"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 66 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 "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.

DCLXXIX. The foreign jurists (p) say that there are three sources from which, according to the circumstances of the case, the interpretation of a contract may be derived:

a. The law of the State in which it is made.

B. The law of the State in which it is to be performed.

7. The law of the domicil of the parties (q).

But it will be found on examination that the third is pretty much identical with the second, for the Law of the domicil is resorted to because the presumption is that the Law was that which the parties intended should govern the performance of the contract; and it will also be found, though the matter is involved in the obscurity of redundant verbiage, that the lex loci contractús practically means the Law of the place of performance; which, after all, is the Law which it is endeavoured to discover through the medium of legal presumption when the contract is silent or ambiguous (r).

DCLXXX. The Roman Law says, "Semper in stipu"lationibus et in ceteris contractibus id sequimur quod "actum est; aut si non pareat quid actum est, erit consequens ut id sequamur quod in regione, in quâ actum "est, frequentatur" (s). And again, "Ea enim quæ sunt "moris et consuetudinis in bonæ fidei judiciis debent

(p) "Lors donc que le lieu de l'exécution est celui du domicile des parties ou celui de la passation du contrat, on peut poser comme règle générale que c'est la loi du lieu de l'exécution qui détermine les effets solidaires de l'obligation. Mais lorsque l'obligation doit être exécutée dans un lieu qui n'est ni celui du domicile des obligés, ni celui du contrat, j'inclinerais pour la loi du lieu du contrat, quand les parties n'ont pas la même nationalité; et pour la loi du domicile, quand il s'agit d'individus de la même nation contractant ensemble en pays étranger."-Massé, Le Dr. Comm. vol. ii. p. 193 (ed. 1844); liv. ii. t. ii. c. i. s. 623 (ed. 1874).

(q) Felix, s. 94.

(r) Merlin, Rép. Loi, VI. s. 2. (s) Dig. lib. 1. t. xvii. 34.

"venire" (t). Savigny shows, as has been seen, that the former passages applied to cases where both parties were domiciled at the place where the contract was made; but this distinction has not been observed by foreign codes or jurists.

The Civil Code of France reproduces the maxim in these words: "Ce qui est ambigu s'interprète par ce qui "est d'usage dans le pays où le contrat est passé" (a), though, according to Foelix (y), this article of the French Code was not intended to refer to foreign contracts. But Delvincourt (2), Toullier (a), Merlin (b), and Massé (c) are of the contrary opinion.

Merlin founds his opinion on the ground that those who contract in a state must be holden to submit themselves to the Law of that state. Massé, pronouncing this opinion of Merlin to be a resolution of one question by another, puts the adoption of the Law of the state on the ground that there is no other Law by which the will of the contracting parties can be interpreted, when they are both foreigners contracting in a foreign land.

DCLXXXI. But Massé does not apply this rule to foreigners belonging to the same nation or to a contract to be performed in the country of the contracting parties. Massé further agrees with Boullenois and Dumoulin, that no rule of Law overrides the intention of the parties when that can be discovered. Dumoulin therefore says, with truth as well as energy, "Quia putant ruditer et "indistinctè quod debeat ibi inspici locus et consuetudo

(t) Dig. lib. xxi. t. i. 31, § 20; et vide Dig. lib. v. t. i. (De judiciis), Dig. lib. xxi. t. ii. 6 (De evict.).

(x) Art. 1159.

(y) Fœlix, s. 120.

(2) Ibid. [citing Delvincourt, tome i. p. 29.]

(a) Ibid. [citing Toullier, tome vi. numéro 219.]

(b) Rép. Loi, VI. s. 2.

(c) Le Droit Comm, vol. ii. p. 153 (ed. 1844); liv. ii. t. ii. c. i. s. 597 (ed. 1874). [He cites Boullenois, tome ii. pp. 459, 495, 501.]

"ubi sit contractus; quod est falsum; quin imo jus est "in tacitâ et verisimili mente contrahentium."

DCLXXXII. In truth, to those who hold absolutely the doctrine of locus regit actum as applicable, not merely to the form (a subject discussed in a previous chapter), but to the validity, nature, and interpretation of the obligation, a question of no mean difficulty presents itself for solution-namely, Is this rule applicable to foreigners temporarily commorant or transient, as well as to domiciled persons? Donellus (d) observes, with respect to the mercator advena, and the maritus in causâ dotis, that these persons constitute an exception to the rule, that the defendant must defend himself ubi contraxit, because in these special cases there was a tacit agreement to the contrary in the original contract.

DCLXXXIII. It is well observed by Savigny (e) that there are two senses in which the expression "interpretation" may be used, a general and a restricted sense. According to the former, the application of every rule of Law which supplies what is not literally stated in the contract, falls under the category of interpretation. It is manifest, however, that this generalisation of the expression deprives it of any proper and peculiar signification. In order to give it this, a restricted sense must be imposed upon it; it must be confined to cases of doubt arising from the defective structure or ambiguous expressions of the contract. It is a question of fact, like the interpretation of a Law. The object is in both cases to ascertain the true meaning which the oral or written words were intended to convey.

It is in this sense that the Roman lawyers said, "Id

(d) De Jure Civ. lib. xvii. cap. xiv. 16, 17.

(e) Savigny, R. R. viii. s. 374, where see note (a). He selects as the principal authors on this point of interpretation, Boullenois, Traité des Statuts réels et personnels, tome ii. pp. 489-538 (tit. iv. chap. ii. obs. 46, règle 10); Story, ss. 272-280; Wächter, die Collision &c., Archiv, Band xix. 114-125.

sequimur quod actum est" (f), "In obscuris inspici solet "quod verisimilius est, aut quod plerumque fieri solet" (g).

DCLXXXIV. Interpretation is not therefore, according to Savigny, a question of the application of a lex loci, though the local language may serve to explain the mind of the contracting parties; but if the question be, what place furnishes the language which is the subject of doubt, Savigny denies that the answer can be either the place in which the contract was entered into, or the place in which it is to be fulfilled.

Savigny illustrates this position by the case of a contract effected by correspondence. The language of the contract in this case is to be construed by the usage of the place in which the writer of the first letter dwelt, not by the usage of the place in which the letter was received and accepted, although this is the place in which the contract was concluded, because the writer of the first letter must be presumed to have had the meaning of the language of the place in which he dwelt, and from which he was writing, present to his mind at the time.

Wächter furnishes another illustration in support of the same position. An Insurance company (h) at Leipsic contained among its printed terms an exception in the case of [damage incurred through] a disturbance of the public peace (Aufruhr, émeute). An insured property having been set fire to from without (auswärts, dehors), the question arose whether the company were protected by the exception, inasmuch as the legal construction of what constituted a disturbance of the public peace varied in different states. Wächter rules rightly, according to Savigny, that the Saxon Law, under the dominion of which the terms of the insurance were made, furnishes the true interpretation (hh).

(f) Dig. lib. 1. t. xvii. 34.

(g) Ibid. 114.

(h) Evidently fire insurance.

[(hh) Cited in Savigny, ubi sup. note (d).]