serving as long as he can the rights of domicil, while in fact he means to abide where he now is, the intent will govern, and the change of domicil will be complete. It seems to be agreed that "residence" and "inhabitancy" mean the same thing; (x) and there are cases in which these words and "domicil" are used as if they were synonymous, (y) (x) which we think they are not, as we have just now stated. This may, however, be regarded as rather a question about the meaning and use of words, than a question of principle; for all admit 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. (2) If one resides in Boston five months in the twelve, including the day on which residency determines taxation, and the other seven months at his house in the country, he will be taxed in Boston, and may vote there, and his domicil is there. (a) (x) Roosevelt v. Kellogg, 20 Johns. 208; In the matter of Wrigley, 4 Wend. 602, 8 id. 134. (y) See Jefferson v. Washington, 19 Me. 293; In the matter of Thompson, 1 Wend. 45; Frost v. Brisbin, 19 id. 11; Thorndike v. The City of Boston, 1 Met. 245; McDaniel v. King, 5 Cush. 473; Cadwalader v. Howell, 3 Harrison, 144; Crawford v. Wilson, 4 Barb. 522. See also cases cited in preceding note. In Crawford v. Wilson, 4 Barb. 522, the court put soldiers and seamen on the same footing with foreign ministers in respect to domicil. "The actual residence is not always the legal residence or inhabitancy of a man. A foreign minister actually resides and is person ally present at the court to which he is accredited, but his legal residence or inhabitancy, and domicil, are in his own country. His residence at the foreign court is only a temporary residence. He is there for a particular purpose. So soldiers and seamen may be legal residents and inhabitants of a place, although they may have been absent therefrom for years. They do not lose their residence or domicil by following their profession." In regard to seamen, in Thorndike v. The City of Boston, 1 Met. 242, the court say: "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 many years, yet if he does not by some actual residence or other means acquire a domicil elsewhere, he retains his domicil of origin.” See also Sears v. The City of Boston, 1 Met. 250. (2) Frost v. Brisbin, 19 Wend. 11. (a) This is the established rule and common practice in Massachusetts, as to the right of taxing one not actually a resident. It is provided by statute, that personal estate shall be assessed to the owner in the town where he shall be an inhabitant on the first day of May. Rev. Stat. ch. 7, § 9. It is held, that inhabitancy under this statute means substantially the same thing as domicil. See Thorndike v. The City of Boston, 1 Met. 242. In Sears v. The City of Boston, 1 Met. 250, 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 a residence under them or under the tax laws, if there is at all times an intention to return. Stoughton v. Cambridge, 165 Mass. 251, 43 N. E. 106. See Thomaston v. Friendship, 95 Me. 201, 49 Atl. 1056. * * 582 * A woman marrying takes her husband's domicil, and * 581 changes it with him. (b)1 A minor child has the domicil of his father, (c) or of his mother if she survive 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. (d) (x) And even a guardian has the same power. (e) 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. The case is distinguished from the case of Thorndike v. The City of Boston, by the different intent of the parties upon their departure. See also Thayer v. Boston, 124 Mass. 132; Borland v. Boston, 132 Mass. 89. (b) Warrender v. Warrender, 9 Bligh, 89, 103, 104. (c) Guier v. O'Daniel, 1 Binn. 349, n. a; Woodward v. Woodward, 8 Tenn. 644. (d) Cumner v. Milton, 2 Salk. 528; Woodend v. Paulsbury, 2 Ld. Raym. 1473; Potinger v. Wightman, 3 Meriv. 67; Holyoke v. Haskins, 5 Pick. 20. See Story's Confl. of Laws, § 46, n. (2). (e) Potinger v. Wightman, 3 Meriv. 67; Holyoke v. Haskins, 5 Pick. 20. See Story's Confl. of Laws, § 46, n. (2). 1 A change of the wife's abode alone changes neither the husband's nor the matrimonial domicil. Porterfield v. Augusta, 67 Me. 556; Scholes v. Murray, &c. Co., 44 Iowa, 190; Johnson v. Johnson, 12 Bush, 485. Unless the husband and wife have separated, Chapman v. Chapman, 129 Ill. 386. (x) An infant's domicil is that of its parents; and if the father is dead, the domicil of the mother, though adjudged insane, is also that of the child. De Jarnett v. Harper, 45 Mo. App. 415. Infants whose parents are deceased may acquire the domicil of the next of kin with whom they live; but a guardian appointed where the infant is temporarily residing, cannot change his ward's domicil from one State to another. Lamar v. Micou, 114 U. S. 218, 5 S. Ct. 857, 29 L. Ed. 94; Henning's Estate, 128 Cal. 214, 60 Pac. 762; Peacock v. Collins, 110 Ga. 281, 34 S. E. 611. When the father changes his domicil during his child's infancy, the new domicil cannot be treated as the infant's domicil of origin. In re Craignish, [1892] 3 Ch. 180. The infant can only change its domicil by removing voluntarily after reaching its majority, since a domicil of choice is always dependent upon conduct and not upon assertion. The Lauderdale Peerage, 10 A. C. 692; McMullen v. Wadsworth, 14 A. C. 631; Ex parte Cross, 7 M. B. R. 228; Hurley v. Hurley, 67 L. T. 384; In re Cooke's Trusts, 56 L. J. Ch. 637. A lunatic child presumably retains its father's domicil after reaching its majority. Sharpe v. Crispin, L. R. 1 P. & D. 611. The legitimacy of children depends upon the domicil of origin, and if they are legitimate there, they are legitimate - W. everywhere. In re Goodman's Trusts, 17 Ch. D. 266; In re Grove, 40 Ch. D. 216; Re Ullee, 53 L. T. 711. zens. Children born abroad of American parents who have not renounced their American citizenship are American citiWare v. Wisner, 50 Fed. 310, 4 McCrary, 66. The children of parents domiciled in the United States, who are not foreign ambassadors or consuls, are, if born here, American citizens. Benny v. O'Brien, 58 N. J. 36, 32 Atl. 696. See 29 Am. L. Rev. 385; 30 id. 241, 535, 915. If a citizen of the United States renounces his citizenship by taking an oath of allegiance to a foreign power, and afterwards has a child born abroad, the latter is not a citizen of the United States. Browne v. Dexter, 86 Cal. 39; In re Look Tin Sing, 10 Sawyer, 353; Green Salas, 31 Fed. 106. See 29 Am. L. Rev. 385. v. The Chinese Exclusion Acts do not exclude children born here of Chinese residents, and they are American citizens. Gee Fook Sing v. United States, 49 Fed. 146; In re Wong Kim Ark, 71 id. 382. If a widow remarries and takes the infant children of her first husband to her new home in another State, the children's domicil is not thereby changed. Lamar v. Micou, supra. See In re Beaumont, [1893] 3 Ch. 490. An alien woman, who comes to this country and marries an American citizen, SECTION V. THE PLACE OF THE CONTRACT. The rules of law in respect to domicil are quite well settled, and when difficult questions occur, they are usually questions of fact. But the law as to what shall be deemed the place of the contract, seems not to be quite well settled.1 A contract is made when both parties agree to it, and not before; if it be an oral contract, it is made when the offer of one party is distinctly accepted by the other; and if it be made by letter, then it is made when the party receiving the proposition puts into the mail his answer accepting it, or does an equivalent act.2 If the contract is in writ ing, it is made when all the parties have executed it; and * 583 therefore is not made until the latest party has * put to it his name or seal, or both, as may be requisite. (f) Suppose, however, that the contract is made in one place, but is to be performed in another: then in general, although perhaps not always, and for all purposes, the place of payment or performance is the place of the contract. (g) The most familiar instance is (f) See ante, volume i., book ii., chap. 2. Also, Arnold v. Richmond Iron Works, 1 Gray, 434; Orcutt v. Nelson, id. 536; Whiston v. Stodder, 8 Mart. (La.) 95; Western v. The Genesee Mut. Ins. Co., 2 Kern. 258. (g) Robinson v. Bland, 2 Burr. 1077; per Baldwin, J., in Strother v. Lucas, 12 Pet. 410, 436; Bell v. Bruen, 1 How. 169, 182; Le Breton v. Miles, 8 Paige, 261; Prentiss v. Savage, 13 Mass. 23; Percy v. Percy, 9 La. An. 185; Thompson v. Ketcham, 8 Johns. 189; Cox v. The United States, 6 Pet. 172; Fanning v. Consequa, 17 Johns. 511; Andrews v. Pond, 13 Pet. 65; Duncan v. Cannan, 7 De G., M. & G. 78, 31 Eng. L. & Eq. 443; Dacosta v. Davis, 4 N. J. 319; Lennig v. Ralston, 23 Penn. St. 137; Davis v. Clemson, 6 McLean, 622; Emerson v. Partridge, 1 Williams, 8; Penobscot R. R. Co. v. Bartlett, 12 Gray, 244. 1 "Contracts are to be governed as to their nature, their validity, and their interpretation, by the law of the place where they were made, unless the contracting parties clearly appear to have had some other law in view.' Liverpool, &c. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 453. After an examination of cases bearing upon the point the court decided that this general rule "requires a contract of affreightment made in one country between citizens or residents thereof, and the performance of which begins there, to be governed by the law of that country, unless the parties, when entering into the contract, clearly manifest a mutual intention that it shall be governed by the law of some other country," p. 458. On almost identical facts a contrary decision was reached in In re Missouri S. S. Co., 42 Ch. D. 321.-W. 2 And at the place where the answer is mailed. Perry v. Mount Hope Iron Co., 15 R. I. 380.- W. becomes thereby a citizen, as do her minor children. United States v. Kellar, 11 Biss. 314. But an American woman who marries an alien, and does not remove from the country, does not become ex patriated. Comitis v. Parkerson, 56 Fed. 556, 22 L. R. A. 148 and note; Ware v. Wisner, 50 Fed. 310; Belcher v. Farren, 89 Cal. 73, 26 Pac. 791. a promissory note, made, that is, signed, we will say in Boston, and payable in New York. Is this note to be construed by the law of Massachusetts or the law of New York? It would seem, from the authorities, that a contract may have two different places, the law of which enters into its construction. If it be expressly payable, or to be otherwise performed there where it is signed, then that is its only place. If it be but a naked promise without any special condition as to the place of payment, then it must be demanded of the maker where he is, or at his domicil, but it would be regarded as made where it was signed. If expressly payable in a place other than that where it is made, it would seem, according to some authorities, that the law of either place may be applied; thus if the legal interest in New York were seven per cent., and the legal interest in Boston were six per cent., a note on interest payable at Boston, and made in New York, would be held not to be usurious in Boston if it expressed seven per cent., as its rate of interest; while according to other authorities, if payable at Boston, it must, wherever signed, conform to the law of Massachusetts in respect to interest, and would therefore be usurious there if it bore on its face more than six per cent., although not usurious at New York, where it was made. Our own opinion is decidedly in favor of the former view. That is, if a note be made, bonâ fide, in one place, expressly bearing an interest legal there, and payable in another place in which so high a rate of interest is not allowed, it may be sued in the *584 place where payable, and the interest expressed recovered. Because the parties had their election to make the interest payable according to the law of either place; or, to express the same thing differently, they may lawfully agree upon the largest interest allowed by the law of either place, or any less interest. (h) (h) This is the result arrived at after much consideration, by the Supreme Court of Louisiana, in Depau v. Humphreys, 20 Mart. (La.) 1; Stickney v. Jordan, 58 Me. 106; Freese v. Brownell, 6 Vroom, 285; Kilgore v. Dempsey, 25 Ohio St. 413; West T. & Coal Co. v. Kilderhouse, 87 N. Y. 430; Scott v. Perlee, 39 Ohio St. 67; Pugh v. Cameron, 11 W. Va. 523. Mr. Justice Story, in his Conflict of Laws, discusses the question at great length, and with a citation of very numerous authorities, most of which are from the civil law, and comes to an opposite conclusion, if we understand him aright, although some statements might leave the matter in doubt. In reference to the case of Depau v. Humphreys, he says: "Another case has arisen of a very different character. The circumstances of the case were somewhat complicated, but the only point for consideration there arose upon a note, of which the defendants were the indorsers, and with the amount thereof they had debited themselves in an account with the plaintiff; and which they sought now to avoid upon the ground of usury. The note was given in New Orleans, payable in New York, for a large sum of money bearing an interest of ten per cent., being the legal interest of Louisiana, the New York legal interest being seven per cent. only. The question was whether the note was tainted with usury, and therefore void, as it * *585 But if no interest be expressed, then the interest will would be, if made in New York. The Supreme Court of Louisiana decided that it was not usurious; and that although the note was made payable at New York, yet the interest might be stipulated for either according to the law of Louisiana or according to that of New York. The court seem to have founded their judgment upon the ground, that in the sense of the general rule already stated, there are or there may be two places of contract; that in which the contract is actually made, and that in which it is to be paid or performed; Locus, ubi contractus celebratus est; locus, ubi destinata solutio est; and therefore, that if the law of both places is not violated, in respect to the rate of interest, the contract for interest will be valid. In support of their decision the court mainly relied upon the doctrines supposed to be maintained by certain learned jurists of continental Europe, whose language, however, does not appear to me to justify any such interpretation when properly considered, and is perfectly compatible with the ordinary rule, that the interest must be or ought to be according to the law of the place where the contract is to be performed, and the money is to be paid. It may not be without use to review some of the more important authorities thus cited, although it must necessarily involve the repetition of some which have been already cited." Confl. of Laws, § 298. Then after twenty pages of the examination of authorities, he comes to the conclusion that the decision of the court of Louisiana is not supported by the reasoning or principles of foreign jurists, and is directly opposed by the English case of Robinson v. Bland, 2 Burr. 1077, and the American case of Andrews v. Pond, 13 Pet. 65. Such is not our view of those cases. The first is wholly different in its facts. A bill of exchange was sued, drawn in France upon the drawer in England; and all that the case finds, so far as the present question is concerned, is, that Lord Mansfield says: "The law of the place (meaning France) can never be the rule, where the transaction is entered into with an express view to the law of another country, as the rule by which it is to be governed." The case of Andrews v. Pond only decides, that if the interest allowable at the place of payment be larger than that where the note is made or the bill drawn, the parties may stipulate for the higher interest. No doubt of this; but the case does not say that if the interest where the note is made be the highest, the parties may not stipulate for that; and this alone is the question. We consider Depau v. Humphreys as fully sustained by Peck v. Mayo, 14 Vt. 33, and Chapman v. Robertson, 6 Paige, 627, citing Quince v. Callender, 1 Des. 160; Scofield v. Day, 20 Johns. 102. But if a contract for the loan of money is made here, and upon a mortgage of lands in this State, which would be valid if the money was payable to the creditor here, it cannot be a violation of the English usury laws, although the money is made payable to the creditor in that country, and at a rate of interest which is greater than is allowed by the laws of England. This question was very fully and ably examined by Judge Martin, in the case of Depau v. Humphreys, in the Supreme Court of Louisiana (20 Martin, 1), and that court came to the conclusion, in which decision I fully concur, that in a note given at New Orleans, upon a loan of money made there, the creditor might stipulate for the highest legal rate of conventional interest allowed by the laws of Louisiana, although the rate of interest thus agreed to be paid was higher than that which could be taken, upon a loan, by the laws of the State where such note was made payable." In Hosford v. Nichols, 1 Paige, 220, where a contract for the sale of land situated in New York was made between two citizens of New York, one of whom removed to Pennsylvania, where the contract was afterwards executed, by giving a deed, and taking a mortgage of the premises to secure the payment of the purchase-money, in which mortgage the New York rate of interest was reserved, which was greater than that of Pennsylvania, it was held, that the giving the deed and taking the mortgage was only a consummation of the original contract made in New York, and that the mortgage was not void for usury. It is true that in this case the court also say: Again, there is no evidence in this case to show that the bond and mortgage were not both valid by the law of the State where they were originally executed. E. Kane testifies, that at the time of their date, and for some years previous, six per cent. was the legal rate of interest in Pennsylvania. But it does not appear that any law existed in that State which prohibited the parties from agreeing upon a higher rate of interest, or declaring securities void in which a higher rate of interest was reserved. And courts of this 66 |