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wages by the judgment in this held a seat on the bench.' Tho
Hon. Theophilus Parsons was ap In the case of Benson v. Swift pointed as his successor. May (page 50), we observe the case of this gentleman, so long the distins Mitchill v. Neal, Cowp. 828, cited guished ornament of the bar, for by the counsel. That case was many years continue on the benchy expressly over-ruled in Burgess v. et dulce decus et præsidium. Freelove, 2 Bos. & Pul. 425 ; but The case of Perkins v. Burbank by some may be thought in some (page 81), on a question of special degree restored by English v. Pur- pleading, we admitted with some ser, 6 East. Rep. 395.
hesitation; and had prepared # In. May v. Calder (page 55), it note of some length on the subo was decided, that the lease of an ject. But knowing, as we do, the infant's land by liis father, as nat- peculiar eminence in this branch ural guardian, is void. The ex- of law of the chief justice, who pressions used by the court are delivered the opinion of the court, very general ; but we presume and considering him entitled to the that they are' to be referred to the eulogy of the late lord Kenyon on facts of that particular case. In baron Comyns, ' that he was the I Wooddeson, 459, 460, and auth- ablest pleader of his day in alt orities cited in note (1.) it is stated, Westminster hall,' we have feared that a guardian by nurture may at a fallacy in our view of the case, least make a lease at will. If it and have suppressed it.* did not savour of too much nicety, In Pearsall and others v. Dwight we should in this case call the fa- and others (page 84), is a decision ther guardian by nurture, rather in conformity with the principles than by nature, according to the in Nash v. Tupper, 1 New-York distinction in Hargrave's note on Term Rep. 402. As it is of conCo. Litt. 88. b. note (13).
siderable importance, and strongly In Richardson and another in illustrates the doctrine of the opeerror v. Noyes and another (page ration of the lex loci on contracts, 56), will be found a very elaborate we shall quote in a subsequent opinion of the court, delivered by Mr. Justice Sedgwick, in which
* Lest however our doubt should the doctrine of executory devises appear wholly idle, we would refer to is discussed with great learning Webber v. Twill, 2 Saund. 227, Hum. At the close of it, we are furnish- phreys v. Churchman, B. R. H. 289, ed with a note of the arguinent of (this is usually cited, Cases in K. B. 7 Mr. Parsons, of counsel for the
to 10 Geo. II. temp. Hardwick), Free
man v. Hurst, 1 T. Rep. 40; 1 Tidd's defendants in error, which has Pr. 3d edit. 637 note (i); Lawes on been truly declared by the court to Plead. app. 238 and note (2) ; and the be very ingenious and very able. note of sérj. Williams in Manchester v.
Vale, 1 Saund. 28, note 2 ; as shewing In page 77 occurs a memoran. dum of the resignation of chief double, contain separate answers to dif
that a replication may, without being justice Dana, and we can truly say, ferent parts of an entire plea, provided in the words of the reporter, · The the whole form but one complete atiremembrance of the impartiality, swer to the plea, and one entire sup. dignity, and learning, exhibited by port of the declaration ; and that where him, will be long cherished by does not contain an answer to the plea,
the plea is entire, and the replication those, wbo have been concerned in
as it respects some 'counts in the declathe business of this court, while he ration, such replication is bad.
page the opinion of the court, as the court. A variety of important delivered by the chief justice. principles seem to be put at rest
The case of Wright v. Wright by these decisions, which we rec(page 109), adjudging that the ommend to the examination of the mother of a bastard child has a bar. right to the custody of it, in pref We have thus noticed in a erence to the putative father, agrees cursory manner a few of the more with Rex v. Soper, 5 T. Rep. 278, striking causes reported in the and Rex v. Mosely, 5 East. Rep. volume. On the whole, upon a 224, note (a).
careful review we must express In Nelson v. Andrews (p. 164), · our satisfaction with the manner, it is settled, that arbitrators have in which the work is executed. a right to award concerning the We confidently believe, that it will costs of a suit referred to them. reflect honour on the Bar and the And with this agrees the English Bench. Time may lead to some doctrine in Sheppard v. Brand B. improvements in the method of an R. H. 53. Chandler v. Fuller, undertaking, the difficulties of Willes 62. Barnes 56, 58. Roe v. which can be realized only by exDoe, 2 T. Rep. 644.
perience. But time will not rob In Merry in Rev. p. Prince the Reporter of the reputation of (page 177), the question was agi- diligence and fidelity, nor the court tated, whether the statute of 19 of the praise of ingenuity and eruGeo. II. ch. 37, respecting reassu dition.* rances, extended to this country ; As a specimen of the work we and after an able argument the shall select one or two of the short court were of opinion, that it did cases, which, we regret, are all not. In Sparhawk v. Bartlett (page
We are led to observe, that intelli188) it is decided, that in this com, gent and fair minds usually think alike monwealth an action lies against deliberately exercise their judgment,
on all important occasions, where they the sheriff for taking insufficient and are free from prejudice, from the bail. In England the law is ad- circumstance, that throughout this volmitted to be otherwise ; but the ume we do not find one instance, in reasons, upon which a different ad- which the court are divided in opinion. judication is made here, are most
It may therefore be considered as a satisfactorily and learnedly ex: adjudged We observe likewise, that
work containing cases settled as well as pounded in the opinions delivered where one judge pronounces the opinby Mr. Justice Sewall and Mr. ion of the court, it usually combines Justice Sedgwick.
learned research with a dignified style An interesting discussion occurs
and manner. Instances of this are frein the case of Killam vs. Ward quent in the work, and do not require
a particular enumeration.
A judge, and others in Rev. page 236, and feeling that he is expressing the opinin Gardner v. The Same, cited in ion of his brethren, and that his own page 244 of the same case in a character as a lawyer and as a scholar is note, respecting the question of the in question, will naturally on such an alienage of persons, who went away mind. From the present arrangement
occasion exert all the energies of his from this country during the revo of the judicial department, under the lution, and adhered to Great Brit- auspices of the government of the ain. The cases are argued at commonwealth, we indulge the hope, large, and commented on with
that the juridical character of Massachu
setts is about to exhibit a 'novus ord. great diligence and ingenuity by seclorum.
our limits will admit. We shall ants were, during all the time, inthen take our farewell with the habitants of this state. recommendation of Horace to the
The defendants, in their rejoin
der, confess and would avoid the professional student.
replication, by averring that, since Si quid novisti rectius istis,
the making of the note, and more Candidus imperti ; si non, his utere mecum.
than six years before this action • Thomas Pearsall & al. v. Jo was commenced, the defendants siah Dwight & al.
went and returned to the state of Assumpsit on a promissory New-York, and were there ten note. As the pleadings in this case days, with the knowledge of the are fully stated in the opinion of plaintiffs. the court as delivered by the Chief To this rejoinder the plaintiffs Justice, for the sake of brevity they demur generally, and the defendare here omitted. The question ants join in demurrer. Whethon the pleadings was, whether to er this rejoinder be good, is the isan action in this commonwealth on sue in law immediately before the a promissory note made in New- court. York and payable there, the plain If the matters alleged in the reptiffs being inhabitants of that state, lication are sufficient to avoid the and the defendants inhabitants of bar, the rejoinder must be bad, bethis commonwealth, a plea of the cause it neither traverses those Statute of Limitations of the state matters; nor shews any provision of of New-York was a good bar.' the statute of New York, by which
the effect of the replication is a• The opinion of the court was voided by the collateral facts pleadafterwards delivered by
ed in the rejoinder. PARSONS, C. J. From the For the same reason, if the matrecord in this cause the declara- ters alleged in the bar are sufficient tion appears to be on a negotiable in law, the replication must be bad, cash note, payable by the defend- for the plaintiffs do not plead any ants to the plaintiffs, or their or exception in that statute,by which der, on demand. To this declara the bar, when confessed, may be tion there is a plea in bar, al avoided. Notwithstanding the proleging that the plaintiffs long be- fert of the exemplification of that fore, at the time, and ever since statute, yet if it contained any exthe note was executed, were inhab, ception, on which the plaintiffs initants of the state of New-York ; tended to rely, they ought either to that the note was there made ; that have prayed oyer and spread the before it was made, and six years whole statute upon the record, or before this action was commenced, to have particularly pleaded such there was a statute of that state exception in their replication, and still in force, which, among other then to have made the allegation things, limited the time of suing an necessary to bring their case withaction of this description to six in it. This reasoning is grounded years next after the cause of action on the opinion that, if that statute accrued, which part of the statute can avail in this court, when pleadis particularly pleaded with a pro- ed in bar, the bar cannot be avoidfert of the exemplification of the ed, but by virtue of some provision whole statute, and there is the of the same statute. As the pleadaverment necessary to bring this ings now are, the court cannot take acion within that statute.
notice of any parts of that statute, The plaintiffs in the replication but of those which are particularly neither pray oyer of the exemplifi- shewn in the bar. · cation of that statute, nor particu Although the rejoinder be bad, farly plead any exceptions inade in yet if the replication is also bad, it, but confess and would avoid the the defendants must have judgbar, by alleging that the defende ment, if the bar be good.
Thence the great question in the And the consideration is not imcause is, whether to an action com moral : The court are therefore menced in a court in this state, by obliged, by the laws of the Comthe plaintiffs, inhabitants of New- monwealth, to consider it as a valid York, on this note there executed, contract, according to the true conby the defendants, inhabitants of struction of the rule. this state, the statute of limitations The party claiming the benefit of the state of New-York can be of the note in this case has sued it pleaded in bar.
originally in a court in this state ; That the statute of another state the law of the state of New-York cannot proprio vigore have the will therefore be adopted by the force of law in this state is very court, in deciding on the nature, clear, and its effect in this court validity, and construction of this must depend on the laws of the com contract. This we are obliged to monwealth.'
do by our own laws. So far the It is a general rule, that personal obligation of comity extends, but it contracts entered into,andto be per- extends no farther. The form of formed in any one state, and which the action, the course of judicial are there valid, are to be consid- proceedings, and the time when ered as valid in every other state. the action may be commenced,
This rule is founded on the tacit must be directed, exclusively, by consent of civilized nations, arising the laws of this Commonwealth. from its general utility, and seems These are matters not relating to be a part of the law of nations to the validity of the contract; adopted by the common law. and to permit the laws of another
To give effect to contracts of this state to control the court in its prodescription, is an act of comity due ceedings concerning them, would from the courts of the state in intrench upon the authority of our which such contracts may be sued own laws unnecessarily and for no to the state in which they may be principle of common utility. Camade.
ses may also be supposed, in which This rule is subject to two im- this permission might be injurious portant exceptions. First, that to our citizens. If the state, in neither the state in whose court the which the contract was made, had contract is put in suit, nor its citi no statute of limitations, then by zens may suffer any inconvenience the lex loci the action might there by giving the contract effect. And be commenced at any time, and if secondly, that the consideration of the plaintiff should afterwards rethe contract be not immoral, and move to this state and commence the giving it effect will not have a his action in our court, the defenbad tendency. Under these ex dant would be deprived of the beneceptions, the cases, which do not fit of the limitations here in force. come within the rule, may be clas- That the form of the action must sed.
be conformable to our laws, the The contract on which this ac case of Folliot vs. Ogden (7) is an tion is founded is clearly within the authority. In giving the opinion of rule. It was made in New-York, the court, Lord Loughborough and might there be performed : considers it as law, that when a The plaintiffs, when it was made, bond made in a foreign state, by were inhabitants of that state, and whose laws it it assignable, is sued so are the defendants to be consid at law in England, the suit must ered in this cause by going and be according to the laws of Engmaking the contract there : The land, in the name of the obligee, contract, when made, was valid by and not of the assignee, although it the laws of New-York : The giv- be for his use, because, there, bonds ing it effect here cannot be injuri- are not assignable at law. As to ous to the Commonwealth, or its citizens, nor have an evil tendency: (7) 1 H. Blacks. 135,
Vol. IV. No. 8. 3H
the time when the suit may be tween the parties, was referred in commenced, no authorities in point the court below and the report of have been cited from our books, the referrees was that Andrews, nor do I recollect any :(8) but the who was original plaintiff should subject has been considered by for recover 6 dols. 69 cents damage eign jurists of great merit.
and costs of reference, with one In the prelections of Huber, un quarter part of the costs of court. der the title De Conflictu Le T'he court, notwithstanding this gum,(9) he states a case, in which report, gave judgment for full costs an action was commenced in a of court, and for this errour the court of Friesland, by an Holland present process was instituted. er against a Frieslander, on a con Bigelow, for the plaintiff in ertract made in Holland, and the rour, read the 3d. section of "an limitation, in force in Friesland, act for the limitation of personal was pleaded against the action. actions and for avoiding suits at The Hollander contended that it law," and the proviso annexed to could not be pleaded against him, that section, which last is in these to that contract, which was to be words, “provided always, that decided by the lex loci, or the laws where judgment shall be rendered of Holland. But the judgment was upon the report of referrees, full against the Hollander. After men cost shall be taxed for the party tioning another case upon execu- recovering notwithstanding the tion, in which the lex loci was not judgment be under four pounds, allowed to govern, the author adds unless a different adjudication re
" Hæc est ratio, quod prescrip- specting the costs shall be made tio et executio non pertinent ad from the report itself.” And he valorem contractûs, sed ad tempus observed that in this case, the reet modum actionis instituendæ, ferrees having made a different que per se, quasi contractum sepe- adjudication, the judgment of the ratumque negotium constitit ; adeo court below ought to have been que receptum est optima ratione, conformed to the report. And he ut in ordinandis judiciis, loci con- further insisted, suetudo ubi agetur, etsi de negotio 1st. That for this errour the alibi celebrato, spectetur."
judgment must be reversed in toto, It is therefore the opinion of the and for this he cited Lampen vs. court that the plea in bar is not Hatch(1) and Cunningham's Law good.,
Dict. Title Errour-and Consequently the judgment on 2d. That the plaintiff in errour the demurrer must be, that it ap- was entitled to costs upon the writ pears to the court that the rejoin- of errour.(2) der is bad and insufficient in law, Ward, on the other side con
1st. That the judgment in quesSimeon Nelson, plaintiff in er tion was not erroneous.
The statrour, v. William Andrews.'
ute gives full costs to all parties This was a writ of errour brought recovering damages by the report to reverse a judgment of the court of referrees, and the referrees exof common pleas for this county ceeded their commission when they rendered in May, 1800. The ori- made their award respecting the ginal action, with all demands be- costs. As they had no authority
on the subject, the court were right (8) But see the case of Duplein os.
in giving full cost. But De Rouen, in 2 Vern. 540, in which the statute of liinitations of England was (1) 2 Str 934. allowed to be pleaded, where the con (2) Ferguson vs. Rawlinson, 2 Str. tract was made abroad between two 1084.-Cro. Car, 175, 145. Penruddock foreigners.
vs. Clerk, Cro. Eliz. 659-5. Rep. 101, (9) Vol. 2, Lib1.