Thomas Pearsall & Al. versus Josiah Dwight & Al., 1 Tyng 84

The opinion of the Court was afterwards delivered by Parsons, C. J. From the record in this cause, the declaration appears to be on a negotiable cash note, payable by the defendants to the plaintiffs, or their order, on demand.

To this declaration there is a plea in bar, alleging that the plaintiffs long before, at the time, and ever since, the note was executed, were inhabitants of the state of New York; that the note was there made; that before it was made, and six years before this action was commenced, there was a statute of that state still in force, which, among other things, limited the time of suing an action of this description to six years next after the cause of action accrued, which part of the statute is particularly pleaded with a proferí of the exemplification of the whole statute, and there is the averment necessary to bring this action within that statute.

The plaintiffs, in the replication, neither pray oyer of the exemplification of that statute, nor particularly plead any exceptions made in it, but confess and would avoid the bar, by alleging that the defendants were, during all the time, inhabitants of this state.

The defendants, in their rejoinder, confess and would avoid the replication, by averring that, since the making of the note, and more than six years before this action was commenced, the defendants went and returned to the state of New York, and were there ten days, with the knowledge of the plaintiffs. * To this rejoinder the plaintiffs demur generally, and [ *88 ] ■the defendants join in demurrer. Whether this rejoinder be good, is the issue in law immediately before the Court.

If the matters alleged in the replication are sufficient to avoid the bar, the rejoinder must be bad, because it neither traverses those matters, nor shows any provision of' the statute of New York, by which the effect of the replication is avoided by the collateral facts pleaded in the rejoinder. For the same reason, if the matters alleged in the bar are suffi cient in law, the replication must be bad, for the plaintiffs do not plead any exception in that statute, by which the bar, when confessed, may be avoided.

Notwithstanding the proferí of the exemplification of that statute, yet, if it contained any exception on which the plaintiffs intended to rely, they ought either to have prayed oyer, and spread the whole statute upon the record, or to have particularly pleaded such exception, in their replication, and then to have made the allegation necessary to bring their case within it. This reasoning is grounded on the opinion that, if that statute can avail in this Court, wiien pleaded in bar, the bar cannot be avoided but by virtue of some provision of the same statute.

As the pleadings now are, the Court cannot take notice of any parts of that statute but of those which are particularly shown in the bar. Although the rejoinder be bad, yet if the replication is also bad, the defendants must have judgment, if the bar be good. Thence the great question in the cause is whether, to an action commenced in a court in this state by the plaintiffs, inhabitants of New York, on this note there executed by the defendants, inhabitants of this state, the statute of limitations of the state of New York can be pleaded in bar.

That the statute of another state cannot, proprio vigore, have the force of law in this state is very clear, and its effect in this Court must depend on the laws of the commonwealth. It is a genera] rule, that personal contracts entered into, and to be performed, in any one state, and which are there valid, are to be considered as valid in every other state. [ * 89 ] * This rule is founded on the tacit consent of civilized nations, arising from its general utility, and seems to be a part of the law of nations adopted by the common law. To give effect to contracts of this description is

an act of comity-due, from the courts of the state in which such contracts may be sued, to the state in which they may be made. This rule is subject to two important exceptions. First, that neither the state in whose court the contract is put in suit, nor its citizens, may suffer any inconvenience by giving the contract effect; and, secondly, that the consideration of the contract be not immoral, and the giving it effect will not have a bad tendency. Under these exceptions, the cases which do not come within the rule may be classed. The contract on which this action is founded is clearly within the rule.

It was made in New York, and might there be performed. The plaintiffs, when it was made, were inhabitants of that state, and so are the defendants to be considered in this cause, by going and making the contract there. The contract, when made, was valid by the laws of New York: the giving it effect here cannot be injurious to the commonwealth, or its citizens, nor have an evil tendency: and the consideration is not immoral. The Court are therefore obliged, by the laws of the commonwealth, to con sider it as a valid contract, according to the true construction ol the rule.

The party claiming the benefit of the note, in this case, has sued it originally in a court in this state ; the law of the state of Neu York will therefore be adopted by the Court, in deciding on the nature, validity, and construction, of this contract. This we are obliged to do by our own laws. So far the obligation of comity extends, but it extends no farther. The form of the action, the course of judicial proceedings, and the time when the action may be commenced, must be directed, exclusively, by the laws of this commonwealth.

These are matters not relating to the validity of the contract; and to permit the laws of another state to control the Court.,'in its proceedings concerning them, would intrench upon * the authority of our own laws unnecessarily, and for no [ * 90 ] principle of common utility. Cases may also be supposed in which this permission might be injurious to our citizens.

If the state in which the contract was made had no statute of limitations, then, by the lex loci, the action might there be commenced at any time, and if the plaintiff should afterwards remove to this state, and commence his action in our Court, the defendant would be deprived of the benefit of the limitations here in force. That the form of the action must be conformable to our laws, the case of Folliot vs. Ogden is an authority.

In giving the opinion of the court, Lord Loughborough considers it as law that, when a bond made in a foreign state, by whose laws it is assignable, is sued at law in England, the suit must be according to the laws of England, in the name of the obligee, and not of the assignee, although it be for his use, because, there, bonds are not assignable at law. As to the time when the suit may be commenced, no authorities in point have been cited from our books, nor do I recollect any; but the sub ject has been considered by foreign jurists of great merit.

In the Prelections of Huber, under the title De Conflictu Le gum, he states a case, in which an action was commenced in a court of Friesland, by a Hollander against a Frieslander, on a contract made in Holland, and the limitation in force in Friesland was pleaded against the action. The Hollander contended that it could not be pleaded against him, to that contract, which was to be decided by the lex loci, or the laws of Holland. But the judgment was against the Hollander.

After mentioning another case upon execution, in which the lex loci was not allowed to govern, the author adds — “ Haec est ratio, quad prescriptio et executio non pertinent ad valorem contractus, sed ad tempus et modum actionis instituen do, qua, per se, quasi contractum separatumque negotium constitit, adeoque receptum est optima ratione, ut in ordinandis judiciis, loci consuetudo ubi agitur, etsi de negotio alibi celebroto, spectetur.” [ * 91 ] * It is therefore the opinion of the Court that the plea in bar is not good.

Consequently the judgment on the demurrer must be, that if appears to the Court that the rejoinder is bad and insufficient in law, &c. 1 H. Black. 135. But see the case of Duplein vs. De Rouen, in 2 Vern. 540, in which the statute of limitations of England was allowed to be pleaded, where the contract was made abroad between two foreigners. — C. J. Vol ii. lib. 1. M’Clung vs. Silliman, 3 Peters, 270.—Wood vs. Malin, 5 Halst. 230.—Le Roy & Al. vs. Crowningshield, 2 Mason, 151.—Hinckley vs. Mareau, 3 Mason, 88.—Van Reimsdyk vs. Kane, 1 Gall. 371.—Trasher vs. Everhart, 3 G. & J. 234.—Paxton vs. Liffart, 2 Rawle, 69.