should first have been sued, and that judgment should have been recovered against the firm or the whole of the said partners jointly, and that the plaintiffs have not sued the firm of Caird & Co. nor the whole of the partners jointly, nor recovered judgment against it or them. Demurrer to the plea and joinder.1

BLACKBURN, J. It is quite clear that the firm of Caird & Co. are not a body corporate. The plea alleges that the firm, or the whole individual partners thereof jointly, should first have been sued. If one of the members of the firm was not joined it might be a bar to an action in Scotland, but it could only be pleaded in abatement in an action in England. I think all the matters stated in the plea are mere matter of procedure, and that the plea is bad.

MELLOR and FIELD, JJ., concurred.

Judgment for the plaintiffs.

2

LE ROY v. BEARD.

SUPREME COURT OF THE UNITED STATES. 1849.

[Reported 8 Howard's Reports, 451.]

WOODBURY, J. This was an action of assumpsit for money had and received; and also counting specially, that, on the 17th of November, 1836, the original defendant, Le Roy, in consideration of $1,800 then paid to him by the original plaintiff, Beard, caused to be made to the latter, at Milwaukie, Wisconsin, a conveyance, signed by Le Roy and his wife, Charlotte. This conveyance was of a certain lot of land situated in Milwaukie, and contained covenants that they were seized in fee of the lot, and had good right to convey the same. Whereas it was averred, that, in truth, they were not so seized, nor authorized to convey the premises, and that thereby Le Roy became liable to repay the $1,800.

Under several instructions given by the Circuit Court for the Southern District of New York, where the suit was instituted, the jury found a verdict for the original plaintiff, on which judgment was rendered in his favor, and which the defendant now seeks to reverse by writ of error. Among those instructions, which were excepted to by the

1 Arguments of counsel are omitted. - ED.

2 Acc. Taft v. Ward, 106 Mass. 518; Henry Briggs Sons & Co. v. Niven (Antwerp, 22 July, 1893), 21 Clunet, 1080. See Carnegie v. Morrison, 2 Met. 381. So of the question whether an assignee of a chose in action may sue in his own name. Roosa v. Crist, 17 Ill. 450; Foss v. Nutting, 14 Gray, 484; Lodge v. Phelps, 2 Cai. Cas. 321; see Levy v. Levy, 78 Pa. 507. Whether an assignee for creditors may sue in his own name. Glenn v. Marbury, 145 U. S. 499; Osborn v. First Nat. Bank, 175 Pa. 494, 34 Atl. 858. So of suit by a married woman in her own name. Stoneman v. Erie

Ry., 52 N. Y. 429. — ED.

Part of the opinion only is given. - ED.

defendant, and are at this time to be considered, was, first, that "the action of assumpsit is properly brought in this court, upon the promises of the defendant contained in the deed, if any promises are made therein which are binding or obligatory on the defendant."

The conveyance in this case was made in the State of Wisconsin, and a scrawl or ink seal was affixed to it, rather than a seal of wax or wafer. By the law of that State, it is provided, that “ any instrument, to which the person making the same shall affix any device, by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed."

But in the State of New York it has been repeatedly held (as in Warren v. Lynch, 5 Johns. 239) that, by its laws, such device, without a wafer or wax, are not to be deemed a seal, and that the proper form of action must be such as is practised on an unsealed instrument in the State where the suit is instituted, and the latter must therefore be assumpsit. 12 Johns. 198; 2 Hill, 228, 544; 3 Hill, 493; 1 Denio, 376; 5 Johns. 329; Andrews et al. v. Herriott, 4 Cowen, 508, overruling Meridith v. Hinsdale, 2 Caines, 362; 4 Kent, 451; 8 Peters, 362; Story's Conflict of Laws, 47. A like doctrine prevails in some other States. 3 Gill & Johns. 234; Douglas et al. v. Oldham, 6 N. H. 150.

It becomes our duty, then, to consider the instruction given here, in an action brought in the Circuit Court of New York, as correct in relation to the form of the remedy. It. was obliged to be in assumpsit in the State of New York, and one of the counts was special on the promise contained in the covenant. We hold this, too, without impairing at all the principle, that, in deciding on the obligation of the instrument as a contract, and not the remedy on it elsewhere, the law of Wisconsin, as the lex loci contractus, must govern. Robinson v. Campbell, 3 Wheat. 212.1

HAMILTON v. SCHOENBERGER.

SUPREME COURT OF IOWA. 1877.

[Reported 47 Iowa, 385.]

THE petitioner alleges that a judgment had been entered against him in the Benton District Court on a "judgment note," upon confession of judgment by an attorney of the court, not authorized to appear for him except by the power contained in the note; and asks that the judgment be declared void and cancelled. The defendants demurred to this petition. The demurrer was overruled, and judgment was rendered can

1 Acc. Thrasher v. Everhart, 3 G. & J. 234; Broadhead v. Noyes, 9 Mo. 55; Andrews v. Herriott, 4 Cow. 508. See Williams v. Haines, 27 Ia. 251.- ED.

celling the judgment in favor of defendants against plaintiff. The defendants appeal.1

DAY, C. J. So far as we are advised it has never been the understanding of the profession nor of the business community in this State that warrants of attorney to confess judgment had any place in our law. A confession of judgment pertains to the remedy. A party seeking to enforce here a contract made in another State must do so in accordance with the laws of this State. Parties cannot by contract made in another State engraft upon our procedure here remedies which our laws do not contemplate nor authorize.

We are fully satisfied that the demurrer to the petition was properly overruled. Affirmed.

MINERAL POINT RAILROAD CO. v. BARRON.

SUPREME COURT OF ILLINOIS. 1876.

[Reported 83 Illinois, 365.]

CRAIG, J. Under the laws of Wisconsin, had the proceedings been instituted in that State, the wages of the defendant in the original action were exempt from garnishment, and it is urged by appellant, that, as the parties resided in that State and the debt was there incurred, the exemption laws of Wisconsin must control, although the proceedings for the collection of the debt were commenced in this State.

It is true, the validity of a contract is to be determined by the law of the place where it is made, but the law of the remedy is no part of the contract, as is well said by Parsons on Contracts, vol. 2, page 588: "But on the trial, and in respect to all questions as to the forms or methods, or conduct of process or remedy, the law of the place of the forum is applied."

In Sherman v. Gassett, 4 Gilman, 521, after referring to a number of cases in illustration of the rule, it is said: "The cases above referred to, although not precisely analogous, yet settle the principle that the lex loci only governs in ascertaining whether the contract is valid, and what the words of the contract mean. When the question is settled that the contract of the parties is legal, and what is the true interpretation of the language employed by the parties in framing it, the lex loci ceases, and the lex fori steps in and determines the time, the mode, and the extent of the remedy."

Statutes of limitations fixing the time within which an action may be brought, laws providing for a set-off in certain actions, and statutes providing that certain articles of personal property, wearing apparel,

1 The statement of facts has been abridged, and part of the opinion omitted. — ED. 2 Part of the opinion only is given. — ED.

farming implements, and the tools of a mechanic shall be exempt from levy and sale upon execution, have always, so far as our observation goes, been regarded by courts as regulations affecting the remedy which might be enacted by each State, as the judgment of the legislature might think for the best interests of the people thereof. Bronson v. Kinzie, 1 Howard, 311.

The statute of Wisconsin, under which appellant was not liable to be garnisheed, was a law affecting merely the remedy where an action should be brought in the courts of that State. That law, however, cannot be invoked where the remedy is sought to be enforced in the courts of this State. The remedy must be governed by the laws of the State where the action is instituted.1

GIBBS v. HOWARD.

SUPERIOR COURT OF JUDICATURE, NEW HAMPSHIRE. 1820.

[Reported 2 New Hampshire, 296.]

THIS was an action of assumpsit upon a note of hand, dated September 29, 1817, for $57, made by Howard, and payable to Almon Burgess, or order, in the month of April, 1818; and on the 31st of October, 1817, indorsed by Burgess to Patience Cone, then sole, now the wife of Gibbs, the plaintiff.

The defendant pleaded the general issue, and gave notice of a set-off consisting of three notes of hand, made by Almon Burgess, and payable to three several persons, and by them indorsed to the defendant, November 1, 1817.

The cause was submitted to the decision of the court upon the following facts. The note described in the declaration was made by Howard, and at the time when made, the original parties to it were both inhabitants of the State of Vermont. The same note was for a valuable consideration indorsed to Patience Cone, then an inhabitant of Vermont, before it became due, and before the defendant had any inter

1 Acc. Chic., R. I. & P. Ry. v. Sturm, 174 U. S. 170; Boykin v. Edwards, 21 Ala. 261; Broadstreet v. Clark, 65 Ia. 670; B. & M. R. R. v. Thompson, 31 Kan. 180, 1 Pac. 622; Morgan v. Neville, 74 Pa. 52. But see Mo. P. Ry. v. Sharitt, 43 Kan. 385, 23 Pac. 430; Drake v. L. S. & M. S. Ry., 69 Mich. 168, 179, 37 N. W. 70. In the last case, Morse, J., said: "It must be held, I think, not only as a matter of simple justice, but as sound law, which means justice, that where the creditor, debtor, and garnishee, at the time of the creation of both debts, are all residents and doing business in Indiana, and both debts are created, and intended to be payable, in that State, the exemption of wages is such an incident and condition of the debt from the employer that it will follow the debt, if the debt follows the person of the garnishee into Michigan, and attach itself to every process of collection in this State, unless jurisdiction is obtained over the person of the principal debtor; that it becomes a vested right in rem, which follows the debt into any jurisdiction where the debt may be considered as going. — ED.

est in the notes mentioned in the set-off. Gibbs is an inhabitant of Massachusetts. There is a statute of Vermont, passed on the 31st October, 1798, by which it is enacted, "that in all actions on indorsed notes it shall be lawful for the defendant to plead an offset of all demands proper to be plead in offset which the defendant may have against the original payee, before notice of such an indorsement against the indorsee, and may also plead or give in evidence on the trial of any such action, any matter or thing which would equitably discharge the defendant in an action brought in the name of the original payee."

And it was agreed, that if the court should be of opinion that the defendant could not avail himself of the set-off filed in the case, judgment should be rendered for the plaintiffs for the amount of the note described in the declaration.

BY THE COURT. It is very clear that the notes, which the defendant holds against Burgess, are not a legal set-off in this action by the laws of this State; and it is equally clear, that we can take no notice of the statute of Vermont. The lex loci must settle the nature, validity, and interpretation of contracts, but it extends no further. The laws of the State in which contracts are attempted to be enforced, must settle what is the proper course of judicial proceedings to enforce them. The statute of Vermont relates merely to the remedy, by which a contract may be enforced. There must, therefore, according to the agreement of the parties, be Judgment for the plaintiff.1

TOWNSEND v. JEMISON.

SUPREME COURT OF THE UNITED STATES. 1849.

[Reported 9 Howard's Reports, 407.]

WAYNE, J. This suit has been brought here from the District Court of the United States for the Middle District of Alabama. The defendant in the court below, the plaintiff here, besides other pleas, pleaded that the cause of action accrued in Mississippi more than three years before the suit was brought; and that the Mississippi statute of limitations barred a recovery in the District Court of Alabama. The plaintiff demurred to the plea. The court sustained the demurrer.

We do not think it necessary to do more than to decide this point in the case.

The rule in the courts of the United States, in respect to pleas of the statutes of limitation, has always been, that they strictly affect the

1 Acc. Meyer v. Dresser, 16 C. B. N. s. 646 (semble); Savery v. Savery, 3 Ia. 271; Davis v. Morton, 5 Bush, 160.- ED.

2 The opinion only is given; it sufficiently states the case. -ED.