insured, determines the mode and conditions of payment by the insured. When, however, an insurance company establishes in a particular state an agency with power to act, then such agency is invested with the liabilities attaching to a principal office, and in some states these liabilities are imposed by statute on all agencies of foreign insurance companies, nor is any foreign insurance company permitted to act in such states except through a responsible agency subjected to such liabilities.1

Interpretation de

usage.

§ 328. The interpretation of contracts of insurance is governed by the same rules which bear on contracts generally. If such contracts are made in the common domicil of both parties they are governed by pendent on the laws of such domicil in matters of interpretation. If there are conflicting laws, then an ambiguous term will be supposed to have been used in the sense in which it was intended by the party introducing it, such sense being generally that in which it is used in his place of business."

5th. Partnership.

Secret partner may set

up limitadomicil,

tions of his

§ 329. If the object of a suit be to charge a particular party as secret partner in a firm, such partnership not being known to the plaintiff at the time of the contract on which he sues, it has been held that the alleged secret partner may avail himself of the limitations of liability in such cases imposed by the law of his domicil. It is otherwise, however, when pearing as his membership as one of the firm was known to the plaintiff at the time of the contract, while no notice was given of any limitations of his liability.3

6th. Common Carriers.

but not partner ap

such.

§ 330. So far as concerns the mode of performing a contract of common carriage, the law of the place of performance determines in all matters left open by the Law of place of contract. It has been held, however, that the inter- perform

Ibid. § 465; see Maspons v. Mildred, 47 L. T. N. S. 318; Shattuck v. Ins. Co., 4 Cliff. 598.

2 Whart. Conf. of Laws, §§ 466-7.
3 Whart. Conf. of Laws, §§ 468 et seq.

ance deter- pretation of such a contract is determined by the

mines mode

of perform

ance; law of place of payment determines payment.

law of the place of the carrier's principal office, and this undoubtedly holds good where the words to be interpreted emanate originally from such office. By the law of the place of such principal office, also,

is the question of the carrier's limitation for liability for negligence usually determined, that being the place where such limitation is generally imposed and accepted.1

7th. Illegal Contracts.

§ 331. There are cases in which the lex fori peremptorily forbids suits of a particular character from being determined brought. When this is the case, no recovery can be

Illegality

by law of place of performance, unless judex fori be precluded

from entertaining suit.

had on such a suit, although the contract may not be illegal by the law of the place of performance. If there be no such prohibition, however, the law of the place of performance is to determine as to the legality of the contract. This distinction applies to

contracts to sell spirituous liquors, to gaming contracts, to contracts for the carrying on of lotteries. On the other hand, contracts, one of whose objects is to evade a foreign revenue law, will not for this reason be held illegal by the lex fori. The distinction is, that while a contract to do a thing legal in the place of performance will be enforced, unless the suit be peremptorily forbidden by the lex fori, the judex fori will not enforce a foreign penal law by declaring invalid a contract which in its performance would conflict with that law.

Contracts

§ 332. A contract conflicting with the law of conflicting nations-e.g., to commit a breach of neutralitywill not be enforced; nor will a contract conflicting with public policy. Hence contracts in restraint of

with law of nations or public policy will

1 Ibid. §§ 471 et seq.

Whart. Conf. of Laws, §§ 487-490 et seq.; see Second Nat. Bank v. Curren, 36 Iowa, 555. As to illegal contracts generally, see Whart. on Cont., §§ 335 et seq. That a court will enjoin a domiciled citizen from prosecuting in

a foreign state an inequitable claim against another domiciled citizen of the home state, see Dehon v. Foster, 4 Allen, 545; Vail v. Knapp, 49 Barb. 299; Snook v. Snetzer, 25 Oh. St. 517; Engle ". Scheuerman, 40 Ga. 206; Keyser v. Rice, 47 Md. 203; Story, Eq., § 899.

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

8th. Interest.

enforced.

Place of

mance of contract determines

interest and this place of in

may be

vestment.

§ 333. Thelaw 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 contraet 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.

bankrupt

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

operative
in the U. S.,
otherwise

as to state

insolvent

and foreign

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 probankrupt 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 discharging state.1

§ 335. Statutes of limitation are of two kinds, those which merely regulate and restrict the right of suing, and those which extinguish the debt. The first are determined by the lex fori. When the lex fori says that the suit cannot be maintained, then it cannot be maintained notwithstanding it is in force by the

When statutes of limitation are only processual, lex fori gov

erns.

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

tinguishing

extra

territorial.

the state by which the statute is imposed.3

X. TORTS.

§ 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

Lex delicti commissi and lex fori must sustain suit.

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. Injuries to real estate, however, can only be redressed in the state where the estate is situate.

XI. SUCCESSION, WILLS, AND ADMINISTRATION.

Immov

erned by lex rei sitae.

§ 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 gov- ables 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."

§ 339. It is now everywhere conceded, on the other hand, that movables are governed by the law of the dece- Movables dent's last domicil. The only exceptions to this governed 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