Opinion of the Court. laws of the country where such obligations are to be performed, and although such obligations may not be in accordance with the laws of the country where they are entered into, as regards agreements to be performed where they are made, they may be strictly in conformity with the laws of the country where they are to be performed. But there is a limitation on this law of comity which requires that the contract, when entered into, must conform to the laws of the country where made, or else to the laws of the country where it is to be performed. The rights enforced by courts, where the contract is made in one country, to be performed in another, are those given by the laws of the country where the contract was made, and such rights are enforced in the country where the contract is to be performed, not as a matter of strict right, but as a matter of comity extended toward the country in which the contract was made. It was again said, in the case of Lewis v. Headly, 36 Ill. 433, that it is a presumption of law, where there is no agreement to the contrary, that a contract is to be performed in the country where it is made. There is to this general rule a further limitation which is, that the courts of one country will not, under this comity, ever execute the criminal or penal laws of another country. Sherman v. Gassett, 4 Gilm. 521. The general rule has been recognized in the cases of Forsythe v. Baxter 2 Scam. 12; Holbrook v. Vibbard, ib. 465; Chenot v. Lefevre, 3 Gilm. 642 ; Strawbridge v. Robinson, 5 Gilm. 470; Schuttler v. Piatt, 12 Ill. 419; Crouch v. Hall, 15 Ill. 264, and the case of Sherman v. Gassett, 4 Gilm. 521, referred to above. These cases, determined in our own court, all concurring, fix and establish the rule so firmly that nothing short of legislative enactment should overturn or disturb it. A different rule would work manifest injury to commerce, trade, and the various pursuits of life. If our courts could refuse to enforce contracts made and entered into in other countries and states, because the laws governing them where made are different from or repugnant to our laws, a vast amount of injustice would ensue, Opinion of the Court. as the laws of no two countries coincide in every particular in but a few cases. The exigencies of commerce and the general trade of the world have compelled the adoption and enforcement of this rule. If we refer to the adjudged cases in other courts, whether of Great Britain or the various States of the Union, we find that the rule has been adopted that the laws of one State, entering into and forming a part of the contract, will be enforced in the courts of another State; and it is recognized to be on the principle of comity-not the comity of the courts, but the comity of the nation-which is administered and ascertained. in the same way, and guided by the same reasoning by which principles of the municipal law are ascertained and guided. Story's Conflict of Laws, sec. 38; United States Bank of Augusta v. Earle, 13 Peters, 519. The rule stated by Huberus and approved by Story, is this: "That the rules of every empire, from comity, admit that the laws of every people, in force within its own limits, ought to have the same force everywhere, so far as they do not prejudice the powers or rights of other governments, or their citizens." Story Conf. Laws, sec. 29. In France, the State, as it was organized before the revolution, was divided into a large number of provinces governed by different laws and customs, and was at an early period obliged to sanction such authority through its courts, in order to provide for the constantly occurring claims of its own subjects, living and owning property in different provinces, in a conflict between the different provincial laws. Ib. sec. 24. If the attainment of justice required the application of the rule in France, the peculiar frame of our government certainly imperatively demands its application and enforcement between the different States of the Union. And we have seen that it was fully recognized by the supreme court of the United States. In the absence of any positive statutory rule affirming or denying, or restraining such operation of foreign laws, courts of justice presume the tacit adoption of them by their own Opinion of the Court. government, unless they are repugnant to its policy or prejudicial to its interests. Ibid. sec. 38. Our legislature having declared no rule on the subject, our courts, like others, have adopted the rule, with the limitation that they will never enforce the criminal or penal laws of another country. Nor would they enforce and compel the specific performance of a contract under the laws of another State, when the laws are clearly repugnant to our policy and interests. Our courts would not enforce a contract for the sale of a slave, whether made in this State, where slavery has always been prohibited, or in a State where such contracts are binding, because it is against public policy. But after the parties have fully executed their contract, and a note is given for the price, under this comity which exists between the States of the republic, the note may be collected, and it is not for us, from caprice, or because we may abhor the system of slavery and the sale of human beings, to refuse to lend the aid of the courts for the collection of the money. It is not against the policy of our State to allow its collection, nor is it contrary to the interests of our citizens. Under the laws of Kentucky the sale was authorized, and there was a sufficient consideration. In the case of Smith v. Brown, 2 Salk. 666, suit was brought for the price of a negro slave, and it was held that, although slavery could not exist in England, yet when a slave, by the laws of Virginia, had been sold in London, the seller might recover. So, in the case of the Commonwealth v. Aves, 18 Pick. 215, the court held that, "though slavery is contrary to natural right, the principles of justice, humanity and sound policy, as we adopt them and found our laws upon them, yet not being contrary to the laws of nations, if any State or community sees fit to establish and continue slavery by law, so far as the legislative power of that country extends, we are bound to take notice of the existence of those laws, and we are not at liberty to declare and hold an act done within those limits unlawful and void upon our Opinion of the Court. views of morality and policy, which the sovereign and legislative power of the place has pronounced to be lawful." "So, in pursuance of the well known maxim, that in the construction of contracts the lex loci contractus shall govern, if a person having, in other respects, a right to sue in our courts, shall bring an action against another, liable, in other respects, to be sued in our courts, upon a contract made upon the subject of slavery, in a State where slavery is allowed by law, the law here would give it effect. As, if a note of hand made in New Orleans were sued on here, and the defense should be that it was on a bad consideration, or without consideration, because given for the price of a slave sold, it may be well admitted that such a defense could not prevail, because the contract was a legal one by the law of the place where it was made." In the case of Hone v. Ammons, 14 Ill. 29, the court was divided, but Mr. Justice CATON held, that if there had been evidence that the negro was a slave, plaintiff might have recovered the price for which he had been sold. Mr. Justice TRUMBULL, however, held that, as the sale of the negro was made in this State, a recovery could not be had, but Chief Justice TREAT held that plaintiff was entitled to recover on the note, although the sale was made in this State, and dissented from the conclusion at which the other members of the court had arrived. These cases fully establish the fact that a case of this character is not an exception to the rule, and hence they are referred to as not only recognizing the fact, but as requiring us to so hold; although, it might have been otherwise had the contract been entered into within this State and been wholly governed by our laws. We do not conceive it to be reasonable to hold that because slavery has been abolished, and become unlawful in the State of Kentucky, therefore this contract has become illegal. It does not follow, because slavery was expressly abolished, that the obligation of the contract was impaired by implication. Such consequences cannot be inferred, as no language Syllabus. employed for the abolition of slavery can be construed to render notes given for the purchase of a slave inoperate and void. If the abolition of slavery could have such an effect, then all persons who had paid money or property might sue for and recover it back, as having been paid without consideration. Such consequences could never have entered into the contemplation of those who abolished slavery. And courts. will not hold laws to have a retro-active operation from mere construction. This is a familiar principle in our jurisprudence, and much less so when to do so would impair the obligation of a contract, which no State can do, and it may well be doubted whether Congress possesses such transcendent power. The facts in this case fail to establish a defense, and the judgment of the court below must be reversed and the cause remanded. Judgment reversed. NORTHERN TRANSPORTATION COMPANY OF OHIO v. DAILY SELLICK. 1. CONVERSION-what constitutes. If one person has the property of another in his possession, and the owner makes demand of it, and the party in possession, without right, refuses to deliver it, that will constitute a conversion of the property by the latter to his own use. 2. SAME and herein of the respective rights and duties of a shipper and common carrier. So, where the owner of a carriage shipped the same by a common carrier, the amount to be charged for the transportation being first agreed upon, and, upon the carriage reaching its destination, was demanded by the owner, he offering to pay the charges as agreed, but the agent of the carrier refused to deliver it except upon the payment of a larger amount: Held, this was a conversion of the property by the carrier, and the owner could maintain trover therefor. The latter discharged his |