Page:Federal Reporter, 1st Series, Volume 2.djvu/432

 CAMPBELL V. CBAMPTON. 425 �It cannot be said that the domicile which the parties to an agreement of marriage contemplate is not one of the material elements of the transaction in view. On the con- trary, it is of the very essence of the contract ; and when it is found that the parties cannot enter into the marriage rela- tion without expatriating themselves, it woald seem that either party would be justified in receding from the arrangement. It is, therefore, the most reasonable conclusion that the place where the parties are to be domiciled is the place of perform- ance of the marriage contract ; both because the substantial consequences of the act to be performed are fixed by the law of the domicile, and because the presumed intention of the parties to the agreement cannot otherwise be effectuated. �It will thus be seen that whether the validity of the agree- ment depends npon the law of the place where the contract was made, or that of the place where it was to be performed, the ruling at the trial cannot be upheld. �If these conclusions are correct it is unnecessary to decide whether or not an agreement to marry between persons related as are the parties is one which will be enforeed by the law of this state. But as this point has been fully argued by coun- sel, and will, quite probably, require decision upon another trial, in Tiew of some of the evidence offered on the former trial, it is proper that it be considered now. �It is insisted for the defendant that if the agreement be- tween the parties is a New York contract, yet it cannot be enforeed — First, because a marriage between the parties would have been a voidable marriage, which either party could pro- cure to be annuUed at any time during the lives of both ; and, second, if the marriage would not have been a voidable one, an agreement to marry between persons related as are the parties is contrary to public policy, because offensive to decency and the purity of domestic life, and, therefore, will not be enforeed. �The case is to be considered as though the parties were nephew and aunt ; as relatives of the half-blood are, equally with those of the whole blood, included in those degrees of consanguinity within which marriages are deemed incestuous.. ����