the lex solutionis. 3d. Where the rate of interest contracted for is allowable by the lex loci contractus, and the contract does not specify any place for the performance of the contract, but the interest so contracted for happens to be usurious by the lex fori, or the law of the place where the contract happens to be sued upon. And let us now consider the first division. It may be asserted, as a general and now well established doctrine that if the interest is valid by the lex solutionis, or the law of the place of performance, notwithstanding it be usurious by the lex loci contractus, such contract and interest will be upheld in both States, in the absence of fraud or any intent to evade the law.1 When parties contract with reference to the laws of a particular State, it is proper that those laws should govern their contract in whatever forum the contract is construed or litigated upon. Those laws form an integral part of their contract, and, as a general rule, to hold otherwise, would be a breach of State comity, and the precursor of much confusion. 2d. It should follow, as a necessary sequence of our first classification, that if the lex solutionis governs, a contract which provides for interest allowed by the lex loci contractus, but which interest is usurious according to the lex solutionis, or the place where the contract is to be performed, will be governed by the law of the latter place and the interest will accordingly be construed as usurious. This doctrine has not, however, received the unanimous concurrence of courts and authors. It having been asserted by some that even though the interest is usurious by the lex solutionis, or the law of the place where the contract is to be performed, yet, if the interest is allowed by the lex loci contractus, the same would be allowed, because, as is said, "the parties may stipulate the rate of interest of either country, and thus, by their own express contract, determine, with reference to the law of which country that 'Andrews . Pond, 13 Pet. 65, 77, 78; Boyer v. Edwards, 4 Pet. 111; Balme . Wombaugh, 38 Barb. 352; Pratt v. Adams, 7 Paige, 615; Arnold t. Potter, 22 Iowa, 194; Junction Railroad v. Ashland Bank, 12 Wall. 226; Parham v. Pulliam, 5 Cold. 497; Duncan . Helm, 22 La. Ann. 418; Tyler on Uusury, 81 et seq.; Story's Conf. of Laws, § 291 et seq.; Wharton's Conf. of Laws, § 503; Burges' Com., vol. 3, p. 774; Foote's Private International Law, 370; Westlake's Private International Law, § 206. 2 See cases cited in the preceding, and also Wharton's Conf. of Laws, S 504; Andrews . Pond, 13 Pet. 65; Story's Conf. of Laws, §§ 290, 304 b; Tyler on Usury; Burges' Com. on Colonial Laws, vol. 3, p. 774. incident of the contract shall be decided."1 We do not, however, regard it as consistent with the doctrine which has been above stated under our first division. Neither do we think that it is consistent with reason that the courts of a State should enforce a contract made to be performed within that State, and which contract, in terms, overrides an express law of that very State. If, however, the contract was brought before the courts of the State where made, it might be reasonable to suppose that the local court would enforce the interest, inasmuch as the same would be valid by their laws. We think that the doctrine which we have stated is the most consistent and conformable to the general rule. It is true that there are cases which hold that the interest being allowable where the contract is made, will be enforced in the State where payable, even though usurious there, on the ground that the validity of purely personal contracts depends upon the law of their place were made. But we are at a loss to see how this reasoning will apply, when the parties contemplate, as they are presumed to do, by making the contract performable in another State, to contract with reference to those laws. It does not seem for them proper to say that, as to the interest, the lex loci shall govern, but as to everything else, time for demand, days of grace, etc., the law of the place of performance shall govern.3 3d. Where the contract is made performable in any place it will be presumed to be made performable in the place where made. The usury laws, therefore of the loci contractus will govern the contract, and wherever the same is construed or litigated upon, the law of the place where the contract was made will govern the 1 Story's Conf. of Laws, & 304 b. This part of the text, however, it seems, is the work of some one of its numerous editors. Peck v. Mayo, 14 Vt. 33; Depau v. Humphreys, 8 Martin, (N. s.) 1; Chapman v. Robertson, 6 Paige, 629. 2 Wharton's Conf. of Laws, $$ 504510; Story's Conf of Laws, §§ 291, 298 ; 2 Parsons on Contract, *584 and note. Thus, it is said, as to an ordinary contract which is to be performed in a State other than where made, that to be enforced, it must be valid, as tested by the laws of the place of perform ance. Kanaga v. Taylor, 7 Ohio St. 134; Lewis v. Headley, 36 Ill. 433; Adams v. Robertson, 37 Ill. 45; Davenport v. Karnes, 70 Ill. 465; Evans v. Anderson, 78 Ill. 558; Maguire v. Pingree, 30 Maine, 508. 3 For cases which hold different from the text, the reader is referred to Bowen v. Bradley, 9 Abbott, (N. s.) 395; Clayes v. Hooker, 4 Hun. 231; Depau v. Humphreys, 8 Martin, (N. s.) 1; Peck v. Mayo, 14 Vt. 33; Pope e. Nickerson, 3 Story, 466; Kilgore . Dempsey, 25 Ohio St. 413; Bowman v. Miller, 25 Gratt. 331. interest.1 The interest reserved on the contract being good in the State where made, will be enforced by the courts of another State, even though, if it had there been entered into, it would have been forfeited or declared void by reason of its own usury laws. 2 Forfeitures for usury. Statutory forfeitures for usury in regard to loans or contracts for payment of money bear relation to the remedy. Therefore, when such contracts are sued in another State, then, inasmuch as in such other State the remedy is governed by the law of the forum, it results, from these conclusions, that in the courts of such other State the forfeiture cannot be enforced; it may only be enforced when suit is pending in the State where the statute exists.4 'Lee v. Selleck, 33 N. Y. 615; Philadelphia Loan Co. v. Towner, 13 Conn. 124; DeWolf v. Johnson, 10 Wheat. 367; Davis v. Garr, 6 N. Y. 124; Robb . Halsey, 11 Sm. & M. 140. 2 Cases cited above. Sherman v. Gassett, 9 Ill. 521: Lindsay v. Hill, 66 Maine, 212. 4 Ibid.; Barnes v. Whitaker, 22 Ill. 606. CHAPTER IX. RULES OF PROPERTY AND RIGHT THE SAME IN STATE AND NATIONAL COURTS. I. WHEN THE LOCAL RULES OF LAW ARE FOLLOWED BY UNITED STATES COURTS. II. BLIND CONFORMITY TO STATE RULINGS NOT REQUIRED OF UNITED STATES COURTS. I. WHEN THE LOCAL RULES OF LAW ARE FOLLOWED BY UNITED STATES COURTS. Except when they conflict with the Constitution and treaties of the United States and acts of Congress, the laws of the several States and well settled rules of property and rights of a local nature of the State courts are recognized, and are ordinarily followed by the United States courts in causes at law, in the respective States where these courts are held, whether the same be the result of statutory enactments, common law usages, or the decisions of highest State courts.1 Therefore, where, by a State statute, judgments in ejectment, except of non-suit, are a bar to a subsequent action for the same property between the same parties and those claiming under them, it is held that such enactment is alike binding on national and State courts in such State.* The State court constructions of State laws, it was decided in an early and leading case, would be followed in the United States 1 Miles . Caldwell, 2 Wall. 35, 43, 44; Christy v. Pridgeon, 4 Wall. 196, 203; Shelby v. Guy, 11 Wheat. 361; Sneed v. Wister, 8 Wheat. 690; Elmendorf v. Taylor, 10 Wheat, 152; McCluny v. Silliman, 3 Pet. 270; Henderson v. Griffin, 5 Pet. 151; Green v. Neal's Lessee, 6 Pet. 291, 298; Steamboat Orleans v. Phoebus, 11 Pet. 175; Ross v. Duval, 13 Pet. 45; Nesmith v. Sheldon, 7 How. 812; Suydam v. Wil- 2 Miles v. Caldwell, 2 Wall. 35, 43, 44; Brine v. Insurance Co., 6 Otto, 627; Orvis v. Powell, 2 Chicago Law Journal, 190, (Oct. Term U. S. Sup. Ct. 1878.) courts.1 The same has often been decided as to State court constructions of their own constitutions. So, where the decisions of the State courts have been long acquiesced in, and form an established rule of property, they will be followed by the federal courts. On questions, however, which do not involve the construction of local laws, but which relate to the construction of instruments, such as deeds and wills, the federal courts do not feel bound by the State decisions. So, it has been decided that in the construction of State statutes of limitations, the State decisions would be followed, as well as on the construction of rules. of evidence based on State laws. If the decisions of the State court have been conflicting and changeable, the last decision is generally followed, unless a previous decision of the State court should already have been adopted by the federal courts. In Shelby v. Guy, Justice JOHNSON says: "That the statute laws of the States must furnish the rule of decision of this court as far as they comport with the Constitution of the United States, in all cases arising within the respective States, is a position that no one doubts. Nor is it questionable that a fixed and received construction of their respective statute laws, in their own courts, makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious that that admission may at times involve us in seeming inconsistencies, as where States have adopted the same statutes, but their courts differ in their construction. Yet that course is necessarily indicated by the duty imposed on us, to administer, as between certain individuals, the laws of the respective States, according to the best lights we possess, of what those lights |