Sec 306

It has been said that "the law which renders the performance impossible, and, therefore, excuses failure, must be a law operative in the state where the obligation was assumed, and obligatory in its effect upon her authorities;"2and for this reason it has been held that to a suit on a recognizance that an arrested party would appear to take his trial in a particular state, it is no defence that after the recognizance had been given he voluntarily went into another state, and was there arrested and delivered up on a requisition from a third state where he was convicted and sentenced, and thus taken out of the power of his bail.3 It has been also held that confiscation of goods at a foreign port is no defence to a suit for non-delivery of the goods, such confiscation not being in any way imputable to the shipper;4 and that quarantine prohibition at a port to which a vessel was chartered is no defence to a suit against a freighter for not furnishing a cargo.8 Where, also, "a cargo of petroleum was shipped under a bill of lading for delivery at a foreign port, stipulating that it should be taken out by the shipper within a fixed time, it was held that the freight was earned upon arrival ready for delivery, and that the shipper was not excused from taking the cargo and paying the freight by reason of a prohibition at the port against landing such a cargo."4 But where an unloading is to be by concurrent act of both parties, and it is forbidden by the port authorities on account of a threatened bombardment, neither can recover.7 "The delay having happened without default on either side, and neither having undertaken by contract, express or implied, that there should be no delay, the loss must remain where it falls."1 No doubt when the question arises in what way a contract is to be construed, the courts of one state will refuse to be bound by the action of the authorities of another state; and no doubt the prevalent opinion now is that no state is called upon to give effect to another state's revenue laws.2 But it is by no means clear that the principle that the prohibition of a foreign state is no defence to a suit for nonperformance of a contract is not unduly extended when it is applied to contracts to be performed in such state. The better view is that in all that concerns the performance of a contract the law of the place of performance is to determine.3 And the cases here cited, so far as they conflict with this rule, may be explained on the ground, hereafter to be considered, that the promisor, in such cases, took on him the risk.4

Otherwise as to foreign prohibition.

1 Baker v. Johnson, 42 N. Y. 126; Haskill v. Sevier, 25 Ark. 152; Jaco-way v. Denton, 25 Ark. 625.

2 See infra, sec 321.

3 Taylor v. Taintor, 16 Wall. 366; S. C, 36 Conn. 242; State v. Horn, 70 Mo. 466; Wh. Cr. Pl. & Pr. sec 28-33; see contra, Belding v. State, 25 Ark. 315; and for further distinctions, infra, sec 321.

4 Spence v. Chodwick, 10 Q. B. 517; Splidt v. Heath, 2 Camp. 57.

5 Barker v. Hodgson, 3 M. & S. 267. See Blight v. Page, 3 B. & P. 295; Knowles v. Dabney, 105 Mass. 437.

6 Cargo ex Argos, L. R. 5 P. C. 134. The statement of this point is taken from Leake, 2d ed. 714.

7 Ford v. Cotesworth, L. R. 4 Q. B. 127.