Jonathan Warren vs. Amasa Copelin, 4 Met. 594

Shaw, C. J. The law of Connecticut, we think, must govern this case. The note was made in Connecticut, both parties were at the time inhabitants of that State, and the contract was to be performed there. The note, by the law of this State, was negotiable ; but by the law of Connecticut, a note under $ 35 is not negotiable. It is evidence of debt only between the immediate parties, and like any other chose in action, it is assignable in equity ; but the assignee must take it subject to set-off, liability to attachment, and the other incidents, to which it would be subject, had it not been so assigned.

So far as the law affects the remedy, the lex fori, the law of the place where that remedy is sought, must govern. But so far as the law of the construction, the legal operation and effect of the contract is concerned, it is governed by the law of the place where the contract is made. Applying this rule to the present case, we see no reason why the law of Massachusetts should not govern the case, so far as to enable a bond fide holder or assignee of the note to maintain an action in his own name, that being a point affecting the remedy only.

But in ascertaining what right he has acquired by such note and by the indorsement and transfer of it, we must look to the law of Connecticut. The defence is, that the debtor was summoned as the trustee of the promisor, in Connecticut, before he had notice of the indorsement under which the plaintiff claims, and by that means the attaching creditor obtained an older and better title to the money; and that the defendant, under that process, paid it over.

In point of fact, and upon a comparison of dates, it appears that the note was first' indorsed by the promisor and delivered to the first indorsee, under whom the plaintiff claims, and then the debtor was summoned in the trustee process, before he had notice of the indorsement.

By the law of Massachusetts, such an assignment, made in good faith, before an attachment by trustee process, though without notice to the debtor, would give the assignee a title preferable to that of the attaching creditor ; and such assignment, being seasonably made known to the trustee, and being disclosed by him in his answer, would entitle him to a discharge.

But upon satisfactory examination and inquiry, the court are led to the conclusion that the law is otherwise in Connecticut; that there the assignment takes effect only from the time of notice to the debtor, and that, as the attachment in this case preceded such notice, the attaching creditor obtained the better title, and the defendant was bound to pay the debt to him. It was made a question whether the court in Connecticut had jurisdiction ; but we can perceive no ground for such a doubt.

The court had jurisdiction of the person of the debtor, who was domiciled there; they could compel payment of the debt, and therefore they had jurisdiction. It was contended that the defendant cannot avail himself of this defence, because he did. not refuse to pay on the first execution, wait for a scire faciasy and set forth all the facts, and await the judgment of the court upon them. If he had intended to avail himself of the judgment of the court of Connecticut, for his-protection, as a conclusive bar, that undoubtedly would have been his proper- course.

But if now taking the burden upon himself, he shows, that upon such a scire facias he must have been charged upon the facts, as they existed, and as he must have disclosed them, on that process, he shows that the attaching creditor there had an older and better title to the debt and sum of money due on the note, and that he rightfully paid it to him accordingly. . This is a good bar to the plaintiff’s claim.

The judgment in Connecticut is no further effective here, than to show the fact of an attachment by trustee process, and a judgment thereon, which the defendant could not resist, binding the debt, and requiring him to pay it. Plaintiff nonsuit