holder of a promissory note six years within which to sue, besides the nine months within which he is restrained from suing.1

1 Dowell v. Webber, 2 Smedes & Mar. (Miss.) R. 452. [Abbott v. McElroy, 10 S. & M. (Miss.) 100; Tarver v. Cowart, 5 Ga. 66; Lawton v. Bowman, 2 Strob. (S. C.) 190; Lewis v. Broadwell, 3 McLean, (U. S.) 568. In New York, eighteen months after the death of the decedent are by statute deducted from the running time. 2 R. S. p. 448, § 8. If, by the provisions of a statute, the debtor cannot be sued, the statute of limitations ceases to run against the creditors. Planters' Bank v. Bank of Alexandria, 10 G. & J. (Md.) 246. Trover against a thief lies until the expiration of the statutory limitation after the termination of the prosecution, as, before that time, he cannot be sued. Hutchinson v. Bank of Wheeling, 41 Penn. St. 42. And see post, § 196, note.]

CHAPTER VIII.

LEX LOCI ET LEX FORI.

64. It is a principle of public law, perfectly beyond the reach of judicial controversy, that personal contracts are to have the same validity, interpretation, and obligatory force, in every other country, which they have in the country where they are made or are to be executed. "The convenience and the necessities," says Mr. Justice Story," of the civilized and commercial world render it indispensable that this principle should be adopted in the earliest national intercourse; and it would not be easy to trace a period when it was not tacitly adopted as a pledge of public as well as private confidence. An exception, coeval with the rule itself, and resting on the same foundation, is, that no nation is bound to enforce or hold valid any contract which is injurious to its own rights or those of its citizens, or which offends public morals, or violates the public faith." 1

65. Another rule, as is laid down by the same authority, equally well settled, is, that remedies on contracts are to be regarded and pursued according to the law of the place where the action is instituted, and not by the law of the place where the contract is made; 2 and hence the common law is, in respect to statutes of limitation, that the time of limitation of actions upon contract depends on the law of the kingdom or state in which the action is brought (lex fori), and not on the law of the kingdom or state where the contract is made (lex loci contractus). "Several questions," says a learned Scotch writer," arise from the different prescriptions established in different countries. In our decisions upon this head, the case is commonly stated as if the question were, whether a foreign prescription, or that of our own country, ought to be the criterion. This should never be made a question; for our own

1 Le Roy v. Crowninshield, 2 Mason, (Cir. Co.) R. 157. Also, see Bulger v. Roche,

11 Pick. (Mass.) R. 36; [Ruckmaboge v. Mottecund, 32 Eng. L. & Eq. 84.]

2 Ibid. and Story on Conflict of Laws, 482; [State v. Swope, 7 Ind. 91; Gassaway v. Hopkins, 1 Head, (Tenn.) 583; Flowers v. Foreman, 23 How. (U. S.) 132; Walworth v. Routh, 14 La. Ann. 205; Putnam v. Dike, 13 Gray, (Mass.) 535.]

prescription must be the rule, in every case that falls under it, and not the prescription of any other country."1 By the comity existing between nations, foreigners, it is very clear, can pretend to no claim to molest any other independent community than their own, in contesting stale and doubtful claims; and with as little propriety can they claim, in such community, the remedies, and the times and modes of enforcing them, established by the policy of their own government. Such being the doctrine, the respective States under our general government may, in virtue of their reserved sovereignty, limit the time for remedies even upon the judgments of courts of other States, and altogether bar, by statute, suits upon such judgments, if not instituted within the time prescribed by the statute. The first English authority, that statutes of limitation go ad litis ordinationem, and not ad litis decisionem, is a case in equity, in 1705, where, to a bill of discovery of assets, and satisfaction of the plaintiff's debt, which was a judgment obtained in France, the English statute of limitation was pleaded, and was allowed by the Lord Keeper; and, upon a rehearing, the decree was confirmed. The question was afterwards made at law before Lord Ellenborough, who, in pronouncing judgment, and adverting to the argument, said: "It is said that parties who have contracted abroad return to this country with the same rights only which they had in the country where they so contracted; and, generally speaking, that is so, that is, if the rights of the contracting parties be extinguished by the foreign law by the happening of certain events. But here there is only an extinction of the remedy in the foreign court according to the law stated to be received there, but no extinction of the right; and there is no law or authority, that where there is an extinction of the remedy only in the foreign court that shall operate by comity as an extinction of the remedy here also. If it go to the extinction of the right itself, the case may be different."5 The case, however, finally turned upon another point, namely, that it was within the saving of the statute

1 Principles of Equity, by Lord Kames, vol. 2, p. 353.

2 Enlightened and eminent jurists, and celebrated publicists, a Grotius, Puffendorf, and Wolfius, have maintained that the law of prescription is founded in morals, and was derived from the law of nature; that it is a thing of policy, growing out of the experience of its necessity, is universally admitted.

8 M'Elmoyle v. Cohen, 13 Peters, (U. S.) R. 312.

4

* Dupleix v. De Roven, 2 Vern. Ch. R. 540, 541; Raithby's note (3).

5 Williams v. Jones, 15 East, R. 439.

of limitations. But the general doctrine, as stated by Lord Ellenborough, is fully recognized by all the other judges; and this and the preceding case, as to the general doctrine, have never since been departed from in England.1

66. One of the earliest cases in this country upon the subject is Nash v. Tupper, in the State of New York,2 where, to an action on a note, the plea of the statute of limitations of six years of New York, was pleaded, and the plaintiff replied, that the contract was made in Connecticut, where the limitation was seventeen years. Upon the demurrer to this replication, the court held it bad, and the plea in bar good. In this case, it will be observed, that the limitation fixed by the law of the place where the contract was made had not expired. So, in an appeal from the court of sessions, in Scotland, to the House of Lords, one of the points decided was, that a solicitor in London suing a debtor in Scotland for costs of conducting an appeal in England, was a case in which the triennial prescription of the law of Scotland prevailed, when the term of prescription or limitation in England by the statute of James was twice that length of time. But a different case is presented from either of the foregoing, if the action has become barred entirely by the lapse of time prescribed by the law of the place where the contract was made. In such a case, where all remedies are barred by the lex loci contractus, Mr. Justice Story, in Le Roy v. Crowninshield, stated the inclination of his mind to be, that "there is a virtual extinction of the right in that place, which ought to be recognized in every other tribunal, as of equal validity." He does not decide so, though he shows that it is not

5

1 See Le Roy v. Crowninshield, 2 Mason, (Cir. Co.) R. 159, 177.

2 Nash v. Tupper, 1 Caines, (N. Y.) R. 402; [Perry v. Lewis, 6 Fla. 555.]

8 Campbell v. Stein, 8 Dow's Parl. R. 116.

4 Le Roy v. Crowninshield, 2 Mason, (Cir. Co.) R. 151.

5 [And this view has been countenanced in some of our courts. See post, § 67, note at the end. But in the case of Townsend v. Jemison, 9 How. (U. S.) 407, decided in 1850, the counsel for the plaintiff in error having undertaken to persuade the court to adopt the view to which the late Mr. Justice Story seems at one time to have been inclined, the court took occasion to review the whole subject, and the result was the affirmation of the doctrine laid down in Le Roy v. Crowninshield, and McElmoyle v. Cohen, in an elaborate opinion delivered by Mr. Justice Wayne. The question was, whether the cause of action, having accrued in Mississippi, and been completely barred there, the bar of the Mississippi statute might not be pleaded in a court of Louisiana. The court say:

"The rule in the courts of the United States, in respect to pleas of the statutes of limitation, has always been, that they strictly affect the remedy, and not the merits. In

without countenance from the civilians; and though he reasons, that where no right of action subsists by the lex loci contractus,

the case of M'Elmoyle v. Cohen, 13 Peters, 312, this point was raised, and so decided. All of the judges were present and assented. The fullest examination was then made of all the authorities upon the subject, in connection with the diversities of opinion among jurists about it, and of all those considerations which have induced legislatures to interfere and place a limitation upon the bringing of actions.

"We thought then, and still think, that it has become a formulary in international jurisprudence, that all suits must be brought within the period prescribed by the local law of the country where the suit is brought, the lex fori; otherwise the suit would be barred, unless the plaintiff can bring himself within one of the exceptions of the statute, if that is pleaded by the defendant. This rule is as fully recognized in foreign jurisprudence as it is in the common law. We then referred to authorities in the common law, and to a summary of them in foreign jurisprudence. Burge's Com. on Col. and For. Laws. They were subsequently cited, with others besides, in the second edition of the Conflict of Laws, 483. Among them will be found the case of Leroy v. Crowninshield, 2 Mason, 151, so much relied upon by the counsel in this case.

"Neither the learned examination made in that case of the reasoning of jurists, nor the final conclusion of the judge, in opposition to his own inclinations, escaped our attention. Indeed, he was here to review them, with those of us now in the court who had the happiness and benefit of being associated with him. He did so with the same sense of judicial obligation for the maxim, Stare decisis et non quieta movere, which marked his official career. His language in the case in Mason fully illustrates it: 'But I do not sit here to consider what in theory ought to be the true doctrines of the law, following them out upon principles of philosophy and juridical reasoning. My humbler and safer duty is to administer the law as I find it, and to follow in the path of authority, where it is clearly defined, even though that path may have been explored by guides in whose judgment the most implicit confidence might not have been originally reposed.' Then follows this declaration: 'It does appear to me that the question now before the court has been settled, so far as it could be, by authorities which the court is bound to respect. The error, if any has been committed, is too strongly engrafted into the law to be removed without the interposition of some superior authority.' Then, in support of this declaration, he cites Huberus, Voet, Pothier, and Lord Kames, and adjudications from English and American courts, to show that, whatever may have been the differences of opinion among jurists, the uniform administration of the law has been, that the lex loci contractus expounds the obligations of contracts, and that statutes of limitation prescribing a time after which a plaintiff shall not recover, unless he can bring himself within its exceptions, appertain ad tempus et modum actionis instituendæ and not ad valorem contractus. Williams v. Jones, 13 East, 439; Nash v. Tupper, 1 Caines, 402; Ruggles v. Keeler, 3 Johns. 263; Pearsall v. Dwight, 2 Mass. 84; Decouche v. Savetier, 3 Johns. Ch. 190, 218; McCluny v. Silliman, 3 Peters, 276; Hawkins v. Barney, 5 Peters, 457; Bank of the United States v. Donally, 8 Id. 361; McElmoyle v. Cohen, 13 Id. 312.

"There is nothing in Shelby v. Guy, 11 Wheaton, 361, in conflict with what this court decided in the four last-mentioned cases. Its action upon the point has been uniform and decisive. In cases before and since decided in England, it will be found

1 Casaregis Disc. 179, § 60; 1 Domat, b. 3, § 4, art. 1; Strahan's translation, ed. 1737, and art. 10 of the same book and §; Ersk. Inst. b. 3, tit. 7, § 48, ed. 1812; Huberus, lib. 1, tit. 3, § 7; Voet, ad Pand, lib. 44, tit. 3, § 12.