The court decided that there was an exception to the rule that a marriage good by the law of the place where solemnized was good everywhere. That exception was a case where by the law of the domicile of the parties to the contract such a marriage was considered against good morals and public policy. The court held that the Brook case came within the exception and held the marriage void.

§ 61. Same: Further exception. In the Brook case, the state where the parties were domiciled and in which they resided passed upon the case and held the exception applicable under such circumstances. It would seem that, as long as the marriage did not violate the public policy of the nation where the court passing upon the question was sitting, the decision would be in harmony with the general rule in the Dalrymple and Simonin cases. But, in the De Barros case, the public policy rule was abandoned and it was held that the law of the domicile should control the validity of the marriage, even when a court of a nation whose public policy the marriage did not offend was passing upon the question. In that case persons domiciled in Portugal were married in England. They were first cousins and by the law of their domicile first cousins could not intermarry, but England had no law against persons thus related intermarrying. The court recognized this fully when it said: "If the parties had been subjects of Her Majesty domiciled in England, the marriage would undoubtedly have been valid." The court held the marriage void, saying: "If the laws of any country prohibit its subjects within certain degrees of consanguinity from contracting marriage, and stamp

a marriage between persons within the prohibited degrees as incestuous, this, in our opinion, imposes on the subjects of that country a personal incapacity, which continues to affect them so long as they are domiciled in the country where this law prevails, and renders invalid a marriage between persons, both, at the time of their marriage, subjects of and domiciled in the country which imposes this restriction, wherever such marriage may have been solemnized."

§ 62. Same: Importance of exceptions in America. The rule of these two cases is of importance in the states of the Union because some of them have statutes prohibiting a marriage of the offending person where a divorce has been procured. A person subject to the restriction of the statute will contract marriage in a state which has no such restrictive statute and return to his domicile. The question of the validity of such a marriage is then squarely presented.

§ 63. Same: American decisions. The decisions have not been uniform in the United States on this subject. In Commonwealth v. Lane (10) a criminal action was brought against Lane for polygamy. He had been divorced from his first wife, who had procured a decree because of his wrong and fault. He went to New Hampshire and remarried. By the law of his domicile, Massachusetts, it was polygamy and criminal for a person against whom a divorce had been procured to marry again at any time during life. But by the law of New Hampshire there was no such restriction. The court took the view that a marriage good where solemnized is

(10) 113 Massachusetts, 458

good everywhere, and found Lane not guilty of any crime. But in Kinney v. Commonwealth (11) a court took a contrary view. By the law of Virginia colored persons and whites were prohibited from intermarrying. Kinney married a colored woman in the District of Columbia, where no law against such an intermarriage existed. In a criminal prosecution against Kinney, the court held the marriage between these persons void, taking the view of the Brook case that the marriage, being against the public policy of the state of the domicile, was void, even though no limitation or restriction was placed upon such a marriage by the law of the place of solemnization. SECTION 2. CONTRACTS AND INSTRUMENTS OF TRANSFER.

§ 64. Validity of contract to transfer personal property: Between parties to transfer. If, by the law of the state of the transferor's domicile, a contract to sell a chattel must be in writing, but, by the law of the place where the contract is made, no writing is required, it would seem sufficient, as between the contracting parties, for the contract to be oral. Even though not in writing, if good by the law of the place where made, it should be good everywhere. The difference between a contract with reference to a chattel, and an ordinary contract fixing the relations between parties, such as a marriage contract or a contract for labor, is not sufficient to warrant a different rule.

§ 65. Same: Illustration. In Emery v. Clough (12) a case arose where Emery made a gift of a bond to an

(11) 30 Grattan (Virginia), 858.

(12) 63 New Hampshire, 552.

other. This gift was made in contemplation of death. By the law of Emery's domicile in New Hampshire such a gift was valid, only if proved by the testimony of two indifferent witnesses, upon petition by the donee to establish the gift, within sixty days after the death of the donor. But, by the law of Vermont, where the gift was made, it was valid without a petition. It was contended that the transfer was in the nature of a contract, and, to be effective to pass title, must be made in accordance with the law of the domicile. The court held it valid though made according to the law of the place of the gift, saying: "If it is a contract, in this case it was executed in Vermont, in the life of plaintiff's intestate. If it is not a contract, as that term is commonly understood, it is a gift which received the assent of both parties, and nothing remained to perfect the conditional title of the defendant before the decease of the donor. The transfer of the bond being therefore either an executed contract or a perfected gift in Vermont, and valid under the laws of Vermont, is valid here." Thus it appears that a transfer of a chattel, whether by contract or as a gift, even though the contract is not executed nor the gift made in accordance with the law of the domicile, is nevertheless good as between the parties to the contract or gift.

§ 66. Same: Against subsequent interest of third parties. Law of situs. The rule where third parties become interested, after the contract or transfer is made, will next be considered. In Langworthy v. Little (13) a party owned a horse and buggy in New York. He was

(13) 12 Cushing (Mass.), 109.

domiciled in Massachusetts, but went to New York, where his chattels were, and executed a mortgage on them, and this mortgage was recorded. The transfer was perfect, according to the law where the chattels were situated. The owner then took the property to Massachusetts, where it was attached by a third person to satisfy a debt. The attaching party had no knowledge of the mortgage transfer. The mortgagee sued for the value of the horse and buggy and recovered, the court saying: "A party who obtains a good title to property, absolute or qualified, by the laws of a sister state, is entitled to maintain and enforce those rights in this state." In a very similar case a vendor of a chattel contracted to sell it, but the title was to remain in him until paid for. This was a valid contract of transfer by the law of Massachusetts where it was made. The vendee took the chattel to New Hampshire, where a creditor attached it without knowing of the vendor's interest in it. The vendor replevied the property and recovered. A transfer or contract to transfer, if valid by the law of the place where the chattel is at the time, is valid everywhere even as against third persons.

This law of the place where the property actually is at the time is called the "law of the situs" [Lat., place].

§ 67. Same: Further illustration. In Green v. Van Buskirk (14) a slightly different set of facts makes it possible to announce the principle of the preceding cases in more imperative terms. It is not only true that, if the transfer is made in accordance with the law of the place where the chattel is situated, it is valid against third per

(14) 5 Wallace (U. S.), 307; 7 Wallace, 139.