2. The Rule as to Remedies upon Contracts. -All questions touching the remedy to be allowed upon a contract, and the proper course of enforcing it, are to be determined by the law of the place where suit is brought, according to their own forms of proceeding; but this should be in such a manner as to give effect to the contract according to the laws which gave it validity."

The remedy upon a contract, both in substance and form, must be regulated by the lex fori and not by the lex loci contractus,

Thornton v. Western Reserve Farmers' Ins. Co., 31 Pa. St. 529. Thus,an instrument, executed with a scroll seal, though considered a deed in the place of its execution, yet if sued on in a State where scrolls are not treated as seals, the remedy must be as upon an unsealed simpie contract. Bank of United States v. Donnally, 8 Pet. (U. S.) 361; Le Roy v. Beard, 8 How. (U. S.) 451; Warren v. Lynch, 5 Johns. (N. Y.) 239; Andrews v. Herriot, 4 Cow. (N. Y.) 508; Meredeth v. Hinsdale, 2 Caines (N. Y.), 362; Adam v. Kerr, 1 Bos. & Pull. 360. And a note with a scroll seal, if although treated as a simple contract in the State where made, yet if sued in a State where the scroll seals are valid it will be regarded as a specialty: Watson v. Brewster, 7 Pa. St. 381; Trasher v. Everhart, 3 Gill & J. (Md.) 234; Bank of United States v. Donnally, 8 Pet. (U. S.) 361.

4 Smith v. Atwood, 3 McL. C. C. 545; Jones v. Jones, 18 Ala. 248; Dundas v. Bowler, 3 McL. C. C. 397; Cox v. Adams, 2 Ga. 158; Brent v. Shouse, 15 La. Ann. 110; s. C., 79 Am. Dec. 573; De Sobry v, Laistre, 2 Har. & J. (Md.) 191; 8. c.,3 Am. Dec. 533; Dakin v. Pomeroy, 9 Gill (Md.), 1; Pitkin v. Thompson, 13 Pick. (Mass.) 64; Smith v. Pinolla, 2 Johns. (N. Y.) 198; Andrews v. Herriot, 4 Cow. (N. Y.) 508, note; Watson v. Brewster, 7 Pa. St. 381; Gulick v. Loder, 13 N. J. L. (1 Gr.), 68; Allen v. Watson, 2 Hill (S. C.), 819; McKissick v. McKissick, 6 Humph. (Tenn.) 75; Blane v. Drummond, 1 Brock. C. C. 62; Atlanta & Charlotte, etc. Ry. Co. v. Tanner, 68 Ga. 384; Bird v. Caritat, 2 Johns. 342; 8. C., 3 Am. Dec. 433; Holmes v. Remsen, 4 Johns. Ch. 460; 8. C., 8 Am. Dec. 581; Bank of the United States v. Donnally, 8 Pet. (U. S.) 361; Wilcox v. Hunt, 13 Pet. (U. S.) 378; Laird v. Hodges, 26 Ark. 356; Willard v. Wood (D. C.), 2 Cent. Rep. 675; Thornton v. Western Reserve Farmers' Ins. Co., 31 Pa. St. 529; Denny v. Faulkner, 22 Kan. 89; Alexandria Canal Co. v. Swann, 5 How. (U. S.) 83; Columbia Fire Ins. Co. v. Kinyon, 8 Vr. (N. J.) 33; Van Reimsdyke v. Kane, 1 Gall. C. C. 371; Hinkley v. Marean, 3 Mason, C. C. 88; Willard v. Dorr, 3 Mason, C. C. 91; Burchard v. Dunbar, 82 Ill. 450; Mumford v. Canty, 50 Ill. 370; Camfranque v. Burnell, 1 Wash. C. C. 340; Courtois v. Carpentier, 1 Wash. C. C 376; Webster v. Massey, 2 Wash. C. C. 157; Golden v. Prince, 3 Wash. C. C. 313; Bainbridge v. Wilcocks, Bald. C. C. 586; Nicolls v. Rodgers, 2 Paine C. C. 437; Scudder v. Union Nat. Bank, 91 U. S. 406, bk. 23 L. ed. 245. But see Payson v. Withers, 5 Biss. C. C. 269.

* Camfranque v. Burnell, 1 Wash. C. C. 340; Courtois v. Carpentier, 1 Wash, C. C. 376; Webster v. Massey, 2 Wash. C. C. 157; Golden v. Prince, 3 Wash. C. C. 313; Bainbridge v. Wilcocks, Bald. C. C. 536; Nicolls v. Rodgers, 2 Paine, C. C. 432.

even where the contract was to be performed in the place of making it."

Thus, whether or not an assignment of personal property without delivery of possession be fraudulent as to creditors, is a question of evidence determinable by the laws of the forum.a And the question whether an assignee can sue in his own name is sometimes a technical one, and sometimes one that is essential; when it is technical the lex fori is to decide. 7

A transfer of stock is governed by the lex fori as to the form of the transfer, but not as to the rights of parties under it. And the effect of a sale of personal property, under proceedings in attachment, must be determined by the lex fori.9

It has been held that a case of general average, settled in a foreign port, according to the local law, binds the rights of the parties, though it may differ from our own law.10

Where a collision occurs in a foreign port the rights of the parties depend on the foreign law." And where a person was killed by a collision on a railroad running through two States, it was held that the right of action was determined by the law of the State where the collision occurred.12

When by the laws of the foreign country, where a contract between its citizens was made, the creditor's right to proceed to the enforcement of his contract is suspended, the

6 Harker v. Brink, 4 Zab. (N. J.) 334; Wood v. Malin, 5 Hal. (N. J.) 208; Gulick v. Loder, N. J. L. (1 Gr.) 68; Armour v. McMichael, 7 Vr. (N. J.) 92, 94; Garr v. Stokes, 1 Harr. 403, 405; Murray v. Gibson, 2 La. Ann. 311; Roberts v. Wilkinson, 5 La. Ann. 370, 379; Bacon v. Dablgreen, 7 La. Ann. 600; Collins, etc. Co. v. Burkam, 10 Mich. 283.

6a Barton v. Bolton, 3 Phila. 369.

7 Glenn v. Bussey (D. C.), 4 Cent. Rep. 614. A creditor, domiciled in Illinois, there executed an assignment of a debt due from a resident of Minnesota and there payable. Before, to the debtor of the assignment, a creditor of the assignor attached the debt by service of a garnishee summons. Pending the proceedings the assignee appeared and was made a party thereto. The law of Minnesota makes an assignment of a chose in action complete without notice to the debtor. In Illinois the law is otherwise. It was held that the law of Minnesota must govern, the proceedings being there instituted, and there being the situs of the debt: Lewis v. Bush, 30 Minn. 244. 8 Burr v. Sherwood, 3 Bradf. (N. Y.) 85.

9 Green v. Van Busbkirk, 5 Wall. (72 U. S.) 307, bk. 18 L. ed. 599.

10 Peters v. Warren Ins. Co., 14 Pet. (U. S.) 99. 11 Smith v. Condry, 1 How. (U. S.) 28.

12 Chicago, St. Louis, etc. R. R. Co. v. Doyle, 60 Miss. 977.

tribunals of this country will give effect to the contract only accoring to such laws.18 And where overdue coupons on railroad bonds were stolen in the United States and purchased in Frankfort-on-the-Main by one who bought in good faith for value and sent them to New York for collection, the court held that the true owner could enjoin their payment to the purchaser and that the law of New York must control the law and usage existing in Frankfort.14

Questions of lien or priority among creditors relate to the remedy, and must be determined by the law of the forum,15 and an attorney's warrant to appear in a case must be executed in accordance with the lex fori. 16 It was held, in an action brought in New York on a promissory note made in Lower Canada and payable in England, "with interest, until paid in England," that interest is only to be calculated to the time of judgment, and that the plaintiff cannot recover the difference of exchange.17 The same court has held that, where a defendant is sued there for a debt contracted in a foreign country, the plaintiff is only entitled to recover the amount at the par of exchange.18

Where a contract is to be completed in foreign country, the compensation for which is payable in the money of account of that country, is deemed performable there, so far as the value of the currency of that country is to be estimated at the place of the forum.19 And in the absence of any finding to the contrary it will be assumed in favor of a judgment, in an action on a contract made in another State, that the lex loci is the same as the lex fori.20

3. As to Arrest on Foreign Contract.-It has been held that, in an action upon a contract made in a foreign country, the defendant may be held to bail, although by the lex loci contractus he would not be liable to ar

13 Camfranque v. Burnell, 1 Wash. C. C. 340. A contract which has been recognized as valid by the courts of another State, will not be enforced by the courts of New Jersey, if it is in violation of the public policy of that State: Union, etc. Co. v. Erie R. R. Co., 37 N. J. L. 23.

14 Wylie v. Speyer, 62 How. (N. Y.) Pr. 107.

15 Owens v. Daves, 15 La. Ann. 22; Le Prince v. Guillemot, 1 Rich. (S. C.) Eq. 187.

16 Commonwealth v. Peterson, 1 Clark (Pa.), 482. 17 Scofield v. Day, 20 Johns. (N. Y.) 102.

18 Martin v. Franklin, 4 Johns. (N. Y.) 124.

19 Brown v. Post, 6 Robt. (N. Y.) 111.

20 Chapin v. Dobson, 78 N. Y. 74.

It has been said that there is a broad distinction between a contract which ex directo excludes personal liability, and a contract made in a country which binds the party personally, but where the laws do not enforce the contract in personam but only in rem, for in the latter case the remedy constitutes no part of the contract, and the liability under it is general, so far as the acts of the parties. go, and the mode of enforcement is merely a matter of municipal regulation, and may be changed from time to time as the legislature may choose.2

23

The rule as settled in England and America seems to be that it is of no consequence whether the contract authorizes the arrest and imprisonment of the party in the country where it was made, if there is no exemption of the party from personal liability on the contract.24

The rule that the laws relative to the binding force of a contract form a part of the contract to secure the remedy to the creditor, does not extend so far as to carry the remedy into another jurisdiction, and regulate the mode of enforcement of a contract in an aetion in the courts of another State.25 And where the laws of two States are brought into conflict, the rule is that the laws prevailing where the relief is sought must have the preference.26

21 Bird v. Caritat, 2 Johns. (N⋅ Y.) 345; s. c. 3 Am. Dec. 433: Smith v. Pinolla, 2 Johns. (N. Y.) 198; Whittemore v. Adams, 2 Cow. (N. Y.) 626; Willings v. Consequa, 1 Pet. C. C.317; Courtois v. Carpentier, 1 Wash. C. C. 376; Wayman v. Southard, 10 Wheat. (U. S.) 1; De la Vega v. Vianna, 1 Barn. & Ad. 284; Don v. Lippmann, 5 Clark & Finn. 1, 15.

22 See Ohio Ins. Co. v. Edmondson, 5 La. 295, 300; Melan v. Fitzjames, 1 Bos. & Pull. 138; Talleyrand v. Boulanger, 3 Ves. 447; Flack v. Holm, 1 Jac. & Walk. 405; Liverpool Marine Credit Co. v. Hunter, L. R. 3 Ch. App. 479; 3 Burge, Comm. on Col. & For. Law, pt. 1, ch. 20, pp. 766, 768; Story, Confl. L. § 568, p. 709. 23 See Symonds v. Union Ins. Co., 4 Dall. (U. S.) 417; Ogden v. Saunders, 12 Wheat. (U. S.) 213; Melan v. Fitzjames, 1 Bos. & Pull. 142; Hinkley v. Marean, 3 Mason C. C. 88; Titus v. Hobart, 5 Mason C. C. 378.

24 Peck v. Hozier, 14 Johns. (N. Y.) 346; Smith v. Pinolla, 2 Johns. (N. Y.) 198, 200; Atwater v. Townsend, 4 Conn. 47; Woodbridge v. Wright, 3 Conn. 528, 526; Smith v. Healy, Conn. 49; Imlay v. Ellefsen, 2 East, 453; Robinson v. Bland, 2 Burr. 1077; De la Vega v. Vianna, 1 Barn. & Ad. 284.

25 Smith v. Atwood, 3 McL. C. C. 545.

26 Runyon v. Groshon, 1 Beas. (N. J.) 86; Taberrer v. Brentnall, 3 Harr. 262, 265.

Thus, where an action is brought in one State upon a contract made in another, the creditor's remedy by execution for satisfaction of the judgment is governed by the law existing in the State where the remedy is sought, at the time it is sought.27

Where interest is allowed, not under contract by the way of damages, the rate must be according to the lex fori.28 After judgment recovered, the rate of interest is governed by the lex fori.29 And in estimating the interest to be allowed on the judgment of another State, the common law is not presumed to have been in force in such State where it was never subject to the laws of England; in such case the laws of the State where suit is brought must govern.30

Questions of evidence are to be determined exclusively by the lex fori.31 And the mode of authenticating a foreign protest, so as to make it evidence, depends upon the lex fori.

82

The evidence by which a contract is to be proved is a part of the law of the remedy, not of the law of the contract; hence, the question whether a contract may be proved by parol or written evidence must be adduced, or whether parol evidence may be received to show the actual agreement of the parties to a blank indorsement of a negotiable instrument, must be determined by the law of the State where the action is brought, and not by that of the State where the contract was made. 33

4. Form of Judgments and Executions.The form of judgments to be rendered and of the executions to be issued, must conform to the lex fori, although the party defendant may, in his domestic forum, be entitled to a judgment exempting his person from imprisonment, by virtue of an insolvent law existing there, and of which he has taken the benefit.

27 Doe ex dem. Mathuson v. Crawford, 4 McL., C. C. 540, qualifying McCracken v. Hayward, 2 How. (U. S.) 608.

28 Goddard v. Foster, 17 Wall. (84 U. S.) 123, bk. 21 L. ed. 589.

29 Hoag v. Dessan, 1 Pittsb. (Pa.) 390.

30 Crone v. Dawson (Mo.), 7 West. Rep. 689.

31 Kirtland v. Wanzer, 2 Duer, 278; Bloomer v. Bloomer, 2 Brad. Ill. App. 339.

32 Bank of Rochester v. Gray, 2 Hill (N. Y.), 227. 33 Downer v. Chesebrough, 36 Conn. 39.

34 Woodbridge v. Wright, 3 Conn. 523, 526; Atwater v. Townsend, 4 Conn. 47; s. C., 10 Am. Dec. 97; Smith v. Healy, 4 Conn. 49; Hinkley v. Marean, 8 Mason C. C. 88; Titus v. Hobart, 5 Mason C. C. 378.

It matters not, it has been said, that the contract sued on was made in the State granting such discharge in bankruptcy, because the effect of such discharge is purely local, and is addressed solely to the courts of that jurisdiction. It cannot react or effect processes of courts in other States which are governed by their own rules and regulations; and wherever a remedy is sought the judgment obtained must be governed by the municipal jurisprudence of the State where suit is brought.35

5. Defenses Arising from Matters Ex Post Facto.-Defenses growing out of matters ex post facto may be in the nature of a counterclaim or set-off to an action, or may be matters of discharge, or the limitation of action. a. Counterclaim or Set-off.-It is held at common law, that a set-off to an action, allowed by the local law, is to be regarded as a part of the remedy, and may therefore be admissible by the lex fori, although not admissible by the law of the country where the contract was entered into.86 But where a defense inheres in the transaction itself, and does not arise out of something wholly distinct and independent, it may be set up wherever the contract is put in suit, and its effect must be determined by the lex loci contractus and not by the lex fori.87

b. Discharge.-The general rule is that a defense or discharge, which is good by the law of the place where the contract is made or to be performed, is to be held of equal validity wherever the question may be litigated. Thus, if infancy is a valid defense

35 Suydam v. Broadnaz, 14 Pet. (U. S.) 67; Toomer v. Dickerson, 37 Ga. 440; Dimick v. Brooks, 21 Vt. 569; Battey v. Holbrook, 11 Gray (Mass.), 212; Woodbridge v. Wright, 3 Conn. 523; Atwater v. Townsend, 4 Conn. 47; s. c., 10 Am. Dec. 97; Smith v. Healy, 4 Conn. 49; Hinkley v. Marean, 3 Mason C. C. 88; Titus v. Hobart, 5 Mason C. C. 378.

36 Ruggles v. Keeler, 3 Johns. (N. Y.) 263; s. c., 3 Am. Dec. 482; Carver v. Adams, 38 Vt. 502; Harrison v. Edwards, 12 Vt. 648; s. c., 36 Am. Dec. 364; Gibbs v. Howard, 2 N. H. 296; Bliss v. Houghton, 13 N. H. 126; Bank of Galliopolis v. Trimble, 6 B. Mon. (Ky.) 601. 37 Britton v. Bishop, 11 Vt. 70; Harrison v. Edwards, 12 Vt. 648.

38 See Bartsch v. Atwater, 1 Conn. 409; Atwater v. Townsend, 4 Conn. 47; 8. C., 10 Am. Dec. 97; Hempstead v. Reed, 6 Conn. 480; Houghton v. Page, 2 N. H. 42; s. C., 9 Am. Dec. 30; Dyer v. Hunt, 5 N. H. 401; Hall ▼. Broodman, 14 N. H. 38; Very v. McHenry, 29 Me. 214; Smith v. Smith, 2 Johns. (N. Y.) 235; s. c., 3 Am. Dec. 410; McMenomy v. Murray, 3 Johns. Ch. (N. Y.) 435, 440; Hicks v. Brown, 12 Johns. (N. Y.) 142; Andrews v. Herriott, 4 Cow. (N. Y.) 515n; Blanchard v.

41

by the lex loci contractus, it will be a valid defense everywhere.89 The same is true of a tender and refusal which amounts to a full discharge or present fulfillment of the contract by the lex loci contractus.40 And where by the lex loci equitable defenses may be set up by the maker of a negotiable instrument, any subsequent indorsement will not change this right in regard to the holder, who must take such instrument cum onere. Payment which is sufficient where made will be good everywhere.42 And where a payment by negotiable bills or notes is held to be a conditional payment by the lex loci, it will be so held where suit is brought, although by the lex fori such payment would be regarded as absolute. 43 Where by the law of a foreign country an accepted bill is but a qualified contract, it is governed by that law, although the rule be different in the lex loci.44 Accept-❘ ances are said to be demand contracts and governed by the lex loci contractus; and the same is true of indorsements.45

But this

Russell, 13 Mass. 1; s. C., 7 Am. Dec. 106; Prentiss v. Savage, 13 Mass. 20, 23; Baker v. Wheaton, 5 Mass. 511; Watson v. Bourne, 10 Mass. 337; 8. C., 6 Am. Dec. 129; Walsh v. Nourse, 5 Binn. (Pa.) 381; Van Reinsdyke v. Kane, 1 Gall. C. C. 371; Green v. Sarmiento, Pet. C. C. 74; Sturges v. Crowninshield, 4 Wheat. (U. S.) 122; Ogden v. Saunders, 12 Wheat. (U. S.) 213, 358; Potter v. Brown, 5 East, 124; Ballantine v. Golding, 1 Cooke Bankr. Laws, 397; Hunter v. Potts, 47 T. R. 182; Quin v. Keefe, 2 H. Black. 553; 2 Kent Comm. 392, 393, 459; Story, Confl. L. § 331, p. 415; Burge, Comm. on Col. & For. Law, pt. 2. ch. 21, §§ 1, 7, pp. 781, 886; Bell, Comm. B. 8, ch. 3, § 1267, p. 692 (4th ed.); Dwarris on Stat. pt. 2, 650, 651. See, to same effect, Væt ad Pand. Lib. 4, tit. 1 § 29, p. 240; Id. de Statut. Ch. 2, § 20, p. 275 (ed. 1715); Casaregis, Disc. 179, §§ 60, 61; Huberus, Lib. 1,tit. 3, §§ 3, 7; 2 Boullenois, obs. 46, p. 462; Molin Comm. ad Cod. Lib. 1, tit. 1, l. 1; Conclus. de Stat. Tom. 3, p. 354.

39 Thompson v. Ketcham, 8 Johns. 189; s. c., 5 Am. Dec. 332: Male v. Robers, 3 Esp. 163.

40 Warde v. Arell, 2 Wash. (Va.) 282, 293; s. c., 1 Am. Dec. 488.

41 Ory v. Winter, 16 Martin (La.), 277; Evans v. Gray, 12 Martin (La.), 475; Chartres v. Cairnes, 16 Martin (La.), 1.

42 Bartsch v. Atwater, 1 Conn. 409; Warder v. Arell, 2 Wash. (Va.) 282, 293; s. C., 1 Am. Dec. 488; Searight v. Calbraith, 4 Dall. (U. S.) 325.

43 Bartsch v. Atwater, 1 Conn. 409; Descadillas v. Harris, 8 Greenl. (Me.) 298.

44 Ellicott v. Early, 3 Gill (Md.), 439; Van Cleef v. Therasson, 3 Pick. (Mass.) 12; Burrows v. Jemino, 2 Str. 733; s. C., 2 Eq. Abridge. 525.

45 Shanklin v. Cooper, 8 Blackf. (Ind.) 41; Cooper v. Waldegrave, 2 Beav. 282; Lewis v. Owen, 4 Barn. & Ald. 654; Rothschild v. Currier, 2 Q. B. 43; Hirschfeld V. Smith, L. R. 1 C. P. 344. But see Short v. Trabul, 4 Met. (Ky.) 299; Carlisle v. Chambers, 4 Bush (Ky.), 273; Hunt v. Standar, 15 Ind. 33; s. C., 77 Am. Dec. 33.

general rule is subject to exceptions, which the various nations enforce according to their sense of justice.46 Thus, where the country in which a contract was made, by a general bankrupt law, authorizes a discharge of its subjects from all contracts made with foreigners, and also excludes such foreign creditors from all participation with domestic creditors in the bankrupt's assets, such law would not be enforced in the country of the foreign creditor's residence.47 Neither will courts give effect to the discharge of a foreign debtor under the laws of his domicil, where, under its own laws, the creditor had previously acquired a right to proceed against such foreign debtor's property within its territory.48 Thus, in the case of Wolf v. Oxholm, a two Danish subjects, one of them being domiciled in England, entered into a contract, and subsequently the debt was confiscated by the Danish government and paid into the public treasury. Suit was afterwards brought for the debt in an English court, where it was held that the confiscation by, and payment to the Danish government constituted no discharge. The ground on which the English court of King's Bench put their judgment was that the confiscation was not warranted by the law of nations.

The American doctrine seems to be that a discharge under the insolvent laws of one State is not valid against a creditor who is a citizen of another State, and was at the time the contract was entered into, although the contract was made and was to be performed in the State where the debtor received his discharge.49 And it is said that a State insolvent law discharging its citizens from contracts made in a foreign country, while binding on its own citizens 50 would not be binding anywhere else."1

46 Story, Confl. L. § 334, p. 417.

47 Blanchard v. Russell, 13 Mass. 1, 6; s. c., 7 Am. Dec. 106.

48 Hall v. Winchell, 38 Vt. 590; Tappan v. Poor, 15 Mass. 419: Le Chevalier v. Lynch, Doug. 170; Hunter v. Potts, 4 T. R. 182: Philips v. Hunter, 2 H. Black. 402.

48α 6 Maule & Sel. 92.

49 See Baldwin v. Hale, 1 Wall. (68 U. S.) 223, bk. 17 L. ed. 531; Fessenden v. Willey, 2 Allen (Mass.), 67; 8. c., 79 Am. Dec. 762; Kelley v. Drury, 9 Allen (Mass.), 27, reversing Scribner v. Fisher, 2 Gray (Mass.), 48. 50 See Penniman v. Meigs, 9 Johns. (N. Y.) 325; Babcock v. Weston, 1 Gall. C. C. 168; Murray v. De Rottenham, 6 Johns. Ch. (N. Y.) 52; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 471; s. c., 8 Am. Dec. 581. 51 Blanchard v. Russell, 13 Mass. 6; 8. C., 7 Am. Dee.

But where a contract is made between citizens of the same State within such State and the creditor afterwards removes to and becomes a citizen of another State, and the debtor, who continued to reside in the State where the contract was made, subsequently obtained a discharge under the insolvent laws of that States, which laws were in force at the time the contract was entered into, the creditor cannot afterwards enforce the contract in the State where the debtor resides and the contract was discharged. 52

It may be laid down as a general rule that, where, in a discharge in bankruptcy there is not any positive or virtual extinguishment of all rights and remedies of the creditor, the contract is not deemed to be extinguished. There is a marked difference between cases where by the lex loci contractus there is a direct or virtual discharge of the contract or extinguishment of the debt, and where there is only a partial extinguishment of the remedy thereon.58

By some insolvent laws there is an absolute discharge from all rights and remedies of the creditors and the whole contract extinguished; while others fall short of this extent and operation, in some cases only liberating the person from imprisonment, in others exempting particular portions of the property, and in yet others modifying the liabilities of both the person and property, and may be enforced in other countries. 55

54

106; Ellicott v. Early, 3 Gill (Md.), 39; Very v. McHenry, 29 Me. 208: Van Raugh v. Van Arsdaln, 3 Caine (N. Y.), 154; s. c., 2 Am. Dec. 259; Smith v. Smith, 2 Johns. (N. Y.) 235; 8. C., Am. Dec. 410; McMenomy v. Murray, 3 Johns. Ch. (N. Y.) 435; Smith v. Buchanon, 1 East, 6; Wolff v. Oxholm, 6 Maule & Sel. 92. 62 See Brigham v. Anderson, 1 Cush. (Mass.) 430; 8. C., 48 Am. Dec. 610; Converse v. Bradley, 1 Cush. (Mass.) 434, note; Stoddard v. Harrington, 100 Mass. 87. Judge Redfield says, in a note appended to the case of Baldwin v. Hale, 3 Am. Law Reg. (N. S.) 469, 470, that a discharge, under State insolvent laws, is not a bar to an action upon a promissory note given in and payable in the same State, where the discharge was obtained, and which in the terms is declared to be operative upon all contracts to be performed within that State; but that discharges, under the general bankrupt laws of the United States, have an universal operation throughout the Union, and are not embarrassed by any questions affecting discharges, under foreign bankrupt laws. But the judge cites no authorities in support of his assertion.

5 See Carver v. Adams, 38 Vt. 501; Story, Conf. L., § 338, p. 421.

4 See Morris v. Eves, 11 Martin (La.) 730; Mather v. Bush, 16 Johns. 233; s. c., 8 Am. Dec. 313; Phillips v. Allan, 8 Barn. & Cress. 477; 2 Kent Com., 389, 404;

A discharge of a contract by the law of the place where it is made is generally regarded as a discharge everywhere, without regard to the fact whether it is between citizens, between citizens and foreigners, or between foreigners.57

There are some cases, however, which lay down a more limited doctrine, and which ap pear to confine the universal discharge to the case where it is between citizens of the same State. 58

A discharge in bankruptcy in a State is a bar to an action elsewhere on a contract previously made by citizens of that State, although entered into and to be performed in a foreign country.59

Burge Comm. on Col. For. Law, pt. 2, ch. 22, pp. 886, 927; 1 Damat. Civ. Law B. 4, tit. 5, § 1.

55 See Boston Type Foundry v. Wallack, 8 Pick. (Mass.) 186; Coffin v. Coffin, 16 Pick. (Mass.) 323; Judd v. Porter, 7 Greenl. (Me.) 337.

56 See White v. Canfield, 7 Johns. 117; s. c., 5 Am. Dec. 249; Wright v. Paton, 10 Johns. (N. Y.) 300; Peck v. Hozier, 14 Johns. (N. Y.) 346; Tappan v. Poor, 15 Mass. 419; Boston Type Foundry v. Wallack, 8 Pick. (Mass.) 186; Marris v. Eves, 11 Martin (La.), 730; Judd v. Porter, 7 Greenl. (Me.) 337: Le Roy v. Crowninshield, 2 Mason C. C. 160; Hinkley v. Marean, 3 Mason C. C. 88; Titus v. Hobart, 5 Mason C. C. 378; James v. Allen, 1 Dall. (U. S.) 188; Walsh v. Nourse, 5 Binn. (Pa.) 381; Mason v. Haile, 12 Wheat. 270; Quin v. Keefe, 2 H. Black, 553; Phillips v. Allan, 8 Barn. & Cress. 479; Ex parte Burton, 1 Atk. 255.

57 See Smith v. Smith, 2 Johns. 235; s. c., 3 Am. Dec. 410; Sherrill v. Hopkins, 1 Cow. (N. Y.) 103, 107; Peck Hibbard, 26 Vt. 703 ;s. c., 62 Am. Dec. 605; Blanchard v. Russell, 13 Mass. 1; s. c., 7 Am. Dec. 106; May v. Breed, 7 Cush. (Mass.) 15; s. c., 54 Am. Dec. 700; Ory v. Winter, 16 Martin (La.), 277; Mason v. Haile, 12 Wheat. (U. S.) 310; Potter v. Brown, 5 East, 124; Robinson v. Bland, 1 W. Black. 258.

58 See Baker v. Wheaton, 5 Mass. 511; s. C., 4 Am. Dec. 71; Watson v. Bourne, 10 Mass. 337, 340; 8. C., 6 Am. Dec. 129; Beaynard v. Marshall, 8 Pick. (Mass.) 194. But see Blanchard v. Russell, 13 Mass. 1, 10, 12; s C., 7 Am. Dec. 106; Ory v. Winter, 16 Martin (La.), 277; Sherrill v. Hopkins, 1 Cow. (N. Y.) 103, 107; Peck v. Hibbard, 26 Vt. 702; s. C., 62 Am. Dec. 605.

59 Marsh v. Putnam, Gray (Mass.), 551, reviewing Ogden v. Saunders, 12 Wheat. (U. S.) 333; Sturges v. Crowninshield, 4 Wheat. (U. S.) 122; Blanchard v. Russell, 13 Mass. 7; s. c., 7 Am. Dec. 106; McMillan v. McNeill, 4 Wheat. (U. S.) 209; Farmers' & Mechanics' Bank of Pennsylvania v. Smith, 6 Wheat. (U.S.) 131 May v Breed, 7 Cush. (Mass.) 15; 8. C., 54 Am.