So, a marriage con- NEW-YORK, Nov. 1803. was had to the laws of another state. tract, made in France, shall be carried into effect in England, according to the laws of France, though contrary to those of England, Feaubert v. Turst. Prec. Chan. 208. So Tupper. in Alves v. Hodgson, 7 D. and E. 241, the court of King's Bench refused to receive in evidence a note given in Jamaiea, and not stamped according to the laws of that island. The same principle is acknowledged in Wright v. Nutt, I H. Black, 148, 9, where it was ruled, that the laws of Georgia, on a question of confiscation, were to be regarded in Westminster Hall as much as in Georgia, whatever might be the opinion of the court as to their policy. To the same effect may be cited Burrows v. Jemimo, 2 Stra. 732, 5 Vin. Abr. 511. Pl. 22, and in Jewson v. Reed Loft Rep. 138, Lord Mansfield said, a contract made in France, must be governed by the laws of France. A further authority, if the credit of the reporter will make it so, is from the same book, Crawford v. Witten, 154, where to an action of debt on a judgment of the Mayor's Court of Calcutta, it was admitted, that the statute of limitations of the lex fori ras not pleadable to foreign contracts. In that case, Mr. Justice Aston observed, that an action must be determined by the laws of the country in which the action accrued. But the next case which will be relied on, goes to the very been doubted, remedy. It is that of Melan v. the Duke de Fitzjames, This case has 1 Bos. and Pul. 138, in which the court determined that and it was obman cannot be held to bail in England upon a contract to served, that a was absent pay money, made in France, if by the laws, his person is judge (Heath) determined. not there liable to be restrained for the debt. And in order when it was to prove that such was the case then in dispute, Pothier on obligations, and an affidavit of a counsellor of Paris were received as evidence. Here the remedy alone was the point in question; as the laws of the community where the debt arose, gave no lien on the body, it was disallowed in a case where, by the English code, the defendant was immediately liable in his person, and might be held to special bail. The English bench, against the course of their own court, and against the laws of their

vn land, adopted those of France, in determining the

very learned

Nash

V.

Tupper.

NEW-YORK, extent to which a debtor had pledged himself by his enNov. 1803. gagement. Chief Justice Eyre, in giving his opinion, ful ly adopts the doctrine of the lex loci, and observes whate ver would constitute a defence to the action in France, would in Westminster hall. The reverse of this must be equally true, what is no defence in Paris, will be none in London. This, however, is now denied, and while the lex loci contractus is admitted to create the contract, yet it is attempted to interpose the lex fori to protect the debtor, under the idea of the laws of the jurisdiction affecting the remedy, but not the contract. It is with due submission, imagined, that the defence set up by the opposite party at tached on the contract, and made a part of it. It is of the utmost importance, that a creditor should know, how long he may repose without its being presumed that he has been paid. In this state by taking a bond he would have intended to protect himself against this presumption for twenty years. To create an equal bar to presumption, such as an obligation would have inferred, must have been in the contemplation of the parties in Connecticut, because the law gives the security taken, the same advantages. If the maker and payee had, in Connecticut, been asked to expound their own contract, they would have said it is to last and continue, firm and good against all presumption, for seventeen years. This then, attaches itself to, and is an integral part of the original contract, and therefore repels the bar growing out of a foreign jurisdiction; our statute of limitations, pleaded in bar. If the act did not oper ate on the contract, but merely suspended the remedy; it would be matter of abatement, not bar: because bar goes to the right not to the remedy, and the statute presumes payment made, therefore the judgment is in chief, and exhausts the debt, which becomes, as it were, dead. If the defendant meant to avail himself of our limitation act, he should have stated that the notes were made with a reference to our laws, or at least should have gone on to set forth his own residence for six years last past. The court will refer to the pleadings, and see that they shew the lex loci contractus to have attached on the contract, and if the

Nasin

V.

residence of the defendant would affect the question, that NEW-YORK, Nov. 1803circumstance should have been specially set forth to exonerate him from the operation of the laws of Connecticut. In the case of Phelps the court guarded against the conclu- Tupper. sion that might be drawn against the lex loci contractus, and the courts of Connecticut have allowed the indorsor of a NewYork note to prosecute in his own name; giving thereby a remedy according to the lex loci, which would have been denied by the lex fori. Let us, for one moment, advert to the consequences of refusing to adopt the principles for which we contend: the laws of many states place simple contract debts on very different footings. One fifth of the money lent out, may be advanced on securities, like those on which the present action is grounded. These, after six years, are here presumed to be paid; suppose the maker of a note removes to Connecticut, it will be in vain that he will say, by the laws of New-York the debt is barred; the creditor will proceed and recover, when in the country where the whole transaction took place, he could never get a shilling.. If this rule is to prevail, a creditor has only to watch his passing debtor, arrest him in transitu, and attain payment long after every hope was, by law and the implied basis of the contract, totally gone. The court, therefore, will be cautious in making a decision, which, by rejecting the laws of a foreign state, in expounding the terms of a contract made there, becomes a necessary precedent to that state, in regulating the justice it is to measure out to the people of New-York; which will, out of the limits of NewYork, create a seventeen, instead of a six years limitation. One contract, may, by this means, have a dozen different interpretations: a debt is contracted in New-Hampshire; the debtor comes here, and a six years quiescence discharges him; he goes to Connecticut, and the debt revives; according as the limitation is long or short, he by own act settles the period of his creditor's demand. It impossible to deny him this power, if the intention of the parties to the contract, and their resulting duties arising from a reference to the laws of the country, where that contract was made, are to be departed from: for instead of placing the

his

is

Nash

V.

NEW-YORK, agreement on those resulting duties, and the basis contem Nov. 1803 plated by the parties, it leaves that, and the duties to which they bind themselves to the sport and controul of the most Tupper, contingent and capricious events, to the debtor's locomo tive will, to the laws of any and every state or kingdom in which he may from time to time elect, from among all the nations of the earth, to take up his residence. Instead of one plain and uniform rule of construction, what an endless and perplexed confusion is suggested? A suggestion which fixes nothing, but unsettles every thing; which renders every judgment insecure, and all suits every thing, but final. Such must be the consequence, though it may be attempted to shew the contrary, by refined distinctions between the remedy and the contract. There is another point of view in which this case may be presented. Among the nations of Europe, a principle of comity has introduced a respect for! each other's laws and constitutions. Between the indivi dual states which compose the Union, it is submitted, whe ther there is not a far more cogent reason to respect; even as a bond to preserve the federal government. There is a part of the constitution by which it is created, that "no "state shall pass any law impairing the obligations of con "tracts." Does not this impose on the court an addi. tional obligation to respect the laws of a sister state, in the exposition of a contract made there, than what arises from the mere comity of nations? If the court will ap ply a principle drawn from the laws of their own state, contrary to those of Connecticut, and not contemplated by the parties to the contract when it was made, do they not impair the force of obligations? Besides, under this construction, full faith cannot be given to the judicial claims of the citizens of different states. This is mea tioned merely as a feature in the constitution, to shew with how much circumspection the court ought to proceed. Suppose the case had arisen in a court of the United States; that a Connecticut creditor on a contract made there, had sued a New-York debtor, can it be supposed that there would have been the hesitation of a moment in adopting the lex loci contractus, the laws of Connecticut?

Nov. 1803.

Nash

V.

Tupper.

It is submitted whether an act of this state, which should NEW-YORK, abridge the period given by a foreign contract to a creditor, within which he should not be obliged to demand his debt; which should deny him the right to have recourse to his contract for any part of the time which was allowed by the laws of the state where it was made, it is submitted, I say, whether such an act would not, under the constitution, in the extensive sense of the terms, impair the obligation of the contract?

Emmot in reply. An objection has been raised against the force of our plea of the statute of limitations, from a clause, or part of a clause in the constitution of the gene ral government; that no act shall be passed to impair the obligations of contracts. From the use made of this passage, it will follow that all statutes of limitation must invariably remain as they now are, and that no state can ever lengthen or shorten the period; because, that would be to impair the rights of others, in existing obligations. The meaning of the words are, that no state shall pass laws tending to impair the validity of contracts made in other states. The argument on the part of the plaintiff seems to suppose, that if the statute be allowed, the debt cannot be recovered, not so; the contract remains as it was; all that is said by us is, that when attempted to be enforced against our laws, they interpose; but if it be carried back to Connecticut, then our statute, or a judgment under it, is of no avail. The security was taken, subject to any variations the state in which it was given, might make, and also to such as any other might adopt, where it should be put in suit. After the defendant has resided six years in this state, the statute attaches wherever the contract was made. For the words of the act are direct and positive. "No action shall be commenced," &c. without reference to the citizens of this or any other state. Under the letter and spirit of the act, the suit ought to be brought within six years, or the plaintiff should shew himself within the proviso. If the legislature choose to pass a law, the court cannot say they have no right to do so; and it is to be observed, that this statute is only a continuance of a