But if the principal contract, in its very nature, implies a denial of the right of set-off, as in case of negotiable paper, where the gist of its negotiability lies in the fact that the maker cannot plead set-offs or other equities against a subsequent bona fide holder, the matter becomes part of the obligation of the principal contract, and is to be controlled by the proper law of that contract, not by the lex fori. Hence, to a contract negotiable by its proper law, sued upon in another State, a setoff or other equity cannot be pleaded, though it might be a proper plea under the lex fori, if the contract were governed by the latter law.

On the other hand, if the contract is not negotiable by the "proper law," and a set-off might be pleaded under that law, it has been said that the set-off may be pleaded in the forum, though by the lex fori the contract is negotiable.3

But if we apply the criterion already used so often to distinguish the remedy from the obligation of the contract, it will be seen that, while a retrospective law permitting a defendant in an action by the holder of a negotiable security to plead set-offs and defenses not before authorized would clearly impair the obligation of the defendant's contract, a similar retrospective law, applicable to a non-negotiable instrument (subject to equities) and prohibiting the defendant to plead set-offs and counterclaims, would not (it would seem) impair the obligation of the contract sued upon, but would merely affect the remedy. The latter question should therefore be governed by the lex fori."

52 N. W. 972. The lex fori governs the statute of limitations as applied to a set-off. See Ruggles v. Kieler, 3 Johns. (N. Y.) 263, 3 Am. Dec. 482.

2 Pritchard v. Norton, 106 U. S. 124, 133; Stevens v. Gregg, 89 Ky. 461, 12 S. W. 775, 776; Harrison v. Edwards, 12 Vt. 648, 36 Am. Dec. 364; Wilson v. Lazier, 11 Gratt. (Va.) 477, 482. See ante, § 182.

* Vermont Bank v. Porter, 5 Day (Conn.), 316, 5 Am. Dec. 157. See Fuller v. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 312, 317.

See Pritchard v. Norton, 106 U. S. 124, 133; Midland Co. v. Broat, 50 Minn. 562, 52 N. W. 972, 973. See Bank v. Trimble, 6 B. Mon. (Ky.) 599.

PART VIII.

PLEADING AND PROOF OF FOREIGN LAWS.

CHAPTER XXIII.

PLEADING AND PROOF OF FOREIGN LAWS.

§ 212. Foreign Laws must be Specially Pleaded. It is a fundamental principle of the common law that courts will take judicial notice of the public laws of their own State, and that such laws need not be specially pleaded nor proved. But the laws of other States are universally regarded as facts which, independently of statute, must be specially pleaded, wherever the lex fori requires other facts, under like circumstances, to be pleaded.1

But if the circumstances are such that, if the foreign law in question were any other fact, it need not be pleaded, neither need the foreign law. Thus, if the foreign law is immaterial to the merits, it of course need not be pleaded. So also if the foreign law is a mere matter of evidence, the lex fori (following the general rules of pleading) not requiring matter of evidence to be pleaded, the failure to plead the foreign law is not

error.

2

Thus, in Thomson-Houston Electric Co. v. Palmer, a note was executed and made payable in Illinois. The consideration for the note was an antecedent indebtedness. The suit was brought in Minnesota upon the original indebtedness, to which

1 Thatcher v. Morris, 11 N. Y. 437; Thomson-Houston Electric Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137, 1138; Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 445.

252 Minn. 174, 53 N. W. 1137.

the defendant pleaded payment by note. By the law of Illinois, the giving and receiving of a note for the amount of a preexisting debt operated as a payment thereof, merging the debt. By the law of Minnesota it did not, but suit might still be brought upon the original debt. The plaintiff objected that since the defendant relied upon a foreign law (the law of Illinois), it should have been specially pleaded. But the Minnesota court held that inasmuch as the proof of that law (being the "proper law") was merely by way of evidence of the truth of the defendant's plea of payment, it need not be specially pleaded.

In many of the States statutes have been passed dispensing with the necessity for specially pleading foreign laws, but even in such States they are usually required to be proved like other facts.*

Foreign laws are matters

§ 213. Proof of Foreign Laws. of fact, and like other facts should be proved, unless established by legal presumptions. A court will not take judicial notice of their existence or of their terms. And for this purpose the States of this Union are foreign to one another.1

But the federal courts, in enforcing the laws of States within their territorial jurisdiction, take judicial notice of them. In such cases, the laws are to be regarded as domestic, not as foreign, laws. A curious consequence flows from these principles and from the fact that the Supreme Court of the United States not only hears appeals from the federal courts, but under certain circumstances from the highest State courts also. Although the Supreme Court, sitting as a court of appeal to the federal courts, will take judicial notice of the laws of the several States, yet, if upon appeal from a State court of last resort, it has no more capacity than the State court itself to take judi

8 Ante, § 189.

Post, §§ 213, 214.

1 Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 445; Chicago & A. R. R. Co. v. Ferry Co., 119 U. S. 615; In re Capper's Will, 85 Ia. 82, 52 N. W. 6, 8; Kelley v. Kelley, 161 Mass. 111; Ufford v. Spaulding, 156 Mass. 65.

2 Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 445; Lamar v Micon, 112 U. S. 452; s. c. 114 U. S. 218.

eial notice of the laws of other States than that from which the appeal comes.

Primarily, the mode of proving a foreign law depends upon its nature, as statutory or common law, written or unwritten. If the law which is to be proved is statutory, the statute itself must usually be produced, or such a copy thereof as may be approved as evidence under the law of the forum. The judicial decisions of the State whose law is to be proved are not usually to be received in evidence to prove what is its statute law (for they are not the best evidence), but they should be looked to in order to determine the proper construction of such foreign statutes after they have been otherwise established. And this is true though the same provisions in the statutes of the forum have been construed differently there."

With respect to the common or unwritten law of a foreign State or country, the general rule is that it is to be proved by the best evidence the nature of the case will admit of. This rule was formerly construed to require as a usual thing that such unwritten law must be proved by the testimony of legal practitioners of the foreign State or other persons learned in its laws. It was thought inadmissible to introduce the reports of

3 Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 445; Hanley v. Donoghue, 116 U. S. 1; Renaud v. Abbott, 116 U. S. 277, 285.

4 Whart. Confl. L. §§ 772-778; Emery v. Berry, 28 N. H. 473, 61 Am. Dec. 622, 626; Clarke v. Bank, 10 Ark. 516, 52 Am. Dec. 248, and note; Tenant v. Tenant, 110 Penn. St. 478, 1 Atl. 532; Phillips v. Gregg, 10 Watts (Penn.), 158, 36 Am. Dec. 168.

5 Gilchrist v. Oil Co., 21 W. Va. 115, 45 Am. Rep. 555; Van Matre v. Sankey, 148 Ill. 356, 23 L. R. A. 665, 36 N. E. 628; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Jessup v. Carnegie, 80 N. Y. 441, 36 Am. Rep. 643; Ufford v. Spaulding, 156 Mass. 65, 69. The same rule prevails in the federal courts. Bailey v. Maguire, 22 Wall. 350; Bucher v. R. R. Co., 125 U. S. 555.

6 Van Matre v. Sankey, 148 Ill. 356, 23 L. R. A. 665, 36 N. E. 628.

7 Loring v. Thorndike, 5 Allen (Mass.), 257; Gardner v. Lewis, 7 Gill (Md.), 378. See Whart. Conf. L. § 774. Where however the question is not as to the law of a particular country, but as to its business or other customs, or as to the general practice there, any person familiar with such customs or practice is a competent witness, though he knows nothing of the legal effect there of such customs or practice. See Ganer v. Lanesborough,

cases adjudged in a particular State as evidence of the common law of that State. But in recent years the opinions of the courts have undergone a change in this respect, and it is now pretty generally conceded that the published official reports of adjudged cases are competent evidence for this purpose. In such cases it is the province of the jury to determine whether or not such adjudications have been made in the foreign State, but it is the duty of the court to construe them and to deduce the rules of law they establish. 10 And such decisions must be presented in evidence at the trial. They cannot be used for the first time in an appellate court."

§ 214. Presumptions as to Foreign Laws. Notwithstanding the rules mentioned in the preceding section touching the proof of foreign laws as facts, there are certain presumptions indulged by the courts as to the state of the law in a foreign country or State, which may operate as evidence thereof, in the absence of proof to the contrary. In other words, presumptions may arise with respect to foreign laws, just as in other matters of fact, wherever the probabilities point to a particular conclusion with sufficient force to overcome the legal principle that the burden of proof rests upon the party alleging a fact.

One of these presumptions frequently indulged by the courts, in the absence of contrary evidence, relates to the existence of the common law in a foreign State whose law is in issue, where the laws of the latter State are based upon the common law system of jurisprudence. It is a reasonable presumption, in the absence of proof to the contrary, that a common law principle applicable to the case is retained in such State. But where the

Peake, 18, explained in 11 Cl. & F. 124; Phillips v. Gregg, 10 Watts (Penn.), 158, 36 Am. Dec. 168; Vander Donck v. Thelusson, 8 C. B. 812.

8 Gardner v. Lewis, 7 Gill (Md.), 378, 393.

9 Latimer v. Elgin, 4 Dess. (S. C.) 26, 32; Ufford v. Spaulding, 156 Mass. 65, 69; Ames v. McCamber, 124 Mass. 85; Thomson-Houston Electric Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137.

10 Alexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N. E. 69; Ufford v. Spaulding, 156 Mass. 65, 30 N. E. 360; Thomson-Houston Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137.

11 Kelley v. Kelley, 161 Mass. 111.

1 Thorn v. Weatherly, 50 Ark. 237, 7 S. W. 33; Eureka Springs Co. v.