Page:The American Cyclopædia (1879) Volume X.djvu/397

 LEX LOCI 391 which the law of another jurisdiction may be resorted to as the measure and rule of the rights and obligations of the parties, by reason of the subject of the controversy being there situate, or because the contract from which the controversy has arisen was there made, or for some other reason hereafter indicated. Thus, it is a settled doctrine of what may be called private international law, that the title to real estate can only be conveyed or trans- mitted in accordance with the lex rei sites, the law of the state or country in which it is situ- ated. Therefore all deeds, wills, or other con- veyances, to be effectual, must be executed with such capacity and under such forms as are made necessary by that law ; and in case of intestacy, the course of descent will be de- termined by that law, irrespective of the domi- cile of the owner at his death. And in what- soever country a legal controversy brings in question the title to lands, the lex fori will take notice of and act upon the lex rei sitce in determining this question; while, on the other hand, the tribunals of no country will recognize any act or instrument done or exe- cuted abroad as sufficient to pass the title to land within it, unless its own laws provide that such act or instrument shall be effectual for the purpose. The rule is different, however, as regards contracts for the payment of money, for the sale or bailment of personal property, or for the performance of any personal acts. All such contracts must be made with the capacity and under the formalities required by the law of the place where made ; they must be construed by that law, and their validity and effect determined by it. If sufficient and legal there, they will in general be held sufficient and valid everywhere, and the party injured by a failure in performance will be afforded in any country in which he may find the other party, and bring suit against him, such remedy as the laws of that country in their regular course will give in similar cases upon contracts there made, even though the particular con- tract if made in that country would, for any reason, have been wanting in validity. Thus, if a citizen of New York should go abroad and take up his abode either temporarily or per- manently in Paris, leaving unperformed con- tracts behind him, the promisees in these con- tracts might follow him to Paris, and there bring suit for their enforcement or for the re- covery of damages ; and while the French court would only give a remedy under its own forms, yet in determining whether the contract was enforceable at all, it would test the validity by the New York law and not by that of France. And, on the other hand, if an American should make purchases in France and fail to pay for them, if the contracts of purchase were valid in France, the courts of America would give the proper remedy for the recovery of the pur- chase price here. There are doubtless some exceptions to this rule which rest upon reasons easily understood and appreciated. Thus, if a contract should be made in France for some- thing to be done in our own country in evasion of its revenue laws, it would hardly be reason- able to expect that our courts would lend their aid in enforcing such a contract, even though valid in France, or that they would punish in damages the party who refused to per- form it. The general rule may be said to be that no country will give the assistance of its courts to enforce any contract which its own laws forbid, or which contravenes its public policy, or which is immoral in its tendency or purpose. Sometimes a contract is made in one country to be performed in another, as where a draft is drawn in New York, payable in Lon- don ; and in such cases the law of the place of performance is supposed to be had in view by the parties in making it, and must measure their rights and obligations where nothing in the contract indicates a different intent. Any- thing done by a party which satisfies or dis- charges a contract by the law of the place, will be an effectual discharge everywhere ; but statutes of limitation pertain to the remedy only, and it will often happen that a party may be permitted a remedy in one jurisdiction which would be denied him in another because of the lapse of time. Thus, suppose a debt contracted in New York to fall due in 1860, and three years later the debtor removes thence to Ohio, where he resides for six years. If now he is sued upon the debt in Ohio, he may effectually plead its statute of limitations, which bars the action after six years' oppor- tunity to pursue the remedy in that state ; but should he return to New York, he might be sued, and have judgment against him there at any time within three years of his return, because the period of his absence from the state would be excluded in computing the time of bar un- der the New York statute. The validity of a marriage is to be determined everywhere by inquiring whether it was valid by the law where it was made. This rule has led to sys- tematic evasions of the laws where they re- quired formalities which were inconvenient, or which in particular cases could not be com- plied with; the parties passing into another jurisdiction where such formalities were not required, and returning married according to the foreign law. From this rule must be ex- cepted incestuous and polygamous marriages, which will not be recognized in Christian coun- tries. And there may possibly be some cases where marriages entered into in defiance of the local law would be recognized elsewhere, if the ground of the prohibition were utterly un- reasonable; as for instance, if the local law should absolutely inhibit persons of a particu- lar religion from marrying at all. From what has above been stated it would be apparent that ante-nuptial contracts and marriage settle- ments may determine the property rights of par- ties wherever they go ; for though the parties in passing from one country to another can- not take the laws with them, they do take their