we be so courteous to them, when they do not give effect to ours? It would be productive of prodigious inconvenience if, in every case in which an instrument was executed in a foreign country, we were to receive in evidence what the law of that country was, in order to ascertain whether the instrument was or was not valid."1 *But bills drawn in England and payable abroad are, as we have seen, subject to an English stamp.

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If the bill or note were made in any part of the British empire, it must have the stamp appropriated by the law of the place. (c)

By the stamp act of 1854, 17 & 18 Vict. c. 83, s. 4 (repealed 1870), every bill purporting to be drawn out of the United Kingdom was, for all the purposes of that act, to be deemed to be a foreign bill.

And now the 33 & 34 Vict. c. 97, s. 51, contains a similar provision.

The following are instances of the application to bills of exchange of the last rule, viz. :-that though the lex loci contractus must regulate and interpret the contract, yet that the lex fori must govern the remedy.

Statutes of Limitation in general affect the remedy only and not the substance of the contract.(d)

(c) Alves v. Hodgson, 7 T. R. 241; Clegg v. Levy, 3 Camp. 166. A local stamp law must be proved by the person who relies on it: Buchanan v. Rucker, 1 Camp. 63; Le Cheminant v. Pearson, 4 Taunt. 367; Millar v. Heinrick, 4 Camp. 155.

(d) Query, whether that be so where the statute not merely limits the remedy but actually extinguishes the debt. See Huber v. Steiner, 2 Bing. N. C. 202, 211 (29 E. C. L. R.); 2 Scott 304; 1 Hodges 206; Don v. Lipman 5 Cl. & Fin. 1, 16, 17; Story, 2d ed. 840. In such a case it should seem that the statute is equivalent to a release.

The rule as to the application of the Statute of Limitations in America has been held to depend on the law of the state where a note is made and the length of the residence there (Byles on Bills, 6th American ed. p. 595); but the English rule is doubtless the true one. See Alvarez de la Rosa v. Prieto, 33 L. J., C. P. 262.

1 1 Our courts will not require contracts made in Cuba to be stamped according to the Cuban laws: Skinner v. Tinker, 34 Barbour 333.

2 Hankins v. Barney, 5 Peters 457; McElmoyle v. Cohen, 13 Peters 312; Richards v. Bickley, 13 Serg. & Rawle 395; Jones v. Hook, 2 Randolph 303; Lincoln v. Battele, 6 Wendell 475; Williams v. Preston, 3 J. J. Marshall 600; Cartier v. Page, 8 Vermont 150; Chenot v. Lefevre, 3 Gilman 637;

Therefore, where by the law of the country where the contract was made the plaintiff would have had forty years to bring his action, yet, as he sued in England, it was held that he must bring his action within six years. (e) So, on the other hand, though the payee of a French promissory note must, if he had sued in France, have brought his action there within five years, it was held that he might here bring his action at any time within six years.(ƒ)

So, the power to set off a cross-debt depends on the law of the country where the remedy is sought.(g)

*So, though a defendant may not be subject to arrest in [*408] the country where the contract is made, yet he is subject to arrest where the law of this country gives the creditor the right to arrest if the remedy be sought here.(i)

So, where by the law of the foreign country a criminal prosecu

(e) British Linen Company v. Drummond, 10 B. & C. 903 (21 E. C. L. R.). (f) Huber v. Steiner, 2 Bing. N. C. 202 (29 E. C. L. R.); 2 Scott 304; 1 Hodges 206; Harris v. Quine, L. R., 4 Q. B. 653. See Don v. Lipman, 5

Cl. & Fin. 1, 15, 16.

(g) Byles on Bills, 6th American ed. p. 596.

(i) De la Vega v. Vianna, 1 B. & Ad. 284 (20 E. C. L. R.); and see Shaw v. Harvey, M. & M. 526.

Estes v. Kyle, 1 Meigs 34; King v. Lane, 7 Missouri 241; Watson v. Brewster, 1 Barr 381; Townsend v. Jemison, 9 Howard, U. S. 407. Where a cause of action is barred by the Statute of Limitations of the state in which the subject-matter is situated, an action cannot be maintained in another state: Cargile v. Harrison, 9 B. Monroe 518. If the maker of a note remain in the state in which it was made until an action upon it in that state is barred by the Statute of Limitations, that may be pleaded in bar to an action on the note in any other state to which he may remove: Goodman v. Munks, 8 Horter 84. A., who had become a resident of Texas, made a note in South Carolina on which he was sued in Texas. He pleaded the Statute of Limitations of both states. Held that the plea of the statute of South Carolina was not good, as the claim was not barred at the time of his immigration to Texas, but that the plea of the statute of Texas was good: Smith v. Crosby, 2 Texas 414. Assumpsit cannot be maintained in Maryland upon a single bill made in Virginia, which according to the laws of Virginia is not a specialty, but is according to the laws of Maryland: Trasher v. Everhart, 3 Gill & Johns. 234. Contra, Watson v. Brewster, 1 Barr 381; Dorsey v. Hardesty, 9 Missouri 157. In an action of assumpsit upon a note, what is matter of set-off must be determined by the laws of the state where the action is brought, and not by the laws of the state where the note is made: Gibbs v. Howard, 2 N. Hamp. 296.

tion must be a preliminary to a civil action, the absence of such a previous prosecution is no defence to an action here.(k)

So, again, the fourth section of the Statute of Frauds enacts that no action shall be brought on certain agreements unless they are in writing. It has been held that this enactment does not affect the solemnities of the contract, but only the rules of procedure. And, therefore, though a parol contract, within the fourth section of the Statute of Frauds, be made in France and be valid there, yet that an action on it will not lie in England.(2)

The protest and notice of dishonor are parcel of the contract, and not incidents of the remedy for the breach of it. They must, therefore, be regulated by the law of the country where the bill is payable, (m)1 or where the contract is made, or where the notice is given, and not solely by the law of the country where the remedy is sought.

When foreign law is relied on in pleading, it is proper first to state what the foreign law is, and then to allege the facts, bringing the case within that foreign law (n)

It will in general be assumed that the law of a foreign country is the same as the law of this country in respect of negotiable instruments till the contrary be proved. Therefore, if a promissory note made in Scotland(o) be sued upon in this country, and there be any difference in the law of the two countries favorable to the defendant, it lies upon the defendant to prove that difference.(p)2

(k) Scott v. Lord Seymour, 31 L. J., Exch. 457.

(1) Leroux v. Browne, 12 C. B. 801 (74 E. C. L. R.).

(m) Rothschild v. Currie, 1 Q. B. 43 (41 E. C. L. R.). See Rothschild v. Barnes, Q. B. 1842.

(n) Benham v. Lord Mornington, 3 C. B. 133 (54 E. C. L. R.).

(0) As to the law of Scotland see 19 & 20 Vict. c. 60.

(p) Brown v. Gracey, D. & R. N. P. C. 41, n., per Abbott, C. J.; but see De la Chaumette v. Bank of England, and Gibbs v. Fremont, supra. As to the mode of ascertaining, proving and applying the law of foreign countries, see 24 Vict. c. 11.

1 Ellis v. Commercial Bank, 7 Howard, Miss. 294.

2 Martin v. Martin, 1 Smedes & Marsh. 176. Where a suit was brought in Iowa against an indorser upon a negotiable promissory note made in Missouri and indorsed in Maryland, it was held, in the absence of proof of any statute in the latter states to the contrary, that the indorser was liable upon demand and notice, without suit against the maker, although the statute of Iowa requires such suit against the makers: Bernard v. Barry, 1 Iowa 388.

THE judicature act of 1873, 36 & 37 Vict. c. 66, followed by the amending act, 1875, 38 & 39 Vict. c. 77, and the rules of court made under sec. 16 of the latter act, have introduced considerable changes and improvements into the procedure and practice of the High Court of Justice; among the most important of which may be noticed, the general recognition to be accorded to equitable claims and defences, to which the same effect and the same relief are to be granted as could formerly only be obtained through the Court of Chancery;(a) the assignability by writing of debts and other legal choses in actions on giving express notice in writing to the debtor; (b) the liberal provisions as *to joinder of parties and the introduction of new parties and rectification

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(a) 36 & 37 Vict. c. 66, s. 24.

(b) 36 & 37 Vict. c. 66, s. 25. This was always the rule in equity. See ante, p. 70, note (g). If the assignment be really a bill of exchange it must be so stamped: Ex parte Shellard, L. R., 17 Eq. 109. The assignee may give the notice: In re Irving, L. R., 7 Chan. Div. 419; Brice v. Bannister, 3 Q. B. Div. 569.

in case of error or doubt; (c) and the extended application of the law of set-off, by which, subject to the power of a judge to sever as inconvenient to be tried together, any claim, whether liquidated or unliquidated, may be set up in answer. (d) A nonsuit is, unless otherwise ordered, to have generally the effect of a verdict for the defendant;(e) and finally, costs are almost entirely within the discretion of the court.(ƒ)

The holder of the bill at the time of action brought, i. e., the person who is then entitled to receive its contents, is the only person who can then sue on it.(g) It is a good defence that at the

(c) Ord. XVI., no action is to be defeated by reason of the misjoinder of parties, and the court may order joinder of fresh parties whether for plaintiff or defence, r. 13. Pleas in abatement are consequently abolished, Ord. XIX. r. 13. Partners may be sued either individually or in the name of the firm, but if the latter course be adopted, execution is to issue as provided by Ord. XLII. r. 8. By Ord. XVI. r. 10, the names of all the members of a partnership may be obtained by means of a summons. Under the bills of exchange act personal service is still required, and the provisions under Ord. IX. rr, 2 and 6 do not apply: Pollock v. Campbell, L. R., 1 Ex. Div. 50.

(d) Ord. XIX. r. 3.

(e) Ord. XLI. r. 6.

(f) Ord. LV.; and see Parsons v. Tinling, L. R., 2 C. P: Div. 118, upheld on appeal; Garnet v. Bradley, L. R., 3 Ap. Ca. 944.

(g) Emmett v. Tottenham, 8 Ex. 884; Gill v. Lord Chesterfield, Ib.; and see Jungbluth v. Way, 25 L. J., Exch. 257; 1 H. & N. 71, s. c.

1 When a note is payable to bearer or indorsed in blank the action upon it may be maintained by any one lawfully in possession of it. He need not be the owner or have any interest in it, provided he has not obtained it mala fide: Austin v. Birchard, 31 Vermont 589; Golder v. Foss, 43 Maine 364; Granite Bank v. Ellis, Ibid. 367; Gushee v. Leavitt, 5 California 160; Ord v. McKee, 5 California 515; Way v. Richardson, 3 Gray 412; Petter v. Prout, Ibid. 502; Ellicott v. Martin, 6 Maryland 509; Agee v. Medlock, 25 Alabama 281; Perry v. Leitz, 2 Duvall 122; Wimbeck v. Holt, 26 Texas 673; Lum v. Robertson, 5 Wallace (S. C.) 277; Nicolay v. Fritschle, 40 Mo. 67; Brown v. Nourse, 55 Maine 230; Savage v. Carter, 64 N. Car. 196; Richard v. Betzer, 53 Illinois 466; Zachary v. Gregory, 32 Texas 452; Patten v. Moses, 49 Maine 255; Harpham v. Haynes, 30 Illinois 404; Demuth v. Cutler, 50 Maine 298; Clark v. Titcomb, 42 Barb. 122; Simmons v. Belt, 35 Mo. 461; Burnap v. Cook, 32 Illinois 168; Cottle v. Cole, 20 Iowa 481; Whitten v. Hayden, 9 Allen 408; Bank v. Bagley, 68 Me. 249; Hays v. Hathman, 74 N. Y. 486; Freeman v. Falconer, 44 N. Y. (S. C.) 132; Spofford v. Horton, 126 Mass. 533; Logan v. Cassell, 88 Pa. St. 288. Where one partner has given the firm note and forged the name of the payee, the holder may sue in