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the case of Thompson v. Powles, (6) it is now the received doctrine at Westminster Hall, that the rate of interest on loans is to be governed by the law of the place where the money is to be used or paid, or to which the loan has reference ; and that a contract made in London to pay in America, at a rate of interest exceeding the lawful interest in England, was not a usurious contract, for the stipulated interest was parcel of the contract. This is also the law in this country, (c) and it appears to be a liberal relaxation of the rigor of the former rule. But if the bond, or other security, be taken in England, no higher rate of interest than English interest can be allowed, though the debt be secured by a mortgage executed abroad, upon real property abroad, and the bond and mortgage specify the foreign rate of interest. The courts considered that if the rule was otherwise, it would contravene the policy of the law, and sap the foundations of the statute of usury. (d) But on this subject of conflicting laws it may be generally observed that there is a stubborn principle of jurisprudence that will often intervene and act with controlling efficacy. This principle is, that when the lex loci contractus and the lex fori, as to conflicting rights acquired in each, come in direct collision, the comity of nations must yield to the positive law of the land. In tali conflictu magis est ut jus nostrum quam jus alienum servemus. (C)
(2.) Remedies upon contracts and their incidents are regulated and pursued according to the law of the place
(6) 2 Sim. 194. See, also, Harvey v. Archbold, Ryan & Mood. 184; Hosford v. Nichols, 1 Paige, 220; Pecks v. Mayo, 14 Vermont, 33, S. P.
(c) Andrews v. Pond, 13 Peters U. S. 65. See supra, n. c. The general principle is, that as to contracts merely personal, their construction is governed by the law of the place where they were made ; the consequences of their breach, by that of the country where they are enforced. Cooper v. The Earl of Waldegrave, 2 Beavan, 282.
(d) The rule turns upon the question of fact, where was payment of the money under the contract to be made? Stapleton v. Conway, 1 Vesey, 428. 3 Atk. 727, S. C. Connor v. Earl Bellamont, 2 Atk. 382. Dewer v. Span, 3 Term Rep. 425. De Wolf v. Johnson, 10 Wheaton, 383. The statute of 14 Geo. III. allowed securities on lands abroad to reserve foreign interest, though executed in England; but that statute was taken strictly, and held not to extend to personal contracts.
(e) Huberus, 1, 3, 11. Lord Ellenborough, in Potter v. Brown, 5 East, 131. Saul v. His Creditors, 17 Martin (Louis.) 569. If a contract to be performed in a foreign country, be invalid or void by the law of the country, where it was made, then the rule of international law cannot prevail, that the law of the place where the contract is to be performed, is to govern. Story J., in 3 Story C. C. 484.
where the action is instituted, and the lex loci has no application.' Actor sequitur forum rei. The lex loci acts upon the right; the lex fori on the remedy. This is the rule in all civilized countries; and it has become part of the jus gentium. (a) The comity of nations is sufficiently satisfied in allowing to foreigners the use of the same remedies and to the same extent that are afforded to the citizens of the state. Though the person of the debtor should therefore be exempted from redress by the lex loci, yet personal arrest will be permitted, if it be the practice according to the lex fori. If a party be discharged from imprisonment only, he remains liable to arrest for the same debt in another state ; for imprisonment relates only to the remedy, which forms no part of the contract. (6) In his quæ respiciunt litis decisionem, servanda
(a) Story on the Conflict of Laws, p. 811, and sec. 556. Bank of United States v. Donally, 8 Peters U. S. 361. Trasher v. Everhart, 3 Gill & Johns. 234. The authorities, both foreign and domestic, for this clearly established doctrine, are collected in Story's Com. on the Conflict of Laws, pp. 468–473. The doctrines in the text are ably stated and illustrated in the case of Pickering v. Fisk, 6 Vermont, 102, where it was truly observed by Mr. Justice Phelps, in giving the opinion of the court, that what appropriately belongs to the contract, and what to the remedy, is not always a question of easy solution.
(6) Lodge v. Phelps, 1 Johns. Cas. 139. Smith v. Spinolla, 2 Johns. 198. White v. Canfield, 7 Idem, 117. Sicard v. Whale, 11 Idem, 194. Whittemore v. Adams, 2 Cowen, 626. Hinkley v. Marean, 3 Mason, 88. Titus v. Hobart, 5 Idem, 378. Woodbridge v. Wright, 3 Conn. 523. Atwater v. Townsend; 4 Idem, 47. Wood v. Malin, 5 Halst. 208. Morris v. Eves, 11 Martin (Louis.) 730. Webster v. Massey, Wash. C. C. 157. British Linen Co. v. Drummond, 10 Barn. & Cress. 903. De la Vega v. Vianna, 1 B. & Adol. 284. Story on the Conflict of Laws, pp. 478, 479, 480. Trimby v. Vignier, 1 Bing. N. C. 151.
1 This rule has been discussed with ability and learning, in a late case in Connecticut. Wood v. Watkinson, 17 Conn. 500.
If an action be brought in any state upon a contract not under seal, but which, in the state where made, has the force and effect of a sealed instrument, the maxim, actor sequitur forum rei applies, and the form of the action must be appropriate to an unsealed instrument. Le Roy v. Beard, 8 How. U. S. 451.
2 This rule was applied in a recent case in the New York Superior Court, under the following circumstances. A firm in Missouri drew two bills of exchange upon a firm in New York, one dated in St. Louis, the other in Ohio. The firm in New York accepted and paid the oills, not having any funds of the drawers in their hands. One of the members of the firm in Missouri was sued upon the bills in a tribunal of that state, without joining his partners, and judgment recovered against him. By the law of Missouri, a judgment recovered against one of several joint debtors does not prevent a subsequent action against the other debtors. The action was brought in the Superior Court against all the members of the firm in Missouri. The court held that the law of New York, and not the law of Missouri applied ; that the separate judgment was a merger of the demand, and the defendants, other than the one against whom judgment was recovered, were discharged. 6 Duer (N. Y.) 34.
est consuetudo loci contractus. At in his quæ respiciunt litis ordinationem, attenditur consuetudo loci ubi causa agitur. (c) Upon the principle that the time of limitation of actions is governed by the lex fori, a plea of the statute of limitations of the state where the contract is made is no bar to a suit brought in a foreign court to enforce the contract; though a plea of the statute of the state where the suit is brought is a valid bar, even though brought upon a foreign judgment, provided the time of the residence of the party brings him within the time prescribed by the statute. (d): The period * sufficient to constitute a bar to * 463 the litigation of stale demands is a question of municipal policy and regulation, and one which belongs to the discretion of every government, consulting its own interest and convenience. Though the foreign statute of limitations may have closed upon the demand before the removal of the party to the new jurisdiction, yet it will be unvailing. The statute of limitations of the state in whose courts a suit is prosecuted, must prevail in all actions. (a) To guard, however, against the inconvenience of sustaining and enforcing stale demands, not yet barred by a resi
(c) Ranchin sur Guipape, Quæst. 162, cited in Emerig. Des. Ass. ch. 4, sec. 8, who sanctions the distinction, and collects the opinions of the foreign jurists under this branch of the law with his usual variety and immensity of erudition. Mr. Laussat, in a note to his edition of Fonblanque's Treatise of Equity, Phil. 1831, pp. 658–671, has also di gested and classified the leading English and American authorities on the subject of the lex loci, with accuracy and ability. As to the extent in which the modes of proof and the law of evidence of the lex loci or of the lex fori are carried, the foreign jurists hold different doctrines; and questions under this head are deemed by Mr. Justice Story to be unsettled and embarrassing. Some maintain that the lex fori, and others that the ler loci contractus, must regulate the authenticity and admission of the instrument and modes of proof. Story's Com. on the Conflict of Laws, pp. 523-527. .
(d) M'Elmoyle v. Cohen, 13 Peters U. S. 312.
(a) Estes v. Kyle, Meigs (Tenn.) 34. If the time of prescription in the country where the parties reside, goes not only to bar the remedy, but to render the contract absolutely void, the better opinion is, that the debt itself will also be held to be extinguished by the lex fori as well as by the lex loci contractus. Story on the Conflict of Laws, 487. Huber v. Steiner, 2 Bing. N. C. 211.
3 This subject has again come before the Supreme Court of the United States, and the doctrine of the case cited in the text, (13 Peters U. S. 312,) was affirmed in a learned and elaborate opinion. Townsend v. Jamison, 9 How. U. S. 407. See, also, Nicholls ads. Rogers, 2 Paine C. C. 437.
1 In some of the states it is provided by statute that actions shall not be brought on demands which have been barred by the statutes of limitations of the states where they arose. See Ohio R. S. (1854,) 629. Code of Iowa, (1851,) $ 1665. Indiana Civ. Code, (1852,) $ 216
dence under the change of domicil, a presumption of payment will be indulged, and may attach to and destroy the right of recovery. (6)
In respect to remedies, there are, properly speaking, three places of jurisdiction : (1.) The place of domicil of the defendant, commonly called the forum domicilii ; (2.) The place where the thing in controversy is situate, commonly called the forum rei sita; (3.) The place where the contract is made, or the act done, commonly called the forum rei gestã, or forum contractus. Not only real but mixed actions, such as trespasses upon real property, are properly referable to the forum rei sitæ. (c) But the court of chancery having authority to act in personam, will act indirectly, and under qualifications, upon real estate situated in a foreign country, by reason of this authority over the person, and it will compel him to give effect to its decrees, by a conveyance, release, or otherwise, respecting such property. (d)
(6) Hub. de Conflictu Legum, sec. 7. Voet ad Pand. 44, 3. Lord Kames's Equity, b. 3, ch. 8, sec. 4. Dupleix v. De Roven, 2 Vern. 540. Nash v. Tupper, 1 Caines, 402. Ruggles v. Keeler, 3 Johns. 263. Pearsall v. Dwight, 2 Mass. 84. Hall v. Little, 14 Idem, 203. Williams v. Jones, 13 East, 439. The British Linen Company v. Drummond, 10 Barn. & Cress. 903. Decouche v. Savetier, 3 Johns. Ch. 218. Medbury v. Hopkins, 3 Conn. 476. Graves v. Graves, 2 Bibb, 207. Le Roy v. Crowninshield, 3 Mason, 151. Union Cotton Manufactory v. Lobdell, 19 Martin (Louis.) 108. Ersk. Institutes, vol ii. p. 581, sec. 48. Pothier, in his Traité de la Prescription, n. 251, and other foreign jurists, think that the lex loci, and not the ler fori, ought to govern in this case; but the contrary conclusion is too well settled to be now questioned. Story's Com. on the Conflict of Laws, pp. 482–487. In Harrison v. Stacy, 6 Robinson, 15, a resident of Mississippi sued in Louisiana, on a note barred by the limitation laws of Mississippi, and it was held that the claim barred there by the laws of Mississippi was barred in Louisiana also.
(c) Skinner mv. East India Company, cited in Cowp. 168. Doulson v. Matthews, 4 Term Rep. 503. Livingston v. Jefferson, 4 Hall (L. J.) 78. Story on the Conflict of Laws, 448, 449, 466, 467. An injury to real property is local as to jurisdiction. Watts v. Kinney, 6 Hill (N. Y.) 82. Trespass on real property situated in one state cannot be sued for in another state.
(d) Lord Hardwicke, in Foster v. Vassall, 3 Atk. 589. 1 Eq. Cas. Abr. 133, C. Earl of Athol v. Earl of Derby, 1 Ch. Ca. 221. Archer v. Preston, 1 Eq. Ca. Abr. 133. S. C. cited in Arglasse v. Muschamp, 1 Vern. 75, 77, 135. Earl of Kildare v. Eustace, Ibid.
? It has been lately decided in New Hampshire, that the courts of that state hare jurisdiction of an action for damages brought against the select men of a town in Vermont, who had assessed an illegal tax upon the plaintiff's property in that town, in consequence of which he had been imprisoned. The form of the remedy in such cases was declared to be regulated by the laws of the state where the action is brought. Henry v. Sargeant, 13 N. Hamp. 321. See Martin v. Hill, 12 Barb. (N. Y.) 631.
III. Of the consideration.
It is essential to the validity of a contract that it be founded on a sufficient consideration. It was an early principle of the com
419. Penn. v. Lord Baltimore, 1 Vesey, 444. Lord Cranstown v. Johnston, 3 Vesey, 182, 183.
White v. Hall, 12 Vesey, 323. Lord Portarlington v. Soulby, 3 Myl. & K. 104. Bunbury v. Bunbury, in Chancery, 1839, 2 Beavan, 173. Massie r. Watts, 6 Cranch, 148, 160. Briggs v. French, 1 Sumner, 504. Church of Macon v. Wiley, 2 Hill Ch. (S. C.) 586. The court will sustain a jurisdiction in equity in cases of fraud, trust, and contract, when the person is duly within their process and jurisdiction, although lands not within the jurisdiction of the court might be affected by the decree. Story on the Con. flict of Laws, pp. 454-457. Idem, on Equity Jurisprudence, vol. ii. 48, 49, 185. The Court of Chancery in New York, in Ward v. Arredondo, 1 Hopkins, 213; Mead v. Merritt, 2 Paige, 402; Mitchell v. Bunch, 2 Idem, 606; Shattuck v. Cassidy, 3 Edw. Ch. (N. Y.) 152, and Sutphen v. Fowler, 9 Paige, 280; and of Virginia, in Farley v. Shippen, Wythe, 135, and Humphrey v. McClenachen, 1 Munf. 501, have declared and enforced the same doctrine. If the court had acquired jurisdiction of the person by his being within the state, they will compel him, by attachment, to do his duty under his contract or trust, and enforce the decree in rem, by his executing a conveyance, or other. wise, as justice may require, in respect to lands abroad. White v. White, 7 Gill & Johnson, 208. Vaughan v. Barclay, 6 Wharton, 392. Watkins v. Holman, 16 Peters U. S. 25. If the court has jurisdiction in case of a proceeding in rem over the property, it exercises it, though the owner be a non-resident, or a foreign corporation, or sovereign. Clarke v. N. J. Steam Navig. Co. 1 Story, C. C. 531. To give jurisdiction, either the defendant or the property attached must be within the state when process is served. A corporation has no legal existence out of the state creating it, and the service of summons on any member of it out of that state is null. Middlebrooks v. Springfield F. Ins. Co. 14 Conn. 301. Chancery may likewise, in the exercise of its jurisdiction in personam, and when the ends of justice require it, enjoin a party from proceeding in a suit in any court in any other country. See supra, p. 124. But this exercise of power has been declared, as we have already seen, (see vol. i. p. 409, 411,) not to extend to the federal courts in respect to the state courts, nor to the state courts in respect to the federal courts. This is founded on the nature of our federal government, and on indispensable principles of policy.
Mr. Justice Story, in his Commentaries on the Conflict of Laws, (and the 2d edition of which, in 1841, was corrected and greatly enlarged,) has reviewed and discussed the extensive and complicated subject of the lex loci in all its relations and incidents, with his usual exhausting research and sound critical sagacity. He has brought to bear upon the subject, and to enlighten it, an immense fund of foreign learning, and there is no treatise extant on the subject of the conflict of laws so accurate, full, and complete. There was no one head of the law that stood so greatly in need of such an effort. The doctrines under that head are more interesting than any other, with the exception, always, of the constitutional doctrines of the government of the United States; and they are more constant in their application, considering that the Union is composed of twentysix state jurisdictions, dictating and administering independently their own municipal laws. It was impossible, in this brief section, to do more than state the leading principles of the doctrine, and the authorities which sustain them; and this I have endeavored to do with the lights afforded me by a thorough examination of the treatise alluded to, and of all the authorities, foreign and domestic, applicable to the subject, and within my power to examine.