Powles, (a) 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, (b) and it appears to be a liberal relaxation of the rigor 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

New York, at the New York rate of interest, and it was held that the mortgage was a valid security for the bond, and that the usury law of England was no defence. Chancellor Walworth fully concurred in the decision of Depau v. Humphreys, in Louisiana, and held, that if the contract was made in New York, upon a mortgage here, it was not a violation of the English usury law, though the money was made payable to a creditor in England. The contract was made in New York, in reference to the laws of New York, and must be governed by them. New York was the domicil of the debtor. The mortgage gave locality to the contract, within the intent and meaning of the parties, and it must be governed by the lex loci rei sitæ. Had it been a mere personal contract, without any mortgage, the conclusion might possibly have been otherwise, though I think the conclusion in the case is, that the English law of usury would not have been a defence; for in the Louisiana case there was no 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.1

(a) 2 Simons's Rep. 194. See also Harvey v. Archbold, Ryan & Mood. 184. Hosford v. Nichols, 1 Paige's Rep. 220. Pecks v. Mayo, 14 Vermont Rep. 33, S. P. (b) 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 Waldegrave, 2 Beavan, 282.

'Fisher v. Otis, 3 Chandler, 83. When the usury laws of the state, where the contract is made, only impose a penalty, not avoiding the contract, they will not be applied if the suit is brought in another state. Watriss v. Pierce, 32 N. H. 560. See infra, p. [462.]

statute of usury. (a) But on this subject of conflicting laws it may be generally observed 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. (b)

*462

* (2.) Remedies upon contracts and their incidents 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. (c) 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 per

(a) 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. De 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. (b) 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.

(c) Story on the Conflict of Laws, p. 811, and sec. 556. Bank of United States v. Donally, 8 Peters's 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 Com. on the Conflict of Laws, pp. 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.

1 This rule has been discussed with ability and learning, in a late case in Connecticut, Wood v. Watkinson, 17 Conn. R. 500.

If an action be brought in any state upon a contract not under seal, but which, in the state where made, has the force and effect of a sealed instrument, the maxim, actor sequitur forum rei applies, and the form of the action must be appropriate to an unsealed instrument. Le Roy v. Beard, 8 How. U. S. 451.

son 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 no part of the contract. (a) In his quæ respiciunt litis decisionem, servanda est consuetudo loci contractús. At in his quæ respiciunt litis ordinationem, attenditur consuetudo loci ubi causa 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. (c)1

(a) 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. Hobart, 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. Eves, 11 Martin's Louis. Rep. 730. Webster v. Massey, 2 Wash. Cir. Rep. 157. British Linen Co. v. Drummond, 10 Barnw. & Cress. 903. De la Vegaa v. Vianna, 1 B. & Adolph. 284. Story on the Conflict of Laws, pp. 478, 479, 480. Trimby v. Vignier, 1 Bing. N. C. Rep.

151.

(b) 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. Laussat, in a note to his edition of Fonblanque's Treatise of Equity, Phil. 1831, pp. 658–671, has also digested and classified the leading English and American authorities on the subject of the lex loci, with accuracy and ability. As to the extent in which the modes of proof and the law of evidence 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 Com. on the Conflict of Laws, pp.

523-527.

(c) M'Elmoyle v. Cohen, 13 Peters, 312.

1 This subject has again come before the Supreme Court of the United States, and the doctrine of the case cited in the text, (13 Pet. 312,) was affirmed in a learned and elaborate opinion. Townsend v. Jemison, 9 How. U. S. 407. See also Nichols ads. Rogers, 2 Paine, C. C. 437.

*

463 The period 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 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 sita; (3.) The place where the contract is made, or the act

(a) Estes v. Kyle, Meig's Tenn. Rep. 34. If the time of prescription in the country where the parties reside, 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. C. 211.

(b) Hub. de Conflictu Legum, sec. 7. Voet, ad Pand. 44, 3. Lord Kames's Equity, b. 3, ch. 8, sec. 4. Dupleix v. De Roven, 2 Vern. Rep. 540. Nash v. Tupper, 1 Caines's 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. & Cresw. 903. Decouche v. Savetier, 3 Johns. Ch. Rep. 218. Medbury v. Hopkins, 3 Conn. Rep. 476. Graves v. Graves, 2 Bibb's 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 Com. on the Conflict of Laws, pp. 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.

1 In some of the states it is provided by statute that actions shall not be brought on demands which have been barred by the statutes of limitations of the states where they arose. See Ohio R. S. (1854) 629. Code of Iowa, (1851,) § 1665. Indiana Civ. Code, (1852,) § 216.

done, commonly called the forum rei gestæ, or forum contractus. Not only real but mixed actions, such as trespasses upon real property, are properly referable to the forum rei sitæ. (a) But the court of chancery, having authority to act in personam, will act indirectly, and under qualifications, upon real estate situated 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)

(a) 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.

(b) Lord Hardwicke, in Foster v. Vassall, 3 Atk. Rep. 589. 1 Eq. Cas. Abr. 133, C. Earl of Athol v. Earl of Derby, 1 Ch. Ca. 221. Archer v. Preston, 1 Eq. Ca. Abr. 133. S. C. cited in Arglasse v. Muschamp, 1 Vern. Rep. 75, 77, 135. Earl of Kildare v. Eustace, ibid. 419. Penn v. Lord Baltimore, 1 Vesey, 444. Lord Cranstown v. Johnston, 3 Vesey, 182, 183. White v. Hall, 12 Vesey, 323. Lord Portarlington v. Soulby, 3 Mylne & Keen, 104. Bunbury v. Bunbury, in chancery, 1839, 2 Beav. 173. Massie v. Watts, 6 Cranch, 148, 160. Briggs v. French, 1 Sumner's Rep. 504. Church of Macon v. Wiley, 2 Hill's 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, pp. 454-457. Ib. on Equity Jurisprudence, vol. ii. 48, 49, 185. The court of chancery in New York, in Ward v. Arredondo, 1 Hopkins's Rep. 213. Mead v. Merritt, 2 Paige's Rep. 402. Mitchell v. Bunch, 2 ib. 606. Shattuck v. Cassidy, 3 Edwards's 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 attachment, 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 & Johnson, 208. Vaughan v. Barclay, 6 Wharton, 392. Watkins v. Holman, 16 Peters's 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 nonresident, or a foreign corporation, or sovereign. Clarke v. N. J. Steam Navig. Co. 1 Story's Rep. 531. To give jurisdiction, either the defendant or the property attached must be within the state when process is served. A corporation has no legal

It has been lately decided in New Hampshire, that the courts of that state have jurisdiction of an action for damages brought against the selectmen of a town in Vermont, who had assessed an illegal tax upon the plaintiff's property in that town, in consequence of which he had been imprisoned. The form of the remedy in such cases was declared to be regulated by the laws of the state where the action is brought. Henry v. Sargeant, 13 N. H. Rep. 321. See Martin v. Hill, 12 Barb. R. 631.