Harrison v. Edwards,

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Notebook

| Vt. | Apr 15, 1840

The opinion of the court was delivered by

Redeield J.

— Although it does not appear in proof, in this case, at what time the note, now in suit, came into the hands of the plaintiff, the note, passing by delivery, will be presumed to have come to the plaintiff while it was still current, and before its maturity. Under this state of facts, by the rules -of the common law, which obtain in the state of New York, the defence offered cannot prevail. No payment made to the payee of a negotiable promissory note, while the same is not yet overdue, will avail the maker of the note, as against a bona fide holder for value, whose title accrued before the note became due.

But by the law of this state, then in force, such defences would avail the maker, although the law is otherwise in this state, at the present time. The defendant insists, that this law of Vermont will now avail him in his defence ; but the court think otherwise. All the parties to this note, at. the time of its execution, negotiation, g.nd payment, resided in the state of New York, where these several contracts were executed. It is obvious, then, that the law of that .state must govern those incidents.

*652It is a well settled rule, in regard to the construction of contracts, that their validity and extension, as well as performance or release, must be determined by the law of the place of contract. These incidents are to be determined by that law, for the reason that the parties are presumed to have contracted with reference to that law only, and, to determine these matters by the law of any other place, would be to contravene the probable intention of the parties. Hence, when the parties, although contracting in one country, are domiciled in another, where the contract is to be performed, the lex loci domicilii will prevail. And when the parties enter into a contract in one place, to be performed in another place, the matters of payment, tender, or release, will be governed by the lex loci solutionis.

It is true, indeed, that the mode of trial, by which is meant the form of pleading, the quality and degree of evidence, and the mode of redress, must always be determined by the law of the place of trial. No forum, in which a remedy is given to foreigners, or upon foreign contracts, is expected to adopt the forms of trial of the foreign country. Hence, in the present case, the mode of pleading or proving this payment, or set off, must be determined by our law now in force, and not the law in force at the time the transactions happened ; but the effect of the defence in precluding a recovery, whether as a payment or offset, must be determined by the lex loci contractus.

Judgment affirmed.