43 Ky. 203 | Ky. Ct. App. | 1843
delivered, the opinion of the Court.
The parties seem to have gone to trial on an issue made up without objection, so far as appears, on'either side; and although the issue is not expressly taken on the point, whether there was or was not such a corporation as the President, Directors & Company of the Bank of Gallipolis, it may be regarded as substantially embracing that question, the affirmation of which was sufficiently established by the note itself, which is made payable to such a corporation. It may be further observed, that the matter of the plea, that there was no such corporation in existence being essentially matter in abate, ment and not in bar, and having been pleaded in bar, could not, in strictness, operate either in bar or abatement. We perceive no substantial error, therefore, in the judgment sought to be reversed. The principal questions intended to be raised on this record, arise on proceedings subsequent to the judgment, and which were of the following character:
The Bank of Gallipolis being an institution of the-State of Ohio, operating under its laws, the defendants, claiming the privilege under an act of the Legislature of that State to pay off the judgment in notes of said Bank, tendered them to the Sheriff in discharge of the execution in his hands, and on his refusal to receive them, tendered them to the Attorney of the plaintiffs and afterwards brought them into Court, and obtained a rule against the Sheriff and the plaintiffs to show cause why said notes should not be received and the execution returned satisfied. On the hearing, under the rule, the defendants in the action read two sections of the statute of Ohio, passed in 1824, entitled, ,!an act to regulate judicial proceedings
The bare statement of this question seems to dispense with the necessity of argument to establish a negative answer; for no principiéis better settled than that, while the law of the place of the contract is to govern its construction and determine the rights of the parties under it, the law of the forum is to govern with regard to the remedy and all its incidents. In support of this position, universally admitted, no reference to authority is necessary; and although the result of its application in some cases may be doubtful or difficult of ascertainment, there seems to be neither doubt nor difficulty in the question, whether a foreign law shall intervene to change the effect of a judgment, and to control the action of the executive officer in its execution. To allow this would be to give to the statute of Ohio an extra territorial operation, not merely with regard to the contract itself, which should be the same every where, but with regard to the remedy for enforcing the contract which must vary according to the law of the place where its enforcement is sought. It
It would not be competent for the ministerial officer, nor.even for the Court itself, as a common law Court, and on the mere motion of the defendant, to look behind the judgment and change its operation for the purpose of giving effect to aright of the defendant glowing out of the contract on which a judgment, not recognizing that right, had been rendered. But even in such a case as has been supposed, and certainly in the present case the remedy, if any there be, must be had by resorting to a tribunal which, operating directly upon the parties themselves, may compel the plaintiffs to submit to such modification of their rights, under the judgment, as in view of the rights of all parties concerned, equity and good conscience may prescribe.
Wherefore, the judgment and the order discharging the rule are affirmed.