velt v. Cebra, 17 Id. 108; Touteng v. Hubbard, 3 Bos. & P. 261; Conway v. Gray, 10 East, 536; Consequa v. Fanning, 3 John. Ch. 598.

HOSMER, C. J. The first inquiry in this case is, by what law the contract made between the parties is to be governed. The promissory note was executed in Canada, in discharge of an antecedent debt, and was made payable on demand. It is an established principle that contracts are to be construed according to the laws of the state in which they were made, unless it is perceived from their tenor that they were entered into with a view to the laws of some other state: Blanchard v. Russell, 13 Mass. 4 [7 Am. Dec. 106]; Burrows v. Jemino, 2 Str. 733; 2 Dall, 374 in note; Male v. Roberts, 3 Esp. 163; Thompson v. Ketcham, 4 Johns. 285; Smith v. Smith, 2 Id. 235 [3 Am. Dec. 410]; Hicks v. Brown, 12 Id. 142; Robinson v. Bland, 2 Burr. 1077; Powers v. Linch, 3 Mass. 77. The note was not made payable in New York, but by legal consequence in Canada, and was immediately after its execution suable in the courts of that country. The preceding contract was extinguished, and the plea avers nothing in respect of the place where the note was paid. I do not say that such an averment would be admissible; but the discussion of this question is unnecessary. I am clear that the insolvent law of New York, if it were valid, was not referred to by the parties to the contract; and that the discharge under it is without any effect.

Another and much more interesting question has been argued, and as it fairly arises on the pleadings, although it is not indispensably necessary, I will express an opinion upon it.

The constitution of the United States declares, that no state shall pass a law "impairing the obligation of contracts." Does the law of New York fall within this prohibition? The obligation of a contract consists in that which a person has undertaken to perform. If he has agreed to pay a certain sum at a specified period, "his contract binds him to pay that sum on that day; and this is its obligation." A law lessening or invalidating the obligation of a contract unquestionably impairs it. The above meaning and application of the expression "impairing the obligation of a contract," is too obvious to be reasonably questioned, and has been established by the authoritative exposition of the court of dernier resort in Sturges v. Crowninshield, 4 Wheat. 197.

The case just cited, and that of McMillan v. McNeill, in the same book, p. 209, although not precisely parallel with the one

before us, have conclusively settled the question under discussion. In both the cases the defendant pleaded in bar a discharge obtained under "an act for the benefit of insolvent debtors and their creditors," passed by the legislature of New York, on the third day of April, 1811. In the former case the court adjudged in the following words: "That since the adoption of the constitution of the United States, a state has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts within the meaning of the constitution, and provided there be no act of congress in force to establish a uniform system of bankruptcy conflicting with such law;" and "that the act of New York, which is pleaded in this case, so far as it attempts to discharge the contract on which this suit is instituted, is a law impairing the obligation of contracts within the meaning of the constitution of the United States; and that the plea of the defendant is a good and sufficient bar of the plaintiff's action." And in the latter case it was decided, "that the circumstance of the state law, under which the debt was attempted to be discharged, having been passed before the debt was contracted, made no difference in the application of the principles, and was not distinguished from the preceding case of Sturges v. Crowninshield." It must be admitted that the law of New York, referred to in the cases cited, so far as respects the question of unconstitutionality, is obnoxious to the same objections and no other, as the more recent act is, under which the defendant obtained his discharge. I waive entering into a discussion of the points made in the preceding cases, which have been pressed upon the court. Concurring, as I entirely do, with the reasoning and opinions expressed in them, and considering it as the voice of the court entrusted to decide ultimately on the question before them, I deem it unnecessary to be more particular.

It has ever been argued, however, on the foundation of Blanchard v. Russell, decided before the cases in the supreme court of the United States, and of the more recent determination in Mather v. Bush, that a law, which is in force when a contract is made, cannot be said to have that effect, that is, "of impairing the obligation of contracts;" "for the contract is presumed to be made in reference to it, and the parties are legally conusant of it at the time:" Blanchard v. Russell, 13 Mass. 16 [7 Am. Dec. 106]; Mather v. Bush, 16 Johns. 237 [post]. The principle is unquestionably correct; for it presupposes an existing law both in form and essence; but the

fallacy consists in the application of it to a case like the present. An act passed in opposition to the constitution of the United States by the state of New York is no law; it is void, a total nullity and utterly unreal and unsubstantial in the strictest sense of the expression. So far from being a rule of action, it literally is nothing. From such premises it seems impossible to imply anything in opposition to the plain terms of an explicit contract. The agreement is absolute; and shall it be varied by an unconstitutional act, which, to every substantial intent, is a nonentity? It is to pay a specific sum, without any qualification; and may it be impaired or invalidated, under the supposition that the parties intended it? I cannot admit that an invalid act, which really is nothing, under the idea of its having been referred to by silent implication, should be permitted to contravene the most plain and intelligible expression of the mind.

The defendant has contended in this case that the making a contract in the state of New York, admitting the act to be constitutional, is in effect the same as if the agreement had explicitly referred to the act, or even recited it at length. To this proposition I cannot assent. If the parties to a contract should refer to a law of Great Britain, so as to render it obvious that they meant to incorporate it into their agreement, having recognized the law expressly they would bind themselves by its provisions. But without this explicit reference, the law, as inefficacious here, as an unconstitutional act and no more, would have effect. The proposition I would advance is this: that an unconstitutional act of either of the United States can no more by inference be considered as having been referred to by contracting parties, than if it were a foreign edict or law of Great Britain. The parties are not to be presumed ignorant that the law is unconstitutional. They then must be supposed to know and estimate it at its value, as being an act void and inefficacious, and with this impression on their minds it is difficult to conceive that they should silently refer to it in any other manner than by intelligible language.

On both grounds I am of opinion that the defendant's plea is insufficient, and that the plaintiff is entitled to judgment.

PETERS, CHAPMAN, and BRAINARD, JJ., were of the same opinion.

BRISTOL, J., Concurred in the opinion that the plea was insufficient, on the ground that the contract was executed in Canada,

and that a discharge under the laws of another country could not prevail against it. He did not, however, think this case was governed by either of the cases decided in the supreme court of the United States; and in the absence of a direct decision of that tribunal upon the point, he should hold that there was no reason to doubt the validity of a discharge under the authority of a state sovereignty.

Judgment to be entered for the plaintiff.

See, as to the correctness of the principle here laid down in regard to what law governs in the construction of a contract, Thompson v. Ketcham, 5 Am. Dec. 332; Woodbridge v. Austin, 4 Id. 740; Smith v. Smith, 3 Id. 410; De Sobry v. De Laistre, Id. 535, and Warder v. Arell, 1 Id. 488.

As to the constitutionality of a state bankrupt act, and the distinction between bankruptcy and insolvency laws see Vanuxem v. Hazelhursts, 7 Am. Dec. 582; and Mather v. Bush, post.

BROWN V. BROWN.

[3 CONN. 299.]

DEED BY DEAF MUTE-A person deaf and dumb from his nativity, having, in fact, sufficient capacity, is not legally incapable of executing a deed.

EJECTMENT. The plaintiff claims as heir at law of the defendant's grantor, and seeks to impeach the deed under which the defendant claims, on the ground that the grantor was deaf and dumb from nativity, and that he had been imposed upon by the defendant, who took advantage of the grantor's last illness and great bodily pain, to procure the deed in question.

BRISTOL, J., charged the jury: That a man deaf and dumb from his birth is not thereby rendered incapable to make a deed of real estate; but the deed of such a person may be good if he has an understanding or capacity sufficient to enable him to make such a conveyance. If the grantor of the deed in question, being deaf and dumb, desired the deed to be read or explained, and this was not done, or done falsely, and he thereupon executed it, ignorant of the contents, it will be void; or if he did not desire it read or explained, and it was read or explained falsely, the result will be the same, the deed will be void. But if he desired or directed the deed to be drawn and presented to him in conformity to such direction, and he desired only to know the extent of lands contained in the deed, and was content to execute it without further explanation, it will be good,

provided an explanation of it was made commensurate with the request of the grantor.

Whether the grantor had an understanding and capacity sufficient to enable him to make the deed in question, was submitted, as a mere question of fact, to the jury, who found for the defendant. Motion for new trial.

Sherman and Bissell, in support of the motion, urged that a person deaf and dumb from his birth, and illiterate, was not capable of making a deed: Shep. Touch. 403; Swinb. 53.

Daggett and N. Smith, contra, cited Swinb. part 2, p. 90, s. 10; Perk. 11, s. 25; Pow. on Dev. 145; Co. Lit. 42, b.; 2 Bl. Com. 497; 13 Vin. Ab. 12; Com. Dig. tit. Capacity, C. D. 4.

HOSMER, C. J. The plaintiff claims title as heir at law to Peter Brown, deceased, and the defendant resists on the ground that he is his grantee. The merits of the controversy depend entirely on the question whether the grantor had capacity sufficient to execute the deed. It appears that he was deaf and dumb from his nativity, and on that fact the plaintiff urges that the deed was invalid. It was found by the jury that the grantor had understanding sufficient to enable him to execute the deed, and the court adjudged that his being deaf and dumb constituted no incapacity. If, superadded to the deprivation of the two senses before mentioned, the grantor had been blind, he would be considered in law as incapable of any understanding, being deficient in those inlets which furnish the human mind with ideas. But this is not predicable of persons who, from their nativity, are deaf and dumb only. The question ever must be, is the grantor of sufficient capacity? and the absence of hearing and speech can be nothing more than prima facie evidence of a fact, the opposite of which is often found to be true.

The grantor directed a person to draw the deed in question, and having done it, the draftsman informed him that it conveyed to the defendant the land specified, but omitted to declare that it contained covenants, or whether it was a deed or a will. Upon these facts the validity of the deed is questioned, but without any foundation, for two reasons: First. No imposition is deducible from this statement. It is not like the reading of a deed to an illiterate person, on his request, and reading it falsely; and if it were, the covenants alone would be invalidated: Shep. Touch. 56. Secondly. The judge instructed the jury, "if the grantor directed the deed to be drawn, and it was drawn and presented to him in conformity to such direction,