after stating the case, delivered the opinion of the court.
It is claimed on behalf of the plaintiff that by the law of Louisiana the pre-existing liability of Pritchard as surety for the railroad company would be a valid consideration to support the promise of indemnity, notwithstanding his liability had been incurred without any previous request from the defendant. This claim is not controverted, and is fully supported b.y the citations from the Civil Code of Louisiana of 1870, art) 1893-1960, and the decisions of the Supreme Court of that State.
Flood
v.
Thomas,
5 Mart. n. s. (La.) 560;
N. O. Gas Co.
v. Paulding, 12 Rob. (La.) 378;
N. O. & Carrollton Railroad Co.
v.
Chapman,
The single question presented by the record, therefore, is whether the law of New York or that of Louisiana defines and fixes the rights and .obligations of the parties. If the former applies^ the judgment of the court below is correct; if the latter, it is erroneous.
The argument in support of the judgment is simple, and may be briefly stated. It is, that New York is the place of the contract, both because it was executed and delivered there, and because no other place of pei’formance being either designated or necessarily implied, it was to be performed there; wherefore the law of New York, as the lex loci contractus, in both senses, being lex loci celebrationis and. lex loci solutionis, *129 must apply to determine not only the form of the contract, but also its validity.
On the other hand, the application of the law of Louisiana may be considered in two aspects: as t.he lex fori, the suit having been brought in a court exercising jurisdiction within its territory and administering its laws; and as the lex loei solur tionis, the obligation of the bond of indemnity being to place the fund for payment in the hands of the surety, or to repay him the amount of his advance, in the place where he was .bound'to discharge his own liability.
It will be convenient to consider the applicability of the law of Louisiana, first, as the lex fori, and then as the lex loei solutionis.
1. The lex fori.
The court below, in a cause like the present, in which its jurisdiction depends on the citizenship of the parties, adjudicates their rights precisely as should a tribunal of the State of Louisiana according to her laws; so that, in that sense, there is no question as to what law must be administered. But, in case of contract, the foreign law may, by the act and will of the parties, have become part of their agreement; and, in enforcing this, the law of the forum may find it necessary to give effect to a foreign law, which, without such adoption, would have no force beyond its own territory.
This, upon the principle of comity, for the purpose of promoting and facilitating international intercourse, ánd within limits fixed by its own public policy, a civilized State is accustomed and considers itself bound to do; but, in doing so, nevertheless adheres to its own system of formal judicial procedure and remedies. And thus the distinction is at once established between the law of the contract, which may be foreign, and the law of the procedure and remedy, which must be domestic and local. In respect to the latter the foreign law is rejected; but hów and where to draw the line of precise classification it is not always easy to' determine.
The principle is, that whatever relates merely to the remedy and constitutes part bf the procedure is determined by the law of the forum, for matters of process must be uniform in the courts of the same country; but whatever goes to the sub *130 stance of the obligation and affects the rights of the parties, as growing out of the contract itself, or inhering in it or attaching to it, is governed by the law of the contract.
The rule deduced by Mr. Wharton, in his Conflict of Laws, as best harmonizing the authorities and effecting the most judicious result, and which was cited approvingly by Mr. Justice Hunt in
Scudder
v.
Union National
Bank,
Whether an assignee of a chose in action shall sue in his own. name or that of his assignor is a technical question of mere process, and determinable by the law of the forum; but whether the foreign assignment, on which the plaintiff claims is valid at all, or whether it is valid against the defendant, goes to the merits and must be decided by the law in which' the case has its legal seat. Wharton, Conflict of Laws,, sects. 785, 736. Upon that point Judge Kent, in Lodge v. Phelps, 1 Johns. (N. Y.) Cas. 139, said: “ If the defendant has any defence authorized by, the law of Connecticut, let him show it, and he will be heard in one form of action as well as in the other.”
It is to be noted, however, as an important circumstance, that the same claim may sometimes' be a mere matter of process, and so determinable by the law of the forum, and sometimes a matter of substance going to the merits, and therefore determinable by the law of the contract. That is illustrated in the application of the defence arising upon the Statute of Limitations. In the courts of England and America, ■ that
*131
defence is governed by the law of the forum, as' being a matter of mere procedure; while in continental Europe the defence of prescription is regarded as going to the substance of the contract, and therefore as governed by the law of the seat of' the obligation. “ According to the true doctrine,” says Savigny, “ the local law of the obligation must determine as to the term of prescription, not that of the place of the action; and this rule, which has just been laid down in respect to exceptions in general, is further confirmed, in the case of prescription, by the fact that the various grounds on which it rests stand in connection with the substance of the obligation itself.” Private Inter. Law, by Guthrie, 201. In this view Westlake concurs. Private Inter. Law (ed. 1858), sect. 250. He puts it, together with the case of a merger in another cause of action, the occurrence of which will be determined by the law of the former cause,
Bryans
v. Dunseth, 1 Mart. n. s. (La.) 412, as equal instances of the liabilify to termination inherent by the
lex contractus.
But notwithstanding the. contrary doctrine of the courts of England and this country, when the Statute of Limitations of a particular country not only bars the right of action, but extinguishes the claim or title itself,
ipso
facto, and declares it a nullity, after the lapse of the prescribed period, and the parties have been resident within the jurisdiction during the whole of that period, so that it has actually and fully operated upon the case, it must be held, as it was considered by Mr. Justice Story, to be an extinguishment of the debt, wherever an attempt might be made to enforce it. Conflict of Laws, sect. 582. That rule, as he says, has in its support the direct authority of this court in
Shelby
v. Guy,
The principle that what is apparently mere matter of remedy in some circumstances, in others, where it touches the substance of the controversy, becomes matter of right, is familiar in our constitutional jurisprudence in the application of that provision of the Constitution which prohibits the passing by a State of any law impairing the obligation of contracts. For it has been uniformly held that1 “any law. which in its operation amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution.”
McCracken
v. Hayward,
Hence it is that a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Whether it springs from contract or from the principles of the common law, it is not competent for the legislature to take it away. A vested right to an existing defence is equally protected, saving only those which are based on informalities not affecting substantial rights, which do' not touch the substance of the contract and are not based on equity and justice. Cooley,'Const. Lim. 362-369. .
The general rule, as- stated by Story, is that a defence or discharge, vgood by the law of the place where the ■ contract is made or is to be’ performed, is to ■ be held of equal validity in every other place where the question, may come, to be litigated. Conflict of Laws, sect. 331. Thus infancy, if a valid defence by the
lex loci
contractus, will be a valid defence everywhere.
Thompson
v. Ketcham, 8 Johns. (N. Y.) 189;
Male
v. Roberts, 3 Esp. 163. A tender and refusal, good by the same law, either as a full discharge or as a present fulfilment of the contract, will be respected everywhere.
Warder
v.
Arell,
2 Wash. (Va.) 282. Payment in paper-money bills, or in other things, if good by the same law, will be deemed a sufficient payment everywhere.. 1 Brown, Ch. 376;
Searight
v.
Calbraith,
*133
4
Dall. 325;
Bartsch
v.
Atwater,
■ '.On the other hand, the law of the forum determines the form- of the action, as whether it shall be assumpsit, covenant, or- debt.
Warren
v.
Lynch,
5 Johns. (N. Y.) 239;
Andrews
v.
Herriot,
4 Cow. (N.Y.) 508;
Trasher
v.
Everhart,
3 Gill & J. (Md.) 234;
Adams
v.
Kers,
1 Bos. & Pul. 360;
Bank of the United States
v.
Donally,
Williams
v.
Haines,
If the proposition be sound, its converse is equally so; and the law-of the place where a suit may happen to be brought may forbid the impeachment of a contract, for want of a valid • consideration, which, by the law of the place of - the contract, might be declared invalid on that account.
•' We cannot, however, accept this conclusion. The question of consideration, whether arising ' upon the admissibility of evidence or presented as a point in pleading, is not one of procedure and remedy. It goes to the substance of the right itself, and belongs to the constitution of the contract. The difference between the law of Louisiana and that of New York, presented *136 in this case, is radical, and gives rise to the inquiry, what, according to each, are the essential elements of a valid contract, determinable only by the law of its seat; and not that other, what remedy is provided by the law of the place where the suit has been brought to recover for the breach of its obligation.
On this point, what was said in The Gaetano & Maria, 7 P. D. 137, is pertinent. In that case the question was whether the English law, which was the law of the forum, or the Italian , law, which was the law of the flag, should prevail, as to.the validity of. a hypothecation of the cargo by the master of a ship. It was claimed that because the matter to be proved was, whether there .was a necessity which justified .it, it thereby became a matter of procedure, as being a matter of evidence. Lord Justice Brett said: “Now, the manner of proving the facts is matter of evidence, and, to my mind, is matter of procedure, but the facts to be proved are not matters of procedure; they are-matters with which the procedure has to deal.”
It becomes necessary, therefore, to consider the applicability of the law of Louisiana as —
■ 2. The lex loei solutionis.
The phrase
lex loci contractus
is used, in a double sense, to
mean,
sometimes, the law of the place where a contract is entered. into; sometimes, that of the place of its performance. And when it is employed to describe the law of the seat of the obligation, it is, on that account, confusing. The law we are in search of, which is to decide upon the nature, interpretation, and validity of the engagement in question, is that which the parties have, either expressly or presumptively, incorporated into their contract as constituting its obligation. It has never been better described than it was incidentally by Mr. Chief Justice Marshall in
Wayman
v.
Southard,
261. It is upon this ground that the presumption rests, that the contract is to be performed at the place where it is made, and to be governed by its laws, there being nothing in its terms, or in the explanatory circumstances of its execution, inconsistent with that intention.
So, Phillimore says: “ It is always to be remembered that in obligations it is the will of the contracting parties, and not the law, which fixes the place of fulfilment — whether that place be fixed by express words or by tacit implication — as the place to the jurisdiction of which the contracting parties elected to submit themselves.” 4 Int. Law, 469.
The same author concludes his discussion of the particular topic as follows: “ As all the foregoing rules rest upon the presumption that the obligor has voluntarily submitted himself to a particular local law, that presumption may be rebutted, either by an express declaration to the contrary, or by the fact that the obligation is illegal by that particular law, though legal by ■ another. The parties cannot be presumed to have contemplated a law which would defeat their engagements.” 4 Int. Law, sect, dcltv. pp. 470, 471.
This rule, if universally applicable, which perhaps it is -not, though founded on the maxim, ut res magis valeat, quam pereat, would be decisive of the present controversy, as conclusive of the question of' the application of the law of Louisiana, by which alone the undertaking of the obligor can be’ upheld.
At all events, it is a circumstance, highly persuasive in its character, of the presumed intention of the parties, and entitled to prevail, unless controlled by more express and positive proofs of a contrary intent.
It was expressly referred to as á decisive principle in
Bell
v. Packard,
*138 If now we examine the terms of the bond of indemnity, and the situation and relation of the parties, we shall find conclusive corroboration of the presumption, that ■ the obligation was entered into in view of the laws of Louisiana.
The antecedent liability of Pritchard, as surety for the railroad company on the appeal bond, was confessedly contracted in that State, according to its laws, and it was there alone that it could be performed and discharged. Its undertaking was, that Pritchard should, in certain contingencies, satisfy a judgment of its courts. That could be done only within its territory and according to its laws. The condition of the obliga,tion, which is the basis of.this action, is, that'McComb and Norton, the obligors, shall hold harmless and fully indemnify Pritchard against all loss or damage arising from his liability as surety on the appeal bond. A judgment was, in fact, rendered against him on it in Louisiana. There was but one way in which the obligors in the indemnity bond could perfectly satisfy its warranty. .That was, the moment the judgment was rendered against Pritchard on the appeal bond, to come forward in his ’stead, and, by payment, to extinguish it. He was entitled to demand this before any payment by himself, and to require that the fund should be forthcoming at the place where otherwise he could be required to pay it. Even if it should be thought that Pritchard was bound to pay the judgment recovered • against himself, before his right of recourse accrued upon the bond of indemnity, nevertheless he was entitled to be reimbursed the amount of his advancé at the same place where he had been required to make it. So that it is clear, beyond any doubt, thát the obligation of the indemnity was to be fulfilled in Louisiana, and, consequently, is subject, in all matters affecting its .construction and validity, to the law of that locality.
This construction is abundantly sustained by the authority of judicial decisions in similar cases.
In Irvine v. Barrett, 2 Grant’s (Pa.) Cas. 73, it was decided that where a security is given in pursuance of a decree of a court of justice, it is to be construed according to the intention of the tribunal which directed its execution, and, in contemplation of law, is to be performed at the place where the court
*139
exercises its jurisdiction; and'that a bond given in another State, as collateral to such an obligation, is controlled by the same law which controls the principal indebtedness. In the case of
Penobscot & Kennebec Railroad Co.
v. Bartlett,
The case of
Cox
v.
United
States,
These cases were relied on by the Supreme Court of New York in Commonwealth of Kentucky v. Bassford, 6 Hill (N. Y.), 526. That was an action upon a bond executed in New York conditioned for the faithful performance of the duties enjoined by a law of Kentucky authorizing the obligees to sell lottery [tickets for the benefit of a college in that State. It was held that the stipulations of the bond were to be performed in Kentucky, and that, as it was -valid by the laws of that State, the courts of New York .would .enforce it, notwithstanding it would be illegal in that State.
Boyle
v.
Zacharie,
*141
The» very point was also decided by this court in
Bell
v.
Bruen,
We do not hesitate, therefore, to decide that the bond of indemnity sued on was entered into with a view to the law of Louisiana as the place for the fulfilment of its obligation ; and that the question of its validity, as. depending on the character and sufficiency of the consideration, should be determined by the law of Louisiana, and not that of New York. For.error in its rulings on this point, consequently, the judgment of the Circuit Court is reversed, with directions to grant a new trial.
New trial ordered.