172 HARVARD LAW REVIEW. other way.^ ... If the English reports do not furnish more au- thority on the point, it may perhaps be referred to its not having been questioned.^ He points out that marriage may differ in this respect from ordinary contracts. Mr. Justice SterHng in a later case ^ " conceived " that he was " bound by " the dictwn of the Lord Justice ; and Professor Dicey holds the same view. Why a dictum of Lord Justice Cotton should so completely outweigh a dictum of Sir James Hannen, supported by several earher decisions, is not plain to an American lawyer. In America the decisions are unanimous in favor of the lex loci contractus^ though Professor Moore's cautious American note on the passage might not lead one to suppose so.* 2. Making of the Contract. It is agreed by all that the formal- ities required by the place of contract must be complied with; but there is great confusion in the cases as to the rule governing the sufficiency and validity of the consideration, and the legality of the agreement. Several views have been maintained. One view is doubtless that expressed by Professor Dicey, that these matters are governed by that law which the parties intended to govern them. Most of the cases cited by him do not support his contention, but there are no doubt dicta to that effect in some of the affreightment cases.^ The case, however, on which he most relies, Hamlyn v. Talisker Distillery,^ is not a case where the creation, but the effect of a contract, was in question. The arbitration clause, as to which the question in the case arose, was part of an English con- tract, and was performable in England ; its legality as an agree- ment could not have been successfully attacked, nor was the attempt made. Suit was not brought on this agreement in Scotland ; it was set up by the defendant in bar of the action, and the question was whether its effect was to oust the Scotch court of jurisdiction. The plaintiff claimed that the *' proper law of the contract" was Scotch, and that the court was not ousted; the 1 Citing Male v. Roberts, 3 Esp. 163; Scrimshire v. Scrimshire, 2 Consis. 412; Simonin v. Mallac, 2 Sw. & Tr. "]"] ; i Burge, Colon. Law, 132 ; Story, Confl. L,, § 103, 2 5 P. D. 94, 96. 2 In re Cooke's Trusts, 56 L. J. Ch. 637, 639.
- Saul V. His Creditors, 17 Mart. 569, 597; Thompson v. Ketcham, 8 Johns. 190;
Milliken v. Pratt, 125 Mass. 374; Wright z^. Remington, 41 N.J. L. 58; Swank z/. Hufnagle, 11 1 Ind. 453; Baum v. Birchall, 150 Pa. 164; Campbell v. Crampton, 2 Fed. Rep. 417. ^ See /// re Missouri Steamship Co., 42 Ch. D. 321. ^ [1894] A. C. 202. See this case discussed, 9 Harvard Law Review, 371.
