§ 59. Same (continued). The rule stated above was followed in later decisions of the English courts. In Simonin v. Mallac (6), Leon Mallac, a Frenchman, married a Frenchwoman. The marriage was solemnized in England and according to its laws the marriage was valid. But, by the laws of France, and by a prior French decision on the same case, the marriage was a nullity, as the parties had not complied with the requirements of the Code Napoleon, the French statute which regulated marriage contracts. The court held that the validity of the marriage contract should be determined by the laws of the place where made, and that the law of the domicile of the contracting parties was immaterial. These two cases were recently followed in England (7).

§ 60. Same: Exception. Two other important decisions rendered by the English court, which have had a great influence in the United States, seem to have departed from the rules announced in the cases thus far referred to. These cases are Brook v. Brook (8) and Sottomayor v. De Barros (9). In the former case William Lee Brook's first wife died, and he then married her sister, Miss Emily Armitage. Both parties were domiciled in England, but went to Denmark on a temporary visit and while there were married. The laws of England prohibited marriages between a widower and his first wife's sister, but, by the laws of Denmark, there was no prohibition against a marriage between such persons.

(6) 29 Law Journal, Probate, 97.

(7)

Ogden v. Ogden, 97 Law Times Report, 827. (8) 9 House of Lords Cases, 193.

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

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

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.

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