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the case of Thompson v. Powles, it is now the received doctrine at Westminster Hall, that the rate of interest on loans is to be governed by the law of the place where the money is to be used or paid, or to which the loan has reference; and that a contract made in London to pay in America, at a rate of interest exceeding the lawful interest in England, was not a usurious contract, for the stipulated interest was parcel of the contract. This is also the law in this country, and it appears to be a liberal relaxation of the rigour of the former rule. But if the bond, or other security, be taken in England no higher rate of interest than English interest can be allowed, though the debt be secured by a mortgage executed abroad, upon real property abroad, and the bond and mortgage specify the foreign rate of interest. The courts considered that if the rule was otherwise it would contravene the policy of the law, and sap the foundations of the statute of usury. But on this subject of conflicting laws, it may be generally ob
mortgage. The principle now established in Louisiana and New York is, that the place where the contract was made, determines its validity as to interest, though made payable in another state or country, where the rate of interest is lower. This principle has much to recommend it for reasonableness, convenience, and certainty, except in cases where the whole arrangement was evidently and fraudulently intended as a mere cover for usury.
2 2 Simon's Rep. 194. See, also, Harvey v. Archbold, 1 Ryan. $ Mood. 184. Hosford v. Nichols, 1 Paige's Rep. 220. Pecks v. Mayo, 14 Vermont Rep. 33. S. P.
• Andrews v. Pond, 13 Peters, 65. See supra, N. C. The general principle is, that as to contracts merely personal, their construction is governed by the law of the place where they were made; the consequences of their breach by that of the country where they are enforced. Cooper v. The Earl of Waldegravo, 2 Beavan, 282.
• The rule turns upon the question of fact, where was payment of the money under the contract to be made. Stapleton v. Conway, 1 Vesey, 428. 3 Atk. Rep. 727. S. C. Connor v. Earl Bellamont, 2 Atk. Rep. 382. Dewar v. Span, 3 Term Rep. 425. Do Wolf v. Johnson, 10 Wheaton, 383. The statute of 14 Geo. III. allowed securities on lands abroad to reserve foreign interest, though executed in England: but that statute was taken strictly, and held not to extend to personal contracts.
served that there is a stubborn principle of jurisprudence that will often intervene, and act with controlling efficacy. This principle is, that when the lex loci contractus and the lex fori, as to conflicting rights acquired in each, come in direct collision, the comity of nations must yield to the positive law of the land. In tali conflictu magis est ut jus nostrum quam jus alienum servemus.a
*(2.) Remedies upon contracts and their inci- *462 dents are regulated and pursued according to the law of the place where the action is instituted, and the lex loci has no application. Actor sequitur forum rei. The lex loci acts upon the right; the lex fori on the remedy. This is the rule in all civilized countries; and it has become part of the jus gentium.b The comity of nations is sufficiently satisfied, in allowing to foreigners the use of the same remedies, and to the same extent, that are afforded to the citizens of the state. Though the person of the debtor should therefore be exempted from redress by the lex loci, yet personal arrest will be permitted, if it be the practice according to the lex fori. If a party be discharged from imprisonment only, he remains liable to arrest for the same debt in another state ; for imprisonment relates only to the remedy, which forms
a Huberus, 1. 3. 11. Lord Ellenborough, in Potter v. Brown, 5 East's Rep. 131. Saul v. His Creditors, 17 Martin's Louis. Rep. 569. If a contract to be performed in a foreign country, be invalid or void by the law of the country where it was made, then the rule of international law cannot prevail that the law of the place where the contract is to be performed, is to govern. Story J. in 3 Story's Rep. 484.
b Story on the Conflict of Laws, p. 811. and sect. 556. Bank of United States v. Donnally, 8 Peters' U. S. Rep. 361. Trasher v. Everhart, 3 Gill & Johns. 234. The authorities, both foreign and domestic, for this clearly established doctrine, are collected in Story's Comm. on the Conflict of Laws, p. 468—473. The doctrines in the text are ably stated and illustrated in the case of Pickering v. Fisk, 6 Vermont Rep. 102, where it was truly observed by Mr. Justice Phelps, in giving the opinion of the court, that what appropriately belongs to the contract, and what to the remedy, is not always a question of easy solution.
no part of the contract.a In his quæ respiciunt litis decisionem, servanda est consuetudo loci contractus. At in his que respiciunt litis ordinationem attenditur consuetudo loci ubi causâ agitur.b Upon the principle that the time of limitation of actions is governed by the lex fori, a plea of the statute of limitations of the state where the contract is made, is no bar to a suit brought in a foreign court to enforce the contract; though a plea of the statute of the state where the suit is brought is a valid bar, even though brought upon a foreign judgment, provided the time of the residence of the party brings him within
the time prescribed by the statute. The period • 463 "sufficient to constitute a bar to the litigation of
stale demands, is a question of municipal policy and regulation, and one which belongs to the discretion of every government, consulting its own interest and convenience. Though the foreign statute of limitations
Lodge v. Phelps, 1 Johns. Cas. 139. Smith v. Spinolla, 2 Johns. Rep. 198. White v. Canfield, 7 Ibid. 117. Sicard v. Whale, 11 Ibid. 194. Whittemore v. Adams, 2 Cowen's Rep. 626. Hinkley v. Marean, 3 Mason's Rep. 88. Titus v. Hobert, 5 Ibid. 378. Woodbridge v. Wright, 3 Conn. Rep. 523. Atwater v. Townsend, 4 Ibid. 47. Wood v. Malin, 5 Halsted's Rep. 208. Morris v. Edes, 11 Martin's Louis. Rep. 730. Webster v. Massey, 2 Wash. Cir. Rep. 157. British Linen Co. v. Drummond, 10 Barnw. f. Cress. 903. De la Vega v. Viana, 1 B. J Adolph. 284. Story on the Conflict of Laws, p. 478, 479, 480. Timby v. Vigier, 1 Bing. N. C. Rep. 151.
• Ranchin sur Guipape, Quæst. 162, cited in Emerig. Des. Ass. ch. 4. sec. 8, who sanctions the distinction, and collects the opinions of the foreign jurists under this branch of the law, with his usual variety and immensity of erudition. Mr. Lausset, in a note to his edition of Fonblanque's Treatise of Equity. Phil., 1831, p. 658–671, has also digested and classified the leading English and American authorities on the subject of the lez loci, with accuracy and ability. As to the extent in which the modes of proof, and the law of ovidence of the lex loci or of the lex fori are carried the foreign jurists hold different doctrines ; and questions under this head are deemed by Mr. Justice Story to be unsettled and embarrassing. Some maintain, that the lex fori, and others, that the lex loci contractus, must regulate the authenticity and admission of the instrument and modes of proof. Story's Comm. on the Conflict of Laws, p. 523—527.
M'Elmoyle v. Cohen, 13 Peters, 312.
may have closed upon the demand before the removal of the party to the new jurisdiction, yet it will be unavailing. The statute of limitations of the state, in whose courts a suit is prosecuted must prevail in all actions.a To guard, however, against the inconvenience of sustaining and enforcing stale demands, not yet barred by a residence under the change of domicil, a presumption of payment will be indulged, and may attach to, and destroy the right of recovery.b
In respect to remedies, there are properly speaking, three places of jurisdiction, (1.) The place of domicil of the defendant, commonly called the forum domicilii ; (2.) The place where the thing in controversy is situate, commonly called the forum rei site; (3.) The place where the contract is made or the act done, commonly called the forum rei gestæ or forum contractus. Not only real but mixed actions, such as trespasses upon real
· Estes v. Kyle, 1 Meig's Tenn. Rep. 34. If the time of prescription in the country where the parties resides, goes not only to bar the remedy, but to render the contract absolutely void, the better opinion is that the debt itself will also be held to be extinguished by the lex fori as well as by the lex loci contractus. Story on the Conflict of Laws, 487. Huber v. Steiner, 2 Bing. N. S. 211.
b Hub De Conflictu Legum, sec. 7. Voet, ad Pand, 44. 3. 12. Lord Kames' Equity, b. 3. ch. 8. sec. 4. Duplein v. De Roven, 2 Vern. Rep. 540. Nash v. Tupper, 1 Caines' Rep. 402. Ruggles v. Keeler, 3 Johns. Rep. 263. Pearsall v. Dwight, 2 Mass. Rep. 84. Hall v. Little, 14 Ibid. 203. Williams v. Jones, 13 East's Rep. 439. The British Linen Company v. Drummond, 10 B. f. Cressu. 903. Decouche v. Savetier, 3 Johns. Ch. Rep. 218. Medbury v. Hopkins, 3 Conn. Rep. 472. Graves v. Graves, 2 Bibb. Rep. 207. Le Roy v. Crowninshield, 3 Mason's Rep. 151. Union Cotton Manufactory v. Lobdell, 19 Martin's Louis. Rep. 108. Ersk. Institutes, vol. ii. p. 581, sec. 48. Pothier, in his Traité de la Prescription, n. 251, and other foreign jurists, think that the lex loci, and not the lex fori, ought to govern in this case ; but the contrary conclusion is too well settled to be now questioned. Story's Comm. on the Conflict of Laws, p. 482-487. In Harrison v. Stacy, 6 Robinson Rep. 15, a resident of Mississippi sued in Louisiana on a note barred by the limitation laws of Mississippi, and it was held that the claim barred there by the laws of Mississippi was barred in Louisiana also.
property, are properly referable to the forum rei site.a But the court of chancery, having authority to act in personam will act indirectly, and under qualifications, upon real estate situate in a foreign country by reason of this authority over the person, and it will compel him to give effect to its decrees, by a conveyance, release or otherwise, respecting such property.b
• Skinner v. East India Company, cited in Cowp. Rep. 168. Doulson v. Matthews, 4 Term Rep. 503. Livingston v. Jefferson, 4 Hall's L. J. 78. Story on the Conflict of Laws, 448, 449, 466, 467. An injury to real property is local as to jurisdiction, Watts v. Kinney, 6 Hill, N. Y. Rep. 82. Trespass on real property situated in one state cannot be sued for in another state.
bLord IIardwicke, in Foster v. Vassall, 3 Atk. Rep. 589. 1 Eq. Cas. Abr. 133. C. Earl of Athol, 1 Ch. Ca. 221. Archer v. Preston, 1 Eq. Ca. Abr. 133. 1 Vern. 77. S.C. Arglaso v. Murchamp, 1 Vern. Rep. 75. 135. Earl of Kildare v. Eustace, Ibid 419. Penn v. Lord Baltimore, 1 Ve. sey, 444. Lord Cranstown v. Johnson, 3 Vesey, 182, 183. White v. Hall, 12 Vesey, 323. Lord Portarlington v. Soulby, 3 Mylne f Keen, 104. Bunbury v. Bunbury, in chancery, 1839. Massie v. Watts, 6 Cranch, 148. 160. Briggs v. French, 1 Sumner's Rep. 504. Church of Macon v. Wiley, 2 Hills S. C. Ch. Rep. 586. The court will sustain a jurisdiction in equity in cases of fraud, trust, and contract, when the person is duly within their process and jurisdiction, although lands not within the jurisdiction of the court, might be affected by the decree. Story on the Conflict of Laws, p. 454—457. Ib.on Equity Inrisprudence, vol. ii. 48, 49. 185. The court of chancery in New York, in Ward v. Arredondo, 1 Hopkins' Rep. 213, Mead v. Merritt, 2 Paige's Rep. 402, Mitchell v. Bunch, 2 Ib. 606, Shattuck v. Cassidy, 3 Edwards' N. Y. Ch. Rep. 152, and Sutphen v. Fowler, 9 Paige's Rep. 280, and of Virginia, in Farley v. Shippen, Wythe's Rep. 135, and Humphrey v. M'Clenachan, 1 Munf. Rep. 501, have declared and enforced the same doctrine. If the court had acquired jurisdiction of the person by his being within the state, they will compel him, by at. taclıment, to do his duty under his contract or trust, and enforce the decree, in rem, by his executing and conveyance or otherwise, as justice may require, in respect to lands abroad. White v. White, 7 Gill J. Johnson, 208. Vaughan v. Barclay, 6 Wherton, 392. Watkins v. Holman, 16 Peters' Rep. 25. If the court has jurisdiction in case of a proceeding in rem over the property, it exercises it though the owner be a non-resident or a foreign corporation, or sovereign. Clarke v. N. J. Steam Navig. Co., 1 Story's Rep. 53). To give jurisdiction, either the defendant or the property attached must be within the state when process is served. A cor. poration has no legal existenco out of the state creating it, and the service