Davis v. Davis.

to govern us? In the consideration of this question I think that I may safely say, although I have found no authority to sustain the proposition, that there is no place upon the globe into which two persons can go and make a contract, but that there is some law which will govern the construction of that contract.* The common law cannot be held to apply to the contract now under discussion, because it has obtained only in such portions of the earth as have been colonized by the subjects of Great Britain. The civil law cannot be held to apply, "as the lex loci" because the civil law applies only to the Latin race. The canon law cannot be held to apply, because it now obtains nowhere either Europe or America,† that I am aware of. It would seem, therefore, that there is no lex loci applicable. Under these circumstances, what law is to govern us?

It seems to me that the lex domicilii naturally suggests itself as the only law applicable to this contract, since both of the parties were residents of the same State. What then is the law of Texas relating to contracts such as this? In the absence of all proof, the law of Texas must be presumed to be either the law of this State, or the common law, or the civil law.

In the State of Texas, the common law cannot be presumed to prevail, because she is not one of the States which has taken the common law from England. If we were to follow the rule laid down in the case of Savage v. O'Neil (44 N. Y. 298), it would be held that the law of Texas is presumed to be the same as that of New York; but I think that it would be hazardous to follow the rule laid down in that case, in view of the

* The principle is sometimes invoked that as against a party who cannot prove as a fact the existence of a foreign law, the court may apply the law of the forum.

+ Except in a qualified sense in some continental states, where it is resorted to in the absence of authority under the municipal law.

Davis v. Davis.

plain intimation given by the court of appeals, in the case of McCulloch v. Norwood (58 N. Y. 567), that they will not hold that the law of the State of New York is to be presumed to obtain in any other State.

In the opinion of the learned judge who was the mouth-piece of the court in that case occurs the following language: "It seems to me to be conceded upon the part of the appellant, that there being no proof of the law of Ohio on the subject, it is to be presumed that the law of Ohio is the same as our own. That such a presumption exists in respect to statute law is a proposition by no means so clear as appears to be supposed. Expressions are contained in some of the opinions which have been cited, favoring the proposition that the presumption exists with reference to purely statutory regulations, but there is no authoritative decision to that effect. It is difficult to find any reason upon which such a rule can rest, and when the question is distinctly presented, we regard it as still open to examination."

It seems, therefore, that we must determine the legality of the contract in question according to the civil law.

It is claimed by the counsel for the plaintiff, that this contract, even if entered into per verba de presenti, was not a valid contract, because it was not celebrated before an ordained minister or a magistrate. I have been unable to find any distinction between the rules of the common and civil law governing contracts of this description. I know that it is laid down in many textbooks that a contract of marriage per verba de futuro, followed by cohabitation, is a good marriage; but it certainly is not under the law of the State of New York, neither do I think that it can be so held under either the civil or common law. Under the canon law, such a marriage was held to be good; because they say it is a contract partially fulfilled, and equity will compel its

Davis v. Davis.

completion. Therefore, if I had found as a matter of fact that this contract of marriage between the plaintiff and Taylor had been entered into per verba de futuro, no marriage would have been established. In the State of Louisiana, a State where the civil law obtains, it has been expressly held that it is not essential to a valid marriage that either a minister or a magistrate should intervene, that State having derived its common law from Spain, the Council of Trent never having been deemed binding upon the colony.

The same principle has been decided by our courts in the case of Caujolle v. Ferrié (23 N. Y. 90), in which case it was held "that a marriage celebrated in France per verba de presenti was a valid marriage."

My attention has also been called to the fact that no cohabitation has been proved in this case, and that no authority can be found in this State holding a marriage valid, unless there has been cohabitation or the intervention of a minister or magistrate. Although this is undoubtedly true, these can never be held necessary to establish a valid contract of marriage unless the courts in respect to such contracts reverse all the rules of evidence applicable to other civil contracts. BROOM, in his Legal Maxims, has very ably discussed this question, and shows that the maxim nuptias non concubitus sed consensus facit is well established by authority. This being the rule of the civil as well as of the common law, the marriage between the plaintiff and Taylor was a valid marriage; and the said Taylor being alive, the subsequent marriage between the plaintiff and defendant was void.

My attention has been called to the fact that Congress has thought it necessary to pass an act to legalize marriages entered into between American citizens abroad, but this has no bearing upon the question under discussion, because this legislation arose from the doubt as to the legality of marriages which were

Daly v. Byrne.

accustomed to be entered into at the foreign consulates and legations of the United States, between citizens of the United States, the lex loci not having been in any respect complied with.

The complaint of the plaintiff must therefore be dismissed.

See De Thoren v. Att. Gen., L. R. 1 App. Cas. H. L., Div., 686.

DALY v. BYRNE.

N. Y. Superior Court; Special Term, April, 1876.

ANSWER IN LIBEL.

The complaint alleged that defendant charged plaintiff (a dramatic author) with appropriating a play called "Flirtation; " the answer alleged in justification that plaintiff had appropriated a play called "Mock Marriage." Held, that such a justification must be stricken out as irrelevant.

A denial of malice in an answer in an action of libel is frivolous, unless connected with allegations of mitigating circumstances.*

Augustin Daly sued C. A. Bryne for libel, alleging two separate causes of action. The first, upon an article published in defendant's newspaper, stating that plaintiff had appropriated a play called "Flirtation," which had been written by a woman, and left with him to read three or four years before; and had produced it as his own composition, under the title of "Pique," without any arrangement or payment. The second, upon an article subsequently published, declining to apologize for these statements, and asserting defendant's belief in their truth.

The amended answer admitted the publication of the articles complained of, and set up (among others) the following defenses :

* See the next case, Moody v. Libbey.

Daly v. Byrne.

"IV. And for a second defense to the first cause of action in said complaint contained, the defendant avers, that each, every, and all the statements contained, in the exhibit marked A" (the first article complained of) "are and at the time of said publication thereof, were true; and the play therein referred to by the name of 'Flirtation' was entitled 'Mock Marriage.'"

"V. And for answer to the second cause of action the defendant repeats all the allegations, denials and admissions in this answer before contained, and says,'

"that all the statements in exhibit 'D' (the second article) are true as defendant is informed and believes, as more particularly set forth in paragraph IV. of this answer."

The answer further denied the allegations of malice in the complaint, and set up various matters in mitigation of damages.

George L. Rives, for the plaintiff, moved to strike out paragraphs IV. and V. of the amended answer, as irrelevant, to strike out paragraph VI. of said answer, as in violation of a former order of the court, and for judgment upon the rest of the answer as frivolous.

Louis F. Post, for the defendant.

SPEIR, J.-The defendant's amended answer in paragraphs IV. and V. sets up the defense of justification to the first and second libels complained of in the complaint.

The defense to the second libel is merely a repetition of the matters set forth in paragraph IV. If, therefore, the justification set up as a defense to the first libel fails, the second defense must fall with it.

It is elementary in an action for defamation that where the charge is particular, and the defendant, at the time he writes the words, selects a specific offense, he is bound by it, and his plea of justification must rest on that particular matter.