Sec 462

When there are conflicting laws which may be claimed to be applicable to a particular contract, that most favorable to the validity of the contract will, all other things being equal, be preferred. Parties will not be supposed to have meant to incorporate into a contract a law by which it would be made void if not fraudulent; and they will be supposed, in case of conflict, to have incorporated that law by which it would be made effective.1 It is true that this opinion has been zealously disputed by Judge Story,2 and in New York, where it was at one time adopted,3 it has been recently questioned.4 But supposing there is nothing in the document with which this construction conflicts, its acceptance is in harmony with the rule that "where a contract is capable of two constructions, the one making it valid and the other void, it is clear law the first ought to be adopted."5

Sec 463

Ordinarily it is the law of the place of performance that determines whether or no a contract is usurious;6 and and was without knowledge of any illegality therein at the time she accepted the transfer of this ground-rent to her by Denison as surviving trustee, the complainants have no equity for relief as against her, and that she cannot be affected by the usury that may be found to exist. But this position cannot for a moment be sustained. No principle is better settled than that usurious securities are not only affected as between the original parties to the transaction, but the illegality or taint of their inception follows and affects them in the hands of third persons, even though they be ignorant and innocent holders thereof. Lloyd v. Scott, 4 Pet. 228, and the authorities there quoted; Andrews v. Poe, 30 Md. 485, 488." But see 2 Pars, on Cont. 145.

Between conflicting laws, that least onerous is to be applied.

1 Pars. on Cont. ii. p. 584; Wh. Con. of L. sec 507; Cromwell v. Sac, 96 U. S. 51; Leavenworth Bk. v. Smoot, 2 MacAr. 371; Kellogg v. Miller, 2 McCrary, 395; Townsend v. Riley, 46.

N. H. 312; Peck v. Mayo, 14 Vt. 33; Fisher v. Otis, 3 Chand. 83; Bolton v. Street, 3 Cold. 31; Depau v. Humphrey, 8 Mart. N. S. 1; Bullard v. Thompson, 55 Tex. 313; and see cases cited infra, sec 654; supra, sec 337.

2 Conf. of L. sec 298.

3 Walworth, J., Chapman v. Robertson, 6 Paige, 629.

4 Folger, J., Dickinson v. Edwards, 77 N. Y. 578.

5 Erie, J., Norwich v. R. R., 4 E. & B. 397; and other cases cited "Wh. on Ev. sec 1249; infra, sec 654.

6 Burge, III. 774; Phillimore, IV. 515; Guthrie's Savigny, 208; Henry on Foreign Law, 43, note; 2 Parsons on Contracts, 5th ed. 584; Westlake (1880), sec 211; Story, sec 291; 2 Kent, Com. Lect. 39, p. 460; Jones on Mortgages, sec 656 et seq.; Cash v. Kenni-son, 11 Vesey, 314; Robinson v. Bland, 2 Bur. R. 1077; Fergusson v. Fyffe, 8 Cl. & Fin. 121; Andrews v. Pond, 13 Pet. 65; Junction R. R. v. Bank, 12 the place of performance, according to the better view, is the place where the money is invested. Suppose, for instance, it is to be used for the purchase of lands or the working of mines in Colorado, where interest may be fifteen per cent. The money may be lent in NewYork; the contract executed in New York; and the payment designated to be made in a New York bank. But, for all this, the place of performance is Colorado, where the money is employed. The interest is great, but so is the risk; and the lender should have full remuneration for this risk. Similar reasoning applies to the bonds executed by western railroads payable in Boston and New York. To declare such obligations usurious, because conflicting with the local law of the place of payment, would not only be a gross.

Law of place of performance controls.

Wal. 226; Miller v. Tiffany, 1 Wal. 298; Scndder v. Bank, 91 U. S. 406; Dodge in re, 17 Bk. Reg. 504; Houghton v. Page, 2 N. H. 42; Little v. Riley, 43 N. H. 109; French v. French, 126 Mass. 360; Phelps v. Kent, 4 Day, 96; Fanning v. Consequa, 17 Johns. R. 511; 3. Johns. Ca. 610; Hosford v. Nichols, 1 Paige, R. 220; Stewart v. Ellice, 2 Paige, 604; Potter v. Tall-man, 35 Barb. 182; Balme v. Wom-baugh, 38 Barb. 352; Jewell v. Wright, 30 N. Y. 259; Dickinson v. Edwards, 77 N. Y. 578; Cartwright v. Greene, 47 Barb. 9; Healy v. Gorman, 3 Green (N. J.), 328; Archer v. Dunn, 2 W. & S. 327; Wood v. Kelso, 27 Penn. St. 241; Mullen v. Morris, 2 Barr, 85; Irvine v. Barrett, 2 Grant's Cas. 73; Bowman v. Miller, 25 Grat. 331; Roberts v. McNeeley, 7 Jones' Law (N. C), 506; Findlay v. Hall, 12 Ohio St. 610; Collins' Ins. Co. v. Burkam, 10 Mich. 287; Savary v. Savary, 3 Iowa, 272'; Boyd v. Ellis, 11 Iowa, 97; Arnold v. Potter, 22 Iowa, 194; Newman v. Kershaw, 10 Wis. 333; Lapice v. Smith, 13 La. R. 91; Howard v. Brauner, 23 La. An. 369; Kennedy v. Knight, 21 Wis. 340; Hunt v. Hall, 37

Ala. 702; Cubbedge v. Napier, 62 Ala. 518; Granger's Ins. Co. v. Brown, 57 Miss. 308; Bolton v. Street, 3 Cold. (Tenn.) 31; Greenwade v. Greenwade, 3 Dana, 497; Young v. Harris, 14 B. Mon. 556; Butler v. Edgerton, 15 Ind. 15; Butler v. Myer, 17 Ind. 77. In Scudder v. Bank, 91 U. S. 106, Hunt, J., said: "So if a note, payable in New York, be given in the state of Illinois for money there lent, reserving ten per cent, interest, which is legal in that state, the note is valid, although but seven per cent, interest is allowed by the laws of the former state. Miller v. Tiffany, 1 Wal. 310; Depau v. Humphrey, 8 Mart. N. S. 1; Chapman v. Robertson, 6 Paige, 634; Andrews v. Pond, 13 Pet. 65." That the lex fori determines what interest is payable on a note when no place of payment is designated, see Stickney v. Jordan, 58 Me. 106. In Consequa v. Fanning, 3 John. Ch. 587, it was ruled by Chancellor Kent, that the Chinese law, relating to interest, would be applied in New York to a contract distinctively subject to that law. And see supra, sec 351.