the earliest cases which he decided: "The Law of the "place" (he said)" can never be the rule, where the trans"action is entered into with an express view to the Law "of another country, as the rule by which it is to be "governed" (a).

DCXCIV. If no place of performance be specified in the contract, or it be of such a character as to admit of being performed anywhere, then, according to the jurisprudence of England and the United States, it is governed by the Law of the place in which it is made (b). So in a leading case decided by the House of Lords, Lord Brougham, speaking of a bill of exchange, drawn and accepted in Paris by a Scotchman domiciled in Scotland, said, "This therefore "must now be taken to be a French debt, and then the "general law is, that where the acceptance is general, "naming no place of payment, the place of payment shall "be taken to be the place of the contracting of the debt " (c).

Acting on this principle, the United States Courts have holden, that an antenuptial contract made in reference to another country, as the future domicil of the parties, is governed by the Law of that domicil as to rights of personal property (d); and also, that if a merchant in America orders goods from England, and the English merchant executes the order, the contract is governed by the Law of England, on the ground that the contract is there consummated (e).

[DCXCIV.A. Questions of validity, of interpretation, and also of the remedy available in case of breach, may

(a) Robinson v. Bland, 2 Burrow, Rep. at p. 1077. [Suprà, § delxxiii.]

(b) Story, ss. 282, 317, 343-346.

(c) Don v. Lippmann, 5 Clark & Finn. Rep. pp. 1, 12, 13: vide post, & dcccxxvii., the case of The Milford, Swabey, Rep. 362; 4 Jur. N. S. p. 417; 31 L. T. p. 42.

(d) Le Breton v. Miles, New York Court of Chancery, 8 Paige, Rep. p. 261.

Kent's Comm. vol. ii. p. 459, note (d).

(e) Whiston v. Stodder, 8 Martin, (Louisiana) Rep. p. 95; Kent's Comm. vol. ii. p. 459, note (d).

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arise out of the same contract, and are not always easily distinguishable. In Hoadley v. Northern Transportation Co., the defendants made an agreement in Illinois to carry an engine from that State into Massachusetts. The engine was burnt in Illinois whilst in the custody of the defendants, and the owner sought to recover in tort against them before the Massachusetts tribunals. There was a bill of lading, with a clause exempting the defendants from liability in case of fire, which was valid of itself by the Law of Massachusetts, assent being presumed; but which, under the Law of Illinois, required the express assent of the owner; and this assent had not been given. The Court held that the lex fori (that of Massachusetts) prevailed, and that the carriers were exempt. "It is a general rule" (it was said in the judgment) " that personal "contracts must have the interpretation and binding force "in all countries which they have in the place where "made. The contract is presumed to have been entered "into with reference to the Law of that place. If for"malities and solemnities are there required to give validity "to it, the requirement must be shown to have been observed. "But the law of the place where the action is brought, by "the same general rule regulates the remedy and all the "incidents of the remedy upon it. The Law of the former "place determines the right; the Law of the latter controls "the admission of evidence and prescribes the modes of "proof by which the terms of the contract are made known "to the Court, as well as the form of the action by which "it is enforced. . . . It is not always, indeed, easy "to determine whether the rule of law sought to be applied "touches the validity of the contract or only the remedy "upon it. In the opinion of the Court the rule of law "laid down in Illinois and here relied on by the plaintiff "affects the remedy only and ought not to control the "courts of this Commonwealth. The nature and validity "of the special contract is the same in both States. It is "only a difference in the mode of proof. A presumption

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"of fact in one State is held legally sufficient to prove assent to the special contract relied on to support the "defence. In the other State it is held not to be sufficient. "It is as if proof of the contract depended upon the "testimony of a witness competent in one place and incompetent in the other" (ƒ).

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The law of the remedy is no part of the contract (g). "When the question is settled that the contract of the parties is legal, and what is the true interpretation of the language employed by the parties in framing it, the lex loci ceases its functions, and the lex fori steps in and determines "the time, the mode, and the extent of the remedy” (h).]

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DCXCIV.B. [There are some cases in which there is no one country which can be said to be the place of performance. As, for instance, where goods are to be transported from one country to another, possibly over a third country or over sea, possibly again in a ship belonging to a third country. In these cases the law of the place of performance cannot be applied; and where there is a conflict of laws or a difficulty of interpretation necessitating the application of some law, the Courts are reduced to gather the intention of the parties-which is deemed to be the "crucial test "-from the document, or contract, itself "as read by the light of the subject-matter and "the surrounding circumstances" (i). That the law of the place of ultimate performance is not necessarily the

[(f) 1 Lathrop's Massachusetts Rep. p. 306; and 15 Isaac G. Thompson's Amer. Rep. p. 106.

(g) Burchard v. Dunbar, 25 I. G. Thompson's Amer. Rep. at p. 338.

V.

(h) Sherman v. Gassett, 4 Gilmour's Rep. p. 531, cited in Burchard Dunbar, ubi sup.

(i) Lloyd v. Guibert, L. R. 1 Q. B. at pp. 122, 123; Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., L. R. 10 Q. B. D. p. 521 ; Jacobs v. Crédit Lyonnais, L. R. 12 Q. B. D. p. 589. Re Missouri Steamship Co., decision of Court of Appeal in England, Weekly Notes, May 11, 1889; not yet reported in full.]

law governing the interpretation of the contract is shown. by the following case.]

S., being in England, took from the P. and O. Company, and paid for, a ticket for the passage from Southampton to Alexandria, and from Suez to Mauritius. In the body of the ticket the engagement of the Company was stated to be subject to the conditions and regulations endorsed thereon. S. signed this ticket. There was endorsed a notice containing the following clause: "That the Company do not "hold themselves liable for damage to, or loss or detention. "of, passengers' baggage." [According to French Law, which was in force in Mauritius, this clause was void.] S. lost one package of his luggage during the voyage. No evidence was given of any negligence on the part of the company [beyond what might be implied from the fact of the loss.]

It was holden that [the actual intention of the parties must be taken clearly to have been to treat this as an English contract, to be interpreted] by the Law of England, and not by the law of Mauritius, and that by the terms of the special [clause forming part of the] contract the Company was not liable for the loss of the package (j).

[In some cases of carriage of goods by sea, "the law "of the flag," as it is called, that is, the law of the country to which the carrying ship belongs, has been held to be the law with reference to which the parties must be presumed to have contracted (k).]

(j) Peninsular and Oriental Steam Navigation Company v. Shand, 11 Jur. N. S. p. 771; 3 Moore, P. C. (N. S.), p. 272. Cf. Moore v. Harris, L. R. 1 App. Ca. at p. 331.

[(k) Lloyd v. Guibert, L. R. 1 Q. B. p. 115. The Gaetano and Maria, L. R. 7 P. D. p. 1 and p. 137. Cf. Greer v. Poole, L. R. 5 Q. B. D. p. 272; and Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., L. R. 10 Q. B. D. at p. 540.]

CHAPTER XXXVI.

CONTRACT-IMMEDIATE EFFECTS-MUTUAL ACCOUNTS

AGENCY-CORRESPONDENCE-INTEREST.

DCXCV. 2. WE have now to consider the second division of this subject; viz. the Immediate effects (a) of an obligation, those which are derived from the very nature of the obligation, or the exercise of the rights directly flowing from it; e.g. in a contract of buying and selling, the delivery of the thing bought, and the payment of the price for which it is bought, are two immediate effects of the contract. If the contracting parties have chosen to make a power of repurchase or redemption a part of the contract, that, though not belonging, abstractedly speaking, to the obligation, would by their act become one of the immediate effects of it (b).

DCXCVI. In the event of doubt, such as must often arise in cases of a mixed nature, whether the parties had reference to the place of the making or the place of the performance of the contract, the inclination of the judges in the United States of North America, which would probably be followed in England, has been to adopt the Law of the place of making (bb).

DCXCVII. With respect to a class of immediate effects of Contract of great importance to the commercial code,namely, the matter of advances and sales, and mutual accounts of credit and debt between merchants,-the courts

(a) Vide suprà, § delxviii.

(b) Rocco, lib. iii. cap. vii. p. 329.

[(bb) Burchard v. Dunbar, 25 I. G. Thompson's American Rep. p. 334; 82 Illinois Rep. p. 450.]