38 Vt. 500 | Vt. | 1866
The opinion of the court was delivered by
The domicile of both parties to this action was in the state of New York, when the claim, which the plaintiff seeks to enforce, accrued, and has been ever since. The plaintiff had an opportunity to plead this claim in off-set, in a former suit between him and the defendant, in that state. That opportunity he neglected to improve. The auditor finds, that on account of this neglect, the
As a general rule, laws of remedy are local in their operation. Matters relating to the remedy are governed by the law of the country, where the suit is brought, while questions, upon the original validity, and the interpretation of a contract, are determined by the laws of the place, where it is made, unless it is entered into with a view to performance in another country. Bank v. Donally, 11 Curtis, 130, (from 8 Peters, 872;) Wilcox v. Hunt, 13 Curtis, 212, (13 Peters, 379;) Robinson v. Bland, 2 Burrows, 1077; Prentiss v. Savage, 13 Mass. 23. It is true"that our courts, like those of most countries, have refused to enforce the payment of a foreign debt, which has by the foreign insolvency law been regularly discharged. Peck v. Hibbard, 26 Vt. 698. But it is to be remembered, that statutes of insolvency provide in express terms for the discharge of the obligation, and that the matter is adjudicated, in a competent court, upon petition, notice, proof, aud a regular course of judicial proceedings, ending in a judgment, or decree of discharge. See 2 New York Statutes at Large, p. 17, § 1, p. 20, § 22, Edmund’s Edition. It is often said that such debts cannot be enforced, because, though unpaid, they are extinguished. This is the language of Judge Story, and perhaps of some decisions. Story’s Conflict, § 338, et passim. The expression is open to criticism; for debts so discharged have been uniformly held to be capable of becoming a valid consideration of a new promise, even in the country where the discharge is granted. Farmers & Mechanics v. Flint, 17 Vt. 508; 1 Parsons’ Contracts, p. 308, and cases cited; Maxim v. Morse, 8 Mass. 127. If a debt can be revived, it is not extinguished. The expression is used for the purpose of bringing such discharges within the operation of the lex loci contractus, and destroying the analogy between them, and statutory bars to a recovery, which have been held to be remedial laws. But the most manifest reason, for holding valid a foreign discharge in bankruptcy, seems to be, that the rules of comity
In the last case cited, Shaw, Ch. J., decides the remainder of the question, left open by Story, J , in the case LeRoy v. Crowningshield, 2 Mason Circuit Ct. Rep. 151, in reviewing his former opinion in 1 Gal. R. 371. It may therefore be now regarded as settled that the fact of the parties being .domiciled abroad does not give force to a foreign statute of limitation, a doctrine which has never received much approval. This statute relates to the remedy. It does not make an element of the original contract. It by no means follows, that because a person has lost a remedy in one state, he may not have it in another. If he has a debt unpaid, and undischarged, the question, whether he has a remedy, or in the. words of the statute, whether he can “ maintain any action thereon,” or plead the same in offset, must be determined by the law of the forum, in which he seeks relief. See Story’s Conflict, § 575; Ruggles v. Keeler, 3 Johns. 263. For these reasous, we think the disability of the plaintiff under the New York statute, cannot be considered in ascertaining his right of recovery here.
The judgment of the couLty court is reversed, and the account is allowed.