852 HARVARD LAW REVIEW Northern Ry. Co. v. Johnson,^ a recent case in the Circuit Court of Ap- peals. In this case, an exchange of promises de praesenti by mail between a man residing in Minnesota and a woman residing in Missouri was held to constitute a valid marriage. Both Minnesota ^ and Missouri ^^ allow common-law marriages, however, so that the decision of the question of what law governed the formal validity was not necessary to the result. The principle of the conflict of laws is unquestioned, that, at least as to formal validity, the law of the place of celebration controls.^^ The diffi- culty here is to determine which jurisdiction is the place of celebration. As to an ordinary contract, the settled rule, whatever its theoretical difiiculties,^^ is that the locus contractus is the place where the accept- ance is mailed.2^ A marriage, it is true, is not merely a contract; it is the creation of a status.^" However, there seems to be no good reason for the application of a diflferent rule.^^ The court in the principal case proceeded on this reasoning ,^2 since it was held that the marriage was governed by the laws of Missouri, where the acceptance was mailed. Consequently, it would presumably have upheld the marriage, even if informal marriages were not recognized in Minnesota. Although there is no direct authority precluding this result, some doubt has been ex- pressed as to its correctness, apparently based on the idea that a state or country cannot impose a status on a person who is neither domiciled nor present within its territorial limits.^ Even admitting this premise, 2^ 254 Fed. 683 (Cir. Ct. App.). ^ State V. Worthingham, supra; In re Hulett's Estate, supra; Shattuck v. Shattuck, 118 Minn. 60, 136. N. W. 409 (1912). ^ Dyer v. Brannock, supra; State v. Bittick, 103 Mo. 183, 15 S. W. 325 (1891); Nelson v. Jones, 245 Mo. 579, 151 S. W. 80 (1912). ^ Kent II. Burgess, 11 Sim. 361 (1840); Brinkley v. Attorney-General, 15 P. D. 76 (1890); Meister v. Moore, supra; Lando v. Lando, 112 Minn. 257, 127 N. W. 1125 (1910); Clark V. Clark, 52 N. J. Eq. 650, 30 Atl. 81 (1894); Nelson v. Carlson, 48 Wash. 651, 94 Pac. 477 (1908). See Story, Conflict of Laws, § 113; 25 Harv. L. Rev. 374; 26 Harv. L. Rev. 536. 2* See Wald's Pollock on Contracts (Williston's ed.), 37, 38. ^ Adams v. Lindsell, supra; Dunlop v. Higgins, i H. L. C. 381 (1848); Newcomb v. De Roos, 2 E. & E. 271 (1859). '" See Bishop v. Brittain Investment Co., 229 Mo. 699, 726; 129 S. W. 668, 676 (1910); Hilton V. Roylance, 25 Utah 129, 137, 69 Pac. 660, 663 (1902). ^' "Marriage being a civil contract, the rules to be applied must be to a great extent the same as are applied to ordinary contracts." Coad v. Coad, 87 Neb. 290, 292; 127 N. W. 455, 457 (1910). The rule of ordinary contracts, if applied to contracts of marriage, would carry with it, as a necessary consequence the result that, if the acceptance was never re- ceived at all, there would be a binding marriage, nevertheless. Household Fire Ins. Co. V. Grant, 4 Exch. Div. 216 (1879). The practical dangers of this result do not seem to justify the adoption of a special rule for marriage contracts; viz., that the marriage is made where the acceptance is received. But even if such a rule were adopted, it would not change any of the conclusions reached herein, except as indi- cated in note 34, infra. '2 Missouri has a statute expressly declaring marriage to be a civil contract. 1909, Rev. Stat., c. 76, § 8279. But this simply means that marriage is made independent of religion; it does not dispense with any of the ordinary requisites of an informal marriage. See cases cited in note 26, supra. Moreover, even if this statute put mar- riages in Missouri on exactly the same basis as commercial contracts, it could not have the effect of appropriating to Missouri a jurisdiction which Missouri would not otherwise have had. Consequently, the decision in Great Northern Ry. Co. v. John- son, supra, does not depend on any peculiarity of the law of Missouri. ^ See In re Limi Lin, 59 Fed. 682, 683; i Bishop, Marriage, Divorce, and Separation, § 326.
