The general rule as to the construction of contracts is, that if the relate to movables, which have no place. no sequelam, in the language of the civil law, for "mobilia inhoerent ossibus domini,"

(e) Trimbey v. Vignier, 1 Bing. N. C. 151; De Sobry v. De Laistre, 2 Harris & J. 191; Willings v. Consequa, Pet. C. C. 817; Pearsall v. Dwight, 2 Matt. 88; Smith v. Mead, 8 Conn. 258; Medbury v. Hopkins, id. 472; Houghton v. Page, 2 N. H. 42; Dyer v. Hunt, 5 id. 401; Gassett v. Godfrey, 6 Foster, 415; Smith v. Godfrey, 8 id. 379; Whiston v. Stodder, 8 Mart. (La.) 95; Andrews v. His Creditors, 11 La. 464; Young v. Harris, 14 B. Mon. 559; Bank of United States v. Donnaily, 8 Pet. 361; Andrews v. Pond, 18 id. 65; Wilcox v. Hunt, id. 378; Van Reimsdyk v. Kane, 1 Gallia. 371; Touro v. Cassin, 1 Nott & McC. 173; Houghtaling v. Ball, 20 Mo. 663; M'Intyre v. Parks, 3 Met. 207; Robinson v. Bland, 2 Burr. 1077; Burrows v. Jemino, 2 Stra. 733; La Jeune Eugenie, 2 Mason, 459; Alves v. Hodgson, 7 T. R. 241; Clegg v. Levy, 8 Camp. 166. These two rules, or rather this one rule, is generally asserted as broadly as we have stated it in the text; and vet there are cases and dicta of weight that conflict with it In James v. Catherwood, 3 Dowl. & R. 190, where, on assumpsit for money lent in France, receipts were offered in evidence not stamped as the laws of France required to make them available there, they were received in England. It is true, that on the motion for a new trial, it is put on the ground that it is perfectly well settled that an English court will not take notice of foreign revenue laws. This is undoubtedly established. See Boucher v.

Lawson, Cas. Temp. Hardw. 86, 194; Holman v. Johnson, Cowp. 841; Biggs v. Lawrence, 8 T. R. 454 ; Clugas v. Penaluna, 4 id. 466; Planchhe v. Fletcher, 1 Doug. 251; Ludlow v. Van Rensselaer, 1 Johns. 94. In Wynne c. Jackson. 2 Russ. 361, it was held, that a holder might recover in an English court on a bill drawn in France on a French stamp, though in consequence of its not being in the form required by the French code, he had failed in an action which he brought on it in France. Even if the contracts in these cases were to be considered as violating only revenue laws, still, could a contract made in France, between Frenchmen there, to smuggle goods against the law of France, be held good in England or America? Not on any general principles that we are aware of; and certainly not because a contract made in England to smuggle into France would be held good in England; for the cases are entirely distinct. - So, if contracts are made only orally, where by law they should be in writing, they cannot be enforced elsewhere where writing is not required. And if made orally where writing is not required, they can be enforced in other countries where such contracts should be in writing. Vidal v. Thompson, 11 Mart (La.) 23; Alves v. Hodgson, 7 T. R. 241; Clegg v. Levy, 3 Camp. 166.

(f) Sharp v. Taylor, 2 Phillips, 811. And see preceding note.

1 See Milliken v. Pratt, 125 Mass. 374; Bell v. Packard, 69 Me. 105. A sale of goods was made in Rhode Island, where it was valid, delivery of which was to be made in New York, where it was invalid by reason of the statute of frauds; and it was held, that recovery could be had in Rhode Island. Hunt v. Jones, 12 R. L 265.

they are to be construed according to the law of the place where they are made, or the lex loci contractus; (g) and if they relate to immovables, or what the common law calls real property, they are to be construed according to the law of the place where the property is situated, or the lex loci rei sitae. (h) 1 * This * 572

(g) Thome v. Watkins, 2 Ves. 86; Holmes v. Remsen, 4 Johns. Ch. 487; Harvey v. Richards, 1 Mason, 412; Bruce v. Bruce, 2 B. & P. 229, n. (a); Somerville v. Somerville, 5 Ves. 760. In the case In re Ewin, 1 Cromp. & J. 156, Bayley, B., says: "It Is clear, from the authority of Bruce v. Bruce, 2 B. ft P. 229, and the case of Somerville v. Somerville, 6 Ves. 760, that the rule is that personal property follows the person, and it is not in any respect to he regulated by the situs; and if, in any instances, the situs has been adopted as the rule by which the property is to be governed, and the lex loci rei sitae resorted to, it has been improperly done. Wherever the domicil of the proprietor is, there the property is to be considered as situate; and in the case of Somerville v. Somerville, which was a case in which there was stock in the funds of this country, which were at least as far local as any of the stocks mentioned in this case are local, there was a question whether the succession to that property should be regulated by the English or by the Scotch rules of succession. The Master of the Rolls was of opinion that the proper domicil of the party was in Scotland. And having ascertained that, the conclusion which he drew was, that the property in the English funds was to be regulated by the Scotch mode of succession; and if the executor had, as he no doubt would have, the power of reducing the property into his own possession, ana putting the amount into his own pocket, it would be distributed by the law of the country in which the party was domiciled. Personal property is always liable to be transferred, wherever it may happen to be, by the act of the party to whom that property belongs; and there are authorities that ascertain this point, which bears by analogy on this case, namely, that if a trader in England becomes bankrupt, having that which is personal property, debts, or other personal property, due to him abroad, the assignment under the commission of bankrupt operates upon the property, and effectually transfers it, at least as against all those persons who owe obedience to these bankrupt laws, the subjects of this country." In Milne v. Moreton, 6 Binn. 863, Tilghman, C. J., states the rule with some qualification. He says: "This proposition is true in general, but not to its utmost extent, nor without several exceptions. In one sense personal property has locality, that is to say, if tangible, it has a place in which it is situated, and if invisible (consisting of debts), it may be said to be in the place where the debtor resides; and of these circumstances the most liberal nations have taken advantage, by making such property subject to regulations which suit their own convenience."

(h) Upon this general rule the common law and civil law agree; and the American authorities are explicit. See Warrender v. Warrender, 9 Bligh, 127; Dundas v. Dundas, 2 Dow & C. 349; Coppin v. Coppin, 2 P. Wms. 291; United States v. Crosby, 7 Cranch, 116; Cutter v. Davenport, 1 Pick. 81; Hosford v. Nichols, 1 Paige, 220; Wills v. Cowper, 2 Hamm. 312; Kerr v. Moon, 9 Wheat. 666; McCormick v. Sullivant, 10 id. 192; Darbv v. Mayer, id. 406. It is a conclusion from this rule, as will be seen from the preceding authorities, that the title to land can be given or taken, acquired or lost, only in conformity with all the requirements of the law of the place where the real estate is situated. Some question may exist as to what comes under this rule as to immovables. In Robinson v. Bland, 2 Burr. 1079, Lord Mansfield applies it to public stock. And Mr. Justice Story, Confl. of Laws, § 383, says: "The same rule may properly apply to all other local stock or funds, although of a personal nature, or so made by the local law, such as bank-stock, insurance stock, turnpike, canal, and bridge shares, and other incorporeal property, owing its existence to, or regulated by, peculiar local laws. No positive transfer can be made of such property, except in the manner prescribed by the local regulations."

1 Thus the right of an adopted child to inherit real estate must be determined by the law of the State where the property is situated, and not by the law of the State where the adoption occurred. Keegan v. Geraghty, 101 Ill. 26. See also Ross v. Ross, 129 Mats. 243.

we have said to be the general rule; and if we do not call it a universal rule, it is because we are not quite prepared to say that none of the apparent exceptions to the rule are real. Thus, in a suit to foreclose a mortgage, if the defence is an avoidance of the contract by usury, the suit being brought where the land is, and the parties living and contracting in another State, the law of the latter State determines whether the contract is void. (hh) But the validity of a mortgage of land is determined by the law of the State where it lies, although the parties lived and made their contract in another. (hi)l

There is a question involved in the construction of every contract, or rather, a question prior to its construction; namely, whether the parties to the contract had the power to make it. This is the question of the capacity of persons, and it is decided by what civilians term personal laws. And the general rule is said to be, that a personal capacity or incapacity, created by a law of the State wherein a party has his domicil, follows him wherever he may go. (i) But if this be the rule of law, it is not one of universal application, and in some cases needs important qualification. For this rule as to capacity may come into direct conflict with the general rule, that all personal contracts are to be construed and applied according to the law of the place where they were made; and when this conflict exists, the important question arises, which rule shall prevail. This we consider in the next section.

(hh) Dolman v. Cook, 1 McCarter, 56; Campion v. Kille, id. 229; Andrews v. Torrey, Id. 366.

(hi) Goddard v. Sawyer, 9 Allen, 78.

(i) This rule is laid down by most of the great multitude of writers, who may be cited as authorities of greater or less weight. on the law of Continental Europe; but it does not seem to have been asserted, in so many words, by the courts of common law. In Ruding v. Smith, 2 Hagg. Consist. 381,' Lord Stowell discusses it somewhat. And it seems to be implied in many of the cases to which we shall refer, in the further consideration of the question of capacity.

1 A mortgage made in Massachusetts, the mortgagor's domicil, according to the requirements of that State, of chattels situated in New Hampshire, is invalid as against New Hampshire creditors, the requirements of the New Hampshire law not having been complied with. Clark v. Tarbell, 58 N. H. 88.