Trasher vs. Everhart.-1831. whether the court were right in permitting the evidence of the law of Virginia upon this subject, to go to the jury, as the history of the cause shows it was offered to let in the instrument of writing as evidence. Was it material to the determination of that question? This question must be answered by the decision of another; whether the foreign law, or the domestic law, should, in this proceeding, regulate and fix the character of the instrument. This subject will be reviewed and examined, in the consideration of the second bill of exceptions. In the second bill of exceptions, the court permitted the plaintiff to read in evidence to the jury, the cause of action, having first proved its execution, it being admitted that it was, by the laws of Virginia, where it was executed, a promissory note. The plaintiff's counsel in support of the opinion of the court, as expressed in this bill of exceptions, endeavors to sustain his case, by the maintenance of one or the other of the following propositions. 1st. That the evidence was admissible, because being executed in Virginia, it was a promissory note there; and that the law will so treat it here. 2d. That if wrong in this, it is by the laws of this State a promissory note, and ought to have been received to sustain the issue. As to the first proposition, its truth depends on this; whether the lex loci contractus, or the lex fori, is to govern? It is a universal principle, governing the judicial tribunals of all civilized nations, (for the truth of which no authority need be cited,) that the lex loci contractus controls the nature, construction, and validity of the contract: courts will always look to the lex loci, to give construction to an instrument, and will impart to it validity, according to those laws, unless it would be dangerous, against public policy, or of immoral tendency to enforce it here. They will also look to those laws, to ascertain the nature and true character of the contract, that efficacy may be given to its obligations between the parties, but they never look to the lex Trasher vs. Everhart.-1831. loci to determine the remedy which should be used, and the process issued to enforce its obligations: these are always determined by the lex fori. The law demands that a discrimination should be made between the rights and the remedy. In the ascertainment of the former, the lex loci becomes the rule; the latter is controlled by the lex fori. It must be always immaterial to the creditor, in what manner his claim is enforced, whether as a simple contract, or as a specialty, so that his essential rights are protected in the one form of action, as well as in the other. As in the present case, in what manner are the rights created, and obligations incurred, affected by treating the instrument as a single bill; although, according to the law of the place, it is a promissory note? In an action of debt, its obligations are held equally sacred, and in the same manner enforced, as if the action had been assumpsit. If there were no other reason for the rejection of the doctrine contended for, it might be sufficient to say, that it would be a great inconvenience to fashion the remedy according to the character of the contract impressed upon it, in the country where it is made, or to be performed. Inquiries would, in all cases, have to be instituted, before a suit could be commenced, into foreign laws, to determine the nature of the remedy to be pursued, which, in many cases where evidence was not at hand, might be attended with great delay and difficulty, and consequent loss of the debt. These views are opposed by the case of Meredith vs. Hinsdale, 2 Caine, 362, in which the court adjudged, that an instrument being a specialty by the laws of Pennsylvania, although it was not such by the laws of New York, yet that it ought to be received as a sealed instrument, and that an action of debt would lie upon it. But this determination has been expressly overruled in Andrews and Jerome vs. Herriott, 4 Cowen, 508, in which the court say, that Meredith vs. Hinsdale, was decided without attention to the distinction, that the lex loci contractus governs only as to the construction of the contract, and has nothing to do with the remedy, which Trasher vs. Everhart.-1831. is controlled by the lex fori. The dispute is merely upon the remedy; that is to say, whether the action shall be covenant, or assumpsit, upon a given contract between two persons within the jurisdiction of the court. The substance and effect of the recovery, is the same in either form, and they say, they cannot sanction the case of Meredith vs. Hinsdale, without overturning the entire class of cases which distinguishes between the lex loci and lex fori. According to these views, the character of the instrument must be regulated by a reference to our domestic law. But conceding that the first proposition connot be sustained, it is contended that the instrument of writing is not a specialty, but a promissory note, by the laws of this State, and that the court therefore correctly permitted it to be given in evidence, under the issue of non assumpsit. From the earliest period of our judicial history, a scrawl has been considered as a seal, and it would be too late at this day, and would be attended with consequences too serious, to permit it to be questioned. It is not necessary, as has been argued, that the scrawl must be adopted by the obligor, by a declaration in the body of the bond, or single bill, to make it his seal. It is sufficient if the scrawl be affixed to the bond, or bill, at the time of its execution and delivery. For, if he execute and deliver it with the scrawl attached, it being considered here as equivalent to the wax or wafer, it is as much his seal, as if he had declared it to be so in the body of the instrument. The fact of the clause of attestation not appearing in the usual form of “signed, sealed and delivered," can, in reason, make no difference: for the question always is, is this the seal of the obligor? and if he has delivered it, with the scrawl attached, it is his seal, and must be so considered: for whether an instrument be a specialty, must always be determined by the fact, whether the party affixed a seal; not upon the assertion of the obligor, in the body of the instrument, or by the form of the attestation. In this case, the execution of the bill is admitted, and the plaintiff has possession of it, which is Belt vs. Worthington, et al.-1831. evidence of delivery; and there is nothing to show that the scrawl was not attached, when it was executed and delivered, and the presumption always would be, that the seal was affixed to the instrument on its delivery, in the absence of evidence to the contrary. JUDGMENT REVERSED. BELT, use of BoswELL, et al. vs. WORTHINGTON, et al.December, 1831. Where a replevin had been struck off upon the motion of the plaintiff, and an action upon the replevin bond had been instituted, the defendants, (the plaintiff in replevin and his securities) suffered judgment to go by default; they were, notwithstanding, permitted, upon the execution of a writ of inquiry, to assess the plaintiff's damages, to show they had title to the articles replevied, in mitigation of damages. The object of the law in prescribing that a replevin bond should be entered into by a plaintiff before he should have the writ, was only to indemnify the defendant. The action upon that bond being sui generis, ought to be so moulded as best to subserve the principles of justice, having a regard to the rights decided in the replevin, and the nature and character of the bond. APPEAL from Prince Georges County Court. This was an action of Debt, commenced the 25th November, 1828,by the appellant, Edward W. Belt, against the appellees, on a replevin bond, dated July 16th, 1828. To the plea of general performance, the plaintiff replied: that the defendants, on the day of the execution of the bond, prosecuted and sued forth, out of the county court, the writ of replevin, to an elisor of the county (appointed in that behalf) directed, commanding him to replevy and deliver to the defendant, thirty thousand pounds of tobacco, which the said Edward W. Belt, of the county aforesaid, sheriff, had taken, and unjustly detained, &c. That the said elisor, as by the writ commanded, did replevy, and deliver to the defendefendants, the said tobacco; and that at the return term of the same, the parties appeared, when the attorney of the Belt vs. Worthington, et al.-1831. defendants, then then and there dismissed, discontinued, and struck off their writ and suit aforesaid; and so the plaintiff says, that the defendants have not well and faithfully performed the condition of the said bond, &c. The defendants suffered a judgment to go against them by default to this replication; and upon the execution of a writ of inquiry at bar, to assess the plaintiff's damages, a record of the proceedings in the replevin suit referred to in the replication, was read in evidence by the plaintiff, showing that the same was stricken off upon the motion of the defendants' attorney. The plaintiff also, by consent of parties, read to the jury the schedule and appraisement, returned by the elisor, who executed the replevin, as evidence of the quantity and value of the tobacco replevied. The defendants then offered to prove, in mitigation of damages, that at the time of the issuing out of the said writ of replevin, they had a good title to the tobacco. The plaintiff objected to the competency of this evidence, upon the ground-1st. that the effect of admitting it, would be to try the question of title, in a collateral manner; and, 2d, that the defendants having permitted a judgment to go against them by default, in the present action, were thereby concluded, from going into such an enquiry. But the court (STEPHEN, Ch. J., and KEY, A. J.) overruled the objections, and permitted the evidence to go to the jury. The plaintiff excepted, and the verdict being but for nominal damages, he brought the present appeal. The cause was argued before BUCHANAN, Ch. J., and EARLE, ARCHER, and DORSEY, J. Alexander, for appellant. It is an universal principle, that a person shall not be permitted to gain an advantage by violating the legal rights of another, or by evading the performance of a legal duty. The origin of all laws inflicting costs, damages, fines, and" corporal punishments, is to compel every one to observe his duty towards his fellow citizens and the public. But this 1 |