which is brought into court by those who have it by survivorship; and that, as the test of jurisdiction is the citizenship of the person in whom the right of action was originally vested, and the action is entertained if that person was a citizen of Ohio and declined if he was a citizen of another state, there is, in a real and substantial sense, a discrimination forbidden by the Constitution.

If such a case should arise, and be denied hearing in the Ohio courts by the Ohio law, then, as the denial would be based upon the citizenship of that person in whom the right of action originally vested, it might be necessary to consider whether the Ohio law did not, in substance, grant privileges to Ohio citizens which it withheld from citizens of other states. But no such case is before us. The Pennsylvania statute which created the right of action sought to be enforced in the Ohio courts has been construed by the courts of Pennsylvania. The applicable section is section 19 of the act of 1851. Of it the Pennsylvania court said in Fink v. Garman, 40 Pa. 95:

"The eighteenth section was apparently intended to regulate a common-law right of action by securing to it survivorship; but the nineteenth section was creative of a new cause of action, wholly unknown to the common law. And the right of action was not given to the person suffering the injury, since no man could sue for his own death, but to his widow or personal representatives. It was not survivorship of the cause of action which the Legislature meant to provide for by this section, but the creation of an original cause of action in favor of a surviving widow or personal representative."

This is the settled interpretation of the act. Mann v. Weiand,* 81 Pa. 243; Pennsylvania R. Co. v. Bock, 93 Pa. 427; Engles's Estate, 21 Pa. Co. Ct. 299; McCafferty v. Pennsylvania R. Co., 193 Pa. 339, 74 Am. St. Rep. 690, 44 Atl. 435. It appears clearly, therefore, that the cause of action which the plaintiff sought to enforce was one created for her benefit and vested originally in her. She has not been denied. access to the Ohio courts because she is not a citizen of that state, but because the cause of action which she presents is not cognizable in those courts. She would have been denied hearing of the same cause for the same reason if she had been a citizen of Ohio. In excluding her cause of action from the courts the law of Ohio has not been influenced by her citizenship, which is regarded as immaterial. We are unable to see that in this case the plaintiff has been refused any right which the Constitution of the United States confers upon her, and accordingly the judgment is affirmed.

HOLMES, J., concurring:

Although I do not dissent from the reasoning of the judgment, I prefer to rest my agreement on the proposition that if the statute cannot operate as it purports to operate it does not operate at all. I do not think that it can be presumed to mean to give to all persons a right to sue in case the Constitution forbids it to make the more limited

grant that it attempts. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 565, 46 L. Ed. 679, 692, 22 Sup. Ct. 431. Apart from the statute no one can maintain an action like this in Ohio. I may add that I do not understand that there is anything in the judgment that contradicts my opinion as to the law.29

[Dissenting opinion of HARLAN, J., in which WHITE and MCKENNA JJ., concurred, omitted.]

29 See Schofield, The Claim of a Federal Right to Enforce in One State the Death Statute of Another (1908) 3 Ill. Law Rev. 65; also note L. R. A. 1915F, 955.

See, also Canadian Northern Ry. Co. v. Eggen, 252 U. S. 553, 40 Sup. Ct. 402, 64 L. Ed. 713 (1920).

As to right of non-resident to sue in state courts, see note, 8 Minn. Law Rev. 47 (1923).

CHAPTER IV

PROCEDURE

MALE v. ROBERTS.

(Nisi Prius, in the Common Pleas, 1800. 3 Esp. 163.)

Assumpsit for money paid, laid out, and expended, to the use of the defendant; money lent and advanced, with the other common money

counts.

Plea of the general issue.

The case, as opened by the plaintiff's counsel, was, that the plaintiff and the defendant were performers at the Royal Circus. While the company were performing at Edinburgh, in Scotland, the defendant had become indebted to one Cockburn, for liquors of different sorts, with which Cockburn had furnished him; not having discharged the debt, and it being suspected that the defendant was about to leave Scotland, Cockburn arrested him, by what is there termed a Writ of Fugé, the object of which is to prevent the debtor from absconding.

The defendant being then unable to pay the money, the plaintiff paid it for him; and he was liberated. The present action was brought to recover the money so paid, as money paid to his use.

The defense relied upon was, that the defendant was an infant when the money was so advanced.

LORD ELDON. It appears from the evidence in this cause, that the cause of action arose in Scotland; the contract must be therefore governed by the laws of that country where the contract arises. Would infancy be a good defense by the law of Scotland, had the action been commenced there?

Best, Sergeant, for the defendant, contended, that the contract was to be governed by the laws of England; in which case, the plaintiff could recover for necessaries only. That at all events it should not be presumed that the laws were different; and as it appeared that the debt did not accrue for necessaries, the plaintiff could neither recover on the counts for money paid, or for money lent to an infant.

LORD ELDON. What the law of Scotland is with respect to the right of recovering against an infant for necessaries, I cannot say; but if the law of Scotland is, that such a contract as the present could not be enforced against an infant, that should have been given in evidence; and I hold myself not warranted in saying that such a contract is void by the law of Scotland, because it is void by the law of England. The law of the country where the contract arose, must govern the contract;

and what that law is, should be given in evidence to me as a fact. No such evidence has been given; and I cannot take the fact of what that law is, without evidence.

The plaintiff failed in proving his case, and was nonsuited.1

RUHE v. BUCK.

(Supreme Court of Missouri, 1894. 124 Mo. 178, 27 S. W. 412, 25 L. R. A. 178, 46 Am. St. Rep. 439.)

GANTT, P. J. This record presents this case: At the time of the transactions involved, a married woman in Missouri was incompetent to make a valid contract at law. At that time, however, she was authorized by the laws of Dakota to contract as a feme sole, and sue and be sued as such. Mrs. Buck, the wife of O. W. Buck, became the purchaser of a city lot in Tarkio, Mo., and held a bond for title from Perkins, the owner, until a balance of the purchase money should be paid. Under the firm name of O. W. Buck & Co., Mrs. Buck and her husband became indebted in Dakota, and the interest of herself and her husband in said lot was attached for said debt, in an action commenced in the circuit court of Atchison county, Mo. After this attachment was levied on the lot, Mrs. Buck sold the lot to Thompson and Trout, who afterwards paid the balance of the purchase money to Perkins, and received a warranty deed from Perkins, which was recorded.

That a married woman was not subject to a suit by attachment in

1 In the absence of proof of the foreign law, courts will often presume that it is identical with the law of the forum or with the common law as understood at the forum. See Kales, Presumption of the Foreign Law, 19 Harv. Law Rev. 401 (1906); also note, 34 L. R. A. (N. S.) 261. In a few states the courts are authorized or required by statute to take judicial notice of the law of sister states or of foreign countries. See, for example, Connecticut, Gen. St. 1918, § 5726; Michigan, Comp. Laws 1915, § 12513.

CONTINENTAL LAW.-The foreign law must generally be proved by the parties as a fact, and in the absence of such proof the lex fori will be applied. France.-App. Pau, Feb. 14, 1882 (S. 1884, 2, 129); Trib. Civ. Seine, July 18, 1885 (13 Clunet, 202). Italy.-Cass Turin, Nov. 9, 1891 (La Legge, 1892, 1, 83). But the parties need not prove it if it is well known to the judge. App. Turin, Dec. 7, 1894 (Giurisp. It. 1895, I, 2, 127). Germany-Section 293 of the Code of Civil Procedure requires the judge to inform himself ex officio with respect to the foreign law; but it has been held that, in the absence of personal knowledge of such law on the part of the judge or proof thereof by the parties, the lex fori will be applied. ROHG, Feb. 14, 1871 (2 ROHG, 27). A mistake made by the trial judge with respect to foreign law is, therefore, not subject to revision by the courts of last resort. France.-Cass. June, 15, 1899 (S. 1901, 1, 303); July 18, 1904 (2 Darras, 544); Nov. 18, 1912 (38 Clunet, 583). Germany.-Sections 549, 562, Code Civ. Proc. Contra: Italy, at least if the judge is specifically directed to apply such law. Cass. Florence, Apr. 25, 1881 (Monitore, 1881, p. 601); Cass. Naples, Jan. 26, 1897 (Monitore, 1897, p. 466).

2 Part of the opinion is omitted.

Missouri prior to 1889 was decided by this court in Gage v. Gates, 62 Mo. 412; and that a judgment obtained against her in such a proceeding was a nullity was repeated in Lincoln v. Rowe, 64 Mo. 138; and that she could not be sued as a member of a mercantile firm at law was also settled in Weil v. Simmons, 66 Mo. 617. From these and many other decisions, it would appear that no resident creditor could proceed by an attachment at law against a married woman in this state for a debt contracted in this state, and this record presents the question whether our laws will give nonresident creditors remedies to collect their claims against a married woman in this state, which we uniformly deny to our own citizens.

The Supreme Court of the United States in Scudder v. Union Nat. Bank of Chicago, 91 U. S. 406, 23 L. Ed. 245, sums up the general principle in a few words: "Matters bearing upon the execution, the interpretation, and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit was brought." So that while we concede that, by the laws of Dakota, Mrs. Buck could enter into a contract of partnership with her husband, and become bound for the debts of that partnership, the question remains, when the creditors sue her in this state, are they bound to take such remedies, and such only, as our laws offer against a married woman (for such she remains, notwithstanding her capacity to contract and sue and be sued), or are we bound to treat her as a single person? Judge Story, in his treatise on the Conflict of Laws (8th Ed., § 556), says: "Having stated these general principles in relation to jurisdiction (the result of which is that no nation can rightfully claim to exercise it except as to persons and property within its own domains), we are next led to the consideration of the question in what manner suits arising from foreign causes are to be instituted and proceedings to be had until the final judgment. Are they to be according to the law of the place where the parties, or either of them, live, or are they to be according to the modes of proceeding and forms of suit prescribed by the laws of the place where the suits are brought? Fortunately, here there is scarcely any ground left open for controversy, either at the common law or in the opinions of foreign jurists or in the actual practice of nations. It is universally admitted and established that the forms of remedies and modes of proceeding and the execution of judgments are to be regulated solely and exclusively by the laws of the place where the action is instituted, or ** according

to the lex fori."

[The learned justice here commented upon Williams v. Haines, 27 Iowa, 251, 1 Am. Rep. 268; Mathuson v. Crawford, 4 McLean, 540, Fed Cas. No. 9,279; Mineral Point R. Co. v. Barron, 83 Ill. 365;