wages by the judgment in this

case.

In the case of Benson v. Swift (page 50), we observe the case of Mitchill v. Neal, Cowp. 828, cited by the counsel. That case was expressly over-ruled in Burgess v. Freelove, 2 Bos. & Pul. 425; but by some may be thought in some degree restored by English v. Purser, 6 East. Rep. 395.

In May v. Calder (page 55), it was decided, that the lease of an infant's land by his father, as natural guardian, is void. The expressions used by the court are very general; but we presume that they are to be referred to the facts of that particular case. In 1 Wooddeson, 459, 460, and authorities cited in note (1.) it is stated, that a guardian by nurture may at least make a lease at will. If it did not savour of too much nicety, we should in this case call the father guardian by nurture, rather than by nature, according to the distinction in Hargrave's note on Co. Litt. 88. b. note (13).

In Richardson and another in error v. Noyes and another (page 56), will be found a very elaborate opinion of the court, delivered by Mr. Justice Sedgwick, in which the doctrine of executory devises is discussed with great learning. At the close of it, we are furnish ed with a note of the argument of Mr. Parsons, of counsel for the defendants in error, which has been truly declared by the court to be very ingenious and very able.

In page 77 occurs a memoran. dum of the resignation of chief justice Dana, and we can truly say, in the words of the reporter, The remembrance of the impartiality, dignity, and learning, exhibited by him, will be long cherished by those, who have been concerned in the business of this court, while he

held a seat on the bench.' The Hon. Theophilus Parsons was ape pointed as his successor. May this gentleman, so long the distin guished ornament of the bar, for many years continue on the bench, et dulce decus et præsidium.

The case of Perkins v. Burbank (page 8:1), on a question of special pleading, we admitted with some hesitation; and had prepared a note of some length on the subject. But knowing, as we do, the peculiar eminence in this branch of law of the chief justice, who delivered the opinion of the court, and considering him entitled to the eulogy of the late lord Kenyon on baron Comyns, that he was the ablest pleader of his day in all Westminster hall,' we have feared a fallacy in our view of the case, and have suppressed it.*

6

In Pearsall and others v. Dwight and others (page 84), is a decision in conformity with the principles in Nash v. Tupper, 1 New-York Term Rep. 402. As it is of considerable importance, and strongly illustrates the doctrine of the operation of the lex loci on contracts, we shall quote in a subsequent

Lest however our doubt should appear wholly idle, we would refer to Webber v. Twill, 2 Saund. 227, Hum. phreys v. Churchman, B. R. H. 289, (this is usually cited, Cases in K. B. 7 to 10 Geo. II. temp. Hardwick), Freeman v. Hurst, 1 T. Rep. 40; 1 Tidd's Pr. 3d edit. 637 note (i); Lawes on Plead. app. 238 and note (2); and the note of serj. Williams in Manchester v. Vale, 1 Saund. 28, note 2; as shewing double, contain separate answers to dif that a replication may, without being ferent parts of an entire plea, provided the whole form but one complete an swer to the plea, and one entire sup port of the declaration; and that where does not contain an answer to the plea, the plea is entire, and the replication as it respects some counts in the declaration, such replication is bad.

our limits will admit. We shall then take our farewell with the recommendation of Horace to the professional student.

Si quid novisti rectius istis,

Candidus imperti; si non, his utere mecum.

Thomas Pearsall & al. v. Josiah Daight & al.

Assumpsit on a promissory note. As the pleadings in this case are fully stated in the opinion of the court as delivered by the Chief Justice, for the sake of brevity they are here omitted. The question on the pleadings was, whether to an action in this commonwealth on a promissory note made in NewYork and payable there, the plaintiffs being inhabitants of that state, and the defendants inhabitants of this commonwealth, a plea of the Statute of Limitations of the state of New-York was a good bar.'

The opinion of the court was afterwards delivered by

PARSONS, C. J. From the record in this cause the declaration appears to be on a negotiable cash note, payable by the defendants to the plaintiffs, or their order, on demand. To this declaration there is a plea in bar, alleging that the plaintiffs long before, at the time, and ever since the note was executed, were inhabitants of the state of New-York; that the note was there made; that before it was made, and six years before this action was commenced, there was a statute of that state still in force, which, among other things, limited the time of suing an action of this description to six years next after the cause of action accrued, which part of the statute is particularly pleaded with a profert of the exemplification of the whole statute, and there is the averment necessary to bring this acion within that statute.

The plaintiffs in the replication neither pray oyer of the exemplification of that statute, nor particufarly plead any exceptions made in it, but confess and would avoid the bar, by alleging that the defend

ants were, during all the time, inhabitants of this state.

The defendants, in their rejoinder, confess and would avoid the replication, by averring that, sincé the making of the note, and more than six years before this action was commenced, the defendants went and returned to the state of New-York, and were there ten days, with the knowledge of the plaintiffs.

To this rejoinder the plaintiffs demur generally, and the defendants join in demurrer. Whether this rejoinder be good, is the issue in law immediately before the court.

If the matters alleged in the replication are sufficient to avoid the bar, the rejoinder must be bad, because it neither traverses those matters; nor shews any provision of the statute of New-York, by which the effect of the replication is avoided by the collateral facts pleaded in the rejoinder.

For the same reason, if the matters alleged in the bar are sufficient in law, the replication must be bad, for the plaintiffs do not plead any exception in that statute,by which the bar, when confessed, may be avoided. Notwithstanding the profert of the exemplification of that statute, yet if it contained any exception, on which the plaintiffs intended to rely, they ought either to have prayed oyer and spread the whole statute upon the record, or to have particularly pleaded such exception in their replication, and then to have made the allegation necessary to bring their case within it. This reasoning is grounded on the opinion that, if that statute can avail in this court, when pleaded in bar, the bar cannot be avoided, but by virtue of some provision of the same statute. As the pleadings now are, the court cannot take notice of any parts of that statute, but of those which are particularly shewn in the bar.

Although the rejoinder be bad, yet if the replication is also bad, the defendants must have judgment, if the bar be good.

Thence the great question in the cause is, whether to an action commenced in a court in this state, by the plaintiffs, inhabitants of NewYork, on this note there executed, by the defendants, inhabitants of this state, the statute of limitations of the state of New-York can be pleaded in bar.

That the statute of another state cannot proprio vigore have the force of law in this state is very clear, and its effect in this court must depend on the laws of the commonwealth.'

It is a general rule,that personal contracts entered into, andto be performed in any one state, and which are there valid, are to be considered as valid in every other state.

This rule is founded on the tacit consent of civilized nations, arising from its general utility, and seems to be a part of the law of nations adopted by the common law.

To give effect to contracts of this description, is an act of comity due from the courts of the state in which such contracts may be sued to the state in which they may be made.

This rule is subject to two important exceptions. First, that neither the state in whose court the contract is put in suit, nor its citizens may suffer any inconvenience by giving the contract effect. And secondly, that the consideration of the contract be not immoral, and the giving it effect will not have a bad tendency. Under these exceptions, the cases, which do not come within the rule, may be classed.

The contract on which this action is founded is clearly within the rule. It was made in New-York, and might there be performed: The plaintiffs, when it was made, were inhabitants of that state, and so are the defendants to be considered in this cause by going and making the contract there: The contract, when made, was valid by the laws of New-York: The giving it effect here cannot be injurious to the Commonwealth, or its citizens, nor have an evil tendency: Vol. IV. No. 8.

3H

And the consideration is not immoral: The court are therefore obliged, by the laws of the Commonwealth, to consider it as a valid contract, according to the true construction of the rule.

The party claiming the benefit of the note in this case has sued it originally in a court in this state; the law of the state of New-York will therefore be adopted by the court, in deciding on the nature, validity, and construction of this contract. This we are obliged to do by our own laws. So far the obligation of comity extends, but it extends no farther. The form of the action, the course of judicial proceedings, and the time when the action may be commenced, must be directed, exclusively, by the laws of this Commonwealth.

These are matters not relating to the validity of the contract; and to permit the laws of another state to control the court in its proceedings concerning them, would intrench upon the authority of our own laws unnecessarily and for no principle of common utility. Cases may also be supposed, in which this permission might be injurious to our citizens. If the state, in which the contract was made, had no statute of limitations, then by the lex loci the action might there be commenced at any time, and if the plaintiff should afterwards remove to this state and commence his action in our court, the defendant would be deprived of the benefit of the limitations here in force. That the form of the action must be conformable to our laws, the case of Folliot vs. Ogden (7) is an authority. In giving the opinion of the court, Lord Loughborough considers it as law, that when a bond made in a foreign state, by whose laws it it assignable, is sued at law in England, the suit must be according to the laws of England, in the name of the obligee, and not of the assignee, although it be for his use, because, there, bonds are not assignable at law. As to

(7) 1 H. Blacks. 135,

the time when the suit may be commenced, no authorities in point have been cited from our books, nor do I recollect any :(8) but the subject has been considered by foreign jurists of great merit.

In the prelections of Huber, under the title De Conflictu Legum,(9) he states a case, in which an action was commenced in a court of Friesland, by an Hollander against a Frieslander, on a contract made in Holland, and the limitation, in force in Friesland, was pleaded against the action. The Hollander contended that it could not be pleaded against him, to that contract, which was to be decided by the lex loci, or the laws of Holland. But the judgment was against the Hollander. After mentioning another case upon execution, in which the lex loci was not allowed to govern, the author adds “Hac est ratio, quod prescriptio et executio non pertinent ad valorem contractûs, sed ad tempus et modum actionis instituenda, quæ per se, quasi contractum seperatumque negotium constitit; adeoque receptum est optima ratione, ut in ordinandis judiciis, loci consuetudo ubi agetur, etsi de negotio alibi celebrato, spectetur."

It is therefore the opinion of the court that the plea in bar is not good.

Consequently the judgment on the demurrer must be, that it appears to the court that the rejoinder is bad and insufficient in law, &c.

tween the parties, was referred in the court below and the report of the referrees was that Andrews, who was original plaintiff should recover 6 dols. 69 cents damage and costs of reference, with one quarter part of the costs of court. The court, notwithstanding this report, gave judgment for full costs of court, and for this errour the present process was instituted.

Bigelow, for the plaintiff in errour, read the 3d. section of "an act for the limitation of personal actions and for avoiding suits at law," and the proviso annexed to that section, which last is in these words, "provided always, that where judgment shall be rendered upon the report of referrees, full cost shall be taxed for the party recovering, notwithstanding the judgment be under four pounds, unless a different adjudication respecting the costs shall be made from the report itself." And he observed that in this case, the referrees having made a different adjudication, the judgment of the court below ought to have been conformed to the report. And he further insisted,

1st. That for this errour the judgment must be reversed in toto, and for this he cited Lampen_vs. Hatch(1) and Cunningham's Law Dict. Title Errour-and

2d. That the plaintiff in errour was entitled to costs upon the writ of errour.(2)

Ward, on the other side contended

1st. That the judgment in question was not erroneous. The statute gives full costs to all parties recovering damages by the report of referrees, and the referrees exceeded their commission when they made their award respecting the costs. As they had no authority on the subject, the court were right in giving full cost. But