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trade, gaming contracts, and contracts with public not be enemies have been held invalid.1


8th. Interest.

Place of

mance of contract determines interest,

and this place of in

may be


333. The law of the place where a contract is to be performed generally determines what interest is to be paid on it, subject to the following limitations: (1) Interest perforperemptorily forbidden by the lex fori as usurious cannot be recovered. (2) While, with negotiable paper, the place of payment may be regarded as the place of performance, there are many instances in which the place of investment is to be so viewed in this relation. Where money, for instance, is invested in a mortgage or other security at high interest in a newly settled state, then the place in which the payment is to be enforced as against such security, is such state; and this would make the applicatory law that of the place of investment, which would enable the interest to be governed by the law of the place where the risk is incurred, not by the law of the place where the contract happened to be executed. Because the parties accidentally framed the contract in a state where the interest agreed on was usurious, or because the parties happened to be domiciled in such state, it would be unjust to pronounce a contract usurious when the interest received was only in proportion to the risk, and when such interest was lawful in the place of investment. With this coincides the rule that when, in cases of doubt, there are two conflicting laws bearing on a contract-one sustaining it, the other avoiding it-the parties may be supposed to have had in mind the law by which it would have been sustained.2

9th. Barring Contracts.

§ 334. A discharge of a debtor under a Federal bankrupt statute binds throughout the United States. A state insolvent discharge, however, only binds Federal parties domiciled in the discharging state, and discharges

1 Whart. Conf. of Laws, § 495; Whart. on Cont., §§ 835 et seq.


2 Supra, § 321; Whart. Conf. of Laws, §§ 501 et seq.


in the U. S., otherwise

creditors who may validate the insolvent assignment by electing to take under it or otherwise. And the better opinion is that foreign bankrupt discharges, discharges, in view of the fact that in most cases bankrupt proand foreign

as to state insolvent

bankrupt cess is used for the purposes of local execution, and discharges. is not based on any fixed international rule, have no extra-territorial effect on parties not domiciled in the dis charging state.1

utes of lim

itation are

only pro

fori gov


§ 335. Statutes of limitation are of two kinds, those which merely regulate and restrict the right of suing, and When stat- those which extinguish the debt. The first are determined by the lex fori. When the lex fori says cessual, lex that the suit cannot be maintained, then it cannot be maintained notwithstanding it is in force by the lex loci contractus; if the lex fori says that the suit can be maintained, then it is no defence that it is outlawed by the lex loci contractus. But if the law to which both parties are subject absolutely extinguishes the debt, then it cannot be revived by a suit brought on it in a foreign land.2 Foreign § 336. For the reasons above given, a foreign statute ex- statute extinguishing a debt has no extra-territorial debt not force except so far as concerns domiciled subjects of the state by which the statute is imposed.3




Lex delicti commissi

and lex fori must sustain suit.


§ 337. An act which is not a tort by the law of the place of commission, cannot usually be sued on as a tort in another country, though it would have been a tort by the law of such country had it been there committed. It is otherwise when the tort consists in negligence in the imperfect performance of a contractual duty. In such cases the question of liability is determined, so far as concerns interpretation, by the law of the place in which the contract was framed; so far as concerns payment, by the law of the place of payment. But when a tort is sued

1 See Whart. Conf. of Laws, § 531; Bedell v. Scruton, 54 Vt. 493.

2 Whart. Conf. of Laws, § 534.

Ibid. § 538; McDougall v. Carpenter, 55 Vt.

for especially as such, then to sustain the suit the act complained of must be a tort both by the lex delicti commissi and the lex fori.1 Injuries to real estate, however, can only be redressed in the state where the estate is situate.


ables governed by

XI. SUCCESSION, WILLS, AND ADMINISTRATION. 338. Immovables, according to the prevalent rule, accepted not only in England and the United States, but in most of the states of continental Europe, are governed, even when belonging to a decedent's estate, by the lex rei sitae. By that law alone can the inheritance of immovables be determined; by that law alone can it be decided whether such property is subject to the decedent's debts. There is this important difference, however, between the Roman common law and our own, that by the former leasehold estates are immovables, by the latter they are personal estate.2

Movables governed


§ 339. It is now everywhere conceded, on the other hand, that movables are governed by the law of the decedent's last domicil. The only exceptions to this rule are those prescribed by local legislation, as where by the lex by such legislation it is provided that there shall be an exemption from the estate of all persons dying in the state (whether domiciled or not) in favor of widow or children. The rule, also, is subject to the prior claims of local taxes. The law of the last domicil, also, determines as to the succession of movables; the lex rei sitae governing the succession of immovables. Wills, unless otherwise provided by statute, must be solemnized, so far as concerns personalty, by the law of the

Whart. Conf. of Laws, §§ 474 et seq. Since the publication of the second edition of my book on the Conflict of Laws, it has been held by the supreme court of the United States that a suit by the personal representatives of a person killed when sustainable in the state of the killing, may be sustained in any U. S. circuit court having jurisdiction of the parties. Dennick v. R. R., 103 U. S. 11. In New York it has

been held that such a suit will be maintained when the statute of the place of the injury coincides generally, though not in detail, with that of the forum. Leonard v. Nav. Co., 84 N. Y. 48. See, however, Hyde v. Wabash R. R., Sup. Ct. Iowa, 1883; Taylor v. Penns. Co., 78 Ky. 348.

2 Whart. on Conf. of Laws, §§ 548 et seq. See Orr Ewing, in re, 21 Ch. D. 456; 48 L. T. N. S. 555.

last domicil. The execution of a power, however, must be in conformity with the law of the place where the trust is created and the property is situated.'

Executors and administrators have no

torial power.

§ 340. An executor or administrator has no power out of the state by which his letters are granted. When, however, he is duly authorized to act by the law of the place of the decedent's last domicil, he is usually extra-terri- permitted to take out local letters, on duly giving security, by the courts of the state in which there is any property of the deceased to be administered." Without receiving such authority, however, a foreign administrator cannot sue, nor, unless he receives such local status, can he be sued. An ancillary administrator, such is the better opinion, is entitled first to settle with creditors in his own jurisdiction, and then remit the proceeds to the principal administrator. The lex fori in each case decides as to priority. Taxes on succession are determined by the law of the decedent's last domicil.3


§342. Locus regit actum is the rule generally applicable to all matters of business form; in other words, the Locus regit law of a place where a formal act is to be done, determines the form to be observed. This rule is

actum the


rule. applicable to protests of commercial paper and to notarial certificates in general. But it does not apply when the lex rei sitae prescribes certain forms of conveyance of acknowledgment and of registry as essential. Therefore, the fact that a contract was solemnized in a foreign country does not in this country withdraw the case from the statute of frauds, nor avoid the necessity of stamps when made essential, nor relieve the parties from the duty of duly acknowledging

1 Whart. on Conf. of Laws, § 561. That the law of the testator's domicil determines the law of charitable devise, see Jones v. Habersham, 107, U. S. 174; Crum v. Bliss, 47 Conn. 592; Blancan, in re, 4 Redf. (N. Y.) 151; Caulfield v. Sullivan, 85 N. Y.

153; Russell v. Madden, 95 Ill. 485; Speed v. Kelly, 59 Miss. 47.

2 See Wilkins v. Elliott, Supreme Ct. U. S., 1883.

3 Whart. Conf. of Laws, §§ 604 et seq. See generally, Barry's App., 88 Penna. St. 131; Price v. Mace, 47 Wis. 23; McNamara v. McNamara, 62 Ga. 200.

or recording their deeds when this is made requisite. But the statute of frauds does not apply to a contract to be performed in another country. The due verification of exemplification or copies is determined by the lex fori.


action is brought in

local courts; otherwise

§343. According to the English common law, a local action, e. g., an action for a thing, or for an injury to a Local thing, which is localized in a particular place, must be brought in a court having jurisdiction of the place where the thing is situate. On the other hand, a transitory action, one which might have occurred as to transitory actions in any place, may be brought in any court. In other words, when a cause of action is necessarily bound to a place, the suit is local and must be brought in a court having jurisdiction of such place; when it is not so bound, it may be brought anywhere.2


determined Extra-terriby lex fori. torial sumgenerally permitted.

mons now

§ 344. As a rule, process is determined by the lex fori. At common law it is necessary, in order to give juris diction, that the summons in personal actions should be served within the jurisdiction of the court. No matter where the defendant was domiciled, if he could be served within the jurisdiction, it was enough; if he could not be served within the jurisdiction, and had no residence there where a summons could be left, and no property to be attached, proceedings could not be formally instituted. By recent legislation in most jurisdictions, however, there may be extra-territorial service, which, in certain classes of suits, may duly institute proce


I Whart. Conf. of Laws, §§ 676 et seq. see Reed's Statute of Frauds, § 16; Fredericks v. Davis, 3 Montana, 251.

2 Whart. Conf. of Laws, § 704.

3 And see Denny v. Faulkner, 22 Kan. 89. As to recent English practice, see London Law Times, Nov. 17, 1883, p. 49; Nov. 24, 1883, p. 57. In Drummond v. Drummond, L. R. 2 Ch.

Ap. 32, it was held that the court had a discretionary power under the then practice to order a service of a copy of a bill on a defendant out of the jurisdiction. Cf. article in Virginia Law Journal for June, 1880.

4 Whart. Conf. of Laws, §§ 649 et seq. On this question see supra, § 283; infra, § 539.

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