intended [fulfilment (Erfüllungsort)], if any place be designated, governs the contract; and if no place of fulfilment be specified, each of the contracting parties may invoke the Law of his domicil (h).

According to the Prussian Code, when the Laws of the respective domicils [differ as to the form of the contract], that Law which is most favourable to the maintenance of the [transaction (Geschäft)] is to be followed (i).

If the Prussian Courts had to decide, not on the maintenance but on the [effects or operation (Wirkung)] of the contract, Savigny says the spirit of the Prussian Law would apply to each party the Law of his domicil (j).

Grotius says, that a contract by correspondence (per literas inter absentes) ought to be governed jure solo naturæ ; but what Law would be enforced by the jus naturæ in this instance he does not specify, though it would appear that it was not the Law of the place in which the contract was actually entered into (k).

(h) "So gilt für jede Partei das Recht ihres Wohnsitzes.”—Savigny, ibid.

"Die Form eines

(i) [Prussian Code, Theil I. Tit. v. § 111. Vertrages ist nach den Gesetzen des Ortes, wo er geschlossen worden, zu beurtheilen."

§ 112. "Ist unter Abwesenden ein förmlicher Vertrag errichtet worden, so wird die Form desselben nach den Gesetzen desjenigen Ortes beurtheilt, von welchem das Instrument datirt ist."

§ 113. "Ist aber der Vertrag unter Abwesenden bloss durch Briefwechsel, ohne Errichtung eines förmlichen Instrument, geschlossen worden, und waltet in den Wohnörten der Contrahenten eine Verschiedenheit der gesetzlichen Formen ob, so ist die Gültigkeit der Form nach den Gesetzen desjenigen Ortes zu beurtheilen, nach welchen das Geschäft am besten bestehen kann.”

§ 114. "Eben dieses findet statt, wenn der Vertrag von mehreren Orten, welche in Ansehung der Form verschiedene Rechte haben, datirt ist."]

Savigny, ubi sup.

(j) Ibid.

(k) "Quare etiam si peregrinus cum cive paciscatur, tenebitur illis legibus" (that is, the Law of the civis); “quia qui in loco aliquo contrahit, tanquam subditus temporarius legibus loci subjicitur. Planè aliud erit si in mari pactio fiat aut in vacuâ insulâ, aut per literas inter

DCCI. The Courts of the United States have established the following propositions; that

i. Where an agent, travelling to procure orders for goods, but not having authority to sell, transmitted from one State to his principal in another State an order for goods to be sent to persons in the first-mentioned State, and the goods were so sent, the sale was made in the State where the principal was, and its legality must be governed by the Law of that State (1).

ii. A promissory note (m) executed in Canada, with no place of payment mentioned, is to be treated as a Canadian note, and the rights, duties, and obligations growing out of it, are to be determined by the laws of that province (n).

iii. Sureties, indorsers, and guarantors are liable according to the Law of the place of their contract (o).

iv. The laws of the State where a note is made payable govern the liabilities of the parties thereto; and such laws must be pleaded and proved as matters of fact (p).

DCCII Casaregis (q), whose reasoning is adopted by Story (r), points out that, when a merchant orders his correspondent to buy goods for him in a foreign country, and the correspondent executes the order by buying the goods of a third person, two contracts are created: "duo per"ficiuntur contractus: primus, mandati inter mandantem et "mandatarium; et alter, emptionis et respectivè venditionis "inter eundem mandatarium, uti emptorem nomine man"dantis, et venditorem;" and he adds both these contracts

absentes; talia enim pacta jure solo naturæ reguntur."-De Jure B. ac P. lib. ii. cap. xi. § v. 2, 3.

(1) Woolsey v. Bailey, 7 Foster (N. H.), p. 217.

Smith v. Smith, ibid. p. 244.

(m) Vide post, chapter xlii.

(n) Pech v. Hibbard, 26 Vt. (3 Deane), p. 698.

(0) Walker v. Forbes, 25 Ala. p. 139.

(p) Pryor v. Wright, 14 Ark. (1 Barb.), p. 189.

For notes of the above cases, see Putnam's United States Annual Digest, vol. ix. (1855), p. 378.

(g) Discursus legales de Commercio, disc. clxxix. num. 10.

(r) Story, s. 285.

-namely, that of mandate between principal (mandans) and agent (mandatarius), and that of purchase and sale between the vendor and the agent, as purchaser in the name of the principal-are [concluded] in the place of residence of the agent; ["ambo perficiuntur in loco man"datarii."]

The doctrine of Casaregis on this subject has been accepted both by England (s) and the United States of America (t).

DCCIII. A similar principle is applied by Casaregis and adopted by Story as to the ratification (u), by a correspondent, of a purchase made by an agent without orders. The contract is to be considered as governed by the Law of the place of purchase, and not by the Law of the place of ratification, because that refers back to the place and time of purchase (x).

In accordance with this doctrine the acceptance by a person in one country of a bill drawn upon him by a person in another country, is, as will be seen (y), a contract in the place where the acceptance is made (z).

(8) "If I residing in England send down my agent to Scotland, and he makes contracts for me there, it is the same as if I myself went there and made them," Lord Chancellor Lyndhurst observed in Pattison v. Mills, 1 Dow & Clarke, Rep. at p. 363.

The same Law has been laid down with respect to an English corporation contracting by its agent in Scotland; the contract is to be considered a Scotch contract.-Albion F. & L. Insurance Company v. Mills, 3 Wilson & Shaw's Scotch App. Rep. pp. 218, 233.

(t) Story remarks (s. 285, note 3) on the difficulty of reconciling this doctrine with what appeared to be the opinion of the court and counsel in Acebal v. Levi, 10 Bingham, Rep. pp. 376, 379, 381. The place of payment and delivery was in that case different from the place of Contract; no decision, however, hostile to the opinion in the text was given. Cf. Story, s. 262 a, n. 1, s. 318, and note; Vidal v. Thompson, 11 Martin, (Louisiana) Rep. p. 23.

(u) Ratification is ranked by Fœlix among the accidental consequences of a contract, s. 113; vide post, chapter xxxvii.

(x) Casaregis, ubi sup. num. 20, 64, 76-80, 83; cited Story, s. 286. (y) Vide post, chapter xlii.

(z) Story, s. 286, [citing Boyce v. Edwards, 4 Peters, Rep. p. 111.] P. Voet, De Stat. Sect. ix. c. ii. 14.

Savigny (a) admits that this case affords a just exception to the rule, that the Law of the domicil of each acceptor or [indorser] (Unterzeichner) should govern, and cites the Prussian Law on this point: by this Law, every engagement resulting from a bill of exchange is governed by the Law of the place in which the engagement is made; if, however, the bill be invalid by the Law of the place in which it is made, but valid according to German Law, subsequent endorsements made in Germany are valid; and a bill drawn in a foreign land between two Germans, if conformable to the German Law, is valid in Germany (b).

DCCIV. Hertius takes this view of a conflict of laws between the place of contract and the place of ratification. If the ratification have for its object to supply additional proof or strength to the contract (ad conciliandam contractui majorem fidem), then the Law of the place of the contract is to prevail; but if the ratification gives validity to the contract (ut contractus sit validus), then the Law of the place of the ratification is to prevail.

This view does not seem unreasonable, though Story appears to discountenance it (c).

DCCV. A difficult question upon the Law of agency (d) may arise out of mandatory or procuratorial instruments, called in England letters of attorney or proxies (e). It may be that a person resident in one State has authorized by a letter of attorney, duly executed in that State, his agent

(a) P. R. viii. s. 373.

(b) Preussische Gesetz-Sammlung (1849), 68. [The portion of the Prussian Code relating to Bills of Exchange (viz. Theil II. Tit. viii. §§ 713 to 1249) has been repealed, and the subject is now regulated by the "Wechsel-Ordnung" of 1849 and some subsequent amending laws.] (c) Story, s. 286 a.

Hertii Opera, De Collis. Legum, ii. § 4, num. 55.

The questions arising from the agency of the master of a ship will be considered in chapter xli.

(d) Story, s. 286 d.

(e) It is discussed here, though, strictly speaking, perhaps, it belongs to the category of mediate effects: vide suprà, § dclxviii., et infrà.

in another state to sell some moveable property in this second State. The principal dies, the agent sells the property in ignorance of, but after the death. By the Law of some States-e.g. Massachusetts-the death of the principal revokes the letter of attorney, and the act of the agent would be invalid; by the Law of other States-e.g. France and Louisiana-the act of the agent done in bond fide ignorance of the death of the principal would be valid (ƒ).

If the principal reside in the State the Law of which revokes the letter of attorney, and the agent in the State the Law of which upholds it, which Law shall govern this contract?

Story (g) remarks, that there is no doubt that when an authority is given to an agent to transact business in a foreign state for a principal, the authority is, in the absence of proof to the contrary, to be construed and enforced according to the Law of [the place where the business is to be transacted. "But," he continues, "this may well be "admitted to be the rule while the authority is in full

force, without making the law of that place the rule by "which to ascertain whether the original power of attorney "is still subsisting, or is revoked, or dead by operation of "law, in the place of its origin. The point has never, as "far as my researches extend, been directly decided either "at home or abroad."] It would seem, however, that his opinion rather inclines to holding that the Law of the state in which the principal resided should prevail (h). But surely the first principle of Private International Law

(f) Story, Conflict of Laws, s. 286 d. ; Story on Agency, ss. 488-489. Civil Code of Louisiana, art. 3001.

Civil Code of France, art. 2008.

Pothier, Oblig. partie i. chap. i. num. 81.

(g) Conflict of Laws, s. 286 d, citing in a note Owings v. Hull, 9 Peters, (Supreme Court) Rep. pp. 607, 627, 628.

Vide post,

(h) The analogies, moreover, to which Story refers as to the limited authority of the master of a ship, are questionable. chapter xli., and Story, ibid. s. 286 b.