determinations as 
 possess the quality o^ ji(df/ment\ it does not extend to proceedings 
 in the nature of execution or to orders merel}- ancillary to some special 
 form of relief. 
 
 In cases that proceed to judgment in common-law form, this dis- 
 tinction is well marked, but it is liable to be lost sight of in deci- 
 sions rendered in equity causes where judgment, in decretal form, is 
 often accompanied by special orders for particular forms of relief or 
 for the enforcement or securing of the execution of tlie decree pro- 
 nounced. The distinction, however, is always a substantial one that
 
 SECT. IL] bullock V. BULLOCK. 763 
 
 must not be overlooked Ifecause of the form in wliich the decretal order 
 may be framed. 
 
 That only \s judgment that is pronounced between the parties to the 
 action upon the matters submitted to the court for decision. Tujxidg — 
 menta-th+ts-i"en4ered, the federal law accorclsin_ cvery State the sam^ 
 conclusive forc^ possessed in the State whe re they are rendered. 
 After judgmentin a State court, aTPtliat follows for the par[)ose of 
 enal)rmg the successful party to reap the benefits of the determination 
 in his favor is execution or in aid of execution. No interpretation has 
 ever been placed upon the federal Constitution giving conclusive effect, 
 or, indeed, any effect at all to tlie executions of the judgments rendered 
 in sister States or to any order merely in aid thereof. Such orders 
 lack the quality oi judgment and must be differentiated from judg- 
 ments, even though embodied in the same decretal orders that pro- 
 nounce the judgment of the court. Tlicse decretal orders may be 
 defined to be decisions made touching some matter collateral to the issue 
 presented in the record or required to be passed upon in order to carry 
 into ex'ecution the judgment of the court. To these determinations 
 ancillary to execution, no extraterritorial force is given by the fede- 
 ral law. 
 
 That the order in the present case touching the defendant's land in 
 New Jersey is of this nature clearly appears in the case before us. 
 Upon this demurrer it is established that the New York suit was insti- 
 tuted for the sole purpose of dissolving the marriage of the complainant 
 with the defendant. Upon the record thus submitted the Supreme 
 Court of New York pronounced as its judgment that the marriage 
 should be dissolved with the incident of alimon}' to the complainant. 
 Here the sentence of the law upon the record ceases. The order of 
 the court then proceeds in these words: "And it is further adjudged 
 and decreed that the said defendant, within ten days after the entr}- of 
 this judgment and service thereof on the attorne}' for the defendant, 
 execute and deliver unto the plaintiff a mortgage covering the real 
 propert}- owned h\ the defendant and particularl\- located in the State 
 of New Jersey, which mortgage shall be of such form and contain such 
 provisions as shall be suflficient and requisite to secure unto the plain- 
 tiff the faithful performance of the provisions of this judgment and de- 
 cree on the part of the defendant as may be directed and approved by 
 this court." 
 ~ la jny opinion this order was ancillary to execution and did not pos- 
 
 ^^^^ J:lI L^^^^^^"^~^^ ^^-^i^^'^^^^i^lJ'^C^ ^^^"^ submi tte ^^ to the -coiirt 
 lor decision, which jvas whether the marriage betwee n the partie s 
 shouTd^be^dissolyetL-- For this reasoirT~think:T5e'~coraplainant's bill 
 was properly dismissed. 
 
 Van Syckel, J. (dissenting). 
 
 The Supreme Court of New York made a decree for divorce in favor 
 of the wife, and ordered that the husband pay SlOO per month alimony, 
 and that to secure it to the wife he should execute a mortgage on lands
 
 764 BULLOCK V. BULLOCK. [CHAP. XV. 
 
 which he owned in New Jersey. Personal service was made upon the 
 husband in the New York divorce suit, and the decree for divorce, in- 
 cluding the order to execute the mortgage, was obtained on the 1st 
 day 0° July, 1892. 
 
 On the 19th of November, 1892, on the application of the wife's at- 
 torney, an order was entered in the New York court specifying the 
 lands in New Jersey upon which the husband should execute the 
 mortgage. 
 ^»^Jliereupon the wife filed a bill in the Court of Chancer}' of this State 
 to compel the husband to execute the mortgage in accordance with the 
 New York judgment, and also to set aside conveyances of the property 
 in this State by the husband, which are alleged to be fraudulent^. . 
 
 It is undoubtedly true that the New York court had no power to 
 create a lien upon New Jersey lands, and it is also true that the New 
 Y'ork court could have acted upon the person of the husband while 
 within its jurisdiction and constrained him to execute such a writing as 
 would have been effective to pass the title to, or establish a lien on, 
 the New Jersey lands. The question, however, is not what the New 
 Y^ork court could have done, but what the courts of New Jersey, in dis- 
 charge of her constitutional obligations, should do iii aid of tiie wife 
 after rendition of the judgment in New York. 
 
 The New York court having jurisdiction of the person of the hus- 
 band and also of the subject-matter of the suit there, the judgment in 
 that State, as between the parties to that suit, was conclusive of the 
 right of the wife to have the husband execute a mortgage upon the New 
 Jersey lands, although it did not of its own force create a lien upon 
 the lands. As to the title to such lands, it had the effect of an ad- 
 mitted legal contract or obligation by the husband to convey and should 
 be enforced in equity here. 
 
 A judgment in New York that a party defendant ehall specifically 
 perform a written contract to convey lands in New Jersey would fur- 
 nish no better foundation for the interference of our court of equity 
 than the judgment relied upon in this case. In what respect they 
 differ in principle is not apparent. In either case obedience to the 
 mandate of the federal Constitution would give effect to the judgment 
 here. 
 
 In Elizabeth Savings Institution v. Gerber, 8 Stew. Eq. 153, this 
 court held that a judicial order in New York that the garnishee 
 owes a debt to the defendant in a judgment, such moneys being in the 
 custody of a court of equity, creates per se a right to apply to such 
 court for such moneys in the same waj' as an assignment of such 
 moneys to the plaintiff in the judgment would have passed such right. 
 Such a decree in the New York court settled the plaintiffs right to the 
 fund, and that right was an equitable one, which was enforced in this 
 State. 
 
 The decree or judgment in New York has the effect of being not 
 vc\cv>Ay prijna facie evidence, but conclusive proof of the rights thereby
 
 SECT. II.] BULLOCK V. BULLOCK. 765 
 
 adjudicated, and a refusal to give it the force and effect in this respect 
 which it had in the State in which it was rendered denies a right se- 
 cured by fundamental law. 
 
 The force and effect of the decree for alimony in Xew York was not 
 to create a lien upon lands in New Jersey, but to conclusively entitle 
 the wife to have that decree enforced against the husband. 
 
 It being competent for our courts to enforce such a decree made in 
 our own courts by establishing it as a lien on lands, we cannot refuse 
 like relief in this case on the extraterritorial judgment. Huntington v. 
 Attrill, 146 U. S. 657; McEllmoyle v. Cohen, 13 Pet. 312. 
 
 In Cheever v. Wilson, 9 Wall. 108, 121, there was an order of the 
 divorce court in Indiana directing the wife to pay one-third of her rents 
 as they became due to her husband. The land was in. Washington, 
 where suit was brought to enforce payment of the rents to the husband. 
 The court said that the decree in Indiana, so far as it related to the 
 real property in question, could have no extraterritorial effect ; but if 
 valid, it bound these who were parties in the case, and could have 
 been enforced in the situs rei b}' proper proceedings for that purpose. 
 
 The judgment in New York must be regarded as conclusively im- 
 posing a legal personal obligation or duty upon the husband to mort- 
 gage his lands in New Jerse}-. 
 
 The New York judgment is conclusive between the parties to it — 
 
 First. As to the right to a divorce. 
 
 Seco7id. As to the right of the wife to the alimony allowed. 
 
 Third. It is equally conclusive, as against the husband, as to her 
 right to have such alimony secured b}- a mortgage on his New Jersey 
 lands, that being expressly a part of the adjudication in New York. 
 
 The judgment imposed an obligation upon the husband from which 
 he cannot reUeve himself by removing from tiie jurisdiction in which it 
 was rendered ; that obligation follows him into this State. 
 
 The lien does not by mere force of the extraterritorial judgment 
 attach to lands in this State. To impress that lieu upon lands here 
 the intervention of our court of equity is necessar\-, just as it is neces- 
 sar}' to sue here upon a New York judgment before execution can 
 issue from our courts to obtain satisfaction of it. 
 
 The husband has had his day in court in New York, where all these 
 questions have been adjudicated against him, and our courts should 
 hold that he is thereby concluded. 
 
 The question in its true form is whether we will give full faith and 
 credit to the judgment of the New York court in so far as it finallj' ad- 
 judges the questions legally submitted to it, when it had jurisdiction 
 both of the subject-matter of the controversy and of the parties to it. 
 
 It seems to me that there can be but one answer to this question, and 
 that the court below erred in dismissing the complainant's bill.^ 
 
 1 Execution will not be issued on the judgment of another State of the Union 
 without suit upon the judgment. McElmoyle v. Cohen, 13 Pet. 312 ; Turley v. Dreyfus, 
 35 La. Ann. 510 ; Lamberton v. Grant, 94 Me. 508, 48 Atl. 127. — Ed.
 
 766 CROUDSON V. LEONARD. [CHAP. X"V. 
 
 SECTION III. 
 
 THE JUDGMENT AS RES JUDICATA. 
 
 CROUDSON V. LEONARD. 
 
 Supreme Court of the United States. 1808. 
 
 [Reported 4 Crancli, 43-1.] 
 
 Johnson, J. The action below was instituted on a policy of 
 insurance. 
 
 On behalf of the insurers, it was contended that the policy was for- 
 feited by committing a breach of blockade. It is not, and cannot be 
 made a question, that this is one of those acts which will exonerate 
 the underwriters from their liability. The only point below was rela- 
 tive to the evidence upon which the commission of the act may be 
 substantiated. A sentence of a British prize court in Barbadoes was 
 given in evidence, by which it appeared that the vessel was condemned 
 for attempting to commit a breach of blockade. It is the English 
 doctrine and the correct doctrine on the law of nations, thatfan at- 
 tempt to commit a breach of blockade is a violation of belligerent 
 rights, and authorizes capture. | This doctrine is not denied, but the 
 plaintiff contends that he did not commit such an attempt, and the 
 court below permitted evidence to go to the jury to disprove the fact 
 on which the condemnation professes to proceed. 
 
 On this point, I am of opinion that the court below erred. 
 I do not think it necessary to go through the mass of learning on 
 this subject, which has so often been brought to the notice of this 
 court, and particularly in the case of Fitzsimmons, argued at this term. 
 Nearly the whole of it will be found very well summed up in the 18th 
 chapter of Mr. Park's Treatise. The doctrine appears to me to rest 
 upon three very obvious considerations : the propriety of leaving the 
 coo"nizance of prize questions exclusively to courts of prize jurisdic- 
 tion — the very great inconvenience amounting nearly to an impossi- 
 bility of fully investigating such cases in a court of common law — 
 and the imi)ropriety of revising the decisions of the maritime courts 
 of other nations, whose jurisdiction is co-ordinate throughout the 
 world. 
 
 It is sometimes contended that this doctrine is novel, and that it 
 takes its origin in an incorrect extension of the principle in Hughes v. 
 Cornelius. I am induced to l)elieve that it is coeval with the species 
 of contract to whicli it is a[)plied. Policies of insurance arc known to 
 have been brought into England from a country that acknowledged the 
 civil law. This must have been the law of policies at the time when
 
 SECT. III.] CROUDSOX V. LEONARD, 767 
 
 they were considered as contracts proper for the admiralty jurisdiction, 
 and were submitted to the court of policies established in the reign of 
 Elizabeth. It is probable that, at the time when the common law 
 assumed to itself exclusive jurisdiction of the contract of insurance, 
 the rule was too much blended with the law of policies to have been 
 dispensed with, had it even been inconsistent with common law prin- 
 ciples. But, in fact, the common law had sufficient precedent for this 
 rule, in its own received principles relative to sentences of the civil 
 law courts of England. It ma}' be true that there are no cases upon 
 this subject prior to tliat of Hughes v. Cornelius, but this does not dis- 
 prove the existence of the doctrine. There can be little necessitj- for 
 reporting decisions upon questions that cannot be controverted. Since 
 the case of Hughes t;. Cornelius, the doctrine has frequentl}' been 
 brought to the notice of the courts of Great Britain in insurance cases, 
 but always with a view to contest its applicability to particular cases, 
 or to restrict the general doctrine by exceptions, but the existence 
 of the rule or its applicability to actions on policies is nowhere 
 controverted. 
 
 I am of opinion that the sentence of condemnation was conclusive 
 evidence of the commission of the offence for which the vessel was 
 condemned, and as that offence was one which vitiated the policy, the 
 defendants ought to have had a verdict. 
 
 Washington, J. The single question in this case is, whether the 
 sentence of the admiralty court at Barbadoes, condemning the brig 
 " Fame " and her cargo as prize, for an attempt to break the blockade of 
 Martinique, is conclusive evidence against the insured, to falsifj' his I 
 warrant}' of neutrality, notwithstanding the fact stated in the sentence 
 as the ground of condemnation is negatived by the jury? 
 
 This question has long been at rest in England. The established 
 law upon this subject in the courts of that country is, t hat the sentence r, 
 jof a foreign court of competent jurisd ictio n condemning the property /j« 
 upon the grou nd_ttiaLlt- was not n &ttt]:alj. s so entirely conclusive of th e 
 fagt so dg cjdedT that it can never be cont ro verted, directly or collater- 
 all y, in any other court having concurrent jurisdict ion. 
 
 This doctrine seems to result from the application of a legal prin- 
 ciple which prevails in respect to domestic judgments, to the judgments 
 and sentences of foreign courts. 
 
 It is a well established rule in England, that the judgment, sentence, 
 or decree of a court of exclusive jurisdiction directly upon the point, 
 may be given in evidence as conclusive between the same parties, upon 
 the same matter coming incidentally in question in another court for a 
 different purpose. It is not only conclusive of the right which it estab- 
 lishes, but of the fact which it directly decides. 
 
 This rule, when applied to the sentences of courts of admiralty, 
 whether foreign or domestic, produces the doctrine which I am now 
 considering, upon the ground that all the world are parties in an admi- 
 ralty cause. The proceedings are in rem, but any person having an 
 
 1
 
 768 CROUDSON V. LEONARD. [CHAP. XY. 
 
 interest in the property may interpose a claim, or maj- prosecute 
 an appeal from the sentence. The insured is emphatically a party, 
 and in every instance has an opportunity to controvert the alleged 
 grounds of condemnation, by proving, if he can, the neutrality of the 
 property. The master is his immediate agent, and he is also bound to 
 act for the benefit of all concerned, so that, in this respect, he also rep- 
 resents the insurer. That irregularities have sometimes taken place, 
 to the Exclusion of a fair hearing of the parties, is not to be denied. 
 But this furnishes no good reason against the adoption of a general 
 rule. A spirit of comit}' has induced the courts of England to pre- 
 sume that foreign tribunals, whether of prize or municipal jurisdiction, 
 will act fairly, and will decide according to the laws which ought to 
 govern them ; and public convenience seems to require that a ques-l 
 tion which has once been fairly decided should not again oe litigated! 
 between the same parties, unless in a court of appellate jurisdiction. 
 
 The irregular and unjust decisions of the French courts of admiralty 
 of late 3-ears have induced even English judges to doubt of the wis- 
 dom of tlie above doctrine in relation to foreign sentences, but which 
 they have acknowledged to be too well established for English tribunals 
 to shake ; and the justice with which the same chai'ge is made b}- all 
 neutral nations against the English as well as against the French 
 courts of admiralty, during the same period, has led many American 
 jurists to question the validity of the doctrine in the courts of our own 
 countr}-. It is said to be a novel doctrine, lately S[)rung up, and acted 
 ni)on as a rule of decision in tlie English courts, since the period wiien 
 English decisions have lost the weight of authority in the courts of the 
 United States. It is this position which I shall now examine, ac- 
 knowledging that I do not hold myself bound by such decisions made 
 since the revolution, although, as evidence of what the law was prior 
 to that period, I road and respect them. 
 
 The authority of the case of Hughes v. Cornelius, the earliest we 
 meet with as to the conclusiveness of a foreign sentence, is admitted ; 
 but its application to a question arising under a warranty of neutrality 
 between the insurer and insured is denied. It is true that, in that 
 case, the only point expressly decided was,\that the sentence was con- 
 clusive as to the change of property effected b\' the condemnation.* 
 But it is obvious that the point decided in that case depended, not upon 
 some new principle peculiar to the sentences of foreign courts, but 
 upon the application of a general rule of law to such sentences. 
 
 Tiiis case, as far as it goes, places a foreign sentence upon the same 
 foundation as the sentence or decree of an English court acting upon 
 the same subject ; and we have seen that, by the general rule of law, 
 the latter, if conclusive at all, is so as to the fact directly decided, 
 as well as to the ciiange of property produced by the establishment 
 of the fact. Hence it would seem to follow, that if the. sentence 
 of a foreign court of admiralty be conclusive as to the property, 
 it is equally conclusive of the matter or fact directly decided. "What
 
 SECT. III.] CROUDSON V. LEONARD. 769 
 
 is the matter decided in tlie case under consideration ? 1 Tliat the 
 vessel was seized wliilst attempting to brealv a blocliade, in conse- 
 quence of whicli she lost her neutral character ; and the change of 
 property produced b}' the sentence of condemnation is a consequence 
 of the matter decided, that she was, in effect, enemy-propert3-.\ Can 
 the parties to that sentence be bound by so much of it as works a loss 
 of the property, because it was declared to be enemy-pi-opert}-, and 
 yet be left free to litigate anew in some other form, the ver}- point de- 
 cided from which this consequence flowed? Or upon what just prin- 
 ciple, let me ask, shall a party to a suit, who has once been hoard, and 
 whose rights have been decided by a competent tribunal, be permitted 
 in another court of concurrent jurisdiction, and in a different form of 
 action, to litigate the same question, and to take another cliance for 
 obtaining a different result? I confess I am strongly inclined to think 
 that the case of Hughes v. Cornelius laid a strong foundation for the 
 doctrine which was built upon it, and which for many 3-ears past has 
 been established law in England. This opinion is given with the more 
 confidence, when I find it sanctioned by the positive declarations of 
 distin^ushed law characters — men who are, of all others, the best 
 able to testifj' respecting the course of decisions upon the doctrine I 
 am examining, and the source from which it sprung. 
 
 In the case of Lothian v. Henderson, 3 Bos. & Pull. 499, Chambre, 
 J., speaking upon this point, sa3's that the sentence of the French 
 court was in that case conclusive agaiuSt the claim of the assured, 
 " agreeable to all the decisions upon the subject, beginning witli the 
 case of Hughes v. Cornelius (confirmed as that was by the opinion of 
 Lord Holt in two subsequent cases), and pursuing them down to the 
 present period. It is true," he observes, "that in Hughes v. Cornelius, 
 the question upon the foreign sentence arose in an action of trover, and 
 not in an action on a policy of assurance, where the non-compliance 
 with a warranty of neutralit}- is in dispute. But from that period to 
 the present, the doctrine there laid down respecting foreign sen- 
 tences has been considered equally applicable to questions of warranty 
 in actions on policies, as to questions of property in actions of trover." 
 Le Blanc, J., sajs, •' that these sentences are admissible and conclu- 
 sive evidence of the fact the}- decide, it seems not safe now to ques- 
 tion : From the time of Car. II. to this day, they have been received 
 as such, without being questioned. In the discussion of the nature 
 of such evidence before this house in 1776, it seems not to have been 
 controverted ; and the cases, I may say, are numberless, and the 
 property immense, which have been determined on the conclusiveness 
 of such evidence, in man}" of which cases the forms in which they came 
 before the courts in "Westminster Hall were such as to have enabled 
 the parties, if any doubt had been entertained, to have brought the 
 question before a higher tribunal." Lawrence, J., also speaking of 
 the legal effect of a foreign sentence upon this point, says, " as to
 
 770 CUOL-DSON V. Li:ONARD. [CHAP. XV. 
 
 which, after the continued practice which has taken place from the 
 earliest period, in whicli, in actions on policies of insurance, questions 
 have arisen on warranties, to admit such sentences in evidence, not 
 onl}' as conclusive in rem, but also as conclusive of the several matters 
 they purport to decide directl}'^, I apprehend it is now too late to exam- 
 ine the practice of admitting them to the extent to which the\' have 
 been received, supposing that practice might, upon the argument, have 
 appeared to have been doubtful at first." Rooke, J., Lord Eldon, and 
 Lord Alvanley, all concur in giving the same testimony, that the doc- 
 trine under consideration had been established for a long period of 
 3'ears, by a long series of adjudication in the courts of Westminster 
 Hall. 
 
 I cite this case for no other purpose but to prove by the most repect- 
 able testimony, that tlie case of Hughes v. Cornelius, decided in the 
 reign of Car. II., had, bj- a uniform course of decisions from that time, 
 been considered as warranting the rule now so firml}' established in 
 England. And when the inquiry is, whether the application of the 
 principle laid down in that case to questions arising on warranties in 
 actions on policies, be of ancient or modern date, I think I may safely 
 rely upon the declarations of the English judges, when they concur in 
 the evidence the}- give respecting the fact. It is true that no case was 
 cited at the bar recognizing the application of the rule to questions 
 between the insurer and insured, prior to the revolution, except that 
 of Fernandez v. Da Costa, which I admit was a Nisi Prius decision. 
 But were I convinced that the long series of decisions upon this point, 
 from the time of Hughes v. Cornelius, spoken of by the judges in the 
 case of Lothian v. Henderson, had been made at Nisi Prius, it would 
 not, in my mind, weaken the authority of the doctrine. It would prove 
 the sense of all the judges of England, as well as of the bar, of the 
 correctness and legal validity of the rule. It is not to be supposed 
 that if a doubt had existed respecting the law of those decisions, the 
 point would not liave been reserved for a more deliberate examination, 
 before some of the courts of Westminster Hall. But the case of Fer- 
 nandez V. Da Costa receives additional weight, when it is recollected 
 that the judge who decided it was Lord Mansfield, and when upon ex- 
 amining it, we find no intimation from him that there was any novelty 
 al tliat day in the doctrine. To this strong evidence of the antiquity 
 of the rule, may be added that of Judge Buller, who, at the time he 
 wrote his Nisi Prius, considered it as then established. 
 
 That the doctrine was considered as perfectly fixed in the year 1781, 
 is plainl}' to be inferred, from the case of Bernardi r. Motteux. decided 
 in tliat year. Lord Mansfield speaks of it as he would of any other 
 well esta])lished principle of law, declaring in general terms, that the 
 sentence, as to that which is within it, is conclusive against all persons, 
 and cannot be collateral!}' controverted in any other suit. The only 
 difficulty in that case was, to discover the real ground upon which the
 
 SECT. III.] CROUDSON V. LEONARD. 771 
 
 foreign sentence proceeded, and the court in that and many subsequent 
 cases laid down certain principles auxiliary to the rule, for the purpose 
 of ascertaining tne real import of the sentence in relation to the fact 
 decided as between the insurer and insured. For if the sentence 
 did not proceed upon the ground of the property not being neutral, it 
 of course concluded nothing against the insured ; since upon no other 
 ground could the sentence be said to falsify the warranty. 
 
 It was admitted by the counsel for the insured, that, as between him 
 and the insurer, the sentence is, j^rima facie evidence of a non-compli- 
 ance with the warranty. But if they are right in their arguments as 
 to the inconclusiveness of the sentence, I would ask for the authority 
 upon which the sentence can be considered as prima facie evidence. 
 Certainly no case was referred to, and I have not met with one to 
 warrant the position. If we look to general principles applicable to 
 domestic judgment, they are opposed to it. We have seen that the 
 judgment is conclusive between the same parties, upon the same matter 
 coming incidentally in question. The judgment of a^oreigji^cauLt^is 
 equally conclusive except in the single instance where the j^art}^- claim- 
 ing the benefit of it applies to the coillta of England to en/or ca^it^ iji 
 which case only, the judgment is prima facie evidence. But it is to be 
 remarked, that in such a case the judgment is no more conclusive as to 
 the right it establishes, than as to the fact it decides. Now it is ad- 
 mitted that the sentence of a foreign court of admiralty is conclusive 
 upon the right to the property in question ; upon what principle, tlien, 
 can \t hQ prima facie evidence, if not conclusive, upon the facts di- 
 rectly decided ? A domestic judgment is not even 2)rima facie evidence 
 between those not parties to it, or those claiming under them, and that 
 would clearly be the rule, and for a similar reason as to foreign judg- 
 ments. If between the same parties, the former is conclusive as to the 
 right and as to the facts decided. This principle, if applied at all to 
 foreign sentences, which it certainly is, is either applicable throughout, 
 upon the ground that the parties are the same, or if not so, tlien by 
 analogy to the rule applying to domestic judgments, the sentence can- 
 not be evidence at all. 
 
 Upon the whole, I am clearly of opinion, that the sentence of the 
 court of admiralty at Barbadoes, condemning the brig "Fame," and her 
 cargo as prize, on account of an attempt to break the blockade of Mar- 
 tinique, is conclusive evidence in this case against the insured, to falsify 
 his warranty of neutralit}'. 
 
 If the injustice of the belligerent powers, and of their courts should 
 render this rule oppressive to the citizens of neutral nations, I can only 
 say with the judges who decided the case of Hughes v. Cornelius, let 
 the government in its wisdom adopt the proper means to remedy the 
 mischief.
 
 772 OVERBY V. GORDON, fCHAP. XV. 
 
 OVERBY V. GORDON. 
 
 Supreme Court of the United States. 1900. 
 [Reported 177 United States, 214.] 
 
 The proceedings under review originated in the Supreme Court of 
 the District of Columbia, by the filing in that court, on January 23, 
 1896, of a petition on behalf of Mrs. Gordon, the appellee herein. The 
 object of the petition was to obtain the probate, as the last will and 
 testament of Hugli A. Haralson, of a paper purporting to have been 
 executed by Haralson, and to obtain a grant of letters of administra- 
 tion thereon, with the will annexed. It was averred that Haralson, at 
 the time of his death and for several years prior thereto, had been a 
 resident of the District of Columbia, and that he died on August 23, 
 189.3, in the county of De Kalb, State of Georgia, possessed of per- 
 sonal propert}- of the value of about ten thousand dollars, all of which, 
 except an insignificant part thereof, was at the time in the District of 
 Columbia. 
 
 At the trial the jurj' found that Haralson died domiciled in the 
 District of Columbia, and left personal estate there. 
 
 A caveat was filed by other next of kin of Haralson contesting the 
 validity of the alleged will and the domicil of the deceased in the Dis- 
 trict of Columbia. At the trial the caveators offered in evidence a cer- 
 tified transcript of record from the De Kalb Court of Ordinar}-, De Kalb 
 County, in the State of Georgia. This record showed the appointment 
 in May, 1896, of Logan Bleckley as administrator. 
 
 It is further recited in the bill of exceptions that the transcript 
 referred to was oflTered as tending to show that the decedent had died 
 a resident of De Kalb County, Georgia, intestate, "and that Mrs. 
 Gordon was therebv estopped to deny that fact." The trial court, 
 however, refused to admit the record in evidence, and an exception 
 was duly taken to such refusal. 
 
 An order was entered admitting the will to probate and record as 
 the last will and testament of the decedent, and letters of administra- 
 tion citm testameuto annexo were decreed to issue to Hugh H. Gordon, 
 a son of the petitioner. An appeal was thereupon taken by the cavea- 
 tors to the Court of Appeals of the District of Columbia. Tiiat court 
 affirmed the order of the lower court (Mr. Chief Justice Alvey dis- 
 senting), (13 App. D. C. 392,) and a writ of error was then sued out 
 from this court. ^ 
 
 Wuite, J. . , . Was the grant of letters of administration by the 
 
 * The statement of facts is abridged, and part of tlie opinion is omitted. — Ed.
 
 SECT. III.] OVERBY V. GORDON. 773 
 
 Court of Ordinar}' of De Kalb County. Georgia, competent evidence 
 upon the issue tried in the Supreme Court of the Disuict of Cohirabia 
 respecting the domicil of the decedent at the time of his death ? 
 
 In determining this question it is important to keep in mind the 
 following facts: — 
 
 At the time when the proceedings before the De Kalb court were 
 instituted (April, 1896), the estate of the deceased, with bat a trif- 
 ling exception, was within the District of Columbia. Not only this, 
 but upon the ground that the domicil of Haralson at his death was 
 the District of Columbia, the jurisdiction of a competent court of the 
 District had been invoked as early as January 23, 189G, for the pro- 
 bate of an alleged last will and testament of Haralson and for the 
 grant of letters of administration cum testamento annexo ; and on 
 March 6, 1896, the next of kin, other than the proponent of the alleged 
 will, had filed a caveat in said court of the District of Columbia con- 
 testing the application for. probate and grant of letters. Four days 
 before the certification of issues framed by reason of such contest, to 
 be tried before a jury, the caveators before the Supreme Court of the 
 District of Columbia initiated the proceedings before the De Kalb 
 County Court. It was upon the hearing had in the Supreme Court of 
 the District of Columbia upon the issues certified on April 10, 1896, 
 that the adjudication of the De Kalb County Court was otFered in 
 evidence upon the issue in respect to the domicil of the decedent at 
 his death. . . . 
 
 As said by this court in Veach v. Rice, 131 U. S. 298, courts of 
 ordinary in Georgia are courts of record, having exclusive and general 
 jui-isdiction over the estates of decedents, and no question has been 
 raised as to the observance of the requirements of the statutes o. 
 Georgia in the proceedings which culminated in the appointment -^f 
 the Georgia administrator. 
 
 The transcript referred to, however, undoubtedly only justifies th,; 
 inference that none other than the statutory notice by publication w^^ 
 given, and that no contest was had in respect to the grant of letters. 
 
 Jurisdiction is the right to hear and decide, and it must be exercised, 
 speaking in a broad sense, in one of two modes, — either i?i rem or m 
 pei'sonam. 
 
 It will be observed that the statutory notice above referred to was 
 not required to be directed against named individuals, nor had it for 
 its object the obtaining of specific relief against any one, but it was to 
 be general, and its purpose was to warn all persons that it was pro- 
 posed by the court of ordinary to determine whether a legal represent- 
 ative should be appointed to administer the property of the deceased 
 within the State of Georgia. The notice and proceeding was obviously 
 intended to have no greater force or efficacy against persons resident 
 in the State of Georgia than against individuals who might be resident 
 without the State. It results that the proceedings referred to were not 
 intended to constitute and did not amount to an action in personam.
 
 774 OVEKBY V. GORDON. [CHAP. XV. 
 
 This results from the fact that they were devoid of the elements es- 
 sential to an action in personam ; and, if not proceedings purely in 
 rem, the}' possessed so much of the characteristics thereof, as not to 
 warrant the allowance of greater efficacy than is accorded to a pro- 
 ceeding of that nature. 
 
 An essential characteristic, however, of a proceeding in rein is that 
 there must be a res or subject-matter upon which the court is to exer- 
 cise its jurisdiction. In cases purely in rem, as in admiralty and reve- 
 nue cases for the condemnation or forfeiture of specific property, a 
 preliminary seizure of the property is necessary to the power of the 
 court to adjudicate at all. In other cases, where the proceedings are 
 in form in 2)erso?ia7n, but the court is unable to acquire jurisdiction of 
 the person of the defendant, by actual or constructive service of pro- 
 cess, the action may proceed, as one in rem against the property of 
 which a preliminary seizure or its equivalent has been made ; or, juris- 
 diction may be exercised without such preliminary seizure, where the 
 relief sought is an adjudication respecting the title to or validity of 
 alleged liens upon real estate situate within the jurisdiction of the court. 
 Roller r. Holly, 176 U. S. 398. To the class of cases where the pro- 
 ceedings are in form in rem may be added those connected with the 
 grant of letters either testamentarj' or of administration. 
 
 From the record of the proceedings instituted in the De Kalb County 
 Court it is apparent that the ultimate purpose was to adjudicate up on 
 and decree distribution of the estate ot the deceased, the appointment 
 of an administrator being a mere preliminary step in the management 
 and control by the court of assets of the estate. The question of 
 domicil would seem to have been important onlj- as establishing the 
 particular court of ordinar}' which was vested with jurisdiction to ad- 
 minister the assets within the State of Georgia. The subject-matter 
 or res, upon which the power of the court was to be exercised, was, 
 therefore, the estate of the decedent. 
 
 The sovereignty of tlie State of Georgia and the jurisdiction of 
 its courts, however, did not extend to and embrace property not 
 situated within the territorial jurisdiction of the State. To quote the 
 language of Mr. Chief Justice Marshall in Rose v. Himely, 4 Cranch, 
 241. 277: — 
 
 " It is repugnant to ever}- idea of a proceeding in rem to act against 
 a tiling which is not in the power of the sovereign under whose au- 
 thority the court proceeds ; and no nation will admit that its property 
 should l)e a])solutely changed, while remaining in its own possession, 
 by a sentence which is entirely ex 2)ar(e." 
 
 As said also in Penno3'er v. Neff, 95 U. S. 714, 722 : — 
 
 "Except as restrained and limited by the Constitution, the several 
 States of tlie Union possess and exercise the authority of inde|)cndent 
 States, and two well established principles of pul)lic law respecting the 
 jurisdiction of an independent State over persons and propert}' are 
 applicable to them. One of these principles is, that every State pes-
 
 SECT. III.] OVERBY V, GORDON. 775 
 
 sesses exclusive jurisdiction and sovereignty over persons and property 
 "witliin its territor}-. . . . 
 
 " The other principle of public law referred to follows from the one 
 mentioned ; that is, that no State can exercise direct jurisdiction and 
 authority over persons or property without its territory. (Story, Confl. 
 Laws, c. 2 ; Wheat. Int. Law, pt. 2, c. 2.) Tiie several States are of 
 equal dignity and authority, and the independence of one implies the 
 exclusion of power from all others. And so it is laid down b}- jurists, 
 as an eleraentar}' principle, that the laws of one State have no opera- 
 tion outside of its territory, except so far as is allowed by comity ; and 
 that no tribunal established by it can extend its process beyond that 
 territory so as to subject either persons or property to its decisions. 
 'Any exertion of authority of this sort beyond this limit,' says Story, 
 'is a mere nullit}', and incapable of binding such persons or property 
 in any other tribunals.' Story, Confl. Laws, sect. 539." < 
 
 Now, it is undeniable that the sovereignt}- of the State of Georgia 
 and the jurisdiction of its courts at the time of the adjudication by tlie 
 De Kalb County Court, b}' the grant of letters of administration on 
 the estate of Haralson, did not extend to or embrace the assets of the 
 decedent situated within the territorial jurisdiction of the District of 
 Columbia, and, viewed as a step in a proceeding in rem relating to 
 property within the jurisdiction of the court, the adjudication of a grunt 
 of letters would have no binding probative force in contests respecting 
 propert}' lying outside of the territorial dominion of the State of Geor- 
 gia. The decisions in Robertson v. Pickrell, 109 U. S= 608, and in the 
 cases there relied upon, furnish illustrations of this principle. Thus, 
 in the case just named, it was held that the act of Congress declaring 
 the force and efficacy which the records and judicial proceedings of one 
 State should have in the courts of another State did not require that 
 they should have an}- greater force and effect in another State than in 
 the State where such records and judicial proceedings originated and 
 were had ; tliat the probate of a will in one State, by a proceeding 
 not adversary in character, merely established its sufficienc}' to pass all 
 property which could be transferred ni that State by a valid instrument 
 of that kind, and the validity of the will in that State ; and that such 
 probate did not conduce to establish the facts upon which the probate 
 proceeded, in proceedings respecting real property situated in another 
 State, except as permitted by the laws of such other State. J 
 
 The reasoning upon which we base the conclusion that the transcript 
 of record of the grant of letters b}- the De Kalb Count}- Court was not 
 entitled to probative force in the courts of another State in the contro- 
 vers}- over the administration of assets not within the territorial juris- 
 diction of the State of Georgia, at the time the grant of letters was 
 made, finds support in the opinion delivered by Lord Blackburn in 
 Concha v. Concha, 11 App. Cas. p. 541, a case referred to in terms of 
 approval in Thormann v. Frame, 176 U. S. 350, where was involved a 
 controversy in some of its features analogous to that presented in the 
 case at bar. The facts in the Concha case were as follows : —
 
 776 OVERBY V. GOKDON. [cHAP. XV 
 
 After contest between a daughter of a decedent and the executors 
 named in a document which purported to be a last will and testament, 
 the paper was admitted to probate by a judge of a probate court in 
 London, and he expressly decided, upon an issue framed in a contest 
 between the daughter and executors as to the domicil of the decedent, 
 in favor of tlie domicil being in England, and not in Chili, as was 
 claimed by the daughter. In a subsequent action before the Court of 
 Chancery for distribution of the assets, the daughter again sought to 
 litigate the question as to the domicil of her father, and her riglit to do 
 so was finally adjudicated by the House of Lords. The executors, or 
 those who had succeeded them in the management of the administra- 
 tion suit, attempted to avail of the decree of the probate court as con- 
 clusive upon the question of domicil, first, as a proceeding in ret)i, 
 which operated an estoppel against all the world ; and, second, as a 
 proceeding inter partes, operative as res adjudicata, by reason of the 
 actual contest made by the daughter. The decree of the probate court, 
 however, was held not conclusive in rem as to the domicil, because the 
 finding as to domicil was not necessary to the decree of the judge of 
 probate, nor conclusive inter ^pcw^es, as the pending controversy was 
 substantially between the daughter and the residuary legatee, and as 
 the latter could not be bound by an adjudication upon a question not 
 necessary to be litigated in the probate court, and as estoppels must be 
 mutual, the daughter could not be bound. This decision of the House 
 of Lords, it will be borne in mind, was as to the effect to be given in one 
 judicial tribunal in England to the decision of another court of tlie 
 same country. In the course of his opinion Lord Blackburn (who per- 
 haps had in mind doubts intimated in the Court of Appeals, 29 Ch. D. 
 268, 276, as to whether the findings on which a judgment in rem is 
 based, are in all cases conclusive against the world) said (p. 562) : — 
 
 "What he (the Probate Judge) did decide was (and to that extent 
 I think the decision was conclusive on everybody), that there was an 
 executor who was entitled to have probate in England for the purpose 
 of getting in and taking the property which was in England, and to 
 that he was entitled if there was a will which made that executor a 
 good executor according to the law of England ; but I do not think 
 that Sir Creswell Creswell had any power to say that the testator was 
 or was not reall}' a domiciled Englishman. If he had been a domiciled 
 American or domiciled in any other countrj', I do not think that a 
 decision of the judge of our probate court, saying, 'I find him to be a 
 domiciled Englishman, and, therefore, on that account grant probate,' 
 would be at all conclusive upon the court of another country to oblige 
 them to admit tiiat he was a domiciled Englishman, when in fact he 
 was not; or, puttir.g it the converse wa}', that if a Chilian court had 
 chosen to say that some very wealthy man was a domiciled Chilian, 
 and had therefore granted [)i'obate, the law of nations would require 
 that to conclude any person from saying in tliis country that he was 
 not so."
 
 SECT. III.] OVERBY V. GORDON. 777 
 
 Again, after referring to the fact that upon the executor proposing 
 to prove the will, a caveat was entered upon which it was said the 
 probate judge entered into an inquir}' whether or not the testator 
 was domiciled in England, and found that he was, Lord Blackburn 
 observed (p. 564) : — 
 
 " It is said that upon the caveat in the suit an order was drawn up, 
 which may perhaps not mean that, but which does look extremeh- as if 
 the registrar entered the judgment that the judge did find it. I cannot 
 think that if he had done that it would have bound everybody univer- 
 sally as being a judgment in rem. I have instanced a sort of illustra- 
 tion of it. Supposing he had done so, and supposing that he was 
 wrong, and the fact was that the testator had not been really domiciled 
 in England, but had been domiciled, say, in the United States, in jSew 
 York we will suppose, could it possibly have been said that the court 
 of New York (which undoubtedly would have the same general law of 
 nations as we have, following the law of the domicil to distribute th^ 
 property) would have respected the decision of the Judge Ordinary, it 
 establishing that this will was proved conclusively as being enough to 
 make this person executor and the representative in England to obtain 
 the English property — could it have been said that the Judge Ordinary 
 having erroneously found that the testator was domiciled in England 
 when in fact he was a domiciled citizen of the United States, it was to 
 conclude them and conclude everybody to the fact that he was a domi- 
 ciled Englishman until a foreigner had come to the court of this country 
 to obtain a/ reversal? 1 cannot think so. If that was so, how could 
 it as a matter in rem be decisive as regards the reason upon which 
 the judge of the probate court had gone ? 1 cannot think that it 
 would be." 
 
 In Blackburn v. Crawford's Lessee, 3 Wall. 175, and a continuation 
 'of the same action under the title of Kearney v. Denn (15 Wall. 51), 
 the sole question at issue in the action (ejectment) was the validity of 
 an asserted marriage. At the trial the defendant offered in evidence, 
 as a conclusive estoppel against all the lessors of the plaintiff and as 
 prima facie evidence to support the issue on his part, a transcript from 
 the records of the Orphans' Court of Prince George's County, Maryland, 
 and proposed to read therefrom the verdict of the jury and the order of 
 the Orphans' Court thereon on certain issues sent from the Orphans' 
 Court to the Circuit Court of said county. These issues had been 
 framed upon a contest, initiated in the Orphans' Court, by one of the 
 lessors of the plaintiff who resisted an application of Blackburn for 
 the grant to him of letters of administration on the estate of a certain 
 intestate, such lessor asserting that he was nearest of kin to the intes- 
 tate, and that letters should be granted to him. The verdict in the 
 contest was against the validity of the claimed marriage. On the trial 
 in the action in ejectment the jury found in favor of the fact of mar- 
 riage. This court — the trial judge in the action in ejectment having 
 excluded the transcript referred to — held that the decree upon the
 
 778 OVERBY V. GORDON. [CHAP. XV. 
 
 contest was competent evidence and operated an estoppel as against 
 ttie lessor of the plaintiff who was a party to the contest, but that the 
 adjudication did not affect the other lessors, who were not parties to 
 such contest. Obviously, the decision proceeded upon the assumption 
 that as the Orphans' Court possessed no general jurisdiction over the 
 real estate of a decedent, its action upon the application for grant of 
 letters, regarded as a proceeding in rem, possessed no pi-obative force 
 in contests over such property. This, of course, in nowise impugned 
 the principle that all parties to a contest, in proceedings in a probate 
 court preliminary to and during the course of administration upon the 
 estate of the decedent, upon a matter within the jurisdiction of the 
 court, are concluded in every other court by the decision rendered, as 
 to tlie facts upon which such decision necessaril}' proceeded. Caujolle 
 V. Ferrie, 13 Wall. 465. And see Butterfield v. Smith, 101 U. S. 
 570. 
 
 ( We are of the opinion that the De Kalb County Court possessed the 
 power to determine the question of domicil of the decedent for the pur- 
 pose of conclusive!}' adjudicating the validity within the State of Georgia 
 of a grant of letters of administration, but that it did not possess the 
 power to conclusively bind all the world as to the fact of domicil, by a 
 mere finding of such a fact in a proceeding in rem.\\.n other words, pro- 
 ceedings which were substantially ex parte cannotoe allowed to have 
 greater efficacy than would a solemn contest inter partes, which would 
 have estopped onl^^ actual parties to such a contest as to facts which 
 had been or might have been litigated in such contest. ^ 
 
 Our conclusion being that the adjudication of the fact of domicil in 
 Georgia made in the grant of letters by the De Kalb Count}' Court, 
 and which was not made in a contest inter partes, was of no probative 
 force upon the question of domicil in a contest in a court of the District 
 of Columbia in the course of proceedings for the administration of 
 assets within said District, it results that the Supreme Court of the 
 District did not err in excluding the transcript in question, whether 
 tendered as evidence conducing to establish or as conclusively fixing 
 the domicil of the deceased. And this conclusion is not affected in the 
 least by the circumstance that on the trial of the issue as to domicil 
 had in the Supreme Court of the District of Columbia it was claimed 
 that the assets within the District of Columbia at the time of the filing 
 of the caveat by the next of kin had been thereafter, without the sanc- 
 tion of the court, removed from the District of Columbia by one of the 
 caveators. The trial court properly declined to rule that delivery of 
 such assets operated to protect those who made the surrender, as 
 against an administrator appointed within the District, subsequent, it 
 is true, to such delivery, but as the result of proceedings for the 
 appointment of an administrator which were pending in a proper court 
 of the District at the time of the delivery, and when the person in 
 whose name the Georgia letters were issued was a party to the pro- 
 ceedings previously instituted and then pending in the District. Nor
 
 SECT. III.] OVERBY V. GOEDON. 779 
 
 was the trial court required to determine that upon proper application 
 to the Georgia court the administrator appointed by the court would 
 not be ordered to deliver up the assets removed by him from the 
 District. 
 
 Allusion has been made to an act of Congioss of February 28, 1887, 
 c. 281, 24 Stat. 431, which makes it lawful for an}- person or persons 
 to whom letters testamentary or of administration may be granted by 
 proper authority, in any of the United States or the Territories thereof, 
 to maintain any suit or action and to prosecute and recover any claim 
 in the District of Columbia, in the same manner as if the letters testa- 
 mentarj- or of administration had been granted to such person or per- 
 sons by the proper authority in the said District. We do not construe 
 that statute, however, as having any relation to a case of the kind we 
 are now considering. In other words, the statute cannot in reason be 
 interpreted as directing that where a proper court of the District of 
 Columbia had obtained jurisdiction by proceedings commenced before 
 it for administration upon propert}' within the District, it should be 
 obliged to dismiss such proceedings because one who was a party 
 before it chose, whilst issues in such proceedings were pending and 
 undecided, to go to a State and there make application for letters of 
 administration, basing such application upon the asserted fact that the 
 deceased had been domiciled in such State. 
 
 Whilst it may be conceded that, in consequence of the statute, as a 
 general rule, a debtor residing in the District of Columbia, of a deceased 
 person, may be protected in making payment to an administrator ap- 
 pointed in another jurisdiction, the asserted domicil of the deceased 
 (Wilkins v. Ellett, 108 U. S. 256), this does not make it necessarj^ for us 
 to decide that the payment or delivery of the assets in the District of 
 Columbia, which was made to the Georgia administrator after the com- 
 mencement of proceedings for the administration of the assets within 
 the District of Columbia, based upon the ground of the domicil of the 
 deceased having been in said District, was lawful. To determine this 
 question would involve a consideration of other provisions of tbie 
 statute, and as to whether the person making the imyment was or 
 not to be charged with notice of the then pending proceedings in the 
 Supreme Court of the District, which, of course, were matter of public 
 record. The question, however, is not before us for review, and we do 
 not, therefore, express an opinion in regard thereto. 
 
 Further, in the light of the decision of the Supreme Court of Georgia 
 in the case of Thomas v. Morrisett, 76 Ga. 384, and an analogous de- 
 cision by the Supreme Court of Errors of Connecticut, in Willett's 
 Appeal from Probate, 50 Conn. 330, it would seem altogether probable 
 that the De Kalb County Court, upon application made to it, will order 
 its appointee to surrender to the administrator appointed in the 
 District of Columbia the assets which were by tlie former removed 
 from the District during the pendency therein of the proceedings for 
 administration. 
 
 Affirm e
 
 780 CASTEIQUE V. IMRIE. [CHAP, XV. 
 
 SECTION IV. 
 
 THE EFFECT OF A JUDGMENT ON PROPERTT. 
 
 HUGHES V. CORNELIUS. 
 King's Bench. 1680. 
 
 [Reported 2 Shower, 232.] 
 
 Trover brought for a ship and goods, and on a special verdict there 
 is found a sentence in the Admiralty Court in France, which was with 
 the defendant. 
 
 And now^per Curktm agreed and adjudged, that as we are to take 
 notice of a sentence in the admiralty here, so ought we of those abroad 
 in other nations, and we must not set them at large again, for other- 
 wise the merchants would be in a pleasant condition ; for suppose a 
 decree here in the Exchequer, and the goods happen to be carried into 
 another nation, should the courts abroad unravel this? It is but agree- 
 able with the law of nations that we should take notice and approve of 
 the laws of their countries in such particulars. If you are aggrieved 
 you must apply yourself to the king and council ; it being a matter of 
 government he will recommend it to his liege ambassador if he see 
 cause; and if not remedied, he may grant letters of marque and 
 reprisal. 
 
 And this case was so resolved by all tlie Court upon solemn debate ; 
 this being of an English ship taken by the French, and as a Dutch ship 
 in time of war between the Dutch and the French, 
 
 Judgment for the defendants. 
 
 CASTRIQUE V. TIMRIE. 
 
 House of Lords. 1870. 
 
 \Re'ported Law Re}mrts, 4 House of Lords, 414.] 
 
 The ship "Ann Martin," of Liverpool, Benson, master, was supplied 
 with necessaries at Melbourne by Messrs. Levien & Stenetz. Benson 
 drew a bill in payment on Clans, then the owner, for the sum of £601 
 IGs. 6 J. Claus became bankrupt, and the bill was dishonored : the ves-
 
 SECT. IV.] CASTRIQUE V. IMUIE. 781 
 
 sel had meanwhile been transferred to Castrique, and the bill had been 
 indorsed to Messrs. Trotteaiix & Co., of Havre. The vessel being in 
 Havre, Messrs. Trotteaiix & Co. commenced in the Tribunal of Com- 
 merce there, a suit against Benson on the bill. Benson was cited and 
 appeared, but did not defend the suit. Judgment was given against 
 Benson as master "and by privilege on tiiat vessel " to pa}- the 
 amount. The ship was seized upon the judgment, but could not be 
 sold till the judgment was ratified by the Civil Tribunal of the same 
 district. That court confirmed the judgment, and, after hearing the 
 parties interested and receiving evidence of the law of England, refused 
 to modify its action. The Court of Appeal of Rouen affirmed the 
 action of the Civil Tribunal of Havre. A sale of the vessel was made 
 under order of court, and the defendant, an Englishman, became the 
 purchaser. Upon his bringing the vessel to England, Castrique 
 brought an action in the Court of Common Pleas to recover it, on the 
 ground that the sale in France was illegal and void as against his 
 earlier title. The Court of Common Pleas gave judgment for Cas- 
 trique ; this was reversed in the Court of Exchequer Chamber. The 
 case was then brought up to this House on error. The judges were 
 summoned.^ 
 
 Blackburn, J. My Lords, I have the honor to deliver the joint 
 opinion of my Brothers Bramwell, Mellor, Brett, Cleasby, and 
 myself.^ . . . 
 
 What were the nature and effect of the proceedings in France — 
 what jurisdiction the courts there had? and what the effect of their 
 determinations reall}^ was? are all questions depending on the French 
 law, and it must be ascertained as a fact what that French law is. 
 "When once that fact is ascertained, it becomes a question of English 
 law to determine what eff'ect is to be given to it in an English court. 
 
 In the present case the parties at the trial agreed upon a statement 
 of the facts, and gave the court authority to draw inferences from 
 them ; but, unfortunately, they have stated the facts as to the French 
 law very imperfectl}', and the result has been that the Court of Com- 
 mon picas has drawn one inference as to the French law, and the 
 Court of Exchequer Chamber has drawn another. It is very possible 
 that a French lawyer may justly say that neither is right ; it is quite 
 certain that both cannot be. It is now for your Lordships to deter- 
 mine what the proper inference is, and on that point we must express 
 our opinion. It is quite possible that the inference we draw may not 
 be the correct one, but we apprehend that all that can be required of a 
 tribunal adjudicating on a question of foreign law is to receive and con- 
 sider all the evidence as to it which is available, and bona fide to 
 determine on that, as well as it can, what the foreign law is. If from 
 the imperfect evidence produced before it, or its misapprehension of the 
 
 1 This statement of facts is condensed from that of the Reporter. — Ed. 
 
 2 Part of this advisory opinion is omitted. Keating, J., delivered an advisory opin- 
 ion concurring in result. — Ed.
 
 782 CASTKIQUE V. IMRIE. [CHAP. XV. 
 
 effect of that evidence, a mistake is made, it is much to be lamented, 
 but the tribunal is free from blame. 
 
 We think that some points are clear. When a tribunal, no matter 
 whether in England or a foreign country, has to determine between 
 two parties, and between them only, the decision of that tribunal, 
 though in general binding between the parties and privies, does not 
 affect the rights of third parties, and if in execution of the judgment 
 of such a tribunal process issues against the property of one of the 
 litigants, and some particular tiling is sold as being his property, there 
 is nothing to prevent any third person setting up his claim to that 
 thing, for the tribunal neither had jurisdiction to determine, nor did 
 determine, anything more than that the litigant's property should be 
 sold, and did not do more than sell the litigant's interest, if any, in 
 the thing. All proceedings in the courts of common law in England are 
 of this nature, and it is every day's experience that where tlie sheriff, 
 under Vi fieri facias against A., has sold a particular chattel, B. may set 
 up his claim to that chattel either against the sheriff or the purchaser 
 from the sheriff. And if this may be done in the courts of the country 
 in which the judgment was pronounced, it follows of course that it may- 
 be done in a foreign country. But when the tribunal has jurisdiction 
 to determine not merely on the rights of the parties, but also on the 
 disposition of the thing, and does in the exercise of that jurisdic- 
 tion direct that the thing, and not merely the interest of any particu- 
 lar party in it, be sold or transferred, the case is very different. 
 
 It IS not essential that there should be an actual adjudication on the 
 status of the thing. Our Courts of Admiralty, when property is 
 attached and in their hands, on a proper case being shown tliat it is 
 perishable, order that it shall be sold and the proceeds paid into court 
 to abide the event of the litigation. It is almost essential to justice 
 that such a power should exist in every case where property, at all 
 events perishable property, is detained. 
 
 In a recent case of Stringer r. English and Scottish Marine Insur- 
 ance Company, in the Queen's Bench, Law Rep. 4 Q. B. 676, it 
 appeared that the American Prize Court, pendente lite^ ordered a 
 valuable cargo, which was claimed as prize, to be sold, and that not 
 only without any adjudication that it was a prize, but although the 
 decision of tlie court below had been against the captors, and that 
 decision was ultimately affirmed on appeal. We apprehend that it is 
 clear that in all such cases courts sitting under the same authority 
 must recognize the title of the purcliaser as valid. In Story on the 
 Conflict of Laws, § 592, it is said that the principle that the judg- 
 ment is conclusive "is applied to all proceedings in rem as to mov- 
 able property within the jurisdiction of the court pronouncing the 
 judgment. Whatever it settles as to the right or title, or whatever 
 disposition it makes of the property by sale, revendication, transfer, 
 or other act. will be held valid in every other country where the ques- 
 tion comes directly or indirectly in judgment before any other foreign
 
 SECT. IV.] CASTEIQUE V. IMRIE. 783 
 
 tribunal. This is verj' familiarl}' known in the cases of proceedings 
 ill rem in foreign Courts of Admiralty, whether they be causes of prize 
 or bottomr}', or salvage or forfeiture, of which such courts have a 
 rightful jurisdiction founded in the actual or constructive possession of 
 the subject-matter." 
 
 We may observe that the words as to an action being in rein or 
 in personam^ and the common statement that tlie one is binding on 
 third persons and the other not, are apt to be used by English law3ers 
 without attaching any very definite meaning to those phrases. We 
 apprehend the true principle to be that indicated in the last few words 
 quoted from Story. We think the inquiry is, first, whether the subject- 
 matter was so situated as to be within the lawful control of the State 
 under the authority of which the court sits ; and, secondlj", whether 
 the sovereign authority of that State has conferred on the court juris- 
 diction to decide as to the disposition of the thing, and the court has 
 acted within its jurisdiction. If these conditions are fulfilled, the ad- 
 judication is conclusive against all the world. . . . 
 
 Lord Hatherley, Lord Chancellor.^ The question which really 
 arises before us is this, whether or not the judgment of the French 
 court, and the consequent sale had in pursuance of that judgment, must 
 be treated as having changed the property of the ship. The ship was 
 bought at that auction by a person who was a British subject, and who 
 came here and registered himself as the owner of the vessel, and is now 
 represented by the defendant. The question is, as to the property of 
 the ship as between Castvique and the defendant. 
 
 We have been assisted with the opinions of the learned judges in 
 this case, and I entirely concur in the conclusion at which they have 
 arrived. It appears to me, in the first place, desirable to consider 
 whether this judgment must be taken as a judgment by the French 
 court in rem, or whether it is to be taken as a judgment purporting 
 onlv to deal with the interest in the vessel, whatever that interest 
 might be, of Benson, who was the debtor in the action on the bill, and 
 as giving no further or other right than such interest as Benson had. 
 As it was stated by the learned judges, we are familiar in our law with 
 that distinction ; we are familiar with the course taken by the Court 
 of Admiralty in proceedings against a ship, selling a ship, and giving 
 a title against all third persons who become purchasers under a decree 
 of that court ; we are familiar also with the course taken by our own 
 courts of law in decreeing judgment of any property of a debtor taken 
 by levy upon his goods, in which case the interest of the debtor in 
 the chattel is sold, and that interest alone, and no further or other 
 right than that possessed by the debtor, can be transferred to persons 
 purchasing under that sale. In other words, they purchase simply the 
 interest of the debtor in that chattel. 
 
 1 Part of this opinion, and the concurring opinions of Lords Chelmsford and 
 CoLONSAY, are omitted. — Ed.
 
 784 CASTRIQUE V. IMRIE. [CHAP. XY. 
 
 If we look at the course of proceedings to see what were the intent 
 and purpose and duty of the French courts, and if we ask did they 
 proceed in this course which they took in directing the sale of the ves- 
 sel as against the vessel itself, we find that there has been a difference 
 of opinion upon that point between the Court of Common Pleas and 
 the Court of Exchequer Chamber. The Court of Common Pleas 
 thought that it was not a proceeding against the ship itself, but simply 
 against such interest as the debtor had therein, wliile the Court of 
 Exchequer Chamber came to the conclusion that it was a proceeding 
 against the ship itself. Now, 1 entirely concur in the remarks of the 
 learned judges who have assisted us in this case, that, unfortunately, 
 tlie case being one of foreign law, which we must consider as a fact 
 laid before us, it has not been stated in the special case, with all the 
 clearness which would have been desirable, what that law is. But 
 wliat is there stated it appears to me is sufficient to indicate upon the 
 whole the course taken by the French courts and the grounds of their 
 proceeding. In the first place, it was a proceeding against Benson 
 and the ship wliich originated the matter. That being so, 1 think 
 that it would be very difficult to say that a proceeding vi rem was 
 not one of the matters contemplated in the original judgment. The 
 judgment of the Tribunal of Commerce was a judgment against Ben- 
 son. He had desired not to be made personally liable, as tiie expres- 
 sion here is, in respect of this judgment, and it was given against 
 him " by privilege upon the ship." The ship was then dn-ected to be 
 sold. A good deal of argument turned upon that expression, "by 
 privilege upon the ship." The case was argued extremely ably by 
 Mr. Matthews at your Lordships' bar. He put the case to us thus: 
 What was meant was no more than this, that when the ship should be 
 sold the captain, by virtue of the French law, would be a privileged 
 creditor, and would be entitled to be paid out of the first proceeds of 
 the sale, but that it did not necessarily follow from this circumstance 
 that the sale was ordered to be made as against all persons having an 
 interest in the ship. He put it in this way, that it might be treated 
 as if the court had regarded the wliole matter thus: that he, Benson, 
 would have a certain amount of interest in the ship by virtue of such 
 privilege as he might have, and the court might merely mean to sell all 
 such amount of interest as Benson had, and therefore to dispose only 
 of those rights which he possessed in priority to others, and to the 
 amount which might be due to him as captain in respect of any claim 
 he liad in that capacity upon the ship; in other words, to sell exactly 
 what was due to Benson as captain, and not to sell the ship, per se, 
 for any other purpose whatever. 
 
 But^ as was well observed by the learned judges, in the first place 
 this privilege could only arise after the sale of the shii) had taken place 
 to give him a priority over other creditors interested in disi)()sing of 
 the'vessel. But further than that, regard being had to the original 
 proceeding, being a proceeding against Benson and the ship, and Ben-
 
 SECT. IV.] CASTRIQUE V. IMIUE. 785 
 
 son himself being excluded from any personal liability, and the judg- 
 ment against him being by privilege upon the ship, it does appear to 
 me that the word " privilege," as used here, is used much more in the 
 sense in which it is used by Lord Tenterden in his work upon ship- 
 ping, of a charge upon a vessel which the person is entitled to realize 
 by sale, than in the sense of saying simply that amongst all the several 
 persons who may have claims when the ship comes to be sold, Benson 
 is to stand in a favored position. ^^In other words, the French court 
 intended by the proceeding taken to adjudge the sale of the vessel in 
 order to satisfy this privileged 
 
 But, beyond that, I think the case becomes somewhat clearer when 
 it is carried to the Civil Tribunal, which was called upon to affirm the 
 judgment of the Tribunal of Commerce, and give efficacy to the dealing 
 with the ship. What course did the Civil Tribunal take? It sum- 
 moned all who were supposed to be. the owners of the ship. The 
 judges of that court only knew of Claus and Claus's assignee — they 
 did not know any of the mortgagees whose titles did not appear upon 
 the ship's papers ; at all events, they considered, if anything was said 
 about them, that they could pay no attention to persons of whom they 
 coukl have no knowledge except through the medium of the ship's 
 papers. For what purpose did they call Claus and his assignee? For 
 the purpose of making them liable upon the bill, not because Claus had 
 accepted it, but only because, being interested in the thing they were 
 about to sell, they thought it right that Claus and his assignee should 
 be present. 
 
 Therefore, upon the whole proceeding, taking first the proceeding 
 against Benson and the ship, next, the detainer of the vessel by the 
 Tribunal of Commerce for the purpose of the sale being affirmed by 
 the Superior Court, and then the Superior Court when it arrives at the 
 question of sale or no sale, taking care to summon those whom alone 
 it could recognize as owners, I think there can be no doubt that the 
 judgment of the court was intended to be a judgment in rem, and 
 therefore the court intended to do that which by the French law it did, 
 namely, to transfer the ownership in the vessel. 
 
 That being so, the only remaining point is this : it is said that the 
 French judges decided against our English law ; that the effect of our 
 l aw was laid before them, and that they disregarded it and determine cl 
 th e case contrary to what the law of this country would be. It is said 
 tliat the law of the flag should have governed the decision of the French 
 courts with reference to this vessel, and therefore, the courts having 
 come to an erroneous conclusion, the judgment that they erroneously 
 gave and so acted upon would not here confer a title upon those who 
 in France undoubtedly, under that judgment, did acquire it. 
 
 Now, my Lords, without expressing any opinion (for I purposely 
 wish to avoid doing so) with reference to a decision of my own which 
 has been cited, in the case of Simpson v. Fogo, 1 Jo. & H. 18 ; 1 H. & 
 M. 195, as to what might be done in the case of a court wilfully deter- 
 
 60
 
 786 CASTRIQUE V. IMRIE. [CHAP. XV. 
 
 mining that it will not, according to the usual comit}', recognize the 
 law of other nations when clearly and plainly put before it, without 
 saying anything as to what would justify the courts in our own country 
 in hesitating to give effect to a foreign judgment if obtained by fraud 
 or misrepresentation, it is enough for me to say upon the present occa- 
 sion, that, in this case, the whole of the facts appear to have been i n- 
 quired into by t he FrelTch courts ^judicially, honestly, an d with the 
 inte ntion to arrive at the right conclusion, and having heara t ne lacts 
 as st ated before then i f {ipy p- \uie to a conclusion which just itied tnem In 
 Fra nce in deciding as thev did decide. ^ That decision conhinied tii'e 
 title b}' sale to the person who became the purchaser at the sale. Ac- 
 cording to the law of France that title could not be thereafter disputed 
 or disturbed, the court at Rouen being the highest court having juris- 
 diction in the matter. \ 
 
 That being so, there being neither a case of refusal to attend or 
 listen to anything that might be said to them with reference to our own 
 law, nor to adopt that as the ground of their conclusion, and there 
 being no case, as far as I know, of any fraudulent representation or 
 concealment with reference to any facts in the case, and the decision 
 having been come to and pronounced, not, as in one of the cases which 
 was cited, in the absence of the parties, but in Castrique's own suit, 
 where he had every opportunity of bringing forward his own case, the 
 decision cannot be complained of as one contrary to justice through its 
 being pronounced in the absence, from want of citation, of any of the 
 parties interested, I therefore think we are bound to give effect to the 
 conclusion arrived at b}' the French court, and to the title derived 
 through the medium of that conclusion, and that the court of Ex- 
 chequer Chamber was right in the decision to which it came. And, 
 therefore, I have to submit to j'our Lordships that the decision of the 
 Court of P^xchequer Chamber ought to be affirmed. 
 
 Judgnieiit of Court of Exchequer Chamber affirmed.
 
 SECT. I.] DE BRIMONT V. PENNIMAN. 787 
 
 CHAPTER XVI. 
 OBLIGATIONS. 
 
 SECTION L 
 
 PENAL OBLIGATIONS. 
 
 DE BRIMONT v. PENNIMAN. 
 Circuit Court of the United States, So. Dist. New York. 1878. 
 
 [ReiJorted 10 Blatchford, 436.] 
 
 WooDRDFF, J. This is an action of debt. The declaration contains 
 two counts. The first is founded on an alleged judgment or decree 
 pronounced in the then Empire of France ; the other count is debt on 
 simple contract, for interest alleged to be due to the plaintiff, for the 
 forbearance of moneys due and owing by the defendants to the plain- 
 tiff. The first count only is demurred to. That count alleges, that the 
 plaintiff is an alien and a citizen of the French Republic, and that the 
 defendants are citizens of the United States and of the State of New 
 York ; that, on the 16th of March, 1868, at Paris, in the then Empire 
 of France, the plaintiflJ" intermarried with the daughter of the defend- 
 ants ; that a child of the marriage was born, who is still living; and 
 that, on the 7th of February, 1869, such daughter, (the wife of the 
 plaintiff,) died. The declaration then sets out certain articles of the 
 Code Civil of France, which provide that children must make an al- 
 lowance to their father and mother, and other ancestors, who are in 
 need ; that sons-in-law and daughters-in-law must, also, in like circum- 
 stances, make an allowance to their fathers-in-law and mothers-in-law, 
 but this obligation ceases, first, when the mother-in-law contracts a 
 new marriage, and second, when that one of the married couple through 
 whom the relation of affinit}- exists is dead and the children born of 
 such couple are also dead ; that the obligations springing from the 
 foregoing provisions are reciprocal ; and that an allowance is only to 
 be granted in proportion to the necessities of him who claims, and to the 
 means of him who is bound to pay. It is next averred, that, at and 
 prior to the said intermarriage, and at the time of the rendition of the 
 judgment and decree next mentioned, and subsequently to such decree, 
 the defendants were residents of the Empire of France, had the benefit 
 of its laws, and owed to it a temporary allegiance ; that, on the 14th 
 of August, 1869, the Civil Tribunal, (particularly mentioned.) at Paris, 
 rendered and pronounced judgment, in an action there pending, wherein 
 the said plaintiff was plaintiff and the said defendants were defendants,
 
 788 DE BRIMONT V. PENNIMAN. [CHAP. XVI. 
 
 brought by the plaintiff, to obtain an allowance from the defendants, 
 under the said articles of the Code Civil ; that the defendants, jointly 
 and several!}-, pay to him 18.000 francs per year, in equal monthly pay- 
 ments in advance, such payments to be made from the time that such 
 allowance was first demanded, and should be 6,000 francs for the use of 
 said plaintiff, and 12,000 francs for the use of the said child of the plain- 
 tiff and of said daughter of the defendants ; that the defendants were 
 both duly served with process in said action and appeared therein ; that 
 the said Civil Tribunal was a court of the P^mpire of France, and had 
 jurisdiction of the subject-matter of the action and of the parties ; that 
 the defendants appealed from tlie said judgment to the Court Imperial of 
 Paris ; that such appeal was there prosecuted by the plaintiff and the 
 defendants, and, on the 5th of May, 1870, such appellate court adjudged 
 and decreed, that the before-mentioned judgment be affirmed in respect 
 of the right of the plaintiff to an allowance, and in respect of the amount, 
 to wit, 18,000 francs per year, and of the appropriation thereof by the 
 plaintiff, to wit, 6,000 francs to the use of the plaintiff and 12,000 
 thereof to the use of the said child, and in respect of the times and 
 manner in which it should be paid to the plaintiff, to wit, in equal 
 monthly payments, in advance, and did adjudge and decree, that the 
 defendants, jointly and severally', pay to the plaintiff the said sum, and 
 pay the same from the day of the decease of their said daughter, Feb- 
 ruary 7, 1869, as appears, etc., by the records and proceedings of 
 said court, now remaining of record ; that the said judgment and de- 
 cree of the Court Imperial is final and conclusive, and is in full force, 
 not reversed or anulled or satisfied, etc. ; that such court is a court of 
 general jurisdiction, and had jurisdiction of the subject-matter and 
 of the parties ; and that the plaintiff has not yet obtained satisfaction of 
 the said judgment, whereby an action hath accrued to him to have and 
 demand of the defendants, jointly and severally, the sum of S10,200, 
 being the value, in currency of the United States, of the sum of 48,000 
 francs, in which said last-mentioned sum the defendants arc, jointly and 
 severally, indebted to the plaintiff, by reason of the said judgment, for 
 the time beginning the 7tli of February, 1869, and ending the 7th of 
 November, 1871. 
 
 The defendant James F. Penniman demurs to this count, upon vari- 
 ous grounds, which I do not think it necessary to enumerate. They 
 were urged on the argument, and, by not noticing many of them fur- 
 ther, I am not to be deemed to affirm the sufficiency of the declaration 
 in respect thereto. It is sufficient that the principal question is de- 
 cided. That question is, whether an action of debt will lie in this 
 court, upon such a decree of a court in France, made against citizens 
 of the United States, husband and wife, temporarily resident in that 
 Empire? 
 
 It may not be irrelevant to state, that, besides the articles of the 
 French Code inserted in the declaration, the counsel for the plaintiff 
 admitted, on the argument, and he has stated on his brief, that it is
 
 SECT. I.] DE BRIMONT V. PENNIMAN. 789 
 
 provided, by other articles of that Code, that the duty to make the al- 
 lowance which the decree in question provides, ceases whenever the 
 claimant obtains a fortune sufficient for his own support, or the part}'' 
 by whom the payment is to be made becomes unable to pay, or can- 
 not pa}' without withdrawing means which are required for his own 
 necessities. 
 
 The question is novel. No case has been cited by counsel in which 
 a foreign judgment of such a nature has been the subject of an action 
 in this country or in England ; and no such case has fallen under my 
 observation. Cases are numerous in which foreign judgments for the 
 recovery of a definite sum of money have been sued upon ; and the 
 question has been largely discussed, whether such judgments are con- 
 clusive, or are merely prima jfacie, evidence of the debt which they 
 award, and whether, and to what extent, the subject-matter is open to 
 inquiry and proofs, on the original merits. Those cases are not con- 
 troverted by the counsel for the defendant, but they are deemed not 
 to apply to such a decree as is set out in this declaration. Cases are 
 also numerous in which the force and effect of judgments and decrees 
 in the courts of one of the States of the United States are under con- 
 sideration in the courts of other of the States, or in the federal courts. 
 Those cases are not deemed to apply to the present, because the Con- 
 stitution of the United States operates, as between the States, to give 
 them an efficiency not due to a foreign judgment or decree. 
 
 In determining the precise question, whether, upon the facts stated 
 in the declaration, the plaintiff shows a cause of action, it may not be 
 material to decide whether such a judgment is, in this court, to be re- 
 garded as conclusive, or only prima facie, evidence of the indebtedness 
 claimed by the plaintiff; for, if it be either, then, in connection with 
 the allegations showing the law and the relationship of the parties, a 
 demurrer founded in denial of legal liability could not, probably, be 
 sustained. The cases, therefore, which discuss that distinction need 
 not be considered. 
 
 The broad question, whether a citizen of the United State s, whose 
 dfUTPJTtprj rnarries in Fran co- pnn be prosecuted here upon a decree o ? 
 a French cour t, requiring him and his wife to pay an a nnuity for the 
 support of their son-i n-law, is prior to the inq uiry last above referred 
 ^. "The sutyect pertains to the domestic relations of our own citizens, 
 and the duties and obligations resulting therefrom ; and the decree in 
 question proceeds upon the declaration of an obligation not in conform- 
 ity with our laws, not known to the common law, and upon the con- 
 tinuance of the obligation itself after the relationship out of which it 
 is deemed to have arisen has ceased b y the death of the person throug h 
 whom t he affinity was traced. The nearest analogy to a decree of the \ 
 nature in question, to which ray attention is called, is a decree for ali- 
 mony, where a divorce, total or partial, has been granted; but the only 
 cases in which such a decree has been held to support an action in 
 another jurisdiction are under the influence of the Constitution of the 

 
 "790 DE BRIMONT V. PENNIMAN. [CHAP. XVI. 
 
 United States, and, bj- force of that Constitution, it was held that a 
 suit would lie, in a Court of Chancery, to compel the performance of 
 the decree. Barber v. Barber, 21 How. 58.2. 
 
 It is not irrelevant to a consideration of the nature of the decree in 
 question, to sa}', that it does not proceed upon the rule of obligation 
 recognized by all civilized nations, that the parent shall support his chil- 
 dren during minority, which involves, also, the correlative right to the 
 services of those children while thus supported. Such an obligation 
 has no relation to the case under consideration. Wliatever obligation 
 or dut}' lies at the foundation of the claim of this plaintiff is the crea- 
 ture of positive statute, framed for the peojile of France, to regulate 
 their domestic concerns, protect the public, and guard against pauper- 
 ism and its evils. Statutes in some respects similar are found in Eng- 
 "land, and in most, if not all of the States of this countr}'. The duty 
 of parents and grandparants, and, reciprocally, of children and grand- 
 children when of sufficient ability, to piovide for the necessarj- support 
 of those relatives, and prevent their becoming a charge to the public, 
 is declared and is enforced. Such regulations are local in their nature 
 and in tlieir application, and so are. the orders for their enforcement. 
 They are a part of a local sj'stem, to provide for paupers, and to re- 
 lieve the public from their maintenance, when they have relatives 
 within certain designated degrees, who are of abilitv to support them. 
 Such orders are subject to modification and adjustment, as circum- 
 stances may require, in the States and tribunals wherein they are 
 made. Apart from questions growing out of the Federal Constitution, 
 they can only be enforced in the States where they are made. Orders 
 of filiation are of a similar character. Thev are mainly for the protec- 
 tion of the public, founded on local statutes, and are in the nature of 
 domestic police regulations. The provisions of the Code of F' ranee, 
 set out in the declaration, and the decree of the courts founded there- 
 on, are of the like nature. It would seem, that the policy of that 
 country, as viewed by its^courts, does not require that the son-in-law 
 or other claimant shall himself do anything for his own support, but 
 that he is to be supported in idleness. That is probably not a matter 
 of importance to the present inquiry, except so far as it may tend to 
 show tiiat the judgment or decree is hostile to tlie policy of this coun- 
 try, and in conflict with the only ground upon which orders arbitrarily' 
 imposing upon one the burden of supporting another would be toler- 
 atetl. The principle upon which foreign judgments receive an}' recog- 
 nition in our courts is one of comiU'. It does not require, but rather 
 forbids it, when such a recognition works a direct violation of the, 
 policy of our laws, and does violence to what we deem the rights^pf 
 our own citizens. The courts of this country will be slow to hold 
 that, whenever an American citizen sliall visit France, and reside there 
 temporarily with his family, his son or his daughter, by a rash or im- 
 prudent marriage, can cast upon the parents, mother as well as father, 
 the perpetual burden of an anuuiU for the support of the wife or
 
 SECT. I.] DE BRIMONT V. PENNIMAN. "^^1 
 
 husband. So long as such residence continues, no doubt, the parents 
 must submit to the laws of France. The orders of her courts may be 
 enforced against them, as those laws may prescribe ; but, in a matter 
 of this kind, those laws must be executed there, and such decrees can 
 have, and ought to have, no extraterritorial significance. They rest 
 upon no principles of universal acceptation, like the obligation of con- 
 tracts, or the protection of generally recognized, private, personal 
 rights. No disposition to deal with foreign judgments, so as to pror 
 mote the ends of justice, demands that such decrees should be arl^i- 
 traril}- enforced in our courts. 
 
 \ Beyond these considerations, I think it plain, upon the face of the dec- 
 laration, and, especially where the other admitted provisions of the 
 French Code (stated by the counsel) are brought into view, that the 
 decree itself should be deemed, and would, in France itself, be deemed, 
 local and provisional, and designed to be carried into effect there, and 
 only upon persons and property found there. Their laws contemplate 
 the supervisory control and direction of their courts over the parties, 
 in all the changes which may occur in their relative pecuniary condi- 
 tions. The decree in question prescribes a temporary rule of allowance 
 and provision for support, subject to modification according to circum- 
 stances. There is no award of any sum certain, to be presently paid, 
 and the declaration does not show that any sum whatever could even 
 there be collected, without a further application to the court, for some 
 process or other award of means by which some definite amount shall 
 be collected. Continuing necessity, on the one hand, and continuing 
 ability, on the other, are assumed for the future, and the absence of 
 either makes even the decreed allowance to cease. Without assuming 
 to say that the father-in-law and mother-in-law, if still in France, would 
 not have the onus of showing that circumstances had changed, and of 
 procuring a modification of the decree thereupon, these observations 
 bear pertinently on the nature of the decree itself, and with great force 
 on the question how such decree is to be treated in our own cohrts. 7 
 
 In harmony with what has been already suggested, I add, tkaj/we 
 cannot hold that such decree is final, operative, and binding unless and 
 until the defendants go to France and there appeal to the discretion of 
 their courts to modify the decree according to tlie new circumstances 
 which may arise ; and yet, the claim here made, in regard to the 
 effect of the decree in our courts, would require us to give judgment 
 in accordance therewith, even though the defendants offered to prove, 
 and could prove, that the plaintiff had come to a princely inheritance. 
 
 Without, therefore, considering the other alleged imperfections in 
 the declaration, or the peculiarity of a decree which charges the wife 
 of the demurrant personally, or the want of any averment that she has 
 any separate estate which can be charged by this court, I am of opin- 
 ion, that the defendant James F. Penniman is entitled to judgment 
 upon his demurrer.^ 
 
 1 But see Indiana v. Helmer, 21 la. 370. — Ed. 

 
 792 HUNTINGTON V. ATTRILL. TcHAP. XVL 
 
 HUNTINGTON v. ATTRILL. 
 
 Supreme Court of the United States. 1892. 
 
 {^Reported 146 United States, 657.] 
 
 Gray, J.^ This was a bill in equity filed March 21, 1888, in the Cir- 
 cuit Court of Baltimore City, b}' CoUis P. Huntington, a resident of 
 New Yoi'k, against the Equitable Gas Light Company of Baltimore, a 
 corporation of Maryland, and against Henry Y. Attrill, his wife and 
 three daughters, all residents of Canada, to set aside a transfer of stock 
 in that company, made b}' him for their benefit and in fraud of his 
 creditors, and to charge that stock with the payment of a judgment re- 
 covered by the pla i ntifli' aga ins t him in tlie^State of N ew York, upon_ 
 his lia bility as a director in a New York cor poration, under the statute 
 IoOS£5jYQrk_^XJL8 75", c. 611. . . . On June larTSBO^^tlT-inT^ a 
 director of the company, signed and made oath to, and caused to be 
 recorded, as required by the law of New York, a certificate which he 
 knew to be false, stating that the whole of the capital stock of the 
 corporation had been paid in, whereas in truth no part had been 
 paid in ; and by making such false certificate became liable, by the 
 law of New York, for all the debts of the company contracted before 
 January 29, 1881, including its debt to the plaintiff. . . . 
 
 J Part of the opinion is omitted. — Ed.
 
 SECT. I.] HUNTINGTON V. ATTRILL. 793 
 
 The bill praj-ed that the transfer of shares in the gas companj- be 
 declared fraudulent and void, and executed for the purpose of defraud- 
 ing the plaintiff out of hi^ claim as existing creditor ; that the certifi- 
 cates of those shares in the name of Attrill as trustee be ordered to be 
 brought into court and cancelled; and that the shares " be decreed to 
 be subject to the claim of this plaintiff on the judgment aforesaid," and 
 to be sold by a trustee appointed hy the court, and new certificates 
 issued by the gas company to the purchasers ; and for further relief. 
 One of the daughters demui-red to the bill, because it showed that 
 the plaintiff's claim was for the recovery of a penalty against Attrill 
 arising under a statute of the State of New York, and because it did 
 not state a case which entitled the plaintiff to any relief in a court of 
 equity in the State of Maryland. . . . 
 
 The Circuit Court of Baltimore City overruled the demurrer. On 
 appeal to the Court of Appeals of the State of Maryland, the order was 
 reversed, and the bill dismissed. 70 Md. 191. 
 
 The ground most prominently brought forward and most fully dis- 
 cussed in the opinion of the majority of the court, delivered by Judge 
 Bryan, was that the liability imposed by section 21 of the statute of 
 New York upon officers of a corporation, making a false certificate of 
 its condition, was for all its debts, without inquiring whether a creditor 
 had been deceived and induced by deception to lend his money or to 
 give credit, or whether he had incurred loss to any extent by the in- 
 ability of the corporation to pay, and without limiting the recovery to 
 the amount of loss sustained, and was intended as a punishment for 
 doing any of the forbidden acts, and was, therefore, in view of the de- 
 cisions in that State and in Maryland, a penalty which could not be 
 enforced in the State of Maryland ; and that the judgment obtained 
 in New York for this penalty, while it " merged the original cause 
 of action so that a suit cannot be again maintained upon it," and "is 
 also conclusive evidence of its existence in the form and under the cir- 
 cumstances stated in the pleadings," yet did not change the nature 
 of the transaction, but, within the decision of this court in Wisconsin 
 V. Pelican Ins. Co., 127 U. S. 265, was in its "essential nature and 
 real foundation " the same as the original cause of action, and there- 
 fore a suit could not be maintained upon such a judgment beyond the 
 limits of the State in which it was rendered, pp. 193-198. ... 
 
 A writ of error was sued out by the plaintiff and allowed by the 
 Chief Justice of the Court of Appeals in Maryland. . . . 
 
 Penal laws, strictly and properly, are those Imposing punishment for 
 an offence committed against the State, and which, by the English and 
 American constitutions, the executive of the State has the power to 
 pardon. Statutes giving a private action against the wrongdoer are 
 sometimes spoken of as penal in their nature, but in such eases it has 
 been pointed out that neither the liability imposed nor the remedy 
 given is strictlv penal. ... 
 
 The test whether a law is penal, in the strict and primary sense, is
 
 794 HUNTINGTOX V. ATTRILL. [CHAP. XVI. 
 
 whether the wrong sought to be redressed is j i wrong to the p ublic^ o r a 
 wrong to th e ladivid ual, according to the familiar classification of 
 BlackstoneT"" Wrongs are divisible into tw© sorts or species : private" 
 wrongs and public wrongs. The former are an infringement or priva- 
 tion of the private or civil rights belonging to individuals, considered 
 as individuals, and are thereupon frequenll}- termed civil injuries ; the 
 latter are a breach and violation of public rights and duties, which 
 affect the whole community, considered as a community, and are dis- 
 tinguished by the harsher appellation of crimes and misdemeanors." 
 3 Bl. Com. 2^^ . . . 
 
 Upon the question what are to be considered penal laws of one 
 country, within the international rule which forbids such laws to be 
 enforced in any other country, so much reliance was placed by each 
 party in argument upon the opinion of this court in Wisconsin v. 
 Pelican Ins. Co., 127 U. S. 265, that it will be convenient to quote from 
 that opinion the principal propositions there affirmed : 
 
 " The rule that the courts of no country execute the penal laws of 
 another applies not only to prosecutions and sentences for crimes and 
 misdemeanors, but to all suits in favor of the State for the recovery of 
 pecuniary penalties for any violation of statutes for the protection of 
 its revenue, or other municipal laws, and to all judgments for such 
 penalties." p. 290. 
 
 ''The application of the rule of the courts of the several States and 
 of the United States is not affected by the provisions of the Constitu- 
 tion and of the act of Congress, by which the judgments of the courts of 
 any State are to have such faith and credit given to them in every court 
 within the United States as they have by law or usage in the State in 
 which they were rendered." p. 291. 
 
 " The essential nature and real foundation of a cause of action are 
 not changed by recovering judgment upon it ; and tlie technical rules, 
 which regard the original claim as merged in the judgment, and the 
 judgment as implying a promise hy the defendant to pay it, do not pre- 
 clude a court, to which a judgment is presented for affirmative action, 
 (while it cannot go beliind tlie judgment for the purpose of examining 
 into the validity of the claim,) from ascertaining whether the claim is 
 really one of such a nature that the court is authorized to enforce it." 
 pp. 292, 293. 
 
 "The statute of Wisconsin, under which the State recovered in one 
 of her own courts the judgment now and here sued on, was in the 
 strictest sense a penal statute, im[)<)sing a penalty upon any insurance 
 company of anotner State, doing business in the State of Wisconsin 
 without having deposited with the proper officer of the State a full 
 statement of its property and business during the previous year. The 
 cause of action was not any private injury, but solely the offence com- 
 mitted against the State by violating her law. The prosecution was in 
 the name of the State, and the whole penalty, when recovered, would 
 accrue to the State." p. 299. ...
 
 J. %A>>-« 
 
 SECT. I,] HUNTINGTON V. ATTRILL. 795 
 
 The question whether a statute of one State, which in some aspects 
 may be called penal, is a penal law in the international sense, so that 
 it cannot be enforced in the courts of another State, depends upon the i . i j, 
 question whether its purpose is to punish an offence against the public > /\' ^ X C 
 justice of the State, or to afford a private remedy to a person in- 
 jured by the wrongful act. There could be no better illustration of 
 this than the decision of this court in Dennick v. Railroad Co., 103, 
 U. S. 11. . . . 
 
 That decision is important as establishing two points : 1st. The^ 
 court cons idered '' cri mnnLUisf ^ that i a to p ay , law s-pmusbiog-fciimesr' 
 aTconstitu tino ; the wb nlp class of penal laws which cajmat_Iifi_euforceiI 
 extraterritorialh\^ 2d. A_ statute of a State, manifejU^' Jntended^to 
 -prote^^hfe, anclto impost a new and extra^ixlinajx 4x11- lia'*''i^liUiiU- 
 those causing^death, by subjecting them to a private action for thtt- 
 ■■pecunTary''daraages thereby resulting to_JJie family of the decfiuaed 
 ""might be enforced in a Circuit Courtj)f the United Stotes_JieldJi^ii 
 ~otlu?r State, without, regard^to the question whether a similar liabihtj 
 would have attached for a similar cause in thau State.. ^ . . . ^ « y| t) J 
 
 The provision of the statute or iN.cw York, now inj^iestion., maldjag^ ^Ju^--Kf^ 
 
 the officers of a corporation, who sign onjjjw-nrd ^ fnlsp n.pvt\f\onte of 
 
 'tEe amount of its capital* stock, liable for all its debts, is in n o sense a 
 criminal or quasi criminal lajs, Tlie statute, while it enables persons 
 complving with its provisions to do business as a corporation, witliout 
 being subject to the liability of general partners, takes pains to secure 
 and maintain a proper corporate fund for the payment of the corporate 
 debts. With this aim, it makes the stockholders individually liable for 
 the debts of the corporation until the capital stock is paid in and a 
 certificate of the payment made by the officers ; and makes the officers 
 liable for any false and material representation in that certificate. The 
 individual liability of the stockholders takes the place of a corporate 
 fun4 until that fund has been duly created ; and the individual liabiHt£. 
 of the officers takes the place of the fund, in case their state inenlth at,, 
 it has been duly created is false._ If the officers do not truly state and 
 record the facts which exempt them from liability, they are made liable 
 directly to every creditor of the company, who by reason of tlieir 
 wrongful acts has not the security, for the payment of hi3 debt out of 
 the corporate property, on which he had a right to rely, as tlie statute 
 imposes a burdensome liability on the officers for their wrongful act, it 
 may well be considered penal, in the sense that it should be strictly 
 construed. But as it gives a civil remedy, at the private suit oftUfi 
 crediiQL only, and measured by the amount of his debt, it is as to hiin.^ 
 ^clearly remedial. -To maintain such a suit is not to administer a pun- _^ 
 ishment imposed upon an offender against the State, but simply to en- ^ 
 force a private right secured under its laws to an individual. We can _ 
 see no just ground, on principle, for holding such a statute to be au 
 lenal law, in the sense that it cannot be enforced in a foreign State^ 
 or countr3\ . .^
 
 796 HUNTIXGTON V. ATTRILL. [CHAP. XVl. 
 
 It is true that the courts of some States, including Maryland, have 
 declined to enforce a similar liability imposed by the statute of another 
 State. But, in each of those cases, it appears to have been assumed 
 to be a sufficient ground for that conclusion, that the liability was not 
 founded in contract, but was in the nature of a penalty imposed bj^ 
 statute ; and no reasons were given for considering the statute a penal 
 law in the strict, primary', and international sense. Derrickson v. 
 Smith, 3 Dutch. (27 N. J. Law), 166; Ilalsey v. McLean, 12 Allen, 
 438 ; First National Bank v. Price, 33 Md. 487. 
 
 It is also true that in Steam Engine Co. v. Hubbard, 101 U. S. 188, 
 192, Mr. Justice Clifford referred to those cases by waj- of argument. 
 But in that case as well as in Chase v. Curtis, 113 U. S. 452, the onh' 
 point adjudged was that such statutes were so far penal tliat they must 
 be construed strictly ; and in both cases jurisdiction was assumed by 
 the Circuit Court of the United States, and not doubted by this court, 
 which could hardly have been if the statute had been deemed penal 
 witliin the maxim of international law. In Flash v. Conn, 109 U. S. 
 371, the liability sought to be enforced under the statute of New York 
 was the liability of a stockholder arising upon contract ; and no ques- 
 tion was presented as to the nature of the liability of officers. 
 
 But in Hornor v. Henning, 93 U. S. 228, this court declined to con- 
 sider a similar liability of officers of a corporation in the District 
 of Columbia as a penalty. See also Neal v. Moultrie, 12 Ga. 104; 
 Gady v. Sanford, 53 Vt. 632, 639, 640; Nickerson v. Wheeler, 118 
 Mass. 295, 298; Post v. Toledo, &c. Railroad, 144 Mass. 341, 345 ; 
 Woolverton v. Taylor, 132 111. 197; Morawetz on Corpoiations 
 (2d ed.), § 908. 
 
 The case of Missouri Pacific Railway v. Humes, 115 U. S. 512, on 
 which the defendant much relied, related onl}' to the authority of the 
 legislature of a State to compel railroad corporations, neglecting to pro- 
 vide fences and cattle-guards on the lines of their roads, to pay double 
 damages to the owners of cattle injured by reason of the neglect; and 
 no question of the jurisdiction of the courts of another State to main- 
 ain an action for such damages was involved in the case, suggested by 
 .ounsel, or in the mind of tlie court. 
 
 The true limits of the international rule are well stated in tlie decision 
 of the Judicial Committee of tlie Privy Council of England, upon an ap- 
 peal from Canada, in an action brought by the present plaintiff against 
 Attrill in the Province of Ontario upon the judgment to enforce which 
 the present suit was brought. The Canadian judges, having in evi' 
 deuce before them some of the cases in the Court of Appeals of New 
 York, above referred to, as well as the testimony of a well-known 
 lawyer of New York that such statutes were, and had been held by that 
 court to be, strictly penal and punitive, differed in opinion upon the 
 question whether the statute of New York was a penal law which could 
 not be enforced in another country, as well as upon the question 
 whether the view taken by the courts of New York should be conclusive
 
 SECT. I.] HUNTINGTON V. ATTRILL. 79t 
 
 upon foreign courts, and fiually gave judgment for the defendant. 
 Huntington v. Attrill, 17 Out. 245, and 18 Out. App. 136. 
 
 In the Privy Council, Lord Watson, speaking for Lord Chancellor 
 Halsbury and other judges, as well as for himself, delivered an opinion 
 in favor of reversing the judgment below, and entering a decree for the 
 appellant, upon the ground that the action " was not, in the sense of 
 international law, penal, or, in other words, an action on behalf of the 
 government or community of the State of New York for punish- 
 ment of an offence against their municipal law." The fact that that 
 opinion has not been found in any series of reports readily accessible in 
 this country, but only in 8 Times Law Reports, 341, affords special 
 reasons for quoting some passages. 
 
 "The rule" of international law, said Lord Watson, "had its 
 foundation in the well-recognized principle that crimes, including in 
 that term all breaches of public law punishable by pecuniary mulct or 
 otherwise, at the instance of the State government, or of some one rep- 
 resenting the public; were local in this sense, that the}- were only cog- 
 nizable and punishable in the country where they were committed. 
 Accordingly no proceeding, even in the shape of a civil suit, which had 
 for its object the enforcement b}^ the State, whether directly or in- 
 directly, of punishment imposed for such breaches by the lex loci, 
 ought to be admitted in the courts of any other country. In its ordi- 
 nary acceptation, the word ' penal' might embrace penalties for infrac- 
 tions of general law, which did not constitute offences against the State ; 
 it might, for many legal purposes, be applied with perfect propriety to 
 penalties created by contract ; and it, therefore, when taken by itself, 
 failed to mark that distinction between civil rights and criminal wroncrs, 
 which was the very essence of the international rule." 
 
 After observing that, in the opinion of the Judicial Committee, the 
 first passage above quoted from Wisconsin v. Pelican Ins. Co., 127 U. S. 
 265, 290, '" d|sclosed^theproper^test_foi^^ 
 
 was penal within the meaning^f_th£-rul£,'!--h43. added : " Aj2i'oceedingj_ 
 in order to coiiTe witliTn the scoj^e^of^ U^ije rjdcj nuijlJae injjbejm 
 a suit in favor of the Staie_jdijQse_kw hjui b^enjnfi^^^^^ All the pro- 
 
 visions of municipal statutes for the regulation of trade and ti'ading 
 companies were presumably enacted in the interest and for the benefit 
 of the communit}' at large ; and persons who violated those provisions 
 were, in a certain sense, ofi'enders against the State law as well as 
 against individuals who might be injured b}- their misconduct. But 
 foreign tribunals did not regard those violations of statute law as 
 offences against the State, unless their vindication rested with the 
 State itself or with the community which it represented. Penalties 
 might be attached to them, but that circumstance would not bring them 
 within the rule, except in cases where those penalties were recoverable 
 at the instance of the State, or of an official dul}- authorized to prose- 
 cute on its behalf, or of a member of the public in the character of a 
 common informer. An action by the latter was regarded as an actio
 
 798 HUNTINGTON V. ATTEILL. [CHAP. XVI. 
 
 popidaris pursued, not in his individual interest but in the interest of 
 the whole community." 
 
 He had ah-eady, in an earlier part of the opinion, observed : " Their 
 lordships could not assent to the proposition that, in considering 
 whether the present action was penal in such sense as to oust their 
 jurisdiction, the courts of Ontario were bound to pay absolute deference 
 to any interpretation which might have been put upon the statute of 
 1875 in the State of New York. They had to construe and apply an 
 international rule, which was a matter of law entirely within the cogni- 
 zance of the foreign court whose' jurisdiction was invoked. Judicial 
 decisions in the State where the cause of action arose were not prece- 
 dents which must be followed, although the reasoning upon which 
 they were founded must always receive careful consideration and might 
 be conclusive. T!ie court appealed to must determine for itself, in the 
 first place, the substance of the right sought to be enforced, and, in 
 the second place, whether its enforcement would, either directly or in- 
 directly, involve the execution of the penal law of another State. 
 Were any other principle to guide its decision, a court might find itself 
 in the position of giving effect in one case, and denying effect in an- 
 other, to suits of the same character, in consequence of the causes of 
 action having arisen in different countries ; or in the predicament of 
 being constrained to give effect to laws which were, in its own judg- 
 ment, strictly penal." 
 
 In this view that the question is not one of local, but of international 
 law, we fully concur. The test is not bv what name the statute is 
 called by the legislature or the courts of the State in which it was 
 passed, but whe ther_it a ppears to the tribunal which is calle d upon to 
 enforce it t o be, in~it3~essential ch aracter and ett'ect, a punj &hment of . 
 an^^offen ce^against the public, or a grnn^^^ "^ " rivil right to a private 
 person^ 
 
 In this countr}', the question of international law must be determined 
 in the first instance by the court, State or national, in which the suit is 
 brought. If the suit is brought in a Circuit Court of the United States, 
 it is one of those questions of general jurisprudence which that court 
 must decide for itself, uncontrolled by local decisions. Burgess i\ Selig- 
 man, 107 U. S. 20, 33 ; Texas & Pacific Railway r. Cox, 145 U. S. 593, 
 605, above cited. If a suit on the original liabilit}' under the statute of 
 one State is brought in a court of another State, the Constitution and 
 laws of the United States have not authorized its decision upon such a 
 question to be reviewed by this court. New York Ins. Co. r. Ilcndron, 
 92 U. S. 286 ; Roth v. Ehman, 107 U. S. 319. But if the original liability 
 has passed into judgment in one State, the courts of another State, 
 when asked to enforce it, are bound bj' the Constitution and laws of 
 the United States to give full faith and credit to that judgment, and if 
 they do not, their decision, as said at the outset of this opinion, may 
 be reviewed and reversed by this court on writ of error. The essential 
 nature and real foundation of a cause of action, indeed, are not changed
 
 SECT, I.] HUNTINGTON V. ATTRILL. 799 
 
 by recovering judgment upon it. This was directly adjudged in Wis- 
 consin V. Pelican Ins. Co., above cited. The difiference is only in the 
 appellate jurisdiction of this court in the one case or in the other. 
 
 If a suit to enforce a judgment rendered in one State, and which has 
 not changed the essential nature of the liability, is brought in the courts 
 of another State, this court, in order to determine, on writ of error, 
 whether the highest court of the latter State has given full faith and 
 credit to the judgment, must determine for it self whether ^^"^ '^T'"r'""^ 
 cause ofa ction is penal in the internatioji aJ spnsa. . . . 
 
 The judgment rendered by a court of the State of New York, now 
 in question, is not impugned for any want of jurisdiction in that court. 
 The statute under which that judgment was recovered was not, for the 
 reasons already stated at length, a penal law in the international sense. 
 The faith and credit, force and effect, which that judgment had by law 
 and usage in New York, was to be conclusive evidence of a direct civil 
 liability from the individual defendant to the individual plaintiff for a 
 certain sum of money, and a debt of record, on which an action would 
 lie, as on any other civil judgment inter partes. The Court of Appeals 
 of Maryland, therefore, in deciding this case against the plaintiff, upon 
 the ground that the judgment was not one which it was bound in any 
 manner to enforce, denied to the judgment the full faith, credit, and 
 effect to which it was entitled under the Constitution and laws of the 
 United States. 
 
 Judgment reversed, and case remanded to the Court of Appeals of 
 the State of Maryland for further proceedings not inconsistent 
 with the opinion of this court} 
 
 Fuller, C. J., dissented : Lamar and Shiras, JJ., did not sit. 
 
 1 Ace. Huntington v. Attrill, [1893] A. C. 150. Contra, First Nat. Bank v. 
 Price, 33 Md. 487 ; Halsey v. McLean, 12 AU. 438 ; Derrickson v. Smith, 3 Dutch. 166 i 
 Woods V. Wicks, 7 Lea, 40. —Ed.
 
 800 GAEDNER V. NEW YOKK AND NEW ENGLAND K. R. [cHAP. XVL 
 SECTION II. — Obligations ex delicto. 
 
 GARDNER v. NEW YORK AND NEW ENGLAND R. R 
 
 Supreme Court of Rhode Island. 1892. 
 
 [Reported 17 Rhode Island, 790.] 
 
 TiLLiXGHAST, J. Tliis is an action of trespass on the case, to recover 
 damages for injuries alleged to have been sustained by the negligence 
 of-4.he defendant corporation. 
 
 , Tiie accident occuijed at a_ grade crossing on the defendant's road^ 
 at4)anielsonville, in the State of Connecticut ; and the third count of 
 the plaintiffs declaration is based upon sections 3553 and 3554 of the 
 General Statutes of said State of Connecticut, which are set forth ia 
 said^ count. 
 
 These sections are as follows : — 
 
 "Sect. 3553. Every engine used upon any railroad shall be sup- 
 plied with a bell of at least thirty-five pounds' weight, and a suitable 
 steam whistle, which bell and whistle shall be so attached to such 
 engine as to be conveniently accessible to the engineer, and in good 
 order for use. 
 
 " Sfxt. 3554. Every person controlling the motions of any engine 
 upon any railroad shall commence sounding the bell or steam whistle 
 attached to such engine when such engine shall be approaching, and 
 within eighty rods of, the place where said railroad crosses any high- 
 wav at grade, and keep such bell or whistle occasionally sounding 
 until such engine has crossed such highway ; and the railroad com- 
 pany in whose employment he may be shall pay all damages which 
 may accrue to any person in consequence of any omission to comply 
 with the provisions of this section ; and no railroad company shall 
 knowingly employ any engineer who has been twice convicted of 
 violating the provisions of this section." 
 
 The defendant has demurred to said third count in the plaintiff's 
 declaration, on the ground that the said statute, upon which it is 
 based, is penal in its nature, and, being a statute of another State, 
 there can be no recovery under it beyond the territory in and for 
 which it was enacted. 
 
 The plaintiff makes no contention that a penrd statute has any 
 extraterritorial force, but simpl}' claims that the statute counted 
 on is remedial only, and not penal in its nature. 
 
 The only question raised by the demurrer therefore is, whether said 
 section 3554 is penal in its nature. 
 
 A penal statute is one by which some punishment is imposed for a 
 violation of the law. A statute may be penal in one part and remedial 
 in another: Sutherland on Statutory Construction, § 208, and cases 
 cited ; and in such case, when it is sought to enforce the penalty, it 
 is to be construed as a penal statute ; and when it is sought to enforce 
 the civil remedy provided, it is to be construed as remedial in its
 
 SECT. II.] GARDNER V. NEW YORK AND NEW ENGLAND R. R. 801 
 
 nature. While the statute before us imposes a duty upon the defend- 
 ant corporation with regard to the giving of signals at grade crossings, 
 it does not impose any penalty for the neglect or violation of such 
 dut}'. The only punishment, if such it may properly be called, for 
 such neglect or violation of duty, is the damages to which it may 
 subject itself at the suit of the party who is injured by reason 
 thereof. 
 
 It is true that the last clause of said section 3554 reads like a penal 
 statute, in that it provides that " no railroad company shall knowingly 
 employ an}' engineer who has been twice convicted of violating the 
 provisions of this section." But, notwithstanding this prohibition 
 upon the railroad company, there is no penalty provided for its viola- 
 tion ; nor is there any mode provided, so far as we are informed, 
 whereby an engineer may be convicted for violating the provisions 
 of said statute. 
 
 We are therefore of the opinion that said statute is not penal either 
 in whole or in part, but remedial only. It simply provides that a rail- 
 road company shall pay all damages which may accrue to any person 
 in consequence of any omission to comply with the provisions thereof. 
 And it is well settled that where a statute only gives a remedy for an 
 injury against the person committing it to the person injured, and the 
 recovery is limited to the amount of loss sustained, or to cumulative 
 dainnges, as compensation for the injury, it falls within the class of 
 remedial statutes. Blaine v. Curtis, 59 Vt. 120; Brice v. Gibbons, 
 8 N. J. Law, 324. 
 
 There are cases which even go to the extent of holding that statutes 
 giving double damages for injuries sustained by reason of the neglect 
 of towns to keep their highways in repair, and for injuries by dogs, are 
 remedial and not penal, the cumulative damages being given as com- 
 pensation. Stanley v. Wharton, 9 Price, 301. See Reed v. North- 
 field, 13 Pick. 94 ; Mitchell v. Clapp, 12 Cush. 278 ; Palmer v. York 
 Bank, 18 Me. 166 ; Bayard v. Smith, 17 Wend. 88. 
 
 The counsel for the defendant contends that the statute relied on by 
 the plaintiff in the count demurred to is very similar to the one relied 
 on in O'Reilly v. N. Y. & N. E. R. R. Co., 16 R. I. 388, 392, which 
 last named statute this court held to be penal in its nature. We fail 
 to see the similarity between these two statutes. In the Massachu- 
 setts statute relied on by the plaintiff in the case last cited, the railroad 
 company is subjected to liability where, by reason of its carelessness, 
 the life of a passenger, or of a person being in the exercise of due 
 diligence and not a passenger or in its employment, is lost. "The 
 provision for such case," said Durfee, C. J., in delivering the opinion 
 of the court, " is, that the offending corporation may be punished by 
 fine, or indictment, or suit for damages in an action of tort, the fine 
 imposed, or the damages recovered, according as one or the other 
 remedy is pursued, to be not less than five hundred nor more than 
 five thousand dollars ; the damages, in case the corporation is civilly 
 
 61
 
 802 WALSH U. NEW YORK AND NEW ENGLAND RAILROAD. [CHAP. XVL 
 
 prosecuted, to be assessed with reference to the degree of cidpahility of 
 the corporation or of its servants or agents.^'' 
 
 That statute clearl}' comes within the definition of a penal statute as 
 above given. A penalty is attached for its violation, and a mode is 
 provided for the recovery of such penalty, while, in the statute before 
 us in this case, there is no penalty- attached to the violation thereof. 
 
 Demurrer overruled. 
 
 WALSH V. NEW YORK AND NEW ENGLAND RAILROAD. 
 
 Supreme Judicial Court of Massachusetts. 1894. 
 
 [Ecported 160 Massachusetts, 5 71. J 
 
 Holmes, J.^ This is an action of tort to recover for a personal injury 
 suffered by the plaintiff in Connecticut. . . . 
 
 If, however, we assume, as was ruled and as we do assume, that if 
 the accident had happened in this State the plaintiff could not have 
 recovered, it is argued that he cannot recover now. A decision in 
 Wisconsin and language from some English cases are cited which more 
 or less favor this contention. Anderson v. Milwaukee & St. Paul Rail- 
 way, 37 Wis. 321; The Halley, L. R. 2 P. C. 193, 204; Phillips v. 
 Eyre, L. R. 6 Q. B. 1, 28, 29; The M. Moxham, 1 P. D. 107, 111. 
 Possibly, when it becomes material to scrutinize the question more 
 closely, the English law will bo found to be consistent with our views. 
 But however this may be, we are of opinion that, as between the 
 States of this Union, when a transitory cause of action has vested in 
 one of them under the common law as there understood and adminis- 
 tered, the mere existence of a slight variance of view in the forum 
 resorted to, not amounting to a fundamental difference of policj-, 
 sliould not prevent an enforcement of the obligation admitted to have 
 arisen by the law which governed the conduct of the parties. See 
 Iliggins V. Central New England & Western Railroad, 155 Mass. 176. 
 It is unnecessary to consider whether we should be prepared to adopt 
 in its full extent what is thought by the learned editor of Story, Conflict 
 of Law (Sth ed.), § G25, note «, to be the true doctrine, — that " whether 
 the domestic law provides for redress in like cases should in principle 
 be immaterial, so long as the right is a reasonable one and not opposed 
 to the interests of the State." The cases cited, Dennick v. Railroad 
 Co., 103 U. S. 11, and Leonard r. Columbia Steam Navigation Co., 84 
 N. Y. 48, go further than the decisions of tliis State. Richardson v. 
 New York Central Railroad, 98 Mass. 85. The policy of the supposed 
 Connecticut rule cannot be said to be opposed to that prevailing here, 
 even apart from statute. See St. 1893, c. 359. 
 
 Exceptions overruled.'^ 
 
 * Part of the opinion is omitted. — Ed. 
 
 « Ace. Herrick v. M. & S. L. R. R. 31 Minu. 11. —Ed.
 
 SECT. IIL] hope V. HOPE. 803 
 
 SECTION IIL 
 
 OBLIGATIONS EX CONTRACTU, 
 
 HOPE V. HOPE. 
 Chancery. 1857. • 
 [Reported 8 De Gex, Macnaghten ^ Gordon, 731.] 
 
 This was an original hearing of a demurrer by the defendant, Johu 
 Adrian Hope, to an amended bill filed by his wife, Mathilde Emilie 
 Hope. The substance of the case stated by the original bill was as 
 follows : — 
 
 The marriage between the plaintiff, who was a Frenchwoman, and 
 the defendant, who was an Englishman, took place, in 1845, in England. 
 For some years after the marriage the husband and wife resided in 
 France, where they became domiciled, and where their five children 
 were born. In consequence of differences which arose between tlie 
 plaintiff and the defendant, the latter, in the early part of 1853, sent 
 all the children to England; but on the 21st of May in that year the 
 two youngest, Adrian Elias and John Henry, were allowed by the de- 
 fendant to be taken back to France, and were restored to Mrs. Hope. 
 Proceedings took place before the Frent ^li tribunals with re spect to th e 
 c ustody of the childre n, and in Au gust. 1853. the plaintiff instituted a 
 guit against her hu sband in the Consistory Court of London in order to 
 obtain a decree of divorce on the ground of cruelty and adultery, to 
 which Mr. Hope tiled a responsive allegation. On the 11th of Novem- 
 ber, 1853, the five infant children filed a bill in chancery by their next 
 friend, praying that Mrs. Hope might be ordered to deliver up Adrian 
 Elias and John Henry to their father in order that they might be 
 brought up and educated in England, and on the 7th of June, 1854, 
 the Lord Chancellor made an order in that suit that Mr. and Mrs. 
 Hope should take all such steps as might be necessary and proper 
 according to the law of France to cause the children to be delivered up 
 to their father, but that he should permit Mrs. Hope to have access to 
 them at all reasonable times (See 4 De G., M. & G. 329). Mrs. Hope 
 presented a petition of appeal to the House of Lords from this order. 
 In the meantime, by a decree of the Cour de Premiere Instance at 
 Paris, dated the 21st of December, 1854, it was directed that the order
 
 §04 HOPE V. HOPE. [chap. XYI. 
 
 of the Lord Chancellor should be carried into execution, but that pend- 
 ing Mrs. Hope's appeal the children should be placed at a school in 
 Paris, where both their father and mother should have liberty to see 
 them. Mrs. Hope appealed against this order to the Cour Imperi- 
 ale ; but before either appeal came on to be heard an arrangement 
 was made between her and her husband for the settlement of all 
 matters in dispute, and ultimatel}- an agreement was drawn up in the 
 French language, which was executed by Mrs. Hope at Paris, on the 
 20th of March, 1855, and bj- Mr. Hope m London on the 22d. The 
 bill set out a translation of the agreement, which was in tlie following 
 terms : — 
 
 "By a judgment deUvered by the Civil Tribunal of the Seine, dated 
 27th December, 1S54, it was declared that tliere should be executed in 
 France a judgment of the Lord Chancellor of England, which ordered 
 that Mrs. Hope should be bound to deliver up to Mr. Hope the two 
 sons issue of their marriage, Messrs. Adrian Elias and Jean Henry 
 Hope. Mrs. Hope has appealed against this order ; but, for the pur- 
 pose of putting an end to these painful proceedings, the following 
 terms have been entered into by the parties : 1. Mrs. Hope will im- 
 mediately deliver up to Mr. Hope Mr. Adrian Elias Hope ; Mr. Jean 
 Henry Hope will remain under the care of his mother. 2. Mrs. Hope 
 will abandon her suit for a divorce instituted against Mr. Hope in the 
 English courts, and for that purpose she binds herself to sign without 
 delay all such deeds and documents as may be required. 3. Mrs. Hope 
 undertakes not to oppose the suit for a divorce instituted against her by 
 Mr. Hope in the English courts, but on the contrary to facilitate the ob- 
 taining such divorce. It is well understood that Mrs. Hope shall be able 
 to see her children, to write to them, and to receive letters from them. 
 4. Mr. Hope agrees to pay in France to Mrs. Hope the annual sum of 
 75,000 francs in accordance with the decision of the Px-clesiastical 
 Court, to be paid quarterly and in advance. 5. Mr. Hope undertakes 
 to pay, firstly, the expenses incurred in England by Mrs. Hope, and sec- 
 ondly, ^Irs. Hope's debts in France, but on condition tliat such debts 
 shall not exceed the sum of 60,000 francs. These payments shall be 
 made by the hands of Mr. Hope's agents. 6. With regard to any ac- 
 counts that may he unsettled between Mr. and Mrs. Hope, as well as the 
 handing over to her any articles that may belong to her, the parties 
 agree to leave the matter to be settled by Messrs. Paillet & Duvergier, 
 whose decision shall ])e final." 
 
 In pursuance of this agreement the plaintiff brought Adrian Elias 
 Hope to England and delivered him up to j\Ir. Hope, John Henry 
 remaining with lier at Paris, and she withdrew her appeals both in this 
 country and in France. IMrs. Hope's suit in the Ecclesiastical Court 
 and the responsive allegation of Mr. Hope were both dismissed. 
 
 The bill went on to allege that the plaintiff had in all respects 
 performed her part of the agreement, but that the defendant had re- 
 fused to perform his part of it ; that he refused the plaintiff all access
 
 SECT. III.] HOPE V. HOPE. 805 
 
 to the children, though she had frequentl}' desired to visit them, and 
 that he had paid no part whatever of the promised annuity, of the costs 
 incurred by the plaintiff, or of tlie sura on account of her debts. The 
 bill praved a specific performance of the agreement of March, 1855, 
 that the plaintiff might have access to her children at all reasonable 
 times, that an account might be taken of the arrears of the allowance 
 stipulated for by the agreement, and that the defendant might be 
 ordered to pay such arrears and to give security for future payments 
 and to pay the cost of the suit. 
 
 The defendant demurred to this bill for want of equity, and the 
 Master of the Rolls overruled the demurrer (22 Beav. 351). An appeal 
 by the defendant came to be heard before the Lords Justices in July, 
 1856, and their Lordships having intimated an opinion that if the 
 dennu-rer were allowed leave must be given to amend, it was arranged 
 that the demurrer should be allowed without prejudice to any question 
 and with leave to the plaintiff to amend her bill, and that if the 
 defendant should demur again the demurrer should be brought directly 
 before the Court of Appeal. 
 
 Tlie bill accordingly was amended by introducing statements to the 
 following effect : That the defendant resided in England, and that by 
 his refusal to perform his part of the agreement the plaintiff was re- 
 duced to destitution — ^ that if p roceeding s could be i nstituted in the 
 courts of Frnnppjj^^d efendants would be decreed to pay the allowa nce 
 ai^^H~TEe""oniefsurnr^nentioned in the agreement. That it was the 
 in"tentwirof both parties~Tlmtr-bh«-agi:££me«^ should be valid and 
 binding on both ot them m England as well as in France, and that the 
 plaintiff had acted on the faith of its being so binding. That by 
 the French law regard would be had to the circumstances under which 
 the agreement was entered into, and that it would be carried into effect 
 by the French tribunals against the defendant if he were still a resident 
 in that country, and that although Monsieur Paillet, one of the referees 
 named in the' agreement, had since died, the plaintiff was willing that 
 it should be carried into execution in any manner which the court might 
 direct. The defendant again demurred.^ 
 
 Turner, L.J. This is a suit instituted by a wife against her 
 husband for the specific performance of an agreement entered into 
 between them. The bill has been met by a general demurrer for want 
 of equity. In the course of the argument before us, my learned brother 
 expressed our united opinion, that if the law of this country only was 
 to be taken into consideration in determining the case, tjie_agreemejit 
 could not b e supported, and the dejmirrer musl_conse^uentlj:,be^^k- 
 lowed, and we stopped the reply upon that point. The^fintherco^^ 
 e ratlonlvnicEri have since given fo^th"e-M bject"Tias^cdD&rmer"meTn~ 
 that opinion. 
 
 1 Arguments of counsel and the concurring opinion of Knight Bruce, L.J., are 
 omitted. — Ed.
 
 806 HOPE V. HOPE. [chap. XVI. 
 
 But it was argued for the plaintiir, in support of the bill, that in 
 determining this case the law of France ough t also to be t aken into 
 consuTeration, — ^haTthe agT^ment in TjueslTon ought to be considered 
 as an agreement entered into, or, at all events, to be performed in 
 France, — that it is ^rQlirl^^gniJ^^P'^'^'^ nf hpincr Rnforced in France, and 
 t.h f^t. effect ought therefore to be given to it b y the la w~oI 
 and upon thes e points we reserve d our judgment. 
 
 Upon carefully examining the allegations of this bill, on which alone 
 the case, being before us upon demurrer, must be decided, I think it 
 far from clear that the bill alleges such a case as would in strictness 
 warrant us in taking the law of France into consideration. But I 
 should not feel satisfied to dispose of the case finally upon that ground, 
 and I think it better, therefore, to consider it upon the assumption that 
 the law of France is to be taken into account, and that the agreement 
 in question would, according to that law, be capable of being enforced. 
 Laying aside, then, the allegations of the bill which point to the intro- 
 duction of the French law into the case, the bill alleges these facts : 
 [His Lordship stated in order the substance of the allegations in 
 the bill.] 
 
 No argument was addressed to us on the plaintiff's behalf with 
 reference to that part of the bill which applies to the plaintiff's having 
 access to her children, and seeks for relief in that respect. This part 
 of the plaintitTs complaint, if well founded, is properly the subject of 
 application in the suit in which the order for access has been made. 
 That order having been made, the right given by it and the enforce- 
 ment of that right cannot, as I apprehend, under an}' circumstances 
 appearing upon this bill, properl}' be made the subject of a distinct suit, 
 and the bill can derive no support from the introduction into it of this 
 part of the case. The question is, whether, upon the assumption whicli 
 I have stated as to the French law being taken into account, the bill 
 can in other resi^ects be maintained. I am of opinion that it cannot, 
 and upon these grounds : 1 think that when the courts of one country 
 are called upon to enforce contracts entered into in another country, 
 the question to be considered is not merely wliether the contract sought 
 to be enforced is valid according to the laws of the country in wliich it 
 was entered into, but whether it is consistent with the laws and policy 
 of the country in which it is sought to be enforced. A contract may 
 be good by the law of another country, but if it be in breach, fraud, or 
 evasion of the law of this country, or contrary to its policy, the courts 
 of this country cannot, as I conceive, be called upon to enforce it. 
 Now, there are two provisions of this agreement which, as it seems to 
 me, are contrary to the law and policy of this country. By article 1 of 
 the agreement one of the children is to remain under the care of the 
 plaintiff, the mother. By article 3 of the agreement, Mrs. Hope, the 
 plaintiff, undertakes " not to oppose the suit for a divorce instituted 
 against her by Mr. Hope in the English courts, but, on the contrary, to 
 facilitate the obtaining such divorce." Are these provisions consistent 
 with our laws and polic}'?
 
 SECT. III.] HOPE y. HOPE. 807 
 
 The first of them is in contravention of the order of the Lord 
 Chancellor stated in the bill. It is not oul^' in contravention of that 
 order, but, as I apprehend, is in contravention also of the settled law 
 and policj- of the countr}-. The law of this country gives to the father 
 the custodj- of the children and the control over them, and it gives him 
 that custody and control not for his own gratification, but on account 
 of his duties and with reference to the public welfare. Lord Eldon, 
 speaking upon this subject in Lord St. John v. Lady St. John, 11 Ves. 
 631, says this : " Then how is it as to the children? The father has 
 control over them by the law, as the law imposes upon him, with refer- 
 ence to the public welfare, most important duties as to them. If the 
 husband can contract with his wife, who cannot by law contract with 
 him (and in this instance the contract as to the children is between the 
 husband and wife only), it deserves great consideration, before a court of 
 law should b}- habeas corpus upon a unilateral covenant, as the Scotch 
 call it, take from him the custody and control of his children, thrown 
 upon him b}- the law, not for his gratification, but on account of his 
 duties, and place them, against his will, in the hands of his wife." 
 And again, in Lord Westmeath's Case, Jac. 251, Lord Eldon, upon 
 habeas corjius, ordered two children of very tender years to be delivered 
 to their father, notwithstanding an express agreement on his part 
 that they should reside with their mother and be educated under her 
 care and superintendence. I know of no authority contravening the 
 doctrine thus laid down and acted upon by Lord Eldon, and I have no 
 doubt, therefore, that this first article of the agreement is repugnant 
 both to the law and policy of this country. That there may be circum- 
 stances which w^ould justifj" such an agreement as this article contains 
 it is not necessary to den}'. No such circumstances are alleged by 
 this bill. 
 
 Then, as to the 3d article of the agreement. There is nothing which 
 the courts of this country have watched with more anxious jealousy, 
 and I will venture to say, with more reasonable jealousy, than contracts 
 ■which have for their object the disturbance of the marital relations. 
 The peace of families, the welfare of children, depends, to an extent 
 almost immeasurable, upon the undisturbed continuance of those rela- 
 tions ; and so strong is the policy of our law upon this subject, that 
 not only is marriage indissoluble, except by the legislature, but divorces 
 a mensd et thoro are granted only in cases of cruelty or adultery. 
 But what is this article of the agreement? That the wife shall not 
 oppose the husband's suit for a divorce, but, on the contrary, shall 
 facilitate the obtaining it. I can conceive nothing more contrary to 
 the policy of our law than this provision of the agreement. It is, as it 
 seems to me, repugnant to the law, both as to the object which it has 
 in view and the means by which that object is to be effected. Its 
 object is the discontinuance of the marital relations without, so far as 
 appears by this bill,. any suflScient cause for the purpose, for the bill 
 states no more than that there was a suit by the plaintiff for a divorce
 
 808 HOPE V. HOPE. [chap. XVI. 
 
 and evidence taken upon it, and that upon that evidence the responsive 
 allegation, the purpose of which is not stated, was dismissed ; and the 
 means by which this object is to be eflfected are, as I understand this 
 agreement, by evading the due administration of justice in the courts 
 of this country. Much of the argument on the part of the plaintiff was, 
 and most properl}', addressed to this pait of the case. It was said that 
 the wife's assistance in obtaining the divorce could be of no avail, for 
 that the Ecclesiastical Court would not in such cases act upon the 
 consent of the parties ; but there are other modes of rendering assist- 
 ance than b}' consent, — modes, too, of which the court ma}' have no 
 cognizance. But then it was said that the whole of the evidence had 
 been taken in the suit, and that there could, therefore, be no deception 
 upon the court ; but it is one thing to take evidence, another to dissect 
 and scrutinize it and lay it before the court. It was further said on the 
 part of the plaintiff, that the proposed divorce would amount to no 
 more than a separation, and that the law of this country recognizes 
 separations between husband and wife ; but I am ver^' far indeed from 
 being satisfied that the law of this country would recognize a separa- 
 tion upon such an agreement as this between the husband and wife 
 alone, and besides there are consequences which attach to a sentence 
 of divorce which do not belong to a separation b}' agreement merely. 
 Giving full weight, however, to all these arguments on the part of the 
 plaintiff, they furnish no answer to the objection that this is an agree- 
 ment for evading the due administration of justice in England. 
 
 Lastly, it was urged on the plaintiff's behalf, that whatever objection 
 there ma}' have been to this agreement in its inception, what remains 
 to be performed is legal and unobjectionable ; but to hold that an 
 agreement so objectionable as that this court would not perform it, can 
 be rendered capable of performance by the objectionable parts of it 
 having been carried into execution, is a doctrine to which I cannot 
 assent. 
 
 Upon these grounds, without entering more into the other points 
 which were argued before us, my opinion is that this demurrer ought 
 to be allowed.^ 
 
 ^ Ace. Grell v. Levy, 16 C. B. n. s. 7 (champertous agreement); Rousillon v. 
 Rousillon, 14 Ch. D. 351 (contract in restraint of trade); Rofjers v. Kaincs, (Ky. ), 
 38 S. W. 483 (agreement to pay attorney's fee); Rowland v. B. & L. Assoc, 115 K C. 
 825, 18 S. E. 965 (unconscionable agreement). — Ed.
 
 BECT. III.] GEEENWOOD V. CURTIS. 809 
 
 GREENWOOD v. CURTIS. 
 Supreme Judicial Court of Massachusetts. 1810. 
 
 [Reported 6 Massachusetts, 358.] 
 
 Parsons, C. J.^ This action is assumpsit on a promissorj' note for 
 the delivery of slaves, and tlie payment of bars, which are an African 
 currenc}', and also on an insinnil coinjyutassent. A verdict has been 
 found for the plaintiff, upon a trial on the general issue, subject to 
 the opinion of the court upon a case stated by the parties. 
 
 Two objections have been made to the verdict b}^ the counsel for the 
 defendant. That the letters of Hippias were improperly admitted in 
 evidence ; — and if they were not, that no action can be maintained in 
 this State on a breach of either of the supposed promises.^ . . . 
 
 The second objection, that no action upon either of the promises 
 alleged can be maintained in this State, is principally relied on by the 
 defendant. The argument of his counsel has been supported with 
 much ingenuity. The slave trade, he has argued, is or has been pro- 
 hibited by a statute of the Commonwealth, in the preamble of which it 
 has been declared to be an unrighteous commerce ; and he attempted 
 to show that in itself it was immoral. This objection deserves much 
 consideration. 
 
 By the common law, upon principles of national comity, a contract 
 made in a foreign place, and to be there executed, if valid by the laws 
 of that place, may be a legitimate ground of action in the courts of 
 this State ; although such contract may not be valid by our laws, or 
 even may be prohibited to our citizens. Thus in States where a 
 greater rate of interest is allowed than by our statute, a contract se- 
 curing a greater rate of interest, but agreeably to the law of the place, 
 may be sued in our courts, where the plaintiff shall recover the stipu- 
 lated interest. . , 
 
 This rule is subject to two exceptions. 7 0«£lJ .s, whe n the Common- 
 wealtji_ojiJis--eitizens-Ttray---be--ij4i]r cd py giving legal effect t ojhe 
 contract by a judgment in oul courts. — Thus a contract for the sal e 
 a n d deli ver y of merchindise. in a State where such sale i s not prohibi- 
 ted, may be sued in another State where such merchandise cannot be 
 lawfully imported. But if the delivery was to be in a State where the 
 importation was interdicted, there the contract could not be sued in 
 the interdicting State ; because the giving of legal effect to such a con- 
 tract would be repugnant to its rights and interest. — Another exception 
 is, when the giving of legal effect to the contract would exhibit to the 
 citizens of the State an example pernicious and detestable. — Thus if 
 a foreign State allows of marriages incestuous by the law of nature, as 
 between parent and child, such marriage could not be allowed to have 
 
 1 Sedgwick, J., prepared a dissenting opinion, for which see 6 Mass. 362 n. — Ed. 
 
 2 Only so much of the case as discusses the second objectiou is given.— Ed.
 
 810 GREENWOOD V. CURTIS. [CHAP. XVI, 
 
 any validity here. But marriages not naturally unlawful but prohib- 
 ited b}' the law of one State and not of another, if celebrated where 
 they are not prohibited, would be holden valid in a State where the}* are 
 not allowed. As in this State a marriage between a man and his de- 
 ceased wife's sister is lawful, but it is not so in some States ; such a 
 marriage celebrated here would be held valid in any other State, and 
 the parties entitled to the benefits of the matrimonial contract. — 
 Another case may be stated, as within this second exception, in an 
 action on a contract made in a foreign State by a prostitute, to recover 
 the wages of her prostitution. This contract, if lawful where it was 
 made, could not be the legal ground of an action here ; for the con- 
 sideration is confessedly immoral, and a judgment in support of it 
 would be pernicious from its example. And perhaps all cases may be 
 considered as within this second exception, which are founded on moral 
 turpitude, in respect either of the consideration or the stipulation. 
 
 Before the present case can be compared with this rule, including 
 the exception to it, the merits of it must be ascertained. 
 
 In South Carolina it was lawful to purchase slaves on the coast 
 of Africa, and to import them as merchandise into that State. And 
 it does not appear that this purchase and importation was unlawful 
 at Rio Pongos. The original contract was made at Rio Pongos, 
 for the purpose of obtaining slaves to transport to Charleston. 
 The account was stated at Rio Pongos, in which the defendant 
 acknowledged a balance due in cash, which was assented to by the 
 plaintiff in Charleston. Whether either of the contracts is to be 
 governed b}- the law of Rio Pongos or of South Carolina is imma- 
 terial : for in either case it does not appear that either of them was 
 invalid lege loci. Either of them, therefore, may be the ground of 
 an action in this State, unless it come within one of the exceptions 
 to the rule, even if a contract of this nature made by the citizens 
 of this State should be void. To maintain the action, if it be not 
 within the exceptions, is enjoined on us by the comit}' we owe an- 
 other Sate. And to entitle the defendant to retain in his hands the 
 debt which he justly owes, as between the parties, he ought clearly 
 to show some principle by which he may defend himself in dishon- 
 estly retaining this property. 
 
 We do not perceive any injury that could arise to the rights or in- 
 terests of this State or its citizens, if either of the contracts had been 
 faithfully executed agreeably to the terms of it. It was made abroad, 
 by persons not citizens of the Commonwealth, and to be executed 
 abroad, having no relation in its consequences to our laws. 
 
 The defendant therefore, to establish his defence, must bring this 
 case within the second exception ; and show that the action, as consid- 
 ered by the laws of this Commonwealth, is a turpis causa., furnishing a 
 pernicious precedent, and so not to be countenanced. This upon 
 public principles he is authorized to do, notwithstanding he is a party 
 to all the moral turpitude of the contract.
 
 SECT. III.] GREENWOOD V. CURTIS. 811 
 
 The argument is, that the transportation of slaves from Africa is 
 an immoral and vicious practice, and consequenth' that an\' contract 
 to purchase slaves for that purpose is base and dishonest, and cannot 
 be the foundation of an action here within the principle of comit}* 
 adopted by the common law. This objection maj- appl}- to the 
 counts on the note but not to the count on the insimul computassent. 
 
 Laying the counts on the note out of the case, we shall consider 
 the objection of moral turpitude, so far as it affects the count on 
 the insimul comjjutassent : and we are satisfied that the objection 
 does not apply to the contract averred in this count ; there being 
 nothing immoral in the consideration on the plaintiffs part, or m 
 the stipulation made by the defendant. — If a Charleston merchant 
 should send a cargo of merchandise to Africa, for the purpose of 
 there selling it, and with the proceeds to purchase slaves ; and if 
 the cargo be accordingly' sold, and the purchaser agree to pay for it 
 in slaves ; and he afterwards shall refuse or neglect to deliver the 
 slaves, but makes a new agreement with the owner to pay him a 
 sum of money for his cargo, an action can unquestionably in our 
 opinion be maintained on this new contract ; and the illegal con- 
 tract, being annulled or void, cannot affect it. — So, if the pur- 
 chaser had delivered a part only of the slaves to the merchant, and 
 afterwards agrees with him to pay the balance in cash, we see no 
 objection to an action to recover this balance in cash, if the pur- 
 chaser refuse to pa}' it. 
 
 In the present case the defendant having delivered a part only 
 of the slaves, and having become a creditor of the plaintiff for sup- 
 plies furnished to his use, states his account, in which after deduct- 
 ing the slaves delivered and the supplies furnished, he acknowledges 
 a balance in cash, and the plaintiff, having assented to the account, 
 demands the balance in this action we see no legal objection to 
 his recovery. The consideration of the implied promise arising 
 from this settlement is the sale of the cargo, which involves in it 
 no moral turpitude ; neither is the performance of the promise by 
 paying the balance in cash immoral. And although on the same 
 day the defendant, in consideration of this balance due in cash, 
 promises b}' his note to discharge it principally in slaves, and the 
 small remainder in cash ; j'et this promise is no bar to an action 
 by the plaintiff on the account, even if the promise by the note is 
 here considered as legal and a fortiori if it is considered as void 
 for its immorality. — It is true if the defendant voluntarily dis- 
 charged the note, the balance of the account could not afterwards 
 be recovered, for the consideration of it was discharged by the pay- 
 ment of the note : nor could the payment of the note be recovered 
 back, for potior est conditio possidentis. 
 
 In this case the defendant having acknowledged a balance of cash 
 in his hands, the property of the plaintiff; although it came into 
 his hands from the sale of the merchandise, for which he was to
 
 812 FONSECA V. CUNAED STEAMSHIP CO. [CHAP. XVI. 
 
 pay ill slaves, but did not, this balance as between the parties is 
 justly due the plaintiff ; and unless the principles of public policy 
 against the action upon the insimul computassent are manifest, we 
 cannot decide that the defendant shall not be held to pay what he 
 justly owes. 
 
 In this view of the case we are satisfied that the action is main- 
 tained on the insimul computassent^ and that the plaintiff may take 
 his verdict on that count, and have judgment entered upon it. 
 
 Judgm^ent according to verdict.^ 
 
 FONSECA V, CUNARD STEAMSHIP CO. 
 
 Supreme Judicial Court of Massachusetts. 1891. 
 [Reported 153 Massachusetts, 553.] 
 
 The plaintiff took passage on the defendant's steamer from Liverpool 
 to Boston. He had with him on the ship his trunk, containing articles 
 of clothing and personal property reasonable and proper for an ocean 
 traveller to carry as personal baggage, all of which w^ere entirel}' ruined 
 on the voyage by the negligence of the defendant. When the plaintiff 
 engaged his passage in London, he received a passage ticket from the 
 defendant's agent there. This ticket consisted of a sheet of paper of 
 large quarto size, the face and back of which were covered with written 
 and printed matter. Upon the back, among other printed matter, 
 was the following: "The company is not liable for loss of or injury 
 to the passenger or his luggage, or delay in the voyage, whether arising 
 from the act of God, the Queen's enemies, perils of the sea, rivers, or 
 navigation, restraint of princes, rulers, and peoples, barratry, or negli- 
 gence of the company's servants (whether on board the steamer or 
 not), defect in the steamer, her machinery, gear, or fittings, or from 
 any other cause of whatsoever nature." 
 
 The judge, upon these facts, found and ruled " that the contract 
 was a British contract ; that, by the English law, a carrier may by 
 contract exempt himself from liability, even for loss caused by his 
 negligence ; that in this case, as the carrier has so attempted, 
 and the terms are broad enough to exonerate him, the question 
 remains of assent on the part of the plaintiff. This has been decided 
 in Massachusetts to be a question of evidence, in which the lex fori 
 is to govern ; that although it has been decided that the law con- 
 clusively prosunu's that a consignor knows and assents to the terms of 
 a bill of lading or a shipping receipt which he takes without dissent, 
 j'et a passenger ticket, even though it be called a ' contract ticket,' does 
 not stand on the same footing, that in this case assent is not a coudu- 
 
 1 Ace. Rouudtree i;. Baker, 52 111. 241. — Ed.
 
 SECT. III.] THE KENSINGTON. 813 
 
 sion of law, and is not proved as a matter of fact." Upon the whole 
 case, the judge ruled that the defendant company was not exempted 
 from liability by the contract ticket, and found for the plaintiff. 
 
 If the rulings were wrong, the verdict was to be set aside, and judg- 
 ment entered for the defendant ; otherwise, the judgment was to be 
 entered on the finding.^ 
 
 Knovvlton, J. . . . We are of opinion that the ticket delivered to 
 plaintiff purported to be a contract, and that the defendant corporation 
 had a right to assume that he assented to its provisions. All these 
 provisions are equally binding on him as if he had read them. 
 
 The contract being valid in England, where it was made, and the 
 plaintiff's acceptance of it under the circumstances being equivalent to 
 an express assent to it, and it not being illegal or immoral, it will be 
 enforced here, notwithstanding that a similar contract made in Massa- 
 chusetts would be held void as against public policy. Greenwood v. 
 Curtis, 6 Mass. 358 ; Forepaugh v. Delaware, Lackawanna, & Westr 
 ern Railroad, 128 Penn. St. 217, and cases cited; In re Missouri 
 Steamship Co., 42 Ch. D. 321, 326, 327 ; Liverpool & Great Western 
 Steam Co. v. Phenix Ins. Co., 129 U. S. 397. 
 
 Judgynent for the defendant.'^ 
 
 THE KENSINGTON. 
 
 Supreme Court of the United States. 1902. 
 
 [Reported 183 United States, 263.] 
 
 White, J.^ The libel by which this action was commenced sought 
 to recover the value of passengers' baggage which it was alleged the 
 ship had wrongfully failed to deliver. The facts essential to be borne 
 in mind, in order to approach the questions arising for decision, are 
 as follows : — 
 
 The International Navigation Company, a New Jersey corporation, 
 on December 6, 1897, at the office of its Paris agency, issued to Mrs. 
 and Miss Bleecker, the wife and daughter of an officer of the United 
 States Navy, a steamer ticket for a voyage from Antwerp to New- 
 York on the Kensington, a steamer in the control of the company, 
 advertised to sail from Antwerp on December the 11th. The ticket 
 was delivered to Mrs. Bleecker, who at the time made part payment of 
 the passage money. The baggage of the two passengers was shipped 
 by rail to Antwerp, to the care of the agent of the company there. 
 
 ^ The statement of facts has been condensed, and part of the opinion omitted. — Ed. 
 2 Ace. Forepaugh v. Del. L. & W. R. R., 128 Pa, 217, printed ante Vol. I. p. 
 131. — Ed. 
 
 8 Part of the opinion is omitted. — Ed.
 
 814 THE KENSINGTON. [CHAP. XVI. 
 
 Mrs. Bleecker, at Antwerp, on the 10th of December, paid the remain- 
 der of the passage money, and it was entered on the ticket. The bag- 
 o-ao-e having in the meanwhile been received, the charges which the 
 agent at Antwerp had advanced were refunded and a receipt was 
 issued. It was stated therein that the value of the baggage was 
 unknown, and that it was shipped subject to the conditions contained 
 in the company's steamer ticket and bill of lading. Mrs. Bleecker and 
 her daughter embarked, and the steamer sailed on the Uth of Decem- 
 ber. The ticket was subsequently taken up by the purser. 
 
 The baggage was stowed in what was known as number 2, upper 
 steerage deck. The voyage was an exceptionally rough one, the ship, 
 encountering heavy seas and winds, rolled from 38 to 45 degrees on 
 either side during the height of the gale, and was obliged to heave to for 
 about fifteen hours. On arrival at New York the baggage was found 
 to be totally destroyed. By constant shifting it had been reduced to 
 an almost unrecognizable mass, was commingled with debris of broken 
 china and straw, and covered with water. The first was occasioned by 
 stowing crates of china in the same compartment. The presence of the 
 water was explained by the fact that an exhaust pipe which passed 
 through the compartment had been broken by the shifting of the con- 
 tents of the compartment, and hence the exhaust escaped into the 
 compartment. 
 
 There is no possible view which can be taken of the facts b}- which 
 the loss of the baggage was brought about, by which the ship could be 
 held responsible if the steamer ticket was in and of itself a complete 
 contract, and all the conditions or exceptions legibl}- printed on the 
 face thereof were lawful. The ticket was signed by the agent of the 
 company at Paris, was countersigned by the agent at Antwerp, but 
 was not signed by either Mrs. Bleecker or her daughter. One of the 
 conditions printed on the ticket provided that there should be no lia- 
 bilitv to each passenger, ''under any circumstances," beyond the sum 
 of 250 francs, "at which such baggage is hereby valued," unless an 
 increased value be declared and an additional sum paid as provided by 
 the condition. 
 
 There was no proof tending to show that at the time the ticket 
 was issued the attention of Mrs. Bleecker or her daughter was called to 
 the fact that it embodied exceptional stipulations relieving the company 
 from liability, or that such conditions were agreed to, except in so far 
 as a meeting of minds on the subject may be inferred from the fact of 
 the delivery of the ticket b}' the company, and its acceptance, and that 
 it contained on its face, in small but legible type, among others, the 
 stipulations which are relied upon. The testimony of Mrs. Bleecker 
 and her daughter was that when the ticket was received it was put 
 aside without reading it, and that it was not subsequently examined 
 before it was delivered to the ship's otlicer. The District Court held 
 that the loss of the baggage was attributable to bad stowage ; that the 
 ticket and the conditions printed on it were a contract binding upon
 
 SECT. III.] THE KENSINGTON. 815 
 
 the parties, so far as the conditions were lawful. The conditions 
 generally relieving from liability for negligence were held to be void, 
 but the stipulation as to the value of the baggage was held valid ; 
 recovery was allowed onl}- for the equivalent of 250 francs to each. 
 88 Fed. 331. 
 
 On appeal the Circuit Court of Appeals for the Second Circuit 
 afBrined the judgment. 36 C. C. A. 533, 94 Fed. 885. 
 
 Tlie case by the ahowance of a writ of certiorari is here for review. 
 The District Court held, although the condition of the weather might 
 account for the shifting of the baggage, that result could also have 
 arisen from its bad stowage ; and, in the absence of all proof by the 
 ship that the baggage had been properly stowed, when such proof was 
 peculiarly within its reach, the loss must be presumed to have arisen 
 from the imperfect stowage. The Circuit Court of Appeals, while in 
 effect agreeing to this conclusion, in addition found that there was 
 proof in the record tending to sustain the conclusion that the baggage 
 had been improperly stowed, and that no proof even tending to rebut 
 this testimony had been offered by the company. As in the argument 
 at bar the conclusion of the court below on this subject was not 
 seriously questioned, we content ourselves with saying that, as a 
 matter of fact, we find them to be sustained, and therefore pass from 
 their further consideration. 
 
 The loss of the baggage being, then, attributable to improper 
 stowage, the question is, Was the vessel relieved from the con- 
 sequence of its fault by the exceptions contained in the passenger 
 ticket? The District Court decided " that a ticket of the character 
 above described for a transatlantic passage is a unilateral contract, 
 and, like a bill of lading, is binding upon the person who receives it, 
 so far as its provisions are reasonable and valid." In other words, the 
 court held, although there was no proof of the meeting of the minds of 
 the parties upon the subject of exceptional limitations to be imposed 
 upon the contract of carriage, the receipt and retention of the ticket 
 implied a unilateral contract embracing the exceptions found in legible 
 characters on the face of the ticket. And being thus a part of the 
 express and written contract, the exceptions would be enforced, pro- 
 vided they were just and reasonable. The Circuit Court of Appeals in 
 effect approved these views of the District Court. 
 
 While, apparently, the question whether there was a unilateral 
 contract necessarily arises first for consideration, such is not the case 
 when the situation of the record is taken into view. For should we, 
 in disposing of this question, determine that the rulings of the court 
 below as to the unilateral contract were correct, we would not thereby 
 be relieved from deciding whether the conditions embodied in the 
 contract were valid. On the other hand, should we conclude that 
 the conditions relied on were void, there will be no occasion to 
 determine the question of contract. We hence invert the logical 
 order of consideration, and first come to determine whether the
 
 816 THE KENSINGTON. [CIIAP. XVI. 
 
 conditions enumerated in the ticket relieved from the responsibility 
 otherwise resulting from the bad stowage of the baggage. In doing so 
 we shall, of course, assume, for the purpose of this branch of the case 
 only, that the conditions relied upon were a part of a unilateral con- 
 tract, and were binding as far as they were just and reasonable. It 
 is apparent if the carrier, in transporting the baggage, was governed 
 by the act of February 13, 1893, designated as the Harter Act, any 
 provision in the ticket exempting from liability for fault in loading or 
 stowage was void because inhibited by the express provisions of the 
 statute. 27 Stat, at L. 445, chap. 105. As, however, the view which 
 we take of the conditions expressed in the ticket will be equally 
 decisive, whether or not the Harter Act concerns the carriage of 
 passengers and their baggage, it, becomes unnecessary to intimate any 
 opinion as to whether the provisions of the act in question appl}' to 
 such contracts. The exceptions found on the face of the ticket upon 
 which the carrier depends are as follows : — 
 
 '' (c) The shipowner or agent are not under any circumstances 
 liable for loss, death, injury, or delay to the passenger or his baggage 
 arising from the act of God, the public enemies, fire, robbers, thieves 
 of whatever kind, whether on board the steamer or not, perils of the 
 seas, rivers, or navigation, accidents to or of machinery, boilers, or 
 steam, collisions, strikes, arrest, or restraint of princes, courts of law, 
 rulers, or people, or from any act, neglect, or default of the ship- 
 owner's servants, whether on board the steamer or not, or on board 
 any other vessel belonging to the shipowner, either in matters afore- 
 said or otherwise howsoever. Neither the shipowner nor the agent is 
 under any circumstances, or for any cause whatever or however arising, 
 liable to an amount exceeding 250 francs for death, injury, or delay 
 of or to any passenger carried under this ticket. The shipowner will 
 use all reasonable means to send the steamer to sea in a seaworthy 
 state and well-found, but does not warrant her seaworthiness. 
 
 " (d) The shipowner or agent shall not under any circumstances 
 be liable for any loss or delay of or injury to passengers' baggage 
 carried under this ticket, bej'ond the sum of 250 francs, at which 
 such baggage is hereby valued, unless a bill of lading or receipt be 
 given therefor, and freight paid in advance on the excess value at 
 the rate of 1 per cent, or its equivalent, in which case the shi[)Owner 
 shall only be responsible according to the terms of the shipowner's 
 form of cargo bill of lading, in use from the port of departure." 
 
 It is settled in the courts of the United States that exemptions 
 limiting carriers from responsibility for the negligence of themselves or 
 their servants are both unjust and unreasonable, and will be deemed 
 as w anting in th e elenient of voluntary assent ; an d, bcsuies^ that such' 
 __conditiaaa a re in coniri ^^^witrh— purHtc polic}'. This doctrine was 
 announced so long ago, and has been so frequentl}' reiterated, tliat it is 
 elementary'. We content ourselves with referring to the cases of the 
 Baltimore & 0-, S. W. 11. Co. v. Voigt, 176 U. S. 498, 505, 507,
 
 SECT. III.] ■ THE KENSINGTON. 817 
 
 and Knott v. Botany Worsted Mills, 179 U. S. 69, 71 ; where the 
 previously adjudged cases are referred to, and the principles by them 
 expounded are restated. 
 
 True it is that by the act of February 13, 1893 (27 Stat, at L. 445, 
 chap. 105), known as the Harter Act, already adverted to, the general 
 rule just above stated was modified so as to exempt vessels, when 
 engaged in the classes of carriage coming within the terms of the 
 statute, from liability for negligence in certain particulars. But while 
 this statute changed the general rule in cases which the act embraced, 
 it left such rule in all other cases unimpaired. Indeed, in view of the 
 well-settled nature of the general rule at the time the statute was 
 adopted, it must result that legislative approval was by clear implica- 
 tion given to the general rule as then existing m all cases where it was 
 not changed. 
 
 Testing the exemptions found in the ticket by the rule of public 
 policy, it is apparent that they were void, since they unequivocally 
 sought to relieve the carrier from the jnjtial duty of^furiiishinga^ea- 
 
 worthy vessel forjlljieglectjnJoa4ingL9L?l5^ 
 
 and ever}' fault of cpmmission or omission on the part of the carrier or 
 his servajnts. And seeking to accomplish these results, it is equally 
 plain that the conditions were void if their legality be considered solely 
 with reference to the modifications of the general rule created by the 
 act of 1893. Knott v. Botany Worsted Mills, 179 U. S. 69. As, how- 
 ever, the ticket was finally countersigned in Belgium, and one of the 
 conditions printed on its face provides that " all questions arising here- 
 under are to be settled according to the Belgium law, with reference to 
 which this contract is made," it is insisted that such law should be ap- 
 plied, as proof was offered showing that the law of Belgium authorized 
 the conditions. The contention amounts to this : Where a contract is 
 made in a foreign country, to be execu ted at Ija^ jiLjmil-m- JJi^^'Koited 
 State's, the law of the foreign^ cmintry^^U^^er_J)yjts jownj^^^ in 
 virtue of the agreement of the contractTng parties, mus^be enforcedjjy 
 the courts' of the' TTnTted^lStatesT^vefi^'aTlhou^ 
 
 violaUon' oTthe" pubTfc polIc> ^'ort he"U nlF ed' S tates^ Toltate the prop- 
 ositionlsTwe'thinkT to answer it. It is true, as a general rule, that the 
 lex loci governs, and it is also true that the intention of the parties to a 
 contract will be sought out and enforced. But both these elementary 
 principles are subordinate to and qualified by the doctrine that neither by 
 comity nor by the will of contracting parties can the public policy of a 
 country be set at naught. Story, Confl. L. §§ 38, 244. While, as said 
 in Knott v. Botany Worsted Mills, the previous decisions of this court 
 have not called for the application of the rule of public policy to the 
 precise question here arising, nevertheless, that it must be here enforced 
 is substantiallv determined by the previous adjudications of this court. 
 In Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, the 
 question arose whether conditions exempting a carrier from responsi- 
 bility for loss caused by the neglect of himself or his servants could be 
 
 52
 
 818 THE KENSINGTON. [CHAP. XVI. 
 
 enforced in the courts of the United States, the bill of lading having 
 been issued in New York by a British ship for goods consigned to Eng- 
 land. Despite the fact that conditions exempting from responsibility' 
 for loss arising from negligence were valid by the laws of New York, 
 and would have been upheld in the courts of that State, it was decided 
 that, in view of the rule of public policy applied by the courts of the 
 United States, effect would not be given to the conditions. In the very 
 nature of things, the premise, upon which this decision must rest, is 
 controlling here, unless it be said that a contract made in a foreign 
 country, to be executed in part in the United States, is more potential 
 to overthrow the public policy, enforced in the courts of the United 
 States, than would be a similar contract, validly made, in one of the 
 States of the Union. Nor is the suggestion that because there is no 
 statute expressly prohibiting such contracts, and because it is assumed 
 no offence against morality is committed in making tliem, therefore 
 they should be enforced, despite the settled rule of public policy to the 
 contrary. The existence of the rule of public policy, not tlie ultimate 
 causes upon which it may depend, is the criterion. The precise ques- 
 tion has been carefully considered and decided in the district courts of 
 the United States. In The Guildhall, 58 Fed. 796, it was held that a 
 stipulation in a bill of lading issued at Rotterdam on goods destined to 
 New York, "exempting the carrier from liability for negligence, would 
 not be enforced in the courts of the United States, although such a 
 condition was valid under the law of Holland. In The Glenmavis, 69 
 Fed. 472, the same rule was appUed to a bill of lading issued in Ger- 
 many by a British ship, for goods consigned to Philadelphia. Indeed, 
 by implication the question is controlled by statute. We have previ- 
 ously pointed out, under the assumi)tion that the Harter Act does not 
 apply to the carriage of the baggage of a passenger, that such law in 
 effect affirms the rule of public policy as previously existing in the cases, 
 where no change was made. But that act expressly prohibits carriers 
 engaged in the business which it regulates from contracting, even in a 
 foreign country, for a shipment to the United States, to relieve them- 
 selves from neglig3nce in cases where the statute does not do so. Knott 
 V. Botany Worsted Mills, 179 U. S. 69. The theory, then, by which 
 alone the conditions relied on in this case can be enforced, despite the 
 public polic}' which governs, in the courts of the United States, reduces 
 itself to this : Carriers who transact a class of business where they are 
 exempt by law, in many cases, from the consequences of the neglect of 
 themselves or their servants, may not overthrow public policy by con- 
 tracts made in a foreign country for a shipment to the United States ; 
 but carriers who are in no case exempt by the law from the consequence 
 of their neglect may do so. But this amounts in last analysis to this : 
 The lesser the immunity from negligence the greater the power to avoid 
 the consequences of negligence. 
 
 The general exemptions from responsibility for negligence which the 
 ticket embodies being controlled by the rule enforced in the courts of
 
 SECT. III.] EMEKY V. BUKBANK. 819 
 
 the United States, and being therefore void, because against public 
 policj', we come to consider tlie particular provisions contained in the 
 ticket with reference to the value of the baggage and the limit of re- 
 covery, if any, arising therefrom. . . . 
 
 In view of the nature and duration of the voyage, of the circum- 
 stances which may be reasonabl}' deemed to environ transatlantic cabin 
 passengers, and the objects and purposes which it may also be justly 
 assumed the persons who undertake such a voyage have in view, we 
 think the arbitrary limitation of 250 francs to each passenger, unaccom- 
 panied by any right to increase the amount b}' an adequate and reason- 
 able proportional payment, was void. It is therefore unnecessary to 
 decide whether the ticket delivered and received under circumstances 
 disclosed b}' the record gave rise to a contract embracing the excep- 
 tions to the carrier's liabiiit}' which were stated on the ticket. We 
 intimate no opinion on the subject. 
 
 The decree below must be reversed, and the cause remanded to the 
 District Court, with directions to ascertain the actual damage sustained 
 by the libellants, and to enter a decree in their favor for the amount of 
 fBuch damages, with interest and costs. 
 
 And it is so ordered. 
 
 EMERY V. BURBANK. 
 Supreme Judicial Court of Massachusetts. 1895. 
 
 [Reported 163 Massachusetts, 326.] 
 
 Holmes, J. This is an action on an oral agreement, alleged to have 
 been made in Maine, in 1890, by the defendant's testatrix, Mrs. Rum- 
 ery, to the effect that, if the plaintiff would leave Maine and take care 
 of Mrs. Rumery, the latter would leave the plaintiff all her property at 
 her death, and also would put four thousand dollars into a house which 
 the plaintiff should have. At the trial evidence was introduced tend- 
 ing to prove the agreement as alleged. The presiding justice ruled 
 that the action could not be maintained, and the case is here on ex- 
 ceptions. As we are of opinion that the ruling must be sustained 
 under St. 1888. c. 372, requiring agreements to make wills to be in 
 writing, a fuller statement of the facts is not needful. 
 
 There is no doubt of the general principles to be applied. A con- 
 tract valid where it is made is valid everywhere, but it is not neces- 
 sarily enforceable everywhere. It may be contrary to the policy of the 
 law of the forum. Van Reimsdyk v. Kane, 1 Gall. 371, 375; Green- 
 wood V. Curtis, 6 Mass. 358; Fant v. Miller, 17 Grat. 47, 62. Or 
 again, if the law of the forum requires a certain mode of proof, the 
 contract, although valid, cannot be enforced in that jurisdiction with- 
 out the proof required there. This is as true between the States of this
 
 820 EMERY V. BURBANK. [CHAP. XVI. 
 
 Union as it is between Massachusetts and England. Hoadley v. North- 
 ern Transportation Co., 115 Mass. 304, 306 ; Pritchard v. Norton, 106 
 U. S. 124, 134 ; Downer v. Chesebrough, 36 Conn. 39 ; Kleeman v. 
 Collins, 9 Bush (Ky.), 460; Fant v. Miller, 17 Grat. 47; Hunt v. 
 Jones, 12 R. I. 262, 266; Yates o. Thomson, 3 CI. & Fin. 544, 586, 
 587 ; Bain v. Whitehaven & Furness Junction Railway, 3 H. L. Cas. 1, 
 19 ; Leroux v. Brown, 12 C. B. 801. When the law involved is a 
 statute, it is a question of construction whether the law is addressed to 
 the necessary constituent elements, or legality, of the contract on the 
 one hand, or to the evidence b}^ which it shall be proved on the other. 
 In the former case, the law affects contracts made within the jurisdic- 
 tion, wherever sued, and may affect only them. Drew v. Smith, 59 
 Me. 393. In the latter, it applies to all suits within the jurisdiction, 
 wherever the contracts sued upon were made, and again may have no 
 other effect. It is possible, however, that a statute should affect both 
 validity and remedy by express words, and this being so, it is possible 
 that words which in terras speak only of one should carry with them 
 an implication also as to the other. For instance, in a well-known 
 English case Maule, J. said, "The fourth section of the statute of 
 frauds entirely applies to procedure." And on this ground it was held 
 that an action could not be maintained upon an oral contract made in 
 France. But he went on, " It may be that the words used, operating 
 on contracts made in England, i-enders them void." Leroux v. Brown, 
 12 C. B. 801, 805, 807. We cite the language, not for its particular 
 application, but as a recognition of the possibility which we assert. 
 
 The words of the statute before us seem in the first place, and most 
 plainly, to deal with the validity and form of the contract. " No 
 agreement . . . shall be binding, unless such agreement is in writ- 
 ing." If taken literally, they are not satisfied by a written memoran- 
 dum of the contract ; the contract itself must be made in writing. 
 They are limited, too, to agreements made after the passage of the act, 
 a limitation which perhaps would be more likely to be inserted in a law 
 concerning the form of a contract tlian in one which ou\y changed a 
 rule of evidence. But we are of opinion that the statute ought not to 
 be limited to its operation on the form of contracts made in this State. 
 The generality of the words alone, " no agreement," is not conclusive. 
 But the statute evidently embodies a fundamental policy. Tlie ground, 
 of course, is the prevention of fraud and perjury, which arc deemed 
 likely to be practised without this safeguard. The nature of the con- 
 tract is such that it naturall}' would be performed or sued upon at the 
 domicil of the promisor. If the policy of Massachusetts makes void 
 an oral contract of this sort made within the State, the same policy 
 forbids tliat Massachusetts testators should be sued here upon such 
 contracts without written evidence, wherever the}' arc made. 
 
 If we are right in our understanding of the policy established by the 
 legislature, it is our duty to carr\' it out so far as we can do so with- 
 out coming into conflict with paramount principles. " If oral evidence
 
 SECT. III.j EMERY V. BURBANK. 821 
 
 were offered which the lex fori excluded, such exclusion, being founded 
 on the desire of preventing perjury, might claim to override any con- 
 trary rule of the lex loci contractus, not only on the ground of its being 
 a question of procedure, but also because of that reservation in favor 
 of any stringent domestic policy which controls all maxims of private 
 international law." Westlake, Priv. Int. Law (3d. ed.), § 208 ; Whar- 
 ton, Confl. Laws (2d. ed.), § 766. 
 
 In our view, the statute, whatever it expresses, implies a rule of 
 procedure broad enough to cover this case. It is not necessary to de- 
 cide exactly how broad the rule may be, — whether, for instance, if, by 
 some unusual chance, a suit should happen to be brought here against 
 an ancillary administrator upon a contract made in another State by 
 one of its inhabitants, the contract would have to be in writing. The 
 rule extends at least to contracts by Massachusetts testators. It 
 might be possible to treat the words, " signed by the party whose ex- 
 ecutor or administrator is sought to be charged,'' as meaning " signed 
 by the party whose executor or administrator is sought to be charged 
 in Massachusetts," and to construe the whole statute as directed only 
 to procedure. Compare Fant v. Miller, 17 Grat. 47, 72 et seq. ; Denny 
 V. Williams, 5 Allen, 1, 3, 9. Upon this question also we express no 
 opinion. All that we decide is that the statute does apply to a case 
 like the present. 
 
 The law of the testator's domicil is the law of the will. A contract 
 to make a will means an effectual will, and therefore a will good by the 
 law of the domicil. In a sense, the place of performance, as well as 
 the forum for a suit in case of breach, is the domicil. We do not draw 
 the conclusion that therefore the validity of all such contracts, wher- 
 ever sued on, must depend on the law of the domicil. That would 
 leave man}' such contracts in a state of indeterminate validity, until 
 the testator's death, as he may change his domicil so long as he can 
 travel. But the consideration shows that the final domicil is more con- 
 cerned in the policy to be insisted on than any other jurisdiction, and 
 justifies it in framing its rules accordingly. There would be no ques- 
 tion to be argued if the law were in terms a rule of evidence. It is 
 equally open for a State to declare, upon the same considerations 
 which dictate a rule of evidence, that a contract must have certain form 
 if it is to be enforced against its inhabitants in its courts. Legislation 
 of this kind for contracts which thus necessarily reach into the jurisdic- 
 tion in their operation hardly goes as far as statutes dealing with sub- 
 stantive liability which have been upheld. Commonwealth v. Macloon, 
 101 Mass. 1. 
 
 If the statute applies, the fact that the plaintiff has furnished the 
 stipulated consideration will not prevent its application. 
 
 Exceptions overruled.
 
 822 POLSON V. STEWART. fCHAP. XVI. 
 
 POLSON V. Stewart. 
 
 Supreme Judicial Court of Massachusetts. 1897. 
 
 [Reported 167 Massachusetts, 211.] 
 
 Holmes, J. This is a bill to enforce a covenant made by the 
 defendant to his wife, the plaintiff's intestate, in North Carolina, to 
 surrender all his marital rights in certain land of hers. The land is 
 in Massachusetts. The parties to the covenant were domiciled in 
 North Carolina. According to the bill, the wife took steps which 
 under the North Carolina statutes gave her the right to contract as 
 ^feme sole with her husband as well as with others, and afterwards 
 released her dower in the defendant's lands. In consideration of this 
 release, and to induce his wife to forbear suing for divorce, for which 
 she had just cause, and for other adequate considerations, the defend- 
 ant executed the covenant. The defendant demurs. 
 
 The argument in support of the demurrer goes a little further than 
 is open on the allegations of the bill. It suggests that the instrument 
 which made the wife a " free trader," in the language of the statute, 
 did not go into effect until after the execution of the release of dower 
 and of the defendant's covenant. But the allegation is that the last 
 mentioned two deeds were executed after the wife became a free 
 trader, as the}^ probabl}' were in fact, notwithstanding their bearing 
 date earlier than the registration of the free trader instrument. We 
 must assume that at the date of their dealings together the defendant 
 and his wife had as large a freedom to contract together as the laws 
 of their domieil could give them. 
 
 But it is said that the laws of the parties' domieil could not author- 
 ize 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 conveyances of property within our borders which our laws say
 
 SECT. III.] POLSON V. STEWART. 823 
 
 are void, for the plain reason that we have exclusive power over the 
 res. Ross v. Ross, 129 Mass. 243, 2-16 ; Hallgarten v. Oldham, 135 
 Mass. 1, 7, 8. But the same reason inverted establishes that the lex 
 rei Slice cannot control personal covenants, not purporting to be con- 
 veyances, between persons outside the jurisdiction, although concern- 
 ing a thing within it. Whatever tlie covenant, the laws of North 
 Carolina could subject the defendant's propert}' to seiziu'e on execu- 
 tion, and his person to imprisonment, for a failure to perform it 
 Therefore, on principle, the law of North Carolina determines the 
 validity of the contract. Such precedents as there are, are on the 
 same side. The most important intimations to the contrar}' which we 
 have seen are a brief note in Story, Confl. of Laws, § 436, note, and 
 the doul)ts expressed in Mr. Dicey's very able and valuable book. 
 Lord Cottenham stated and enforced the rule in the clearest way in 
 £Jx parte Pollard, 4 Deac. 27, 40 et seq. ; s. c. Mont. «St Ch. 239, 250. 
 So Lord Romilly in Cood v. Cood, 33 Beav. 314, 322. So in Scot- 
 land, in a case like the present, where the contract enforced was the 
 wife's. Findlater v. Seafield, Faculty- Decisions, 553, Feb. 8, 1814. 
 See also Cuninghame v. Semple, 11 Morison, 4462; Erskine, Inst. 
 Bk. 3, tit 2, § 40; Westlake, Priv. Int Law (3d ed.), § 172; Rorer, 
 Interstate Law (2d ed.), 289, 290. 
 
 If valid by the law of North Carolina there is no reason why the 
 contract should not be enforced here. The general principle is 
 familiar. Without considering the argument addressed to us that 
 such a contract would have been good in equity if made here 
 (Holmes v. Winchester, 133 Mass. 140; Jones v. Chfton, 101 U. S. 
 225 ; and Bean v. Patterson, 122 U. S. 496, 499), we see no ground 
 of polic}' for an exception. The statutory' limits which have been 
 found to the power of a wife to release dower (Mason v. Mason, 140 
 Mass. 63, and Peaslee v. Peaslee, 147 Mass. 171, 181) do not prevent 
 a husband from making a valid covenant that he will not claim marital 
 rights with any person competent to receive a covenant from him. 
 Charles v. Charles, 8 Grat. 486 ; Logan v. Birkett, 1 Myl. & K. 220 ; 
 Marshall v. Beall, 6 How. 70. The competency' of the wife to receive 
 the covenant is established b}' the law of her domicil and of the place 
 of the contract. The laws of Massachusetts do not make it impos- 
 sible for him specificalh' to perform his undertaking. He can give a 
 release which will be good by Massachusetts law. If it be said tliat 
 the rights of the administrator are only derivative from the wife, we 
 agree, and we do not for a moment regard any one as privy to the 
 contract except as representing the wife. But if then it be asked 
 whetlier she could have enforced the contract during her life, an 
 answer in the affirmative is made easy by considering exactly what 
 the defendant undertook to do. So far as occurs to us, he undertook 
 three things : first, not to disturb his wife's enjoyment while she kept 
 her property ; secondly, to execute whatever instrument was necessary 
 in order to release his rights if she conveyed ; and thirdly, to claim no
 
 824 POLSON V. STEWART. [CHAP. XVL 
 
 rights on her death, but to do whatever was necessary to clear the 
 title from such rights then. All these things were as capable of per- 
 formance in Massachusetts as they would have been in North Caro- 
 lina. Indeed, all the purposes of the covenant could have been 
 secured at once in the lifetime of the wife by a joint conveyance of 
 the propert}- to a trustee upon trusts properly limited. It will be 
 seen that the case does not raise the question as to what the common 
 law and the presumed law of North Carolina would be as to a North 
 Carolina contract calling for acts in Massachusetts, or concerning 
 property in Massachusetts, which could not be done consistently with 
 Massachusetts law. 
 
 With regard to the construction of the defendant's covenant we have 
 no doubt. It is "to surrender, convey, and transfer to said Kitt}' T. 
 Poison Stewart, Jr., and her heirs, all the rights of him, the said 
 Henry Stewart, Jr., in and to the lands and property above described, 
 which he may have acquired by reason of the aforesaid marriage, and 
 the said Kitty T. Poison Stewart, Jr., is to have the full and absolute 
 control and possession of all of said propert}- free and discharged of 
 all the rights, claims, or demands of every nature whatsoever of the 
 said Henr\- Stewart, Jr." Notwithstanding the decision of the major- 
 ity in Rochon v. Lecatt, 2 Stew. (Ala.) 429, we think that it would 
 be quibbling with the manifest intent to put an end to all claims of 
 the defendant if we were to distinguish between vested rights which 
 had and those which had not yet become estates in the land, or 
 between claims during the life of the wife and claims after her death. 
 It is plain, too, that the words import a covenant for such further 
 assurance as may be necessar}' to carry out the manifest object of 
 the deed. See Marshall v. Beall, 6 How. 70 ; Ward v. Thompson, 
 6 Gill & Johns. 349; Hutchins v. Dixon, 11 Md. 29; Hamrico v. 
 Laird. 10 Yerger, 222; Ma.son v. Deese, 30 Ga. 308; McLeod v. 
 Board, 30 Tex. 238. 
 
 Objections are urged against the consideration. The instrument is 
 alleged to have been a covenant. It is set forth, and mentions one 
 dollar as the consideration. But the bill alleges others, to which we 
 have referred. It is argued that one of them, forbearance to bring 
 a well-founded suit for divorce, was illegal. The judgment of the 
 majorit}' in Merrill v. Peaslee, 146 Mass. 460, 463, expressly guarded 
 itself against sanctioning such a notion, and decisions of the greatest 
 weight referred to in that case show that such a consideration is both 
 suflicient and legal. Newsome v. Newsorae, L. R. 2 P. «fe D. 306, 312 ; 
 Wilson V. Wilson, 1 H. L. Cas. 538, 574; Besant v. Wood, 12 
 Ch. D. 605, 622 ; Hart v. Hart, 18 Ch. D. 670. 685 ; Adams v. Adams, 
 91 N. Y. 381; Sterlings. Sterling, 12 Ga. 201. Then it is said that 
 the wife's agreement in bar of her dower was invalid, because it had 
 not the certificate that she had been examined, etc., as required by 
 the North Carolina statutes annexed to the bill. Whether it was 
 invalid or not, the defendant was content with it, and accepted the
 
 SECT. III.] POLSOX V. STEWART. 825 
 
 execution of it as a consideration. This being so, it would be hard to 
 say tiiat it was not one, even if without legal eflfect. Whether void or 
 not, it is alleged to have been performed ; and finall}-, if it was void, it 
 was void on its face, as matter of law, and the husband must be taken 
 to have known it, so that the most that could be done would be to dis- 
 regard it ; if that were done, the other considerations would be suffi- 
 cient. See Jones v. Waite, 5 Bing. N. C. 341, 351. 
 
 Demurrer overruled. 
 
 Field, C. J. I cannot assent to the opinion of a majorit}- of the 
 court. By our law husband and wife are under a general disability 
 or incapaeit}' to make contracts with each other. The decision in 
 "Whitney v. Closson, 138 Mass. 49, shows, I think, that the contract 
 sued on would not be enforced if the husband and wife had been 
 domiciled in Massachusetts when it was made. As a conveyance 
 made directly between husband and wife of an interest in Massa- 
 chusetts land would be void although tlie parties were domiciled in 
 North Carolina when it was made, and by the laws of North Carolina 
 were authorized to make such a conveyance, so I think that a contract 
 for such a conveyance between the same persons also would be void. 
 It seems to me illogical to say that we will not permit a conveyance 
 of Massachusetts land directlv between husband and wife, wherever 
 they ma}' have their domicil, and yet saj- that they may make a con- 
 tract to convey such land from one to the other which our courts 
 will specifically enforce. It is possible to abandon the rule of lex rei 
 sitm, but to keep it. for conveyances of land and to abandon it for 
 contracts to conve}' land seems to me unwarrantable. 
 
 The question of the validity of a mortgage of land in this Common- 
 wealth is to be decided by the law here, although the mortgage was 
 executed elsewhere where the parties resided, and would have been 
 void if upon land there situated. Goddard v. Sawyer, 9 Allen, 78. 
 " It is a settled principle, that ' the title to, and the disposition of, 
 real estate must be exclusively regulated by the law of the place in 
 which it is situated.' " Cutter v. Davenport, 1 Pick. 81 ; Osborn v. 
 Adams, 18 Pick. 245. The testamentary execution of a power of 
 appointment given by will in relation to land is governed by the lex 
 situs, or the law of the domicil of the donor of the power. Sewall v. 
 Wilmer, 132 Mass. 131. 
 
 The plaintiff, merely as administrator, cannot maintain the bill. 
 Caverly v. Simpson, 132 Mass. 462, 464. The plaintiff must pro- 
 ceed on the ground that Mrs. Henry Stewart, Jr., acquired by the 
 instruments executed in North Carolina the right to have conveyed 
 or released to her and her heirs by her husband all the interest he 
 had as her husband in her lands in Massachusetts ; that this right 
 descended on her death to her heirs, according to the law of Massa- 
 chusetts ; and that the plaintiff, being an heir, has acquired the 
 interest of the other heirs, and therefore brings the bill as owner of
 
 826 POLSOX V. STEWAET. [CHAP. XVI. 
 
 this right. The plaintiff, as heir, claims by descent from Mrs. Stewart, 
 and if the contract sued on is void as to her, it is void as to him. 
 
 It is onlv on the ground that the contract convej-ed an equitable 
 title that the plaintiff as heir has any standing in court. His counsel 
 founds his argument on the distinction between a conveyance of the 
 legal title to land and a contract to convey it. If the instrument 
 relied on purported to convey the legal title, his counsel in effect 
 admits that it would be void by our law. He accepts the doctrine 
 stated in Ross v. Ross, 129 Mass. 243, 246, as follows: "And the 
 validity of any transfer of real estate by act of the owner, whether 
 inter vivos or by will, is to be determined, even as regards the capac- 
 ity of the grantor or testator, by the law of the State in which the 
 land is situated." As a contract purporting to convey a right in 
 equity to obtain the legal title to land, he contends that it is valid. 
 
 I do not dispute the cases cited with reference to contracts concern- 
 ing personal property, but the rule at common law in regard to the 
 capacity of parties to make contracts concerning real property, as I 
 read the cases and text-books, is that the lex situs governs. Cochran 
 V. Benton, 126 Ind. 58; Doyle v. McGuire, 38 la. 410; Sell v. Miller, 
 
 II Ohio St. 331 ; Johnston v. Gawtry, 11 Mo. App. 322; Frierson v. 
 Williams, .57 Miss. 451. 
 
 Dicey on the Conflict of Laws is the latest test-book on the subject. 
 He states the rule as follows : — 
 
 Page Ixxxix. "(B). Validity of Contract, (i) Capacity. 
 
 "Rule 146. Subject to the excei)tions hereinafter mentioned, a 
 person's capacity to enter into a contract is governed by the law of 
 his domicil (lex domicilii) at the time of the making of the contract. 
 
 " (1) Jf lie has such capacity by that law, the contract is, in so far 
 as its validity depends upon his capacity, valid. 
 
 " (2) If he has not such capacity by that law, the contract is 
 invalid. 
 
 " Exception 1. A person's capacity to bind himself b}' an ordinary 
 mercantile contract is (prol)ably) governed by the law of the country 
 ■where the contract is made {lex loci contractus) [?]. 
 
 " Exception 2. A person's capacity to contract in respect of an 
 immovable (land) is governed by tlie lex situs." 
 
 Page xcii. " (A). Contracts with regard to Immovables. 
 
 "Rule 151. The effect of a contract with regard to an immovable 
 is governed by the |)roper law of the contract [?]. 
 
 "The proper law of such contract is, in general, the law of the 
 country where the immovable is situate (lex situs)." 
 
 On page 517 et seq. he states the law in the same way, with numer- 
 ous illustrations, but with some hesitation as to the law governing the 
 form of contracts to convey immovables. See page xc. , Rule 147, 
 Exception 1. For American notes with cases, see page 527 et seq. 
 In the Appendix, page 769, note (B), he discusses the subject at 
 leno^th, and with the same result. Some of the cases cited are the
 
 SECT, ni,] POLSON V. STEWART. 827 
 
 following : Succession of Larendon, 39 La. An. 952 ; Besse v. Pel- 
 lochoux, 73 111. 285; Fuss v. Fuss, 24 Wis. 256; Moore v. Church, 
 70 la. 208 ; Heine v. Mechanics & Traders Ins. Co. 45 La. An 
 770; First National Bank of Attleboro v. Hughes, 10 Mo. App. 7; 
 Ordronaux v. Rey, 2 Sandf. Ch. 33 ; Adams v. Clutterbuck, 10 Q. B. D. 
 403 ; Chapman v. Robertson, 6 Paige, 627, 630. 
 
 Phillimore in 4 Int. Law (3d ed.), 596, states the law as follows : — 
 
 " DCCXXXV. 1. The case of a contract respecting the transfer 
 of immovable pro):)ert3' illustrates the variet}- of the rules which the 
 foreign writers upon private international law consider applicable to a 
 contract to which a foreigner is a party : they say that, 
 
 "1. The capacity of the obligor to enter into the contract is deter- 
 mined by reference to the law of his domicil. 
 
 " ii. The like capacity of the obligee by the law of his domicil. 
 
 " iii. The mode of alienation or acquisition of the immovable prop- 
 erty is to be governed by the law of the situation of that property. 
 
 " iv. The external form of the contract is to be governed by the law 
 of the place in which the contract is made. 
 
 ''It is even suggested by Foelix, that sometimes the interpretation 
 of the contract may require the application of a fifth law. 
 
 " DCCXXXVI. The Law of England, and the Law of the North 
 American United States, require the application of the lex rei sitce to 
 all the four predicaments mentioned in the last section. 
 
 " DCCXXXVII. But a distinction is to be taken between contracts 
 to transfer property and the contracts by which it is transferred. The 
 former are valid if executed according to the lex loci contractus ; the 
 latter require for their validity a compliance with the forms prescribed 
 by the lex rei sitCB. Without this compliance the dominium in the 
 property will not pass." 
 
 To the same effect as to the capacit}' of the parties are Rattigan, 
 Priv. Int. Law, 128;. Whart. Confl. of Laws (2d ed.), § 296; Story, 
 Confl. of Laws (8th ed.), §§ 424-431, 435; Rorer, Interstate Law, 
 263 ; Nelson, Priv. Int. Law, 147, 260. See Westlake, Priv. Int. 
 Law (3d ed.), §§ 156, 167 et seq. 
 
 On reason and authority I think it cannot be held that, although a 
 deed between a husband and his wife, domiciled in North Carolina, of 
 the rights of each in the lands of the other in Massachusetts, is void 
 as a conveyance by reason of the incapacity of the parties under the 
 law of Massachusetts to make and receive such a conveyance to and 
 from each other, yet, if there are covenants in the deed to make a 
 good title, the covenants can be specifically enforced by our courts, 
 and a conveyance compelled, which, if voluntarily made between the 
 parties, would be void. 
 
 I doubt if all of the instruments relied on have been executed in 
 accordance with the statutes of North Carolina. By section 1828 of the 
 statutes of that State set out Ln the papers, the wife became a free 
 trader from the time of registration. This I understand is January
 
 828 POLSON V. STEWART, [CHAP. XVI. 
 
 7, 1893. Exhibit B purports to have been executed before that time, 
 to wit, January 4, 1893. There does not appear to have been any 
 examination of the wife separate and apart from her husband, as 
 required by section 1835. If Exhibit B fails, there is at least a partial 
 failure of consideration for Exhibit C. It is said that an additional 
 consideration is alleged, viz. the wife's forbearing to bring a suit for 
 divorce. Whether this last is a sufficient consideration for a contract 
 I do not consider. It is plain enough that there was an attempt on 
 the part of the husband and wife to continue to live separate and 
 apart from each other without divorce, and to release to each other all 
 the property rights each had in the property of the other. If the 
 release of one fails, I think that this court should not specifically 
 enforce the release of the other ; mutuality in this respect is of the 
 essence of the transaction. If the husband owned lands in Massachu- 
 setts, and had died before his wife, I do not think that Exhibit B, 
 even if it were executed according to the statutes of North Carolina, 
 and the wife duly examined and a certificate thereof duly made, would 
 bar her of her dower. Our statutes provide how dower may be barred. 
 Pub. Sts. c. 124, §§ 6-9. Exhibit B is not within the statute. See 
 Mason v. Mason, 140 Mass. 63. Antenuptial contracts have been 
 enforced here in equity so as to operate as a bar of dower, even if 
 they did not constitute a legal bar. Jenkins v. Holt, 109 Mass. 261- 
 But postnuptial contracts, so far as I am aware, never have been 
 enforced here so as to bar dower, unless they conform to the statutes. 
 Whitney v. Closson, 138 Mass. 49. Whatever may be true of con- 
 tracts between husband and wife made in or when they are domiciled 
 in other jurisdictions, so far as personal property or personal liability 
 is concerned, I think that contracts affecting the title to real property 
 situate within the Commonwealth should be such as are authorized by 
 our laws. I am of opinion that the bill should be dismissed.
 
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