restraint of liberty by force or other obstacle or necessity; hence, imprisonment.87

86

1

CONFIRM.88 To make firm or certain;89 to make firmer;90 to give new assurance of truth or certainty;91 to put past doubt;92 to settle or establish; 93 to render valid or binding by approval and acceptance; to strengthen, sanction, or ratify;95 to ratify what has been done without authority or insufficiently.96 The word " 'confirm" apparently carries with it the idea of the recognition of a

physician finding in the deceased a
prolapsed uterus in which there was
a dead foetus. It was held that it
was not shown that the deceased
member died as "the result of any
confinement due to pregnancy."
." Rose
v. Commonwealth Ben. Assoc., 27
Del. 144, 147, 86 A 673 (where the
court said: "There was no child-
birth or lying-in for the delivery of
a child, or even a foetus. There was,
it is testified, a dead fœtus in the
uterus and a condition of septic
poisoning, and the member died. This
is the whole story").

86. Century D. 87. Century D.

above-stated case," meant that the jury found in favor of plaintiff against defendant the same amount as had been found by the justice. Humphrey v. Johnson, 143 Ga. 703, 85 SE 830.

96. Black L. D. [quot Capps v. Hensley, 23 Okl. 311, 317, 100 P 515]. 97. Capps v. Hensley, 23 Okl. 311, 317, 100 P 515.

a telegraph company in transmitting | sion, "confirm the judgment in the
a message, the court said: "A fail-
ure of defendant's operators to con-
firm the message could not be con-
sidered as a circumstance on the
question of gross negligence. Plain-
tiffs contracted and paid for the
sending of an unrepeated message.
The defendant was not under obliga-
tion to repeat or confirm the mes-
sage (i. e., 'to make certain or sure,
give new assurances of truth or cer-
tainty to, put past doubt, verify;
confirmation supplies all defects,
though that which had been done was
not valid at the beginning')." Weld
v. Postal Tel.-Cable Co., 210 N. Y.
59, 76, 103 NE 957.

90. Larned v. Larned, 98 Kan. 328, 333, 158 P 3.

91. Webster D. [quot Boggs v.
Merced Min. Co., 14 Cal. 279, 306].
92. Webster D. [quot Boggs V.
Merced Min. Co., 14 Cal. 279, 306].
93. Century D.

[a] "Establish" as synonymous.-
In an action involving the following
sentence, "The relation of husband
and wife amongst persons of color is
established," contained in "an act to
establish and regulate the domestic
relations of persons of color," etc.,
the court said "The word 'establish,'
as thus used, may be interpreted to
signify 'recognized, acknowledged,
ratified and confirmed.' Such signi-
fication of the word is supported not
only by judicial construction
but by common use and in the best
authorities. A printed example cited
occurs in two verses of the English
translation of the Mosaic law con-
cerning a married woman's Vow.
'Every vow and every binding oath,
to afflict the soul, her husband may
it void.' But if her husband alto-
gether 'hold his peace at her from
day to day, then he establish all
her vows or all her bonds which are
upon her; he confirmeth them, be-
cause he held his peace at her in the
day that he heard them.'-Numbers,
Chap. XXX, verses 13 and 14.
the latter verse the words 'establish'
and 'confirm' are used to translate
one and the same word in the Greek
and in the Hebrew." Davenport v.
Caldwell, 10 S. C. 317, 332, 339.
94. Standard D.

[a] As implying actual confinement in jail.-(1) Where one was arrested on a capias ad respondendum, and received permission from plaintiff in the suit and the sheriff to go at large, being merely directed to attend occasionally at court, it was held that this was not such confinement as was intended by an act for the relief of insolvent debtors, extending the benefits of it to all persons "now in confinement for debt," etc., as a confinement in gaol was intended by the act. In re Brush, 6 N. J. L. 404. (2) Where in a proceeding for bastardy the statutes provided for the commitment to jail of the person charged, on failure of procuring recognizance, and for his discharge on being confined six months, it was held that confinement did not mean free and promiscuous going at large outside the jail after being committed, but confinement within the jail. State v. Lamoine, 53 Vt. 568, 573 (where the court said: "If the party sees fit not to abide in confinement, and by permission of the jailor goes at large ad libitum be-establish it or her husband may make cause he prefers to, all that need be said is, he will fail of qualifying himself for the interposition of the jail commissioners"). (3) Where a circuit judge was authorized to institute an inquiry into the sanity of any person in confinement under an indictment or on other than civil processes, it was held that the words "in confinement" were used to import those who were imprisoned in the county jail awaiting a final trial, or in the actual custody of the officers of the law as distinguished from those not having been arrested, or, being arrested, had been discharged from arrest on bail. Ex p. Trice, 53 Ala. 546, 548 (where the court said: "It is true that a man's bail are looked upon as his jailers of his own choosing, and for some purpose he is esteemed to be in their custody, and in the prison of the court. This, however, is rather a legal fiction, indulged to secure to the bail the ample right by law to detain the principal, and to surrender in discharge of their recognizance or obligation").

See also Confine ante p 422. [b] Confinement on the streets. A sentence on conviction of violating a city ordinance, directing confinement on the streets, means that defendant be confined at labor on the streets. Shuler v. Willis, 126 Ga. 73, 75, 54 SE 965.

In

[a] Confirmation of orders for expenditures.-In construing a provision in an act that no order made by justices in pursuance of certain powers which should require the expenditure or payment of any money should be of force until confirmed by the council of the city or borough, the court said that it was of opinion that the word "confirm" was used in the seise of approve. Reg. v. York, 1 E. & B. 588, 594, 72 ECL 588, 118 Reprint 558.

95. Larned v. Larned, 98 Kan. 328, 333, 158 P 3.

[a] Judgment confirmed.-Where, in a suit in a justice's court, the justice entered on the docket a judgment in favor of plaintiff against defendant for the principal, interest, attorney's fees and costs, stated in detail, from which an appeal was taken to a jury in that court, and the jury returned a verdict stating, "We, the jury, confirm the judgment in the above-stated case, and costs of this appeal, also ten per cent. attorney's fees," dated and signed by the foreman, such verdict was not so uncer[a] Repeat or confirm messages- tain as to be void. Giving to it a In an action involving the liability of reasonable intendment, the expres

88. See also Confirmation post p 424.

"Afirm" synonymous see Affirm 2 C. J. p 380.

89. Webster D. [quot Boggs v. Merced Min. Co., 14 Cal. 279, 306].

98. Reg v. York, 1 E. & B. 588, 594, 72 ECL 588, 118 Reprint_558. 99. Reg. v. York, 1 E. & B. 588, 594, 72 ECL 588, 118 Reprint 558.

1. McLeod v. McNab, [1891] A. C. 471, 474, 476 (where, in construing a statute providing that "no will or codicil shall be revived otherwise than by a codicil executed in manner herein before required, and shewing an intention to revive the same," the court said that it was of opinion that the word "confirm" is an apt word, and expresses the meaning, and has the operation of the word "revive," which is used in the statute).

2. [a] "Affirmed" as synonymous. -In construing the Bankruptcy Act § 57n, in which adjudication is defined as the date of the entry of

a

decree that the defendant in a bankruptcy proceeding is a bankrupt, or if such decree is appealed from, then the date when such decree is finally confirmed, the word "confirmed" was construed as not being confined to a technical affirmance, but as being broad enough to include the termination of an appeal from a bankruptcy adjudication by dismissal. In re Lee, 171 Fed. 266, 268. See also Hughes v. Boyle, 5 Ont. 395, 398 (where, although the court stated that "affirm" and "confirm" were synonyms, it also said: "Taking the word 'affirmed' in its ordinary natural meaning, it is clear that the judgment appealed from has been by the discontinuance and ending of the appeal confirmed, established, made certain, and free from doubt. It is again to be noted that the affirmance is not said to be by the Court, or rule or order thereof. It seems to me no other conclusion than one fixing the sureties with liability for these costs will effectuate the Intention of the parties").

3. Century D.

Confirmed drunkenness as ground for divorce see Divorce [14 Cyc 623]. 4. Century D.

[a] "Shall be ratified and confirmed" as importing futurity.-In construing the terms of a treaty of 1819, by which Spain ceded Florida to the United States, the court said: "The treaty was drawn up in the Spanish as well as in the English language. Both are originals, and were unquestionably intended by the parties to be identical." The Spanish has been translated, and we now understand that the article as expressed in that language, is, that the grants "'shall remain ratified and confirmed' to the persons in possession" of them, to the same extent, etc., thus conforming exactly to the universally received doctrine of the law of nations. "If the English and the Spanish parts can, without violence, be made to agree, that construction which establishes this conformity ought to prevail. If, as we think must be admitted, the security of. private property was intended by the parties; if this security would have been complete without the article, the United States could have

whereby the Great Charter is declared to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that, by word or deed or counsel, act contrary thereto or in any degree Black L. infringe it. D. [cit 1 Blackstone Comm. 128]. 10. Black L. D. [cit Sheppard Touchst. 311].

11. Black L. D. [cit Sheppard

12. A maxim meaning "Confirmation is void where the preceding gift is invalid." Black L. D. [cit Gibons v. Marltiward, Moore K. B. 594, 72 Reprint 780; Coke Litt. 295].

13. A maxim meaning "The confirmation of a possession defective in law is a ratification by means of those whose right it is." Morgan Leg. Max.

14. Confirmation: Of: Account of:

Executor or administrator see Executors and Administrators [18 Cyc 1186]. Guardian see Guardian and Ward [21 Cyc 164]. Receiver see Receivers [34 457]. Trustee see Trusts [39 Cyc 502]. Appointment of:

Municipal officer see Municipal
Corporations [28 Cyc 407].
Officer generally see Officers [29
Cyc 1372].

Assessment for public improvement see Municipal Corporations [28 Cyc 1176].

Bid at partition sale see Partition [30 Cyc 282]. Composition in bankruptcy see Bankruptcy § 595. Grant

of public land see Public Lands [32 Cyc 1209]. Judicial sale see Judicial Sales [24 Cyc 33].

Partition sale see Partition [30 Cyc 282].

Commissioners in condemnation proceedings see Eminent Domain [15 Cyc 904].

Commissioners in partition
Partition [30 Cyc 266, 278].
Master in chancery see Equity [16
Cyc 459].
Referee

see References [34 Cyc

869]. Viewers of private road see Private Roads [32 Cyc 376]. Sale by: Executor under testamentary power see Powers [31 Cyc 1134]. Guardian see Guardian and Ward [21 Cyc 136].

22

21

voidable estate is the proper office of confirmation.20 The confirmation does not therefore regularly create an estate,2 yet such words may be mingled in the confirmation, as may create and enlarge an estate; but that is by force of such words that are foreign to the business of confirmation, and by their own force and power tend to create the estate.23 There must be a precedent rightful or wrongful estate in the person to whom the confirmation is made in his own or another's right, or at least he must have the possession of the thing whereof the confirmation is made, as a foundation for the confirmation to work upon.24 A confirmation necessarily supposes a knowledge of the thing ratified,25 the term implying a deliberate act intended to renew and ratify a transaction known to be voidable.26 Although primarily confirmation applies to that by which what was before voidable is made valid, as where one makes valid a voidable contract of his own, which he might have repudiated,27 the two terms "ratification" and "confirmation" are often used interchangeably as synonymous." Recognition,29 and adoption, have also been used indifferently as

30

28

v. Dyer, 57 Me, 174, 177, 99 Am D 765; Turk v. Skiles, 45 W. Va. 82, 84, 30 SE 234].

[a] Similar definitions.-(1) "The conveyance of an estate, or right, that one hath in or unto lands or tenements, to another that hath the possession thereof, or some estate therein, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased and enlarged." Sheppard Touchst. 311 [quot Langdeau V. Hanes, 21 Wall. (U. S.) 521, 530, 22 L. ed. 606; De Mares v. Gilpin, 15 Colo. 76, 81, 24 P 568]. (2) "A confirmation is a conveyance of an estate or right in lands to one who has the possession or some estate therein." Morrow V. Whitney, 95 U. S. 551, 554, 24 L. ed. 456. (3) "A deed, whereby a conditional or voidable estate is made absolute and unavoidable by the confirmer, so far as he is able, or whereby a particular estate is increased." Northern Pac. R. Co. v. Majors, 5 Mont. 111, 138, 2 P 322 [Blackstone Comm. 325; cit Coke Litt. 295b].

[b] Species of conveyance.-A confirmation is a species of commonlaw conveyance. Conveyance is the generic term of which confirmation

is the species. Northern Pac. R. Co. V. Majors, 5 Mont. 111, 138, 2 P 322.

or

[c] "A legislative confirmation (1) of a claim to land is a recognition of the validity of such claim, and operates as effectually as a grant or quit-claim from the government.' Langdeau v. Hanes, 21 Wall. (U. S.) 521, 530, 22 L. ed. 606 [quot De Mares v. Gilpin, 15 Colo. 76, 81, 24 P 568]. (2) "If the claim be to land with defined boundaries, capable of identification, the legislative confirmation perfects the title to the particular tract, and a subsequent patent is only documentary evidence of that title. If the claim be to quantity, and not to a specific tract capable of identification, a segregation by survey will be quired, and the confirmation will then immediately attach the title to the land segregated." Langdeau v. Hanes, 21 Wall. (U. S.) 521, 530, 22 L. ed. 606.

re

20. Turk v. Skiles, 45 W. Va. 82, 84, 30 SE 234.

21. Gilbert Tenures [quot Boquillas Land, etc., Co. v. Curtis, 213 U. S. 339, 344, 29 SCt 493, 53 L. ed. 822; Fauntleroy v. Dunn, 3 B. Mon. (Ky.) 594, 608]. To same effect Peo.

v. Law, 34 Barb. (N. Y.) 494, 511,
22 How Pr 109, 126.

22. Gilbert Tenures 75 [quot Bo-
quillas Land, etc., Co. v. Curtis, 213
U. S. 339, 344, 29 SCt 493, 53 L. ed.
822]. To same effect Peo. v. Law,
34 Barb. (N. Y.) 494, 511, 22 How Pr
109.

23. Gilbert Tenures 69 [quot Peo. v. Law, 34 Barb. (N. Y.) 494, 512, 22 HowPr 109].

24. Northern Pac. R. Co. V. Majors, 5 Mont. 111, 139, 2 P 322 [quot Smith Real & Pers. Prop. 561; Sheppard Touchst. 312].

25. Russell v. Erie R. Co., 70 N. J. L. 808, 816, 59 A 150, 67 LRA 433, 1 AnnCas 672; Adair v. Brimmer, 74 N. Y. 539, 554.

[a] Knowledge of defects and right to reject or ratify.-"Confirmation and ratification imply to legal minds knowledge of a defect in the act to be confirmed, and of the right to reject or ratify it." Adair v. Brimmer, 74 N. Y. 539. 554 [quot Fidelity Trust Co. v. Butler, 91 SW 676, 681, 28 KyL 1268].

26. 2 Pomeroy Eq. Jur. § 965 [quot Wagg v. Herbert, 19 Okl. 525, 565, 92 P 250]; De Hereu v. Hereu, 6 Ariz. 270, 283, 56 P 871. To same effect Barr V. Schroeder, 32 Cal. 609, 617.

27. Seiffert, etc., Lumber Co. v. Hartwell, 94 Iowa 576, 580, 63 NW 333, 58 AmSR 413.

28. Byrne V. Doughty, 13

Ga.

46, 52; Seiffert, etc., Lumber Co. v.
Hartwell, 94 Iowa 576, 580, 63 NW
333, 58 AmSR 413; Capps v. Hensley,
23 Okl. 311, 317, 100 P 515 (where
the court said: "Ratification and con-
firmation appear to be considered as
almost, if not quite, synonymous").
29. Byrne v. Doughty, 13 Ga. 46,
Byrne v. Doughty, 13 Ga. 46,

52.

30.
52.
31.
Turk v. Skiles, 45 W. Va. 82,
84, 30 SE 234.
32. Black L. D. [cit 25 Hen. VIII
c 20].
33.

meaning "Confir

[a] Confiscable personal estate."All things come within the description of confiscable personal estate, which a man has in his own right, whether they be in action or possession." Camp v. Lockwood, i Dall. (Pa.) 393, 403, 1 L. ed. 192.

40. [a] Origin of term.-The verb "confiscate" is derived from the Latin "con," with, and "fiscus," a basket or hamper, in which the emperor's treasure was formerly kept. Ware v. Hylton, 3 Dall. (U. S.) 199, 234, 1 L. ed. 568. 41.

an

In re Barnett, [1902] 1 Ch. 847, 858, 3 BRC 198. [a] Illustrations.-In action which involved the construction of a statute as to inheritance, the court said: "The words with which it commences, 'If the spouse is no longer alive,' must be read in connection with the immediately preceding article, which gives the whole. inheritance to the spouse in certain contingencies there mentioned. Those words, 'If the spouse is no longer alive,' are equivalent to 'if there be no person to claim as heir,' and in that event 'the succession is confiscated as heirless property.' The great difficulty in the case is in dealing with the poverty of language, or at any rate of the English language. 'Confiscated' is a word capable of being used in many sensés. In the ordinary sense it applies where the Crown intervenes, not to take property because it is vacant, but to take by way of penalty in exercise of sovereign rights different from those which are asserted in a case like this. But here the word does not mean confiscated' in the sense of taking by way of penalty. It is taken, or assumed by the State, as its own property." In re Barnett, [1902] 1 Ch. 847, 858, 3 BRC 198.

42. Skelly v. St. Louis, etc., R. Co., 176 Mo. A. 156, 164, 165, 161 SW 877 [cit Cyc]; Wade v. Hylton, 3 Dall. (Pa.) 199, 234, 1 L. ed. 568. [a] Bona confiscata (confiscated

mation supplies all defects, though goods), as they are called by the

maxim
A
that which had been done was not
Black L. D.
valid at the beginning."
[cit Coke Litt. 295b].

civilians, because they belong to the fiscus or imperial treasury; or, as our lawyers interpret them, forisfacta; that is, such whereof the property is gone away or departed from the owner. The true reason and only substantial ground of any forfeiture for crimes consist in this: that all property is derived from society, being one of those civil

For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number.

CONFLICT OF LAWS

BY DONALD J. KISER *

[Matters not in this Title, treated elsewhere in this Work, see Cross References

infra p 428]

1. In General [§ 10] p 437

2. Nonpenal Statutory Rights and Liabilities [§ 11] p 438

3. Penal Statutes [§ 12] p 438

4. Civil-Law Rights and Liabilities [§ 13] p 438

5. Positive Law as Preventing Exercise of Comity [§ 14] p 438

6. Public Policy as Preventing Recognition of Foreign Law [§§ 15-16] p 439
a. In General [§ 15] p 439

b. Meaning of "Settled Public Policy" [§ 16] p 439

7. Injury to State or Citizens as Preventing Exercise of Comity [§ 17] p 440

8. Intrinsic Difference between Systems of Law [§ 18] p 440

9. Nonconformity to Precedent and Absence of Reports [§ 19] p 441

10. Foreign Law Denying Extraterritorial Action [§ 20] p 441

11. Inchoate Rights [§ 21] p 441

IV. RECIPROCITY [§ 22] p 441

V. EXTRATERRITORIALITY [§§ 23-24] p 442

A. Definition and Scope [§ 23] p 442

B. Extraterritorial Domicile [§ 24] p 443

VI. ADMINISTRATION OF FOREIGN RULES AS TO CONFLICT OF LAWS [§ 25] p 445
VII. LAWS WHICH MAY GOVERN [§§ 26-40] p 446

A. In General [§ 26] p 446

B. Lex Fori [§ 27] p 447

C. Lex Domicilii [§ 28] p 447

D. Lex Loci Contractus [§§ 29-34] p 448

1. In General [§ 29] p 448

2. Place of Making; Locus Celebrationis [$ 30] p 449
3. Place of Performance; Locus Solutionis [§ 31] p 450

4. Stipulations as to Governing Law [§ 32] p 451

5. Contracts with Foreign Corporation [§ 33] p 451

6. Applications of Rules [§ 34] p 451

E. Lex Loci Delictus [§§ 35-39] p 452

1. Torts [§§ 35-38] p 452

a. In General [§ 35] p 452

b. Statutory Causes of Action [§ 36] p 453

c. Maritime Torts [§ 37] p 454

d. Defenses [§ 38] p 455

2. Crimes [39] p 456

F. Lex Loci Rei Sita [§ 40] p 456

VIII. STATUS [§§ 41-49] p 457

A. Definition [§ 41] p 457

B. General Rules [§ 42] p 457

*Author of "Compromise and Settlement" ante p 312, "Workmen's Compensation Acts" C. J. Editor of "Landlord and Tenant" 24 Cyc 845. Joint author of "Chattel Mortgages" 11 C. J. 387, "Indictments and Informations" 22 Cyc 157, "Joinder and Splitting of Actions" 23 Cyc 376.

For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number.