presumptions, either those of facts arising from the particular circumstances of each case; or those of Law, in the absence of such particularity. The latter, which have been established partly by judicial decisions, partly by general acceptance, from a respect paid to the jurists who have enunciated them, are in truth the subject of the present consideration (b).

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DCLXXIII. The cardinal principle of the English Law upon the obligations and relations of the foreigner in England is thus laid down by Lord Ellenborough: "We "always import," says this learned judge, " together with "their persons, the existing relations of foreigners as "between themselves according to the laws of their respective countries; except, indeed, where those laws "clash with the rights of our own subjects here, and one "or other of the laws must necessarily give way, in which "case our own is entitled to the preference. This having "been long settled in principle, and laid up among our "acknowledged rules of jurisprudence, it is needless to "discuss it any further" (c).

There are obligations which must necessarily from their nature be fulfilled or performed in a particular place : this original necessity furnishes a rule for the interpretation of the obligation, for the Law of that particular place must have been contemplated as the Law of the obligation by the parties to it.

The case is stated by Lord Mansfield, in one of those judgments which have made English Jurisprudence so largely indebted to him: "There is a distinction," this

(b) Fœlix, s. 96, says: "Lorsque les contractans n'ont pas expressément adopté la loi du lieu où le contrat a été passé, alors commencent les présomptions. . . . Toutes les législations sont d'accord pour établir que lorsqu'il s'agit d'une convention, le juge doit s'attacher principalement à la commune intention, expresse ou présumée, des parties." He then cites the Roman Law, various existing Codes, and Kent's Comm. vol. ii. pp. 554, 555 (part v., lecture 39).

(c) Potter v. Brown, 5 East, Rep. at p. 131.

great jurist says, "between local and personal statutes. "Local ones regard such things as are really upon the

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spot in England, as the Statute of frauds, which respects "lands situate in this kingdom. So stock-jobbing con"tracts and the statutes thereupon have a reference to our "local funds; and so the statutes for restraining insurances upon the exportation of wool respect our own "ports and shores. Personal statutes respect personal "transitory contracts, as common loans or insurances (d). . . . In every disposition or Contract, where the subject"matter relates locally to England, the Law of England "must govern and must have been intended to govern. "Thus a conveyance or will of land, a mortgage, a con"tract concerning stocks, must all be sued upon in England." Lord Mansfield adds these strong and clear expressions: "And the local nature of the thing requires "them to be carried into execution according to the Law "here" (e).

DCLXXIV. And yet, as will be seen in the matter of testaments," the local nature of the thing" bequeathed does not, according to the English decisions, necessarily cause the English Law to govern the instrument, if the testator be domiciled abroad, and it appears that if the testament bequeath property, which the English Law considers as personal, e.g. leasehold for any definite number of years, it will be pronounced by the English tribunals valid or invalid according to the Law of a foreign domicil (ƒ). It should be remarked that Lord Mansfield, in the case just cited, uses the term statute in the sense affixed to it by Civilians.

DCLXXV. As to the validity of the Contract, the

(d) Robinson v. Bland (leading English case), 1 W. Blackstone, Reports, at p. 246.

(e) 2 Burrow, Rep. at p. 1079, after second argument on the case. [Cf. 1 W. Blackstone, Rep. at pp. 258, 259.]

(f) See on this point Freke v. Lord Carbery, L. R. 16 Eq. p. 461 ; et vide suprà, § xlii.A. [See Studd v. Cook, L. R. 8 App. Ca. p. 577.]

presumption of Law is, in the absence of an express declaration or a strong counter-presumption, that the parties intended to observe the Law of the place in which the contract was made (g). "La valeur intrinsèque," Felix says, "la substance, le lien (h) (vinculum juris), dépend de la loi du lieu où elles ont reçu leur perfection; "l'acte valable ou nul d'après cette loi le sera également "partout" (i).

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The same rule applies to what is termed the nature (k) of the Contract, but which is perhaps more properly included under the next category of interpretation.

DCLXXVI. The Court of Louisiana has expressed itself as follows: "The idea that the Law of a man's "domicil follows him through the world, and attaches to "all his contracts, is as novel as unfounded. The pro"position was not, indeed, maintained in general terms; "but that offered to the Court in relation to the contract "is identical with it; and it is impossible for us not to "feel that, if the defendant . . . is to have the contract "decided by the laws of Louisiana, it will be equivalent

(g) Trimby v. Vignier, 1 Bingham, New Cases, p. 151; De la Vega v. Vianna, 1 Barnewall & Adolphus, Rep. p. 284; British Linen Company v. Drummond, 10 Barn. & Cress. Rep. p.903, -are the leading English cases; [and see Bradlaugh v. De Rin, L. R. 3 C. P. p. 538, and 5 C. P. p. 473. Cooper v. Cooper, L. R. 13 Ap. Ca. p. 88; Lee v. Abdy, L. R. 17 Q. B. D. p. 309.]

Bank of United States v. Donnally, 8 Peters, (Supreme Court of U.S.A.) Rep. p. 361; and Wilcox v. Hunt, 13 Ibid. p. 378,—are the leading cases in the U. S. of North America.

[The Law of the place where the contract is made governs as to the rights and liabilities of the parties; that of the place of performance as to the enforcement. Burchard v. Dunbar, in Supreme Court of Illinois, American Reports by Isaac G. Thompson, vol. xxv. p. 334; and see Hoadley v. Northern Transportation Co. in Supreme Judicial Court of Massachusetts, ibid. vol. xv. at p. 108; and 1 Lathrop's Mass. Rep. at p. 306. Infrà, §§ dexciii-dcxciv.A.]

(h) Fœlix (liv. ii. tit. i. s. 97) calls all these solennités intrinsèques. (i) Felix, ibid. s. 96.

(k) Vide suprà, § delxix.

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"to a declaration of this amount, that an inhabitant of "this State carries its laws with him wherever he goes, "and they regulate and govern his contracts in foreign "countries-that, whether a man contracts with him in "Paris or London, cur municipal regulations are the measure of the rights and duties of both parties to the "contract. That the legislature of Louisiana may have a "right to regulate the contracts of her own citizens in every country so long as they owe her allegiance, may or may not be true. But where the citizen contracts "abroad with a foreigner, it is evident that the rule must "be limited in its operation. The legislature may refuse "permission to enforce the agreement at home; but “abroad, and particularly where the agreement is entered "into, it is valid. The general rule, however, is never to "extend the prohibition to contracts made abroad unless "there be an express declaration of the legislative will” (l).

DCLXXVII. The following extract from a letter of Sir L. Jenkins to Charles II. contains a clear statement of what were, in that very learned civilian's opinion, the true principles of International Law respecting the enforcement of a bond of foreign obligors.

"That whether the bond in question was sealed and "delivered in Scotland or in England, your Majesty may "please, if it be transmitted, or remaining in the registry "of the Admiralty of Scotland, to order the registrar of "that court (who by his office stands chargeable with it) "to transmit hither the original bond: That the peti"tioner may have the remedy which the Law affords upon 66 a bond against the sureties living in England, it being "usual in aid of justice, as in all other places of Christendom, so in these your Majesty's two kingdoms, to have

(1) Arayo v. Currell, 1 Louisiana Rep. at p. 534 (A.D. 1830). Mr. Justice Martin delivered the opinion of the Court, which is cited at length in the 5th edition of Story's Conflict of Laws (Boston, 1857), pp. 445-458, s. 286 c, note 1.

"the benefit of Law, and execution where the obligors in a "bond do live, though the bond itself were not made in "the same kingdom."

"This is the constant usage in all parts where the "Civil Law obtains, and I myself can, upon experience, "witness the practice of it in Scotland; for a merchant "of Aberdeen, having become bound to me in a statute "merchant of 3,000l. in the manner and form peculiar to "England, I (being intrusted for a stranger) have been "lately forced to sue that statute merchant, and having "transmitted the original bond into Scotland, I have had

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very good justice before the lords of your Majesty's "sessions there, and execution against the party, though "there be no such form of obligation as our English "statute merchant is, received or known in Scot"land" (m).

DCLXXVIII. We have considered the principles of Law applicable to the validity and nature of the Contract. We next approach the question of the Interpretation of the Contract (n).

The rule of the English and North American United States lawyers upon this matter is, "that the interpreta"tion of the contract must be governed by the laws of "the country where the contract is made; " but Story, who lays down this rule, immediately adds, "Especially "in interpreting ambiguous contracts ought the domicil "of the parties, the place of execution, the various pro"visions and expressions of the instrument, and other "circumstances, implying a local reference, to be taken "into consideration" (o).

(m) Wynne's Life of Sir L. Jenkins, vol. ii. p. 749.

(n) With respect to [measurement of the tonnage of] Ships there is a very peculiar provision in English Statute law referring to the case of a conflict of laws-17 & 18 Vict. c. 104, ss. 20 et seq. ; 25 & 26 Vic. c. 63, ss. 4, 60. [The Franconia, L. R. 3 P. D. p. 164.] Vide infrà, chap. xli.

(0) Conflict of Laws, s. 272.