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2d. Movables.

Better opin

ion now is bles are governed

that mova

by lex rei


304. Although there is high authority to the effect that movables are governed by the lex domicilii, or the law of the owner's domicil, the prevalent opinion now is that they are governed by the lex rei sitae, or the law of the place where they are situate. There are several reasons for this rule. (1) As the question generally in litigation hinges upon ownership, the lex domicilii of the owner cannot determine, since in such case the question of ownership is what the object of the suit is to try. To assume that either litigant is the owner, so as to get at the lex domicilii, is to assume the question at issue. (2) Public policy requires that property so extended and valuable as movables now are (including stock and loans of banks and railroads and other corporations, as well as Federal, state, and municipal securities), should be under the general control of the sovereign by whom such property is protected, and in conformity to whose laws transfers of such property are to be made. (3) Title in rem can only be given by proceedings in the place where the thing is situate.1

Rule ap


§305. That this rule applies to liens on personalty, is illustrated by recent legislation in respect to chattel mortgages, and the decisions under such legislation. plies to When chattels situate in a particular state are mortgaged, no one any longer questions the exclusive applicability of the lex rei sitae to such mortgages. The same rule applies to liens generally. The lex rei sitae alone can determine as to the validity and extent of such liens.2

306. The rule before us, however, has several marked exceptions. (1) The distribution of a decedent's personalty is determined, as will be hereafter seen, by Exception the law of his last domicil, subject, however, to such liens and other charges as the lex rei sitae may impose, and the same distinctions are applicable to

I Whart. Conf. of Laws, §§ 297 et seq.; see Drake v. Rice, 130 Mass. 410; State Bank v. Plainfield Bank, 34 N. J. Eq. 450; Ames Iron Works v. Warren,

in respect to succession, goods in and debts.



78 Ind. 512; First National Bank v. Hughes, 10 Mo. Ap. 7.

2 Whart. Conf. of Laws, §§ 312 et seq.

goods passing by marriage settlement. (2) Goods in transit, in lack of any other ascertainable arbiter, are subject to the lex domicilii of the vendor, though this must give way to the local law in respect to taxes or other local charges. (3) Debts, as will be hereafter more fully seen, are subject, for many purposes, to the lex domicilii of the creditor.1

Title must

be made in


lex situs.

8 307. It follows that title can only be made in such way as to shut out adverse claimants by following the provisions of the lex rei sitae. This has been freconformity quently ruled to be the case with regard to extraterritorial assignments. The fact that the owner is domiciled in another state in which the assignment would be good, does not make the assignment good unless it be in conformity with the law of the place where the thing assigned is situate. The only plausible exception proposed to this rule exists where all the parties litigating an assignment are domiciled in a state in which such assignment is good. In such case the parties may be held bound by the law of their common domicil.2

Ships at sea

governed by law of their flag.

§ 308. As we have already seen,3 a ship at sea is, by the prevalent opinion, a part of the territory of the state whose flag she bears, and is consequently governed by the law of such state. As between the several states in the American Union, a ship is governed by the law of the state in which she is registered. A ship in port, however, is governed by port law, though this does not apply to foreign vessels of war.

Debts sub

§ 309. So far as concerns taxation and assignability, debts, viewed separately from any security which may be ject to law given to insure their payment, are governed by the of creditor's law of the creditor's domicil. Where, however, the debt is attached by a third party prior to an assign


1 Ibid. § 311; infra, § 309. That a non-resident creditor of a city cannot be said, in virtue of a debt due by the city, to hold property within its limits, see Murray v. Charleston, 96 U. S. 432.

2 Whart. Conf. of Laws, §§ 334 et seq. Supra, § 188.


4 Whart. Conf. of Laws, § 356. Supra,

§ 188. The law of the flag determines master's right to find owner. Maclachlan, Mer. Ship, 3d ed., 64-5. That it obtains in questions of bottomry, see The Gaetano, 46 L. T. N. S. 835. As to territorial waters, see supra, §§ 186

et seq.

ment of it by the creditor, the attachment will be ordinarily held by the judex fori to exclude the assignment in all cases where the attachment is good by the lex fori. A judex fori, also, will not sustain a foreign assignment, though good by the law of the creditor's domicil, when bad by the law of the forum. Nor does the fact that debts in the sense above stated are subject to the law of the creditor's domicil withdraw any property given to secure such debts from the operation of the lex rei sitae. At the same time, when all parties litigating questions of this class belong to a common domicil, the law of such domicil may be held to govern them in respect to such assignment.1


310. From the nature of things, prescription and limitation must be determined by the law of the place in which is situated the thing in litigation. When title by prescription or limitation is good by such law, it is good everywhere. The same may be said with regard to title acquired by confiscation and es


tion, limitation, conand eserned by lez


cheat, gov

rei sitae.



ments not

torial in

§ 311. The better opinion now is that bankrupt process is in the nature of a general execution against all the bankrupt's estate. When the bankrupt assignee obtains possession, and moves the property into the jurisdiction of the court, then his title is ordinarily to be regarded as everywhere good. But he effects. can no more seize by force of his office the bankrupt's goods in a foreign state, than could a sheriff's officer levy an execution in a foreign state. To sustain a claim in either case, the action of the judex rei sitae is necessary.3


1st. General Rules.

§ 314. Where the several parties to a contract belong to separate countries and are subjected to distinct jurisprudences, there may be at least as many systems of juris- may be sub


1 Whart. Conf. of Laws, § 359 et seq. 3 Whart. Conf. of Laws, §§ 387 et 2 Ibid. §§ 378 et seq.; Keyser v. Rice, seq.

47 Md. 203.

ject to as

many jurisdictions as there are parties.

prudence bearing on the contract as there are parties. A letter of credit, for instance, issued by a banker, may be addressed to correspondents in every part of the civilized world, and when any one of these correspondents is applied to for funds, this subjects the holder of the letter, at least so far as concerns mode of payment, to the law of the domicil of the party so applied to. As there is no contract which does not have to it at least two parties, there is, therefore, no contract which may not have to it at least two applicatory laws. This may be illustrated by policies of insurance, in which, as we shall see, the liability as to the premium is gauged by the law of the domicil of the insured, while liability for the loss is gauged by the law of the domicil of the insurer.1 § 315. But this is not all. As to each party there may be several conflicting jurisprudences. What is called Question as the seat of a contract may vary, as we consider the parties thereto in varying relations. Thus, the liability of each party may be determined by any one of the following systems of law:

to seat of contract

may be contested by several



(1) Lex loci contractus, or place where the liability was assumed.

(2) Lex loci actus, or place of solemnization.

(3) Lex loci solutionis, or place where the contract is to be performed.

(4) Lex fori, or place where the trial takes place.

And it may be generally said that the lex loci contractus determines the meaning of the words used; the lex loci actus, the mode of solemnization; the lex loci solutionis, the mode in which the contract is to be performed; and the lex fori, the way in which process on the contract is to be conducted.2

Lex loci contractus

316. The reason why the lex loci contractus determines interpretation is that the parties framing a contract in a particular place are supposed to have the law of that interpreta- place in view in the consideration of the words they use. If it appear that they did not have such law



1 Infra, § 327. and Whart. on Cont., §§ 393 et seq. As the parties with distinct domicils increase, so proportionally extend the applicatory laws.

2 Whart. Conf. of Laws, §§ 394 et seq.; see Edgerly v. Bush, 81 N. Y. 199; Banchor v. Gregory, 9 Mo. Ap. 102.

in view (e. g., where two Englishmen, happening to meet in New York, make a contract in New York to be performed in England, using words which in England have acquired a definite meaning which the parties have iu mind), then the reason ceasing, the conclusion no longer holds good. The rule, then, is not one of arbitrary law, but of logic varying with the circumstances of the case. The question, as far as concerns interpretation, is, what is the law which the parties intended to incorporate in the contract.1

Place of ac

ceptance isplace of


§ 317. In a technical sense, the place where a contract is accepted is the place of the contract. A contract is not regarded as completed until a proposal made by one party is accepted by the other, the time and place of the acceptance being therefore the time and the place of the contract. Yet the place of acceptance only affects interpretation so far as concerns words distinctively used in the acceptance. Hence, it is a general rule of interpretation that when a word with a distinctive local meaning is introduced into a correspondence, it is to be ordinarily interpreted in the sense in which it was used by the party by whom it was introduced.?

Lex loci

termines mode of

318. There are some kinds of solemnization, e. g., those relating to conveyances of real estate, and to transfers of stocks and other securities, as to which the actus delocal law prescribes certain forms, which must follow the prescriptions of lex rei sitae. Where, how- solemnizaever, there are no rules imposed, then the forms. prescribed by the law of the place of solemnization are to be followed, as they are often the only forms that can be observed.3


§ 319. When parties agree that a contract is to be performed in a particular place, it is natural that they should have the

1 Whart. Conf. of Laws, §§ 401 et seq.; see Pritchard v. Norton, Sup. Ct. U. S. 1883; Bell v. Packard, 69 Me.


2 Whart. Conf. of Laws, §§ 399 et seq.; see Shattuck v. Ins. Co., 4 Cliff. 598; Oregon Co. v. Rathbun, 5

Sawy. 32; Hunt v. Jones, 12 R. I. 265 ;
Dickinson v. Edwards, 58 How. (N.Y.),
24; Mills v. Wilson, 88 Penn. St. 118;
Cromwell . Ins. Co., 49 Md. 366;
Cubbedge v. Napier, 62 Ala. 518.

3 Whart. Conf. of Laws, §§ 401 et seq.; see Scott v. Duffy, 14 Penn. St. 18.

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