Wed. Jan. 22

domicile

White v Tennant(W.Va. 1888)

§ 15. Domicil Of Choice (1) A domicil of choice is a domicil acquired, through

the exercise of his own will, by a person who is legally capable of changing his domicil.

(2) To acquire a domicil of choice, a person must establish a dwelling-place with the intention of making it his home.

(3) The fact of physical presence at a dwelling-place and the intention to make it a home must concur; if they do so, even for a moment, the change of domicil takes place.

§ 10. Domicil By What Law Determined

(1) A question of domicil as between the state of the forum and another state is determined by the law of the forum.

• § 121. Law Governing Validity Of Marriage

• Except as stated in §§ 131 and 132, a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with.

§ 132. Marriage Declared Void By Law Of DomicilA marriage which is against the law of the state of domicil

of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases:

(a) polygamous marriage,(b) incestuous marriage between persons so closely

related that their marriage is contrary to a strong public policy of the domicil,

(c) marriage between persons of different races where such marriages are at the domicil regarded as odious,

(d) marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state.

2nd Rest § 283(2)A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.

Uniform Marriage Evasion Act (adopted Massachusetts’s 1913):No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.

§ 134. Marriage Contrary To Public Policy

If any effect of a marriage created by the law of one state is deemed by the courts of another state sufficiently offensive to the policy of the latter state, the latter state will refuse to give that effect to the marriage.

characterization

Levy v. Daniels’ U-Drive(Conn. 1928)

• Venuto v Robinson (3d Cir 1941)• Robinson agreed in NC to lease his equipment to Ross

Motor Lines and to take load for Ross from NC to New England• Robinson had accident in NJ• Venuto (a domiciliary of NJ) sues Ross (and Robinson)

in NJ ct• NJ law allowed for derivative liability• NC law did not

The contract was for the “direct, sole, and exclusive benefit” of the plaintiff, who is alleged to have been injured through the tortious operation of the automobile rented by the defendant to Sack. The right of the plaintiff as a beneficiary of this contract to maintain this action is no longer an open question in this state. The contract was made for him and every other member of the public. …The assent of the beneficiary, if required, is manifested in his action upon the contract.

- Assume that the contract between Daniels and Sack had by chance been entered into in Massachusetts rather than Conn. But the facts of the case were otherwise the same

Haumschild v Continental Cas Co. (Wisc. 1959)

• Haumschild: “While the appellant's counsel did not request that we overrule Buckeye v. Buckeye, supra, and the subsequent Wisconsin case dealing with this particular conflict of laws problem, he did specifically seek to have this court apply California's conflict of laws principle, that the law of the domicile is determinative of interspousal capacity to sue, to this particular case. However, to do so would violate the well recognized principle of conflict of laws that, where the substantive law of another state is applied, there necessarily must be excluded such foreign state's law of conflict of laws.”

• Swank v Hufnagle• Ohio woman guaranteed husband’s debt with

promissory note, executed in Ohio, and backed up by security interest on Indiana land • Ohio allowed woman to be surety for their husbands• Indiana did not• Suit in Indiana to enforce security interest

• Burr v Beckler• In Florida, Illinois wife guaranteed husband’s debt,

backed up by security interest in Illinois property• Florida had prohibition on wives acting as surety• Illinois didn’t• Suit in Illinois to enforce security interest

• Thomson v Kyle • Alabama woman executed promissory note in Ala

backed up by mortgage on land in Florida• Once again wives can’t be surety under Ala law• They can under Florida law• Suit in Florida to enforce security interest

• Caldwell v Gore• D erected dam on La property• Obstructed flow of water upstream to P’s property in

Ark• La had servitude of lower land to higher to receive

water flow freely• Ark law allowed obstruction if reasonable etc.

substance/procedure

Grant v McAuliffe (Cal. 1953)