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Undisclosed Principal are especially noteworthy. The treatment of a
principal's liability for the torts of his agent is very meagre. Perhaps
this is necessarily so by the elimination of the master and servant cases.

On the whole the book is a worthy addition to the Students' Series.
The author is soon to issue a volume of selected cases to be used in
connection with the text.
E. K. H.

A. Ray, LL.D., Ex-Chief Justice of the Indiana Supreme Court.
Rochester, N. Y.: The Lawyers' Co-Operative Publishing Co. 1895.
pp. lxxxi, 1195.

It is a pity that Judge Ray did not choose a better title for his book,
since "Negligence of Imposed Duties," besides being exceptionable as a bit
of English, does not seem broad enough to describe adequately the contents
of a work dealing with every aspect of the law of freight carriers. This is a
companion volume to the author's book on Carriers of Passengers, which
was published two years ago. Little space is devoted to the discussion of
principle, but the object of the book is attained in its exhaustive state-
ment of existing law. Not the least notable portion is a long and excellent
chapter on Interstate Commerce. The only fault revealed by a cursory
examination is lack of condensation. There is too much repetition, — for
example, in § 139, the reader is informed half a dozen times in the course
of three pages that misdelivery by a carrier is a conversion. The same
topic is frequently brought up in different parts of the work, instead of being
treated once and for all. However, no topic is so unimportant as to escape
consideration altogether; and it is in just this thoroughness of treatment
that the chief value of the book lies.

R. G. D.

LAW SUBJECT INDEX, 1883-1893. Albany: 1894.

The rapid accumulation of legal literature is exemplified by the catalogue,
lately issued by the University of the State of New York, of additions made
to its law library during the last ten years. Especially interesting in view of
the recent action of the American Bar Association toward a reform in law
reporting, noticed elsewhere in this number, is the long list of volumes
under the heading "Reports."


New York Bar. Washington, D. C.: Press of W. F. Roberts.
pp. 15.

The proposition advanced in this pamphlet is that "you may infringe a
patent not only by directly making, or using, or selling the patented inven-
tion yourself, without a license, but also by intentionally aiding any one else
in such an unlawful act." Though primarily addressed to laymen, this brief
treatment of contributory infringement will commend itself to lawyers as
well. Appended is a useful list of the leading American cases on the

H. C. L.




JANUARY 25, 1896.

No. 6.



HE question for discussion in this article is the true principle by which to determine what law shall govern as to the intrinsic validity and effect of a contract made between parties living under different systems of law, or having a foreign legal element in it from any cause whatsoever. As a preliminary step, it ought to be stated according to what system of law the question is to be examined. As Professor Dicey has pointed out, the court, in which a question of this nature arises, always decides it in accordance with the law of its own country. A controversy in a Massachusetts court, for example, as to which of several competing systems of law shall be selected and applied to a contract, is always determined in accordance with principles of the law of Massachusetts, the law of the forum; although the expression lex fori in the conflict of laws is commonly used in a narrower sense, meaning the law which governs the remedy. To control the remedy, however, is but one function of the lex fori.

1 [1894] A. C. 202.

2 6 L. Q. R. 1; 7 L. Q. R. 113. The principle worked out by Mr. Dicey, in the articles cited, has been stated by other writers on the conflict of laws, and is also known and valued by continental jurists. Windscheid says: "It is the merit of Wächter to have emphasized with energy that the question respecting the applicability of foreign law can be answered only out of the native law, and this conception at the present time is that almost universally prevailing." Lehrbuch (7th ed.), I. § 34, note 6. A different view is held by the Franco-Italian school. See Laurent, Droit Civil International, ii. Nos. 67-73, pp. 119-138.

There being a general harmony of decision in the courts of England and America upon the conflict of laws, it is not necessary to limit a theoretical discussion of this question to any particular jurisdiction; it may proceed according to the principles of the general common law. In 1760, in the case of Robinson v. Bland,1 Lord Mansfield said:

"The general rule, established ex comitate et jure gentium, 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 kingdom."


This rule, in a somewhat shorter form, as for example, nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view," 2 has often been stated and applied by courts of the highest authority, both in England and America, and, until recently, might justly be looked upon as something settled and fundamental. A tendency to question it has appeared. Professor Westlake, in the third edition of his book, says:

"Under these circumstances, it may probably be said with truth that the law by which to determine the intrinsic validity and effects of a contract will be selected in England on substantial considerations, the preference being given to the country with which the contract has the most real connection, and not to the law of the place of contract as such." 8

As supporting this proposition, the learned author cites Jacobs v. Crédit Lyonnais, and In re Missouri Steamship Co.5 (cases decided since the appearance of his previous edition), and adds:

"But in both cases a stress was laid by the learned judges on the intention of the parties as the governing element in the choice of a law which is not in accordance with the discussion preceding the §, and which, where the lawfulness of the intention is itself in question, as it was In re Missouri Steamship Co., I still find it difficult to reconcile with the logical order to be followed."

1 I W. Bl. 234, 257, 258; s. c. 2 Burr. 1077. The two reports differ.

2 See The Montana, 129 U. S. 397, 458.

8 Westlake, Priv. Int. Law (3d ed.), § 212, p. 258.

4 12 Q. B. D. 589.

• Westlake, Priv. Int. Law (3d ed.), § 212, p. 258.

542 Ch. D. 321.

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The test above suggested "the law of the country with which the contract has the most real connection" has not been adopted by later decisions; but, on the contrary, increased importance has been given to the intention of the parties as the controlling fact in selecting the applicable law.

In England, Hamlyn & Co. v. Talisker Distillery is the latest, and is likely to be a leading case. This was a Scotch action, at the instance of the Talisker Distillery, in right of the extinct firm of R. Kemp & Co., for damages and implement of an agreement made between Hamlyn & Co., merchants in London, and R. Kemp & Co., former owners of the Talisker Distillery in Scot land, whereby Hamlyn & Co. agreed to purchase all grains made by Kemp & Co., and to erect at the Distillery a patent grain, drying machine. Kemp & Co., on their part, agreed to work this machine, and keep it in repair, and to dry and bag up the grain, and deliver it free on board at Carbost, Skye, to the order of Hamlyn & Co., or otherwise, as required. This agreement was signed in London, and contained the following clause: "Should any dispute arise out of this contract, the same to be settled by arbitration by two members of the London Corn Exchange, or their umpire, in the usual way." This clause was valid by the law of England, but invalid by the law of Scotland, because the arbitrators were unnamed. Hamlyn & Co. contended that the action was excluded by the clause of reference, and hence the question came to be, which law should govern. The House of Lords decided, reversing the decision of the Court of Session, that the arbitration clause was governed by the law of England, and that further proceedings in the action should be stayed to await the result of the arbitration. The following passage from the speech of the Lord Chancellor, Lord Herschell, will show the grounds of the decision, namely:

"Where a contract is entered into between parties residing in different places, where different systems of law prevail, it is a question, as it appears to me, in each case, with reference to what law the parties contracted, and according to what law it was their intention that their rights, either under the whole or any part of the contract, should be determined. In considering what law is to govern, no doubt the lex loci solutionis is a matter of great importance. The lex loci contractûs is also of importance. In the present case, the place of the contract was different from the place of its performance. It is not necessary to enter into the inquiry, which was a good deal discussed at the bar, to which of these

considerations the greatest weight is to be attributed, namely, the place where the contract was made, or the place where it is to be performed. In my view they are both matters which must be taken into consideration, but neither of them is, of itself, conclusive, and still less is it conclusive, as it appears to me, as to the particular law which was intended to govern particular parts of the contract between the parties. In this case, as in all such cases, the whole of the contract must be looked at, and the rights under it must be regulated by the intention of the parties as appearing from the contract. It is perfectly competent to those who, under such circumstances as I have indicated, are entering into a contract, to indicate by the terms which they employ, which system of law they intend to be applied to the construction of the contract and to the determination of the rights arising out of it." (pp. 207, 208.)

Lord Watson and Lord Ashbourne also delivered careful opinions; and all the judges agreed in the proposition that the question before them depended upon the intention of the parties. While the Lord Chancellor and Lord Watson expressly recognize that the place of making the contract is of importance, they do not accord to that fact any precedence or weight over other material facts; although both declared that it was not necessary to discuss the relative value of the place of making and the place of performance. The effect of the whole case, however, is to raise a grave doubt whether any presumption will be admitted in future, in England, in favor of the law of the place where a contract is made.1

On the other hand, the case is a distinct and weighty authority for the proposition that the intention of the parties is the ultimate and controlling fact upon which the selection of the law governing a contract depends. When the decision is read in connection with previous cases, it will be found that this proposition is not new. In 1865, in the case of Lloyd v. Guibert, in the learned and closely reasoned judgment of Willes, J., in the Exchequer Chamber, it is laid down as the general principle, "that the rights of the parties to a contract are to be judged of by that law by which they intended, or rather by which they may justly be presumed to have bound themselves."2 Other passages of like import might be cited both from Lloyd v. Guibert, and other cases; and in the usual statement of the rule, as is shown by the form of it above quoted

1 Sir Frederick Pollock, Contracts (6th ed.), 369 (z), says: "But Hamlyn & Co. v. Talisker Distillery, '94 A. C. 6 R. (July) 14, seems rather against any fixed presumption, and see Mr. Westlake's remarks."

2 L. R. 1 Q. B. 115, 123.

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