pleaded by the debtor in a foreign tribunal to repel any suit brought to enforce the debt. 3. That where all remedies are barred by the lex loci contractus there is a virtual extinction of the right in that place, which ought to be rec ognized in every other tribunal as of equal validity. 4. That if the prescrip tion by the lex loci contractus be longer than that of the lex fori, the latter may be pleaded in bar to a foreign contract if it applies to foreign contracts; and that this does not on principle suppose that the foreign prescription may not also be a well-founded bar to the suit.

But I do not sit here to consider what in theory ought to be the true doctrines of the law, following them out upon principles of philosophy and juridical reasoning. My humbler and safer duty is to administer the law as I find it, and to follow in the path of authority, where it is clearly defined, even though that path may have been explored by guides in whose judgment the most implicit confidence might not have been originally reposed.

It does appear to me that the question now before the court has been settled, so far as it could be, by authorities which the court is bound to respect. The error, if any has been committed, is too strongly engrafted into the law to be removed without the interposition of some superior authority. Besides the incidental recognitions already referred to in other writers, Huberus and Voet speak strongly on the point. The former puts this example: "Frisius in Hollandia debitor factus ex causâ mercium particulatim venditarum, convenitur in Frisia post biennium. Opponit præscriptionem apud nos in ejusmodi debitis receptam. Creditor replicat, in Hollandia, ubi contractus initus erat, ejusmodi præscriptionem non esse receptam, proinde sibi non obstare in hac causâ. Sed aliter judicatum est, etc. Ratio haec est, quod præscriptio et executio non pertinet ad valorem contrattis sed ad tempus et modum actionis instituendæ, etc." 2 Huberus, lib. 1, tit. 3, § 7, p. 540. It is true that Huberus here applies his doctrine to the case of a prescription of the lex fori (as to which I entirely agree with him); but it is apparent from the whole scope of his reasoning in his celebrated chapter de conflictu legum that he meant to exclude the application of the prescription of the lex loci contractus. Voet is more direct: "Si præscriptioni implendæ alia prefinita sint tempora in loco domicilii actoris, alio in lobo ubi reus domicilium fovet, spectandum videtur tempus, quod obtinet ex statuto loci, in quo reus commoratur." Voet ad Pand., lib. 44, tit. 3, § 12. He does not put the case of the prescription of the place of the contract, but of the plaintiff's domicile; but it is fairly to be presumed that he supposed them to be in the same predicament. Lord Kames, as we have already seen, asserts the doctrine in the most explicit manner. These opinions are certainly of great weight, and probably indicate the doctrine predominating among civilians. We may now look to the decisions at the common law. In the case of Williams v. Jones, 13 East, 439, the question was directly made at the bar. Lord Ellenborough, in pronouncing judgment, adverting to the argument, said, "It is said that parties who have contracted abroad return to this country with the same rights only which they had in the country where they so contracted; and, generally speaking, that is so; that is, if the rights of the contracting parties be extinguished by the foreign law upon the happening of certain events. But here, there is only an extinction of the remedy in the foreign court, according to the law stated to be received there, but no extinction of the right; and there is no law or authority for saying that where there is an extinction of the remedy only in the foreign court, that shall operate by comity as an extinction of the remedy

here also. If it go to the extinction of the right itself, the case may be different." The case, however, finally turned upon another point, viz., that it was within the saving of the statute of limitations. But the general doctrine stated by Lord Ellenborough is fully recognized by all the other judges, and puts an end to the question, at least in England.

Then come the decisions in our own courts. One of the earliest cases is Nash v. Tupper, 1 Caines, 402, where, to an action on a note, the plea of the statute of limitation of six years of New York (where the suit was brought). was pleaded, and the plaintiff replied that the contract was made in Connecticut, where the limitation was seventeen years. Upon demurrer to the replication, the court held it bad, and the plea in bar good, and referred to an earlier case where the same point was decided. Mr. Justice Livingston dissented from this judgment in an opinion expressed in his usual clear and forcible manner, and illustrated his views on the general question with a cogency of argument and learning which in my humble judgment are not easily answered. This decision was confirmed in Ruggles . Keeler, 3 John., 263, and the point directly adjudged, that the statute of limitations of a foreign state could not be set up as a bar to a set-off founded on a contract executed in a foreign state. The facts were special, and did not necessarily require a decision of the point in its most general shape. The action was on a note given by the defendant to the plaintiff Keeler (as it should seem in Connecticut); it was not negotiable, but was assigned to one Walker, in Connecticut, and there certain services were performed, and goods sold, by the defendant to Walker, while he was owner of the note. The suit was brought in the plaintiff's name, for the benefit of Walker. It was, therefore, a case where the set-off might be justly considered' as intended by the parties as an equitable concurrent discharge of the note. It fell, therefore, precisely within the doctrine asserted by Pothier. "If," says he, "my debtor of a sum of money, before the time of the prescription against my claim was accomplished, and consequently before the plea in bar was acquired, had become my creditor of a like sum of money, and afterwards, since the time of prescription against my claim was accomplished, should demand the payment of his, although I should not be allowed to bring an action against him for mine, I should be allowed to oppose it to him as a set-off (compensation) against his. This is according to the maxim of the doctors, 'quæ temporalia sunt ad agendum perpetua sunt ad excipiendum.' The reason is, that the set-off (compensation) is made of full right from the time that your claim and mine, which was not yet prescribed, were mutually set off and extinguished." Pothier, Oblig., part 3, ch. 3, art. 1, § 677. However, the court decided the question upon the broad ground, stating that statutes of limitation are municipal regulations, founded on local policy, which have no coercive authority abroad, and with which foreign or independent governments have no concern. The lex loci applies only to the validity or interpretation of contracts, and not to the time, mode or extent of the remedy. Mr. Chancellor Kent has in a very recent case sustained and explained the reasoning of this decision in a very elaborate manner, and has pressed into its service, with his accustomed diligence, a mass of exact authority. Decouche v. Savetier, 3 John. Ch. R., 190, 213, etc.

The case of Pearsall v. Dwight, 2 Mass., 84, decided by the supreme court of Massachusetts, is directly in point. There the defendants pleaded the statute of limitations of New York to a contract made in New York. The court held the plea bad; and Chief Justice Parsons (himself a great authority), in

delivering the opinion of the court, said, "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 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."

§ 47. The question in the case is settled by the authorities.

It appears to me that these authorities are too stringent and obstinate to be easily resisted. I confess myself unable to resist the conclusion that they demonstrate the present question to be entirely at rest in the principal state tribunals where the parties dwell, and by whose laws they are to be gov erned. I feel myself, therefore, constrained to say that the plea in bar is bad and must be overruled.

There is another objection to the plea (independent of the general ground) which has been already alluded to, and which, if that ground were untenable, might well induce a question of the validity of the plea. It is that the statute of limitations of New York does not appear to have run against the action while the parties were citizens of that state. But it is unnecessary to dwell on this objection, as the plea cannot otherwise be sustained.

Plea adjudged bad.

§ 48. In general. The law of the forum governs in the limitation of actions. Ames v. Le Rue, 2 McL., 217; Egberts v. Dibble, 3 McL.. 86; McElmoyle v. Cohen, 13 Pet., 312; Jones v. Hays, 4 McL., 521; Randolph v. King, 2 Bond, 104.

§ 49. It seems that where a contract is made in one state and sued on there, a decision in favor of the defendant upon the plea of the statute of limitations will operate as a bar to a subsequent suit in the same state, but will not extinguish the contract elsewhere. So held in an action of debt brought in Virginia on a promissory note made in Kentucky. By the law of Kentucky the note on which the action was brought was placed on the same footing as a sealed instrument, but in Virginia the common law rule prevailed, and the action on the note, considered as a simple contract, was barred; otherwise if a specialty. The case was decided on the question of the kind of contract, it being held to be a simple contract. Bank of the United States v. Donnally,* 8 Pet., 361.

§ 50. It is a well settled rule of law in respect to statutes of limitation, that all suits must be brought within the period prescribed by the local laws of the country where the suit is brought; and this applies to contracts made beyond its political jurisdiction, as well as to those made within it. Burns v. Crane,* 1 Utah T'y, 179.

§ 51. The form of action, the course of judicial proceedings, and the time when the action must be commenced, are governed by the lex fori; the nature, validity and construction of contracts are governed by the lex loci; the statute of limitations appertains only to the remedy and is a part of the lex fori. So held in an action on a promissory note having an attesting witness, brought in New York, to which the defendant pleaded the state statute of limitations, and the plaintiff replied that by the law of Massachusetts, the residence of defendant, such a note was excepted from the operation of the statute. Nicolls v. Rodgers,* 2 Paine, 437.

§ 52. A plea of the statute of limitations is a plea to the remedy; it is a mere municipal regulation formed upon local policy; and a foreign statute cannot be pleaded in our courts. Brown v. Bicknell,* 1 Burn. (Wis.), 65.

§ 53. The statute of limitations of the state where the bankrupt resides, and not of the state where the creditor resides, must determine whether the debt.is barred, and for that reason not provable against the bankrupt's estate. In re Harden,* 1 N. B. R., 97.

§ 54. It is not the statute of limitations of the state where the creditor resides, nor of the state where the contract was entered into, that determines whether a debt due from a bankrupt is barred, but the Statute of the state where the bankrupt resides, and where the bankruptcy proceedings are had. In re Kingsley, 7 Am. L. Reg. (N. S.), 423; 1 Low., 216; 1 N. B. R., 329. § 55. In the year 1813, a daughter twenty-three years old conveyed all her remainder in the real estate which had belonged to her mother, to her father, for a nominal consideration. She married two years afterwards, and died in 1818. No complaint of the transaction was made

in the life-time of the daughter, nor during the life-time of the father, who died in 1831. The court inclined to the opinion that the lapse of time, and the death of the parties to the deed, were sufficient to warrant a court of equity in refusing to set aside the deed on the ground of undue influence. Jenkins v. Pye, 12 Pet., 241.

§ 56. Where the statute bars in twenty years, a plea of forty years' adverse possession is good. The plea of limitations need not refer in terms to the statute. So held in an action to recover certain real property situated in New York, in which the defendants pleaded in bar that they had been in the actual adverse possession of the premises for forty years next before the filing of the bill. Harpending v. Dutch Church, §§ 57–64.

[NOTES.-See $$ 65–115.]

HARPENDING v. THE DUTCH CHURCH.

(16 Peters, 456-494. 1842.)

APPEAL from U. S. Circuit Court, Southern District of New York.
Opinion by MR. JUSTICE CATRON.

STATEMENT OF FACTS.— The respondents rested their defense below on a plea in bar that they had been in actual adverse possession of the premises, in regard to which they are asked to account and make discovery, for forty years next before filing of the bill. The plea was sustained, and from which decree there was an appeal prosecuted to this court by the complainants. 1. They insist the plea is bad in form; and 2. Insufficient in substance:

$57. Where the statute bars in twenty years, a plea of forty years' adverse. possession is good.

The first objection to the form of the plea is that it does not rely on twenty years' adverse possession, but on forty years; twenty years being the time of holding adversely to constitute a bar by the statute of New York. In this respect there is no technical rule observed by the courts of chancery. If the complainant by his bill, or the respondent by his plea, sets forth the facts from which it appears that the complainant by the statutes of the state has no standing in court, and for the sake of repose and the common good of society is not permitted to sue his adversary, it is the rule of the court not to proceed further, and dismiss the bill. Had the complainants set out the fact of forty years' adverse possession, then a demurrer interposing the bar would have been the proper defense, countervailing circumstances aside. Such was the course taken in Humbert v. Trinity Church, 24 Wend., 587, and which was in accordance with the established practice of courts of chancery.

§ 58. The plea of limitations need not in terms refer to the statute.

2. It is insisted that the act of limitations is not relied on by express reference to the statute of New York. We think it was unnecessary to rely in terms on the statute. It was more convenient not to do so. The bill seeks discoveries, the right to have which twenty years' adverse possession could only bar. It also seeks an account of the proceeds of sales of parts of the estate, and an account of the rents and profits of other parts, assuming the respondents to be trustees for the complainants. To this aspect of the bill six years forms the bar to a decree.

59. the court will take judicial notice of the statute of limitations when the facts are set forth.

The court is judicially bound to take notice of the statutes, when the facts

are stated and relied on as a bar to further proceedings, if they are found sufficient. So the chancellor of New York held in Bogardus v. Trinity Church, 4 Paige, 197, and we think correctly.

3. In regard to the substance of the plea, it is insisted for respondents, 1. That the answer does not cover and support the plea by the denial of facts alleged by the bill which, if true, obviate the bar. That, taking the facts alleged as established by admission, then the respondents were express trustees for the complainants, held possession for them, and are compellable to account regardless of the lapse of time.

$ 60.

if the facts stated in the bill and not denied in the answer are sufficient to avoid the bar, the answer is insufficient.

To test the sufficiency of the answer we must take every allegation of the bill as true which is not denied by the answer, and then inquire whether, those facts being admitted, the plea is sufficient to bar the claim to relief set up by the bill. 4 Paige, 197; Mitford, 300; Plunket v. Penson, 2 Atk., 51; 15 Ves.,

377.

The complainants charge certain circumstances which, if true, preclude a bar, without admitting the existence of the bar; yet alleging facts which obviously stand in the way of relief unless the circumstances be true. They have the undoubted right to call on the defendants to furnish by their answer the evidence that they did hold the church estate as express trustees, and under and for the respondents. These facts would invalidate the plea if admitted, and the defendants must answer to all the matters which are specially alleged as evidence of these facts. Nor would the denial in the plea serve the purposes of the complainants, for, on setting it down for argument, its truth must be admitted. Story's Eq. Pleadings, 515, §§ 672, 673; Beames' Pleas in Equity, 33, 34.

Have the respondents furnished the evidence claimed from them, or have they repelled the circumstances by a sufficient denial of their existence? If unanswered the circumstances must be taken as true for the purposes of resisting the plea, as already stated, to the extent that they stand unanswered. The bill alleges that John Haberdinck, in 1696, jointly with four others, was seized in fee-simple of a tract of land called the Shoemaker's field, lying on the northeast side of Maiden Lane in the city of New York. In 1696 the parties divided the premises in part into lots; and the other tenants in common conveyed to John Haberdinck in severalty his one-fifth part of the lands divided, which are severally described by lots. That, previous to 1723, Haberdinck died, leaving no children. John Haberdinck, Jr., was the lawful heir of John, Sr.; and the complainants are descendants and heirs of John the younger. That no sale or devise of the premises has ever been made by any of the ancestors of complainants through whom they claim; and that they are entitled and seized as heirs at law and by right of succession. That the Reformed Dutch Church of the city of New York, by its ministers, etc., had had possession of the premises held in severalty by John Haberdinck, and claimed to have taken possession under some will or devise of John Haberdinck, whereby the premises were devised to them.

The first circumstance stated in evidence of the bar is that John Haberdinck in his life-time had let the premises, or some part thereof, to lease for ninety-nine years, and that the lease expired in 1819. When the bill was filed does not appear by the record. We take it, within less than twenty years after 1819. To whom the term of ninety-nine years had been granted, the