neral rule, upon the law of the place of the contract. The incompetency of a married woman to contract is considered by the civilians to depend upon the law of

the place of the marriage. Upon the doctrine of *459 the lex loci, nuptial contracts, *valid by the law of the place where made, will be recognized and enforced by the courts of other countries, in proper cases ;c

■ Male v. Roberts, 3 Esp. N. P. Rep. 163. Ex parte Lewis, 1 Vesey, 297. Henry on Foreign Law, 96. Saul v. His Creditors, 17 Martin's Louis. Rep. 596. 598. Story on the Conflict of Laws, p. 97. Pickering v. Fisk, 6 Vermont Rep. 102. In the case of Polydore v. Prince, Ware's Rep. 402, it was held, after a full consideration of the law both at home and abroad and of the principles of general jurisprudence which belong to the question, that civil incapacities and disqualifications by which a person is affected by the law of his domicil, are regarded in other countries as to acts done or rights acquired in the place of his domicil; but not as to acts done or rights acquired within another jurisdiction, where no such disqualifications are acknowledged. On this doctrine it was held, that the libellant, who was a slave by the law of his domicil, might sue in his own name in Maine, where slavery was not allowed, for a personal tort committed in an American vessel, on the high seas, and within the cognizance of the district court. Henry on Foreign Law, 37. 50, cites the opinion of Grotius, in a case submitted to him to that effect.

• Feaubert v. Turst, Prec. in Ch. 207. 1 Bro. P. C. 38. 1 Rob. App. Ca. 4 S. C. Freemoult v. Dedire, 1 P. Wms 429. Decouche v. Savetier, 3 Johns. Ch. Rep. 190. Crosby v. Berger, 3 Edwards' N. Y. Ch. Rep. 538. Hub De Conflictu Legum, lib. 3. sec. 9. Story's Com. on the Conflict of Laws, 132. 134. Anstruther v. Adair, 2 Myl. § K., 513. Schrimshire v. Schrimshire, 2 Hagg. Cons. Rep. 407. Lord Eldon's opinion, in Lashley v. Hoy, cited in Robertson on Personal Succession, App. p. 427, 428. But if A. and B., domiciled in Louisiana, elope to the state of Mississippi and marry, and shortly thereafter return, the conjugal rights under the marriage are held to be according to the law of domicil, as the law of the land would otherwise be fraudulently evaded; and it was not, in such a case, the intention of the parties to shift their domicil. Le Breton v. Nouchet, 3 Martin's Louis. Rep. 60. See, also, Hub. De Conflictu Legum, sec. 10. Nor can a contract of marriage, entered into in Louisiana, provide that the rights of the parties shall be according to the provisions of any foreign specified law. Bourcier v. Lanuse, 3 Martin's Louis. Rep. 581. If, however, the parties agree, previously to their marriage, upon a place of residence after it, and actually settle there, it becomes the place of their matrimonial domicil, and the marital rights of the husband to the wife's

and as personal qualities and civil relations of a universal nature, such as infancy and coverture, are fixed by the law of the domicil, it becomes the interest of all nations mutually to respect and sustain that law.a

The lex loci operates not only in respect to the nature, obligation and construction of contracts and the formalities and authentications requisite to the valid execution of them, but also as to their discharge. It is a general rule, that whatever constitutes a good defence, by the

property, are determined by the law of that domicil. Kneeland v. Ensley, 1 Meig's Tenn. Rep. 620. Le Breton v. Miles, 8 Paige's Rep. 261.

Mr. Justice Story, in treating of the capacity of persons, in his Commentaries on the Conflict of Laws, ch. iv., has thoroughly examined the conflicting opinions and infinite distinctions with which the host of civilians of continental Europe have overwhelmed and perplexed the subject; and he has deduced the following rules as best established in the jurisprudence of England and America, viz: (1.) The capacity, 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. (2.) That as to acts done, and rights acquired, and contracts made in other countries, the law of the country where they are done, acquired, or made, will generally govern, in respect to the capacity, state and condition of persons. And, therefore, in regard to questions concerning infancy, competency to marry, incapacities incident to coverture, guardianship, and other personal qualities and disabilities, the law of the domicil of birth, or other fixed domicil, is not generally to govern, but the lex loci contractus aut actus. (3.) Personal disqualifications arising from customry or positive law, and of a penal nature, are territorial, and not generally regarded in other countries, where the like disqualifications do not exist. Story's Comm. p. 96, 97, 98. On this subject of the capacity of persons to contract, the continental jurists generally adopt the law of the domicil, and the English common law, the lex loci contractus. Burge, in his Comm. on Colonial and Foreign Laws, vol. i. 244–260, cites largely from the continental civilians, to show that the wife's rights, capacities and disabilities, under the contract of marriage, are determined by the law of the husband's domicil, when the marriage took place. This is the law in this country, if the parties had not in view at the time, another place of residence. If the husband and wife have different domicils at the time of the marriage, the law of the husband's domicil governs the marital rights, and if neither party have any determinate domicil at the time, the lex loci contractus governs. Kneeland v. Ensley, 1 Meig's, 620. Prima facie at least the husband's domicil is that of the wife. Whitcomb v. Whitcomb, 2 Curteis, 351.

law of the place where the contract is made, or is to be performed, is equally good in every other place where the question may be litigated. Upon this principle, the discharge of a debtor under the bankrupt or insolvent laws of the country where the contract was made, and in cases free from partiality and injustice, is a good discharge in every other country, and pleadable in bar. The same law which creates the charge, is to be regarded when it operates in discharge of the contract.a

But if a contract be made under one government, and is to be performed under another, and the parties had in view the laws of such other country in reference to the execution of the contract, the general rule is, that the contract, in respect to its construction and force, is to be governed by the law of the country or state in which it is to be executed, the foreign law is in such cases adopted and effect given to it. This exception to the application

a Ballantine v. Goulding, 1 Cooke's B. L. 347. 1st ed. Potter v. Brown, 5 East's Rep. 124. Van Raugh v. Van Arsdale, 3 Caines' Rep. 154. Smith v. Smith, 2 Johns. Rep. 225. Hicks v. Brown, 12 Johns. Rep. 142. Blanchard v. Russell, 13 Mass. Rep. 1. Bradford v. Farrand, Ibid. 18. Prentiss v. Savage, Ibid. 20. Van Reimsdyke v. Kane, 1 Gall. Rep. 371. Le Roy v. Crowninshield, 2 Mason's Rep. 151. Green v. Sarmeinto, 1 Peters' U. S. Rep. 74. Harrison v. Edwards, 12 Vermont Rep. 648. Story on the Conflict of Laws, 272. 289. See, also, supra, p. 393. All the foreign jurists agree, that every contract must conform to the formalities and solemnities required by the lex loci, in respect to their valid execution; and the like doctrine is recognized in Alves v. Hodgson, 7 Term Rep. 241. Clegg v. Levy, 3 Campb. Rep. 166. Vidal v. Thompson, 11 Martin's Louis. Rep. 23. Depau v. Humphreys, 20 Ibid. 1. 22; but a contrary rule was declared in Wynne v. Jackson, 2 Russel's Rep. 351, and James v. Catherwood, 3 Dowl. & Ry. 190. Mr. Justice Story adds the weight of his opinion to the rule first mentioned. Comm. on the Conflict of Laws, 215-219.

Hub. de Conflictu Legum, sec. 10. Voet, ad Pand. 4. 1. 29. Lord Mansfield, in Robinson v. Bland, 2 Burr. Rep. 1077. Dig. 42. 5. Ibid. 44. 7. 21. Story's Comm. on the Conflict of Laws, 233, 234. Baldwin, J., in Strother v. Lucas, 12 Peters, 436, 437. Andrews v. Pond, 13 Peters, 65. Bell v. Bruen, 1 Howard's U. S. Rep. 182. Le Breton v. Miles, N. Y. Court of Chancery, 8 Paige, 261. The principle was applied in this last case, to an ante-nuptial contract, made in reference to another

of the lex loci is more embarrassed than any other branch of the subject, by distinctions, and jarring decisions; and the notice of a few of them may be instructive, and serve to give some precision to the doctrine. Thus, the days of grace allowed upon bills of exchange, are to be computed according to the usage of the place in *460 which they are to be paid, and not of the place in which they were drawn, for that is presumed to have been the intention of the parties;a whereas, by the general understanding, and course of decisions and practice, the drawer or endorser, upon the return of a foreign bill under protest, pays the damages allowed by the law of the place where the bill was drawn or endorsed. If interest be not stipulated in the contract and the money be payable at a given time, in a different territory, and there be default in payment, the law of the place of payment regulates the allowance of interest, for the default arises there. The drawer may, consequently, be liable to one rate of damages, and the endorser to another, if he endorses at a different place; for every endorsement is a new contract.d If, however, the rate of interest be

country, as the future domicil of the parties, and it was laid down as a rule of law, that when parties marry in reference to the laws of another country as their intended domicil, the law of the intended domicil governs the construction of their marriage contract as to their rights of personal property. See, also, Prentiss v. Savage, 13 Mass. Rep. 23. Thompson v. Ketcham, 8 Johnson, 189. Cox & Dick v. United States, 6 Peters, 172. Fanning v. Consequa, 17 Johnson, 511. If A. in America, orders goods from England, and the English merchant executes the order, the contract is governed by the law of England, for the contract is there consummated. Casaregis' Dis. 179. Whiston v. Stodder, 8 Martin's Louis. Rep. 93.

a Videl v. Thompson, 11 Martin's Louis. Rep. 23. Bank of Washington v. Triplett, 1 Peters' U. S. Rep. 25.

Hendricks v. Franklin, 4 Johns. Rep. 119. 17. Slocum v. Pomeroy, 6 Cranch's Rep. 221. Yeates' Rep. 19. Pothier's Oblig. n. 171.

C

Graves v. Dash, 12 Ibid
Hazlehurst v. Kean, 4

Cooper v. The Earl of Waldegrave, 2 Beavan,

282.

a Champant v. Lord Ranelagh, Prec. in Ch. 128. Fanning v. Consequa, 17 Johns. Rep. 511. Henry on Foreign Law, 53. Story on the Conflict of Laws, p. 261, 262. It may be laid down as a general rule, that negotiable paper of every kind is construed and governed, as to the obligation of the

specified in the contract, and it be according to the law of the place where the contract was made, though the rate be higher than is lawful by the law of the place where payment was to be made, the specified rate of interest at the place of the contract has been allowed by the courts of justice in that place, for that is a part of the substance of the contract. The general doctrine is, that the law of the place where the contract is made, is to determine the rate of interest when the contract specifically gives interest; and this will be the case, though the loan be secured by a mortgage on land in another state unless there be circumstances to show that the parties had in view the laws of the latter place in respect to interest.b

drawer or maker, by the law of the country where it was drawn or made; and as to that of the acceptor, by the law of the country where he accepts; and as to that of the endorsers, by the law of the country in which the paper was endorsed. Potter v. Brown, 5 East's Rep. 124. Dela Chaumette v. Bank of E., 9 B. § Cress. 208. 2 Bell's Comm. 692, 693. Slocum v. Pomeroy, 6 Cranch's Rep. 221. Ory v. Winter, 16 Martin's Louis. Rep. 277. Blanchard v. Russel, 13 Mass. Rep. 1. Pardessus, Cours de Droit, tom. 5. sec. 1497-1499. Notice of the dishonour of a foreign bill and protest, is to be given according to the law of the place where the acceptance is dishonored, though the other parties resided in England, for the bill being made payable in France, was a foreign bill, and as between the drawer and payee is to be taken as made there. Rothschild v. Currie, 1 Adolp. & Ellis, N. S. 43. Sherrill v. Hopkins, 1 Cowen's Rep. 103. Story's Com. 237. 284–289. 298. Boyce v. Edwards, 4 Peters' U. S. Rep. 111. Ayman v. Sheldon, 12 Wendell's Rep. 439. Gaston, J., in Hatcher v. Morine, 4 Dev. N. C. Rep. 124. If the drawee who accepts a bill in New-York when it was drawn in another state by the drawer who resides in that other state, the contract of acceptance as to presentment &c., is governed by the law of New-York. Worcester Bank v. Wells, 8 Metcalf, 107.

• Depau v. Humphreys, 20 Martin's Louis. Rep. 1. The decision in this case is accompanied with a full discussion of the authorities in the English and American law, and of the opinions of the European continental civilians. The law of this case has been critically examined by Mr. Justice Story, (Comm. on the Conflict of Laws, 248. 254,) and he does not think that the foreign jurists bear out the case. See below, note a, the result of the authorities there referred to.

De Wolf v. Johnson, Wheaton, 367. Story's Comm. on the Conflict of Laws, p. 239. 242. 244. The place or country in which a bill of ex