sideration of illicit cohabitation will not be enforced.1 And so of agreements stipulating for divorce, and for the custody of children in a mode contrary to English law.2

§ 494. Wherever engaging in the slave trade is by statute illegal, contracts based on that trade are invalid; nor, So of the in view of the immorality of the consideration, and the slave trade. fact that any knowing participation in the transportation of slaves is involved in the statutory prohibition, does it make any difference that the place of delivery of the intended slaves is to be in a foreign state.3

13. Contracts against Law of Nations.

§ 495. A contract conflicting with the law of na- Contracts conflicting tions will be regarded by our courts as invalid, the law with law of of nations being part of our municipal law.*

nations invalid.

So of con

tracts inbreach of

volving

neutrality.

§ 496. The question next arises as to what contracts conflict with the law of nations. How far neutral duties extend, so as to make it unlawful for subjects of neutral states to supply aid to belligerents, has been discussed elsewhere. We may say, however, that no contracts which involve a breach of neutrality, as neutrality is defined either by local statutes or by the law of nations will be sustained by the courts. Under this head fall contracts to raise a loan to assist insurgents, as yet unrecognized as belligerents, in their revolt; and contracts to advance money to enlist soldiers in a foreign friendly state to revolt against such state.

1 See Walker v. Perkins, 3 Burr. 1568; Binnington v. Wallis, 4 B. & C. 650; Lloyd v. Johnson, 1 Bos. & P. 340: Appleton v. Campbell, 2 Carr. & P. 347; Greenwood v. Curtis, 6 Mass. 379; De Sobry v. De Laistre, 2 Harr. & J. 193; Story, § 258.

2 Hope v. Hope, 8 D., M. & G. 731; 22 Beav. 351.

8 Somerset v. Stuart, Lofft's R. 1; Madrazo v. Willes, 3 B. & Al. 353; Forbes v. Cochrane, 2 B. & C. 248; Fales v. Mayberry, 2 Gallison, 560. See Story, § 259.

4 Supra, § 1.

5 Whart. Crim. Law, 8th ed. §§ 1901 et seq.

6 De Witz v. Hendricks, 9 Moore, 586; 2 Bing. 314; Thompson v. Powles, 2 Sim. 194; Coppell v. Hall, 7 Wal. 542.

7 Macnamara v. D'Evereux, 3 L. J. Ch. 156; Thompson v. Powles, 2 Sim. 194; Taylor v. Barclay, 2 Sim. See Kennett v. Chambers, 14 Howard U. S. 38; Westlake, art. 199.

213.

8 Hall v. Costello, 48 N. H. 176. See Baily v. Milner, 35 Ga. 330.

And it has been generally stated that contracts to do acts calculated to imperil national neutrality, as to stir up war with a friendly state, are void.1

Otherwise

as to supply of munitions of war, and of blockade breach.

Such con

§ 496 a. A contract between two subjects of a neutral state to export munitions of war to a belligerent is not unlawful in the neutral state. Of course, it is otherwise when the contract to transport such goods is with an enemy.3

14. Contracts with Public Enemies.

§ 497. All contracts made by the citizens of one country with the citizens of another country, when the two countries tracts void. are in a state of public war, will be adjudged void, no matter where such contracts are made, or when they are to be performed. And eminently is this the case when the contract is to import goods contraband of war. But this rule does not affect contracts made prior to the war; the right to sue on which revives on peace. The same distinctions apply to contracts with belligerent insurgents.7

How far an alien enemy is entitled to sue is to be hereafter considered.8

A contract by a citizen to observe neutrality with an enemy is, under ordinary circumstances, void; but he may make such an

1 Hennings. Rothschild, 9 B. & C. 470; 4 Bing. 315; Thompson v. Powles, 2 Sim. 194; Taylor v. Barclay, 2 Sim. 213.

2 Chavasse, ex parte, in re Grazebrook, 4 De G. & S. 655; 11 Jur. N. S. 400; 34 L. J. Bank. 17; 13 W. R. 627; 12 L. T. N. S. 249. This question is discussed at large in Whart. Crim. Law, 8th ed. § 1903.

8 Infra, § 497. Story, § 259.

4 Abdy's Kent, p. 294; Wheaton Int. Law, p. 556; Baglehole, ex parte, 18 Vesey, 528; Anthon v. Fisher, 2 Dougl. 649; Scholefield v. Eichelberger, 7 Peters, 586; Hyatt v. James, 2 Bush (Ky.), 463; Crawford v. The William Penn, 3 Wash. C. C. 484;

U. S. v. Grossmayer, 9 Wall. 72; Stevenson v. Payne, 109 Mass. 378; Noblam v. Milborne, 21 La. An. 641; Graham v. Merrill, 5 Cold. (Tenn.) 622; Rice v. Shook, 27 Ark. 137. See Shares U. S. v. Shares, &c. 5 Blatch. C. C. 231. Infra. § 737.

5 Griswold v. Waddington, 16 Johns. R. 438; Musson v. Fales, 16 Mass. R. 332.

6 McConnell v. Hector, 3 Bos. & Pul. 113; Omealy v. Wilson, 1 Camp. 481; Stiles v. Easley, 51 Ill. 275; Seymour v. Bailey, 66 Ill. 288; Cockburn on Nationality, p. 150.

7 Ibid. See Seymour v. Bailey, 66 Ill. 288.

8 Infra, § 737.

engagement by capitulation, when it is out of the power of his government to protect him.1

VII. EFFECTS OF OBLIGATIONS.

1. Specific Performance.

§ 498. This, according to the foregoing principles, will be governed by the law of the place fixed for the performance of the contract, unless otherwise provided by the parties.2

2. Rescission, Extension, and Stay Laws.

Specific ance deby place of perform

perform

termined

ance.

sions and

$499. By the local law of several European states, the vendor of real estate has a right to recede from and cancel the So of resciscontract, under certain limitations, until possession is renewals. delivered. According to Savigny, the law of the place where the estate lies, the place being that of the performance of the contract, is that which is to prevail, and not that of the place where the contract was entered into, or where the suit was brought. And this rule is good in our own law.1

§ 500. Stay laws, being part of the process, are under the law which governs the court in which suit is brought.5

VIII. INTEREST.

Stay laws by lex fori.

governed

§ 501. Interest, in its international sense, is of three How claskinds :

sified.

(a.) That which is secured by contract, either directly or by implication, there being no wrongful act charged;

(b.) That which is assigned by way of damages for breach of contract; and which in the English practice is called damages, in the French, dommages-intérêts;

(c.) That which comes from delay in due performance of a contract, and which in the English practice is sometimes called moratory interest; in the German, Verzugszinsen; in the French,

§ 502. But of these kinds of interest there is, according to Savigny, a common characteristic. Where there is Savigny's rule. a special and distinct legal rate assigned at each of several places to which a contract may relate, then the law of the place which is the seat of the obligation is to control. Generally, when there is a stipulated place of payment, the law of that place applies; and, in most cases, that is the place of performance.

Place of solemnizing con

tract cannot control.

1. Interest based on Contract.

§ 503. On the reasoning already given,2 the place where a contract happens to be solemnized cannot determine either its rate of interest, when no rate is fixed, or the legality of the interest charged, when such interest is part of the contract. The place of solemnization is often casual. It may be in a railway car, or at a watering-place, or at an intermediate spot to which the parties resort for convenience, though it is not the domicil of either, nor the place of performance. The law of the place of solemnization, therefore, has no necessary connection with the meaning or operation of the contract.3

§ 504. The general import of the adjudicated cases, both in England and the United States, is, that interest of this character is to be governed by the law of the place where the contract is to be performed.1

Place of performance determines.

1 VIII. § 374, D.

2 Supra, § 401.

S. 406; Dodge, in re, 17 Bk. Reg. 504; Houghton v. Page, 2 N. H. 42;

8 See, however, Hull v. Augustine, Little v. Riley, 43 N. H. 109; French 23 Wis. 383.

4 Burge, iii. 774; Phillimore, iv. 515; Guthrie's Sav. 208; Henry on Foreign Law, 43, note; 2 Parsons on Contracts, 5th ed. 584; Westlake, (1880), § 211; Story, § 291; 2 Kent Com. Lect. 39, p. 460; Jones on Mortgages, $$ 656 et seq.; Cash v. Kennison, 11 Vesey, 314; Robinson v. Bland, 2 Bur. R. 1077; Ferguson v. Fyffe, 8 Cl. & Fin. 121; Andrews v. Pond, 13 Pet. 65; Junction R. R. v. Bank, 12 Wal. 226; Miller v. Tiffany, 1 Wal. 298; Scudder v. Bank, 91 U.

v. French, 126 Mass. 360; Phelps v. Kent, 4 Day, 96; Fanning v. Consequa, 17 Johns. R. 511; 3 Johns. Ca. 610; Hosford v. Nichols, 1 Paige R. 220; Stewart v. Ellice, 2 Paige, 604; Potter v. Tallman, 35 Barb. 182; Balma v. Wombaugh, 38 Barb. 352; Jewell v. Wright, 30 N. Y. 259; Dickinson v. Edwards, 77 N. Y. 578; Cartwright v. Greene, 47 Barb. 19; Healy v. Gorman, 3 Green (N. J.), 328; Archer v. Dunn, 2 W. & S. 327; Wood v. Kelso, 27 Penn. St. 241; Mullen v. Morris, 2 Barr, 85; Irvine

§ 505. But as to what is the place of performance, in this sense, great divergence of opinion exists. It is often ruled, and in the facts of the particular cases properly, that it is the place of payment. But the place of payment is often designated from reasons of momentary convenience; and it seems hard to subject a bona fide