CHAPTER V.

PROCEDURE.

DE LA VEGA v. VIANNA.

KING'S BENCH. 1830.

[Reported 1 Barnewall & Adolphus, 284.]

LORD TENTERDEN, C. J.1 This was an application to discharge the defendant, who had been arrested upon mesne process, out of custody on filing common bail. The plaintiff and defendant were both foreigners; the debt was contracted in Portugal, and it appears that, by the law of that country, the defendant would not have been liable to arrest. It is contended on the authority of Melan v. The Duke de Fitzjames, 1 B. & P. 139, that he is entitled to the relief now sought. We are, however, of opinion, that he is not. In the case just mentioned, the distinction taken by Mr. Justice Heath, who differed from the other judges, was, that in construing contracts the law of the country in which they are made must govern, but that the remedy upon them must be pursued by such means as the law points out where the parties reside. This doctrine is said to correspond with the opinions of Huber and Voet. I have not had an opportunity of looking into those authorities, but we think, on consideration of the present case, that the distinction laid down by Mr. Justice Heath ought to prevail. A person suing in this country must take the law as he finds it; he cannot, by virtue of any regulation in his own country, enjoy greater advantages than other suitors here, and he ought not therefore to be deprived of any superior advantage which the law of this country may confer. He is to have the same rights which all the subjects of this kingdom are entitled to. The rule must be discharged. Rule discharged.2

1 The opinion only is given; it sufficiently states the case. - ED.

2 Acc. Imlay v. Ellefsen, 2 East, 453; Atwater v. Townsend, 4 Conn. 47; Smith v. Spinolla, 2 Johns. 198; Anon. (Austria, 12 Dec. 1876), 8 Clunet, 176. — ED.

[Reported Law Reports, 10 Queen's Bench, 276.]

ACTION by the plaintiffs against the defendant for the breach of an agreement to build a ship.

The material part of the agreement, which was set out in the declaration, was as follows:

"Glasgow, July 15th, 1874. Messrs. Caird & Co., shipbuilders, Greenock, agree to build for Messrs. James and George Bullock & Co., London, who agree to accept an iron sailing ship of the following dimensions, &c." Throughout the agreement the parties were mentioned as Caird & Co. and Bullock & Co.

Plea, that there was a trading partnership or firm domiciled and carrying on business in Scotland by the name of Caird & Co., and the alleged agreement was an agreement made in Scotland by the plaintiffs with the firm, and was to be performed wholly in Scotland without the jurisdiction of the English courts and within the jurisdiction of the Scotch courts, and by the law of Scotland the firm was and is a separate and distinct person from any or the whole of the individual members of whom it consists and of whom the defendant was and is one, and the firm, by the law of Scotland, is capable of maintaining the relation of debtor and creditor separate and distinct from the obligation of the partners as individuals, and can hold property, and has the capacity of suing and being sued as such separate person by its name of Caird & Co., and the alleged agreement was made by the firm as such separate person and not jointly and severally by the individual members thereof; that at the date of the agreements the firm consisted of certain individuals, namely, the defendant James Tennant Caird and Patrick Tennant Caird, and has always since consisted and still consists of the same members, and the firm and each of its individual members then was and always since has been and still is domiciled and carrying on business in Scotland, and within and subject to the jurisdiction of the Scotch courts and possessed of sufficient property and funds, within and subject to the jurisdiction to answer in full the claim of the plaintiffs; that by the law of Scotland the defendant became and was, as a partner of the firm of Caird & Co., on the making of the agreement, liable to the plaintiffs for the satisfaction of any judgment which might be obtained against the firm or the whole of the individual partners thereof jointly for any breaches of the agreement; and save as aforesaid no liability by the law of Scotland attached or attaches to the defendant in respect of the agreement; that by the law of Scotland it is a condition precedent to any individual liability attaching to the defendant or any individual members of the firm in respect of the agreements that the firm as such person as aforesaid or the whole individual partners thereof jointly

should first have been sued, and that judgment should have been re covered against the firm or the whole of the said partners jointly, and that the plaintiffs have not sued the firm of Caird & Co. nor the whole of the partners jointly, nor recovered judgment against it or them. Demurrer to the plea and joinder.1

BLACKBURN, J. It is quite clear that the firm of Caird & Co. are not a body corporate. The plea alleges that the firm, or the whole individual partners thereof jointly, should first have been sued. If one of the members of the firm was not joined it might be a bar to an action in Scotland, but it could only be pleaded in abatement in an action in England. I think all the matters stated in the plea are mere matter of procedure, and that the plea is bad.

MELLOR and Field, JJ., concurred.

Judgment for the plaintiffs.3

LE ROY v. BEARD.

SUPREME COURT OF THE UNITED STATES. 1849.

[Reported 8 Howard's Reports, 151.]

WOODBURY, J. This was an action of assumpsit for money had and received; and also counting specially, that, on the 17th of November, 1836, the original defendant, Le Roy, in consideration of $1,800 then paid to him by the original plaintiff, Beard, caused to be made to the latter, at Milwaukie, Wisconsin, a conveyance, signed by Le Roy and his wife, Charlotte. This conveyance was of a certain lot of land situated in Milwaukie, and contained covenants that they were seized in fee of the lot, and had good right to convey the same. Whereas it was averred, that, in truth, they were not so seized, nor authorized to convey the premises, and that thereby Le Roy became liable to repay the $1,800.

Under several instructions given by the Circuit Court for the Southern District of New York, where the suit was instituted, the jury found a verdict for the original plaintiff, on which judgment was rendered in his favor, and which the defendant now seeks to reverse by writ of error. Among those instructions, which were excepted to by the

1 Arguments of counsel are omitted. - ED.

2 Acc. Taft v. Ward, 106 Mass. 518; Henry Briggs Sons & Co. v. Niven (Antwerp, 22 July, 1893), 21 Clunet, 1080. See Carnegie v. Morrison, 2 Met. 381. So of the question whether an assignee of a chose in action may sue in his own name. Roosa v. Crist, 17 Ill. 450; Foss v. Nutting, 14 Gray, 484; Lodge v. Phelps, 2 Cai. Cas. 321; see Levy v. Levy, 78 Pa. 507. Whether an assignee for creditors may sue in his own name. Glenn v. Marbury, 145 U. S. 499; Osborn v. First Nat. Bank, 175 Pa. 494, 34 Atl. 858. So of suit by a married woman in her own name. Stoneman v. Erie Ry., 52 N. Y. 429. — ED.

defendant, and are at this time to be considered, was, first, that "the action of assumpsit is properly brought in this court, upon the promises of the defendant contained in the deed, if any promises are made therein which are binding or obligatory on the defendant."

The conveyance in this case was made in the State of Wisconsin, and a scrawl or ink seal was affixed to it, rather than a seal of wax or wafer. By the law of that State, it is provided, that "any instrument, to which the person making the same shall affix any device, by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed."

But in the State of New York it has been repeatedly held (as in Warren v. Lynch, 5 Johns. 239) that, by its laws, such device, without a wafer or wax, are not to be deemed a seal, and that the proper form of action must be such as is practised on an unsealed instrument in the State where the suit is instituted, and the latter must therefore be assumpsit. 12 Johns. 198; 2 Hill, 228, 544; 3 Hill, 493; 1 Denio, 376; 5 Johns. 329; Andrews et al. v. Herriott, 4 Cowen, 508, overruling Meridith v. Hinsdale, 2 Caines, 362; 4 Kent, 451; 8 Peters, 362; Story's Conflict of Laws, 47. A like doctrine prevails in some other States. 3 Gill & Johns. 234; Douglas et al. v. Oldham, 6 N. H. 150.

It becomes our duty, then, to consider the instruction given here, in an action brought in the Circuit Court of New York, as correct in relation to the form of the remedy. It was obliged to be in assumpsit in the State of New York, and one of the counts was special on the promise contained in the covenant. We hold this, too, without impairing at all the principle, that, in deciding on the obligation of the instrument as a contract and not the remedy on it elsewhere, the law of Wisconsin, as the lex loci contractus, must govern. Robinson v. Campbell, 3 Wheat. 212.1

HAMILTON v. SCHOENBERGER.

SUPREME COURT OF Iowa. 1877.

[Reported 47 Iowa, 385.]

THE petitioner alleges that a judgment had been entered against him in the Benton District Court on a "judgment note," upon confession of judgment by an attorney of the court, not authorized to appear for him except by the power contained in the note; and asks that the judgment be declared void and cancelled. The defendants demurred to this petition. The demurrer was overruled, and judgment was rendered can

1 Acc. Thrasher v. Everhart, 3 G. & J. 234; Broadhead v. Noyes, 9 Mo. 55; Andrews v. Herriott, 4 Cow. 508. See Williams v. Haines, 27 Ia. 251. ED.

celling the judgment in favor of defendants against plaintiff. The defendants appeal.1

DAY, C. J. So far as we are advised it has never been the understanding of the profession nor of the business community in this State that warrants of attorney to confess judgment had any place in our law. A confession of judgment pertains to the remedy. A party seeking to enforce here a contract made in another State must do so in accordance with the laws of this State. Parties cannot by contract made in another State engraft upon our procedure here remedies which our laws do not contemplate nor authorize.

We are fully satisfied that the demurrer to the petition was properly overruled. Affirmed.

MINERAL POINT RAILROAD CO. v. BARRON.

SUPREME COURT OF ILLINOIS. 1876.

[Reported 83 Illinois, 365.]

CRAIG, J. Under the laws of Wisconsin, had the proceedings been instituted in that State, the wages of the defendant in the original action were exempt from garnishment, and it is urged by appellant, that, as the parties resided in that State and the debt was there incurred, the exemption laws of Wisconsin must control, although the proceedings for the collection of the debt were commenced in this State.

It is true, the validity of a contract is to be determined by the law of the place where it is made, but the law of the remedy is no part of the contract, as is well said by Parsons on Contracts, vol. 2, page 588: "But on the trial, and in respect to all questions as to the forms or methods, or conduct of process or remedy, the law of the place of the forum is applied."

In Sherman v. Gassett, 4 Gilman, 521, after referring to a number of cases in illustration of the rule, it is said: "The cases above referred to, although not precisely analogous, yet settle the principle that the lex loci only governs in ascertaining whether the contract is valid, and what the words of the contract mean. When the question is settled that the contract of the parties is legal, and what is the true interpretation of the language employed by the parties in framing it, the lex loci ceases, and the lex fori steps in and determines the time, the mode, and the extent of the remedy."

Statutes of limitations fixing the time within which an action may be brought, laws providing for a set-off in certain actions, and statutes providing that certain articles of personal property, wearing apparel,

1 The statement of facts has been abridged, and part of the opinion omitted.-ED. 2 Part of the opinion only is given. — ED.