Distinction

as to statute extin

debt.

§ 538. But a different question arises as to the effect, on a suit brought in England or the United States, of the bar of a foreign statute of limitations which goes not merely to suspend the right of action, but to extinguish the guishing debt. Suppose the obligor and the obligee are domiciled in such foreign country while the obligation was incurred, and during the whole period of the running of the statute. Is the statute, in such cases, a bar? Judge Story 1 argues that it is. And this conclusion is correct. Where a debt is subject to the jurisdiction of a state, such state, on the reasoning above given, has power to limit or even extinguish such debt.3

utes bind

as to

debts due

subjects.

§ 539. Admitting, however, that a statute thus extinguishing a debt is effective everywhere, so far as concerns debts Such statsubject to the state enacting the statute, the question next to be considered is, What constitutes subjection, in this sense, of a debt to a state? And the answer must be that debts payable to a domiciled citizen of a state are subject to the legislation of such state, but subject to no other legislation. Hence we must hold that where a statute of limitations extinguishes all debts due subjects of the enacting state, such debts are everywhere extinguished. And this view is accepted by Fiore,5 Savigny, and Demangeat.7

may avail himself of foreign statute of limitation, see Davis v. Harper, 48 Iowa, 513.

1 § 582, citing Beckford v. Wade, 17 Ves. 88; Huber v. Steiner, 2 Bing. (N. C.) 202; Newby v. Blakeley, 3 Hen. & Mun. 57; Brent v. Chapman, 5 Cranch, 358; Shelby v. Guy, 11 Wheat. 361. But see Lord Dudley v. Warde, Ambler R. 113. Compare Don v. Lippman, 5 Cl. & F. 1, and cases cited supra, § 536. The same view is taken in Gans v. Frank, 36 Barb. 320; and in Rucks v. Taylor, 47 Miss. 191.

2 Lincoln v. Battelle, 6 Wend. 475; Brown v. Parker, 28 Wis. 21.

Supra, § 536; Ang. on Lim. § 66.

4 Supra, §§ 359, 526.

5 Op. cit. § 295.

Nor can such debts be after

where re

§ 540. If a debt is thus extinguished in the state to one of whose subjects it is due, it cannot be afterwards revived in another state. Of this rule the following illustrawards else- tion may be given. The Act of Congress of 1870, c. vived. 59, regulating the rate of interest in the District of Columbia, allows the recovery back of all interest paid when more has been exacted than is permitted by the act, provided suit be brought for such purpose within one year after such payment. This statute may be regarded as extinguishing a claim for the recovery of usurious interest unless suit be brought within a year. A case was litigated in Maryland in 1876, in which the defendant pleaded as a set-off, usurious interest alleged to have been paid to the plaintiff by the defendant when both were domiciled in the District of Columbia. The court held that the right to recover the illegal interest being given by the act of Congress must be subject to the terms prescribed by that act as to the time within which the right must be asserted, and that the sums being paid by the defendant in the District of Columbia more than one year before the filing of the plea of set-off, could not be abated from the plaintiff's claim.2

§ 541. It has been determined, both in England and the alent in France. See Demangeat s. and that such being the case the law Fœlix, i. p. 241; Massé, 3d ed. p. of the debtor's domicil is the only 590. But see Jour. du droit int. privé, law that can be applied. In a re1874, p. 333, giving a judgment of view of the first edition of my work, the French Court of Cassation, that however, published by this eminent in such cases the lex domicilii of the jurist in 1873 (p. 35), he states that debtor is to prevail. This may be his opinion in this respect is now under the French Code. But under changed; and he now holds that the our system the lex domicilii of the law which is to determine as to the creditor must, as in the parallel case extinction of an obligation must be the of bankruptcy, be its standard. And law under which this obligation is conthe weight even of French authority stituted, which is the creditor's domnow is that the lex domicilii of the icil. creditor determines.

Prof. Bar, in his work on Private International Law, took the ground that the lex domicilii of the debtor was to supply the rule as to the outlawry (Verjährung) of obligations. The reason given was that the statutes of limitations, thus outlawing obligations, are for the relief of debtors,

1 Eastwood v. Kennedy, 44 Md. 563. 2 Stewart, J., in his opinion, cited De Wolf v. Johnson, 10 Wheat. 367; Varick v. Crane, 18 N. J. Ch. (3) Green) 128; Smith v. Bank, 29 Ind. 258; Newman v. Kershaw, 10 Wis. 333; Turpin v. Powell, 8 Leigh, 93; Goodman v. Munks, 8 Port. 84; Fears v. Sykes, 35 Miss. 633.

United States, that the restrictions and limitations im- Limitations posed by the lex fori apply to a suit brought on a for- eign judg eign judgment.1

bind for

ment.

§ 541 a. So far as concerns its own domiciled citizens, it is within the power of a state, subject to its own consti- Distinctive tutional prescriptions, to prescribe other lines of lim- visions. itation than that based on the domicil of the debtor.2

state pro

not extra

§ 542. A statute which provides that a party shall be "precluded from maintaining any action upon a claim," Statutes as which he has neglected to plead in a former suit with to set-offs the party against whom he has the claim, has been territorial. ruled to be local, so that it cannot be pleaded as a defence to claims due in other jurisdictions; though it would be otherwise when the defendant in the former suit appeared at the trial, and the set-off was not one which he was at liberty to reserve.4

3

to statute

f

tions applies to foreigners.

§ 543. The statute of the fourth of Anne (c. 16, s. 19), which has been adopted in most of the United States, enacts Exception that if any person against whom there shall be a cause of action shall, at the time when such cause of action accrues, be beyond the seas, then the action may be brought at any time within six years after his return. This has been construed to apply to foreigners, so that the statute does not begin to run as to them until they arrive in the state in which such statute is in force.5 And this view obtains even where the defendant had, prior to his personal arrival, a business agent in the state where the suit was brought.6

§ 544. In New York it has been decided, after a long struggle, that a foreign corporation sued in that state cannot avail itself

1 Don v. Lippman, 5 Cl. & F. 1; McElmoyle v. Cohen, 13 Peters, 312; Loveland v. Davidson, 3 Penn. L. J. R. 377. Infra, § 646.

2 State v. Todd, 1 Biss. 69; Van Dorn v. Bodley, 38 Ind. 402; Harris v. Harris, 38 Ind. 403; Gillett v. Hill, 32 Iowa, 220; Hoggett v. Emerson, 8 Kan. 262.

3 Infra, § 788; Carver v. Adams, 38 Vt. 500. See Whart. on Ev. §§ 789

et seq.

4 Whart. on Ev. §§ 789-91.

5 Strithorst v. Græme, 3 Wilson, 142; 2 W. Bl. 723; Lafonde v. Ruddock, 13 C. B. 839; Dunning v. Chamberlin, 6 Vt. 127; Graves v. Weeks, 19 Vt. 178; Hall v. Little, 14 Mass. 203; Chomqua v. Mason, 1 Gallis. 342; Ruggles v. Keeler, 3 Johns. 263; King v. Lane, 7 Mo. 241; Tagart v. State, 15 Mo. 209. See U. S. v. O'Brien, 3 Dill. 381.

6 Wilson v. Appleton, 17 Mass. 180; 3 Parsons on Cont. (5th ed.) 96. 553

Question

of the New York statute of limitations. But this is a matter of distinctive legislation. If a foreign corporation be admitted at all as a party, it is, at common law, entitled to all the privileges the lex fori gives.

as to for

eign corporations.

In Germany the

law of the obligation prevails.

§ 545. The views of English and American courts, as has been seen, are based on the principle that questions of limitation as touching the remedy, are to be determined by the lex fori. But it is important to observe, in reference to suits brought in Germany, that in that country, at least, the principle so enunciated does not prevail. It is held by Savigny, following, in this respect, Wächter, Schäffner, and Hertius, that the local law of the obligation itself, and not that of the place where the suit is brought, is to obtain. But however worthy these opinions may be of consideration, they cannot now affect the conclusion of our courts, that as to the statute of limitations the lex fori must prevail. The rule is now too firmly settled to be shaken.

XI. ASSIGNMENT OF OBLIGATIONS.

§ 546. The assignment of obligations is discussed in other sections as follows:

By what law obligations are to be assigned, §§ 359–372.
How negotiable paper is transferred, §§ 447 et seq.
Whether assignee can sue, §§ 735 et seq.

1 Thompson v. Tioga R. R. 36 Barbour, 79; overruling Faulkner v. Delaware & Raritan Canal Co. 1 Denio, 141.

2 Savigny, Röm. Recht, v. § 237; Hert. De Collisione Legum, § 65; 554

Wächter, ii. p. 408; Schäffner, ii. § 87. On this subject reference may be made to the remarks of Lord President Campbell (Watson v. Benton, Bell's (8vo) Ca. 108), cited in Guthrie's Savigny, p 221.

CHAPTER IX.

SUCCESSION, WILLS, AND ADMINISTRATION.