66

Savetier, 3 Johns. Ch. 190; Ruggles v. Keeler, 3 Johns. 263; Pearsall v. Dwight, 2 Mass. 84. Mr. Justice Story, in his Conflicts of Law, § 582, takes this distinction. 'Suppose the statutes of limitation or prescription of a particular country do not only extinguish the right of action, but the claim or title itself, ipso facto, and declare it a nullity after the lapse of the prescribed period, and the parties are resident within the jurisdiction during the whole of that period, so that it has actually and fully operated upon the case, under such circumstances the question might properly arise, whether such statutes of limitation or prescription may not afterwards be set up in any other country to which the parties may remove, by way of extinguishment or transfer of the claim or title. This is a point which does not seem to have received as much consideration in the decisions of the common law as it would seem to require." In Don v. Lippman, 5 Clark & F. 16, Lord Brougham speaks of this as an excellent distinction. And it is approved of by Tindal, C. J., in Huber v. Steiner, 2 Bing. N. C. 202. But in Bulger ". Roche, 11 Pick. 36, where a debt was contracted in a foreign country, between subjects thereof, who remained there until the debt became barred by the law of limitations of such country, it was held, that such debt could be recovered in Massachusetts, the action having been brought within six years after the parties came into that commonwealth. And Shaw, C. J., said: "That the law of limitation of a foreign country cannot of itself be pleaded as a bar to an action in this commonwealth seems conceded, and is indeed too well settled by authority to be drawn in question. Bryne v. Crowninshield, 17 Mass. 55. The authorities, both from the civil and the common law, concur in fixing the rule, that the nature, validity, and construction of contracts is to be determined by the law of the place where the contract is made, and that all remedies for enforcing such contracts are regulated by the law of the place where such remedies are pursued. Whether a law of prescription or statute of limitation, which takes away every legal mode of recovering a debt, shall be considered as affecting the contract like payment, release, or judgment, which in effect extinguish the contract, or whether they are to be considered as affecting the remedy only by determining the time within which

a particular mode of enforcing it shall be pursued, were it an open question, might be one of some difficulty. It was ably discussed upon general principles in a late case (Le Roy v. Crowninshield, 2 Mason, 151), before the Circuit Court, in which, however, it was fully conceded, by the learned judge, upon a full consideration and review of all the authorities, that it is now to be considered a settled question. A doubt was intimated in that case, whether, if the parties had remained subjects of the foreign country until the term of limitation had expired, so that the plaintiff's remedy would have been extinguished there, such a state of facts would not have presented a stronger case, and one of more serious difficulty. Such was the case in the present instance; but we think it sufficient to advert to a well-settled rule, in the construction of the statute of limitations, to show that this circumstance can make no difference. The rule is this, that where the statute has begun to run, it will continue to run, notwithstanding the intervention of any impediment, which, if it had existed when the cause of action accrued, would have prevented the operation of the statute. For instance, if this action accrued in Nova Scotia, in 1821, and the plaintiff or defendant had left that country in 1825, within six years, in 1828, after the lapse of six years, the action would be as effectually barred, and the remedy extinguished there, as if both had continued to reside in Halifax down to the same period. So that when the parties met here, in 1829, so far as the laws of that country, by taking away all legal remedy, could effect it, the debt was extinguished, and that equally whether they had both remained under the jurisdiction of those laws till the time of limitation had elapsed, or whether either or both had previously left it. The authorities referred to, therefore, must be held applicable to a case where both parties were subject to the jurisdiction of a foreign State, when the bar arising from its statute of limitations attached. The same conclusions results from the reason upon which these cases proceed, which is, that statutes of limitation affect only the time within which a legal remedy must be pursued, and do not affect the nature, validity, or construction of the contract. This reason, whether well founded or not, applies equally to cases where the term of limitation has elapsed when the parties leave the foreign State, as to those where

(v) In England this may be considered an established law, at least since 1768, when the case of Compton v. Bearcroft was decided. That case is thus stated in Buller's Nisi Prius, pp. 113, 114: "The appellant and respondent, both English subjects, and the appellant being under age, ran away, without the consent of her guardian, and were married in Scotland, and on a suit brought in the spiritual court to annul the marriage, it was holden that the marriage was good." An account of this case will be found also in Middleton v. Janverin, 2 Hagg. Consist. R. 443. The case of Conway v. Beazley, 3 Hagg. Consist. R. 639, has been supposed to hold an opposite doctrine; but this case only decides that a Scotch divorce, where the husband and wife were domiciled in England at the time, and had been married in England, is void there. See remarks on this case in Bishop's valuable work on Marriage and Divorce, §§ 127, 128. The same rule is generally held in this country. Thus, in Medway v. Needham, 16 Mass. 157, where parties incapable by the law of Massachusetts of contracting marriage with each other, by reason of one of them being a white person and the other a negro, went, for the express purpose of evading the law, into Rhode Island, where such marriages are allowed, and were there married, and immediately returned, it was held, that the marriage, being good in Rhode Island, was good in Massachusetts. See Rev. Stats., ch. 75, sect. 6. As to what cases this statute embraces, see Sutton v. Warren, 10 Met. 451; Commonwealth v. Hunt,

(x) In general a marriage, if legal where performed, is valid elsewhere, even though the parties intend to evade the law of their domicil. Tyler v. Tyler, 170 Mass. 150, 48 N. E. 1075; United States v. Rodgers, 109 Fed. 886; Smith v. Smith, 52. N. J. L. 207, 19 Atl. 255; Hills v. State, 61 Neb. 589, 85 N. W. 836, 57 L. R. A. 155 and note. See Newman v. Kimbrough (Tenn. Ch.), 59 S. W. 1061. Under the Massachusetts statute, by which marriages are to be void, if the parties go to another State with the intention of returning to reside, such intention must be had by both parties. Whippen v. Whippen, 171 Mass. 560, 51 N. E. 174. The presumption is in favor of the regularity of the marriage and of conformity to the local law. People v. Loomis, 106 Mich. 250, 64 N. W. 18; People v.

4 Cush. 49. [In accord with Putnam v. Putnam, are Van Voorhis v. Brintnall, 86 N. Y. 18; Thorp v. Thorp, 90 N. Y. 602.] Williams v. Oates, 5 Ired. 535, contains a doctrine materially different from that of the Massachusetts cases above cited. That was a petition by the plaintiff, as widow of the defendant's intestate, for an allowance out of his estate. It appeared that the plaintiff had formerly intermarried with one Allen in North Carolina, both being domiciled there. Her husband afterwards instituted a suit against her for a divorce for cause of adultery on her part, in which there was a decree divorcing him a vinculo matrimonii. Afterwards the plaintiff and the defendant's intestate, both being citizens of North Carolina, and domiciled there, with the purpose of evading the laws of that State, which prohibited her from marrying again, went into South Carolina and there intermarried, according to the laws of that State, and immediately returned to North Carolina, and continued to live there for several years as husband and wife, until the death of the intestate. And the Supreme Court of North Carolina held this latter marriage to be void. In Dickson v. Dickson, 1 Yerg. 110, which was a petition for dower, it appeared that the plaintiff had formerly been married in Kentucky, and had been there divorced, she being the offending party. She afterwards removed to Tennessee and was married again, her former husband living. It further appeared, that, by the law of Kentucky, a divorce obtained in that State does not release the offending party from the pains

Schoonmaker, 117 Mich. 190, 75 N. W. 439; Lanctot v. The State, 98 Wis. 136, 73 N. W. 575.

In England, though a marriage with a deceased wife's sister is invalid by statute, yet such a marriage by Italians domiciled in Italy will be upheld, as the law of their common domicil determines marital capacity, except as to marriages treated as incestuous by the general consent of Christendom. In re Bozzelli's Settlement, [1902]1 Ch. 751. See In re De Wilton, [1901] 2 Ch. 481. And a marriage duly performed abroad, before a British consul, between a Frenchman and an Englishwoman, may be upheld in England, though declared invalid by a French court as regards form. Hay v. Northcote, [1901]

2 Ch. 262.

and penalties of bigamy, if he or she afterwards marry. Under these circumstances the question arose whether the second marriage should be held valid by the courts of Tennessee. And it was held that it should. Catron, J., said: "Mary May was legally divorced from her husband, Benjamin May, by the Union Circuit in Kentucky; being a court of competent jurisdiction over the subject-matter and the parties, the decree dissolving the mar'riage is conclusive on all the world. The statute of Kentucky provides, that the offending party (the petitioner in this case) shall not be released from the marriage contract, but shall be subject to all the pains and penalties of bigamy. It is impossible, in the nature of things, that all the relations of wife shall exist when she has no husband; who, as soon as the decree dissolving the marriage was pronounced, was an unmarried and single man, freed from all connections and relations to his former wife; and equally so was the petitioner freed from all marriage ties and relations to Benjamin May, in reference to whom she stood like unto every man in the community. Therefore, he has no right to complain of the second marriage. Who has? Not the Commonwealth of Kentucky, whose penal laws cannot extend beyond her own territorial jurisdiction, and cannot be executed or noticed in this State, where the second marriage took place, and the violation of said laws was effected. Had Mary May married a second time in Kentucky, such second marriage would not be void because she continued the wife of Benjamin May,

but because such second marriage in that State would have been in violation of a high penal law against bigamy; and it being a well-settled principle of law that any contract which violates the penal laws of the country where made shall be void. The inquiry with this court is not, however, nor cannot be, whether the laws of Kentucky have been violated by this second marriage, but have our own laws been violated? The Act of 1820, ch. 18, against bigamy, declares it felony for any person to marry having a former hus band or wife living. Mary May had no husband living, and is not guilty of bigamy by our statute; nor has she violated the sanction of any penal law of this State." See further, on the proposition stated in text, Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 395; Herbert v. Herbert, id. 263, 3 Phillim. 58; Swift v. Kelly, 3 Knapp, 257; Munro v. Saunders, 6 Bligh, 468; Sottomayor v. De Barros, 3 P. D. 1; 5 P. D. 94; State v. Patterson, 2 Ired. 346; Fornshill v. Murray, 1 Bland, Ch. 479; Dumaresly v. Fishly, 3 A. K. Marsh. 368; Wall v. Williamson, Ala. 48; Lacon v. Higgins, 3 Stark. 178; Morgan v. McGhee, 5 Humph. 13; Com. v. Lane, 113 Mass. 458.

(w) Greenwood v. Curtis, 6 Mass. 358, 378; Sneed v. Ewing, 5 J. J. Marsh. 460, 489; Sutton v. Warren, 10 Met. 451. And see Wightman v. Wightman, 4 Johns. Ch. 343.

(x) See Sutton v. Warren, 10 Met. 451, and Bonham v. Badgley, 2 Gilman, 622, as cited ante, p. 82, n. (g).

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