real property, the following distinction is taken. If the contract refers to personal property (which never has a fixed place, and is therefore called, in some systems of law, movable property), the place of the contract governs by its law the construction and effect of the contract. But if the contract refers to real property, it is construed and applied by the law of the place where that real property is situated, without reference, so far as the title is concerned, to the law of the place of the contract. Hence, the title to land can only be given or received as the law of the place where the land is situated requires and determines. And it has been said that the same rule may properly apply, to all other local stock or funds, although of a personal nature, or so made by the local law, such as bank stock, insurance stock, manufacturing stock, railroad shares, and other incorporeal property, owing its existence to or regulated by peculiar local laws; and therefore no effectual transfer can be made of such property, except in the manner prescribed by the local regulations. Accordingly, it is held that stock owned by a non-resident is, on his decease, subject to an inheritance tax in the State in which the company was incorporated.

As to the capacity of a person to enter into contracts, it is undoubtedly the general rule, that this is determined by the law of his domicil; and whatever that permits him to do he may do anywhere.

SECTION III.

THE PLACE OF THE CONTRACT.

A CONTRACT is made when both parties agree to it, and not before. It is therefore made where both parties agree to it, if this is one place. But if the contract be made by letter, or by separate signatures to an instrument, the contract is then made where that signature is put to it, or that letter is written, which in fact completes the contract. But this rule is subject to a very important qualification, when the contract is made in one place, and is to be performed in another place; for then, in general, the law of this last place must determine the force and effect of the contract, for the obvious and strong reason, that parties who agreed that a certain thing should be done in a certain place intended that a thing should be done there which

was lawful there, and therefore bargained with reference to the laws of the place, not in which they stood, but in which they were to act. This principle has been applied to an ante-nuptial contract, and it was held, that when parties marry in reference to the laws of another country as their intended domicil, the law. of the intended domicil governs the construction of their marriage contract as to the rights of personal property.

But, for many commercial transactions, both of these rules seem to be in force; or rather to be blended in such a way as to give the parties an option as to what shall be the place of the contract, and what the rule of law which shall apply to it. Thus, a note written in New York, and expressly payable in New York, is, to all intents and purposes, a New York note; and if more than seven per cent. interest was promised, it would be usurious, whatever was the domicil of the parties. If made in New York, and no place of payment is expressed, it is payable and may be demanded anywhere, but would still be a New York note. But if made in New York, but expressly payable in Boston (where any amount of interest may be agreed for), and promised to pay ten per cent. interest, when payment of the note was demanded in Boston, the promise of interest would be held valid. So, if the note were made in Boston, payable in New York, and promised to pay ten per cent. interest, it would not be usurious.

In other words, if a note is made in one place, but is payable in another, the parties have their option to make it bear the interest which is lawful in either place.

If the contract be entered into for money, and is made in one place but is payable at another place on a day certain, and no interest be stipulated, and payment be delayed, interest by way of damages will be allowed, according to the law of the place of payment, where the money may be supposed to have been réquired by the creditor for use, and where he might be supposed to have borrowed money to supply the deficiency thus occurring, and to have paid the rate of interest of that country. If a note made in New York and payable in Massachusetts were demanded in Massachusetts and unpaid, and afterwards put in suit in Massachusetts, and personal service made on the promisor there, I should say that any interest which it bore should be recovered, provided it were lawful in Massachusetts. And indeed, generally, that such a note being made in good faith, might always bear

any interest lawful where it was payable. But a note made in a State where the law permitted only a low interest, and intended in fact to be paid in that State, but written payable in some State permitting higher interest, merely to get this higher interest, could not by this trick escape the usury laws of the State where it was made, and get the higher interest.

SECTION IV.

DOMICIL.

IT is sometimes very important to determine where a person has his domicil, or HOME. In general, it is his residence; or that country in which he permanently resides. He may change it by a change of place both in fact and intent, but not by either alone. Thus, a citizen of New York, going to London and · remaining there a long time, but without the intention of relinquishing his home in New York, does not lose that home. And, if he stays in New York, his intention to live and remain abroad does not affect his domicil until he goes in fact.

He may have his legal domicil in one place and yet spend a very large part of his time in another. But he cannot have more than one domicil. His words or declarations are not the only evidence of his intent; and they are much stronger evidence when against his interest than when they are in his favor. Thus, one goes from Boston to England. If he goes intending not merely to travel, but to change his residence permanently, and not to return to this country unless as a visitor, he changes his domicil from the day that he leaves this country. Let us suppose, however, that he is still regarded by the assessors as residing in Boston, although traveling abroad, and is heavily taxed accordingly. If he can prove that he has abandoned his criginal home, he escapes from the tax which he must otherwise pay. Now, his declarations that he has no longer a home bere, and that his residence is permanently fixed in England, and the like, would be very far from conclusive in his favor, and could indeed be hardly received as evidence at all, unless they were confirmed by facts and circumstances. But if it could be shown that he had constantly asserted that he was still an American, that he had no other permanent residence, no home but that

which he had temporarily left as a traveler, such declarations would be almost conclusive against him. In general, such a question would be determined by all the words and acts, the arrangement of property at home, the length and the character of the residence abroad, and all the acts and circumstances which would indicate the actual intention and understanding of the party.

Two cases have occurred in the city of Boston which illustrate this question. In one, a citizen of Boston, who had been at school in the city of Edinburgh when a boy, and formed a prelilection for that place as a residence, and had expressed a determination to reside there if he ever should have the means of so doing, removed with his family to that city in 1836, declaring, at the time of his departure, that he intended to reside abroad, and that, if he should return to the United States, he should not live in Boston. He resided in Edinburgh and vicinity, as a housekeeper, taking a lease of an estate for a term of years, and endeavored to engage an American to enter his family for two years as instructor of his children. Before he left Boston he made a contract for the sale of his mansion-house and furniture there, but shortly afterward procured said contract to be annulled (assigning as his reason therefor, that, in case of his death in Europe, his wife might wish to return to Boston), and let his house and furniture to a tenant. Held, that he had changed his domicil, and was not liable to taxation as an inhabitant of Boston in 1837. In the other case, a native inhabitant of Boston, intending to reside in France with his family, departed for that country in June, 1836, and was followed by his family about three months afterwards. His dwelling-house and furniture were leased for a year, and he hired a house for a year in Paris. At the time of his departure he intended to return and resume his residence in Boston, but had not fixed on any time for his return. He returned in about sixteen months, and his family in about nine months afterwards. Held, that he continued to be an inhabitant of Boston, and that he was rightly taxed there during his absence, for his person and personal property. This last case was distinguished from the former by the different intent of the parties upon their departure from home.

It is a general rule, that, if one has a domicil, he retains it until he acquires another. Thus, if a seaman, without family

or property, sails from the place of his nativity, which may be considered his domicil of origin, although he may return only at long intervals, or even be absent for many years, yet, if he does not, by some actual residence or other means, acquire a domicil elsewhere, he retains his domicil of origin.

It seems to be agreed that one may dwell for a considerable time, and even regularly during a large part of the year, in one place, or even in one State, and yet have his domicil in another.

A woman marrying takes her husband's domicil, and changes it with him. A minor child has the domicil of his father, or of his mother if she survives his father; and the surviving parent, with whom a child lives, by changing his or her own domicil in good faith, changes that of the child. And even a guardian has the same power.

CHAPTER XXVI.

THE LAW OF SHIPPING.

SECTION I.

THE OWNERSHIP AND TRANSFER OF SHIPS.

THE Law of Shipping may be considered under three divisions. First, as to ownership and transfer of ships. Second, as to the employment of ships as carriers of goods, or of passengers, or both. Third, as to the navigation of ships. I begin with the first topic.

Ships are personal property; or, in other words, a ship is a chattel; and yet its ownership and transfer are regulated in this country by rules quite analogous to those which apply to real property.

The Constitution of the United States gives to Congress the power to enact laws for the regulation of commerce. In execution of this power, acts were passed in 1792, and immediately after, which followed substantially the Registry and Navigation