Where contract illegal

In Somersett's Case, 20 State Tr. 1 (a case of trover for a slave), Lord Mansfield said: "I am quite clear that the act of detaining a man as a slave can only be justified by the law of the country where the act is done, although contracts are to be construed according to the law of the country where they are entered into, and the succession to personal property according to the law of the country where the deceased owner was domiciled at the time of his death."

The principle of giving validity to contracts according to the by Lex Loci. lex loci where they are made, is said not to apply where that law is contra bonos mores, or contrary to the public law of the State where they are sought to be enforced, or to the general wellbeing of society. "It cannot apply," says Wheaton, s. 90, " where it would injuriously conflict with the laws of another State relating to its police, its public health, its commerce, its revenue, and generally its sovereign authority, and the rights and interests of its citizens." "There is no exception to the rule as to the universal validity of contracts; which is, that no nation is bound to recognize or enforce any contracts which are injurious to its own interests, or to those of its own subjects." Huber (de Conflict Leg., lib. i. tit. 3, s. 2) has expressed it in the following terms:-" Quatenus nihil potestati aut juri alterius imperantis ejusque civium præjudicetur :" see Story, Conf. Laws, s. 244. In Forbes v. Cochrane, 2 B. & C. 471, Best, C.J., said, that the comity of nations "is a maxim that cannot prevail in any case where it violates the law of our own country, the law of nature, or the law of God. . . . . If the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize it." Woolsey (Internat. Law, s. 72), citing Savigny (Rom. Recht. s. 374), says: "Wherever a law of a strictly positive nature opposes the matter of the contract, the lex fori contractús must be applied. Thus if a suit for interest due on money be brought in a place where the usury laws would render such a transaction void, the Judge must follow his own law." Story says (Conflict of Laws, s. 340): "In a very recent case the Supreme Court of the United States have adopted the doctrine, that when a contract is made in one place to be executed in another, it is to be governed as to usury by the law of the place of performance, and not by the law of the place where it is made. So that, if the

transaction is bona fide, and not with intent to evade the law against usury, and the law of the place of performance allows a higher rate of interest than that permitted at the place of the contract, the parties may lawfully stipulate for the higher interest. But then the transction must be bonâ fide, and not intended as a mere error of usury." And again, s. 305: "It has been said that if the principle be that a contract valid in the place where the contract is celebrated, is void if it is contrary to the law of the place of payment, it must establish the universal proposition, that a contract void by the law of the place where it is made is valid, if good by the law of the place of payment. This would seem to be reasonable, and the doctrine is supported by the modern cases, notwithstanding the old cases have been supposed to lead to a contrary conclusion."

As to the rule of English law in such cases, see Robinson v. Bland, 2 Burr. 1077; Holman v. Johnson, Cowp. 341; Pellecatt v. Angell, 2 C. M. & R. 311; Spence v. Chadwick, 10 Q. B. 517, 2 Sim. 194; Hyde v. Hyde, L. R. 1 Prob. & Div. 131. An exception has been thought to exist in cases of contracts made in violation of the revenue laws: Cas. temp. Hardwicke, 85; 2 Rob. D. & M. 6; Planché v. Fletcher, 1 Douglas, 251; Holman v. Johnson, 1 Cowp. 341; Pellecatt v. Angell, 2 C. M. & R. 311. But the old idea that there is a distinction between statutes which have in view the protection of the revenue, and those which have in view other objects, if the contract is rendered illegal by them, is now exploded; and a contract is rendered void where the statute only inflicts a penalty, for such a penalty implies a prohibition: Cope v. Rowlands, 2 M. & W. 157; see Spence v. Chadwick, 10 Q. B. 517. If the want of a stamp renders a contract made in a foreign country void, it cannot be enforced here: Alves v. Hodgson, 7 T. R. 241. Aliter, if the stamp is required only to enable the document embodying the contract to be given in evidence: Bristow v. Sequeville, 5 Ex. 275.

A contract by British subjects relating to the sale and purchase of slaves in a country where slavery is legal, may be enforced in the courts of this country, notwithstanding statute 5 Geo. 4, c. 113, and by the force of 6 & 7 Vict. c. 98, s. 5: so held by a majority of the Court of Error in Santos v. Illidge, 29 L. J. (C. P.) 348, reversing the judgment of the Court below, 28 L. J. (C. P.) 317.

R

Foreign Court acting perversely.

Bills of
Exchange.

Blackburn, J., said: "Assuming the taking to have been prohibited by a British Act, still the taking having been of property locally situate in a foreign country, in a manner lawful according to the laws of that country, I apprehend that the property actually passed by the sale, and vested in the purchasers, though they committed a felony according to our law by taking it." See Somersett v. Stewart, Lofft., 17; Smith v. Brown, 2 Salk. 666; Smith v. Gould, Ibid.; Mittelholzer v. Fullarton, 6 Q. B. 989; Madrazo v. Willes, 3 B. & Al. 353-as to which it was said by Willes, J., in Santos v. Illidge, 28 L. J. (C. P.) 318, "That case has been wondered at;" Buron v. Denman, 2 Ex. 167.

"If the penal laws of a foreign country," said the Court in Folliott v. Ogden, 1 H. Bl. 135, "do not in themselves import a personal disability to sue in this, neither do they, by diverting the property of a person in that country, take away his right of action in England... . . The penal laws of foreign countries are strictly local, and affect nothing more than that they can reach and can be seized by virtue of their authority; a fugitive who passes hither comes with all his transitory rights; he may recover money held for his use, stock, obligations, and the like, and cannot be affected in this country by proceedings against him in that which he has left, beyond the limits of which such proceedings do not extend." A contract illegal in the place where it was made, is generally held to be invalid everywhere: Robinson v. Bland, 2 Burr. 1077; 2 Kent, Com. 458; Story, Conf. Laws, s. 243.

The question of disability to make a contract on account of infancy is decided by the lex loci: Male v. Roberts, 3 Esp. 163, where Lord Eldon said: "I hold myself not warranted in saying that such a contract is void by the law of Scotland (where it was made) because it is void by the law of England."

Where a foreign Court acts perversely and in defiance of the comity of nations, by refusing to recognize a title to property acquired according to the laws of England, its judgment will not be regarded by the English Courts: Simpson v. Fogo, 32 L. J. (Ch.) 249; see Cammell v. Sewell, 29 L. J. (Ex.) 350; Castrique v. Imrie, 30 L. J. (C. P.) 177; Woolf v. Oxholm, 6 M. & S. 92.

The indorsee of a bill of exchange drawn, accepted, and pay

able in England, can maintain an action here against the acceptor under an indorsement made in France, although the law of France gives no right to the indorsee to sue in his own name, and both he and the indorser were subjects of France, and domiciled and resident there when the bill was made and indorsed: Lebel v. Tucker, L. R. 3 Q. B. 77. See also, as to bills of exchange, Snaith v. Mingay, 1 M. & S. 87; Crutchley v. Mann, 5 Taunt. 529; Rothschild v. Currie, 1 Q. B. 43; Hirschfield v. Smith, L. R. 1 C. P. 340; Allen v. Kemble, 6 Moore, P. C. 314; Gibbs v. Fremont, 9 Ex. R. 25; Sharples v. Rickard, 26 L. J. (Ex.) 302.

of execution

place where contract

Where the place for executing the contract is different from the Where place place where it is made, everything which concerns its execution different from is determined by the law of the former place, but what concerns its validity and interpretation by the lex loci contractús: Wheaton, made. 8. 94. Story (Conf. Laws, s. 250) says that in such a case the contract, as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of performance. But Wheaton seems to point out the true distinction. Nor is what was said by Lord Mansfield in Robinson v. Bland, 2 Burr. 1077— namely, that "the law of the place can never be the rule where the transaction is entered into with an express view to the law of another country, as the rule by which it is to be governed "—inconsistent with this principle; for by the nature of the case it is assumed that it was part of the contract that it should be governed by the law of another country, and, of course, in such a case the maxim volenti non fit injuria would apply.

"The lex loci contractûs is to govern in the construction of contracts, but that applies only when the contract is not express. If it be special, it must be construed according to the express terms in which it is made:" per Alderson, B., Gibbs v. Fremont, 9 Ex. R. 30; see Munroe v. Pilkington, 31 L. J. (Q. B.) 81; Peninsular and Oriental Steam Navigation Company v. Shand, 3 Moore, P. C. (N.S.) 272. But where the contract is to be performed generally without any stipulation, express or implied, as to the place, the law of the place of making it governs: Story, Conf. Laws, s. 282. And when a contract of affreightment does not provide otherwise, the law of the country to which the ship belongs must be taken to be the law governing liability in respect of sea-damage and

Discharge of liability.

Marriage.

its incidents Lloyd v. Guibert, L. R. 1 Q. B. 115 (in error). As to the liability here for collision on the high seas of a Frenchman, the member of a French marine company, by one of whose vessels the damage was occasioned, see General Steam Navigation Company v. Guillou, 11 M. & W. 877. Where a contract is made partly in one country and partly in another, it is said to be a contract of the place where the assent of the parties first concurs and becomes complete.

A discharge from a debt or the performance of a contract under the lex loci is, in general, a discharge everywhere: Story, Conf. Laws, ss. 331-334; Robinson v. Bland, 1 W. Bl. 258; Quin v. Keefe, 2 H. Bl. 553; Phillips v. Allan, 8 B. & C. 477. But to this rule there is an exception, where there has been a confiscation of the debt, not justified by the law of nations: Woolf v. Oxholm, 6 M. & S. 92.

And where the statutes of limitation or prescription, as they are generally called, in a foreign country, not only extinguish the right of action, but the claim or title itself, ipso facto, and declare it to be a nullity after the lapse of the prescribed period, it seems that the statute may be pleaded here as a valid defence to show the extinguishment of the debt. "But this must be taken with the qualification stated by Story, Conf. Laws, that the parties are resident within the jurisdiction all that period, so that it has actually operated on the case:" per cur. Huber v. Steiner, 2 Bing. N. C. 211; see Don v. Lippman, 5 Cl. & Fin. 1. The question to be determined in each case seems to be this, whether the rule of foreign law applies ad valorem contractús, or ad modum actionis instituendæ. If the former, the action is not maintainable; if the latter, it is.

A discharge of a contract by the law of a place where it was neither made nor to be performed will not be a discharge of it in any other country. A foreign law cannot take away the right of a subject of this country to sue here upon a contract made here: Smith v. Buchanan, 1 East, 6; Bartley v. Hodges, 30 L. J. (Q. B.) 352; Lewis v. Owen, 4 B. & Al. 654; Phillips v. Allan, 8 B. & C. 477. The general rule as to marriage is, that the contract is governed by the law of the place where it is celebrated, and the formalities to be observed are those of the lex loci, if any mode available to