§ 883. Who may sue.-Who may sue is generally a question of the remedy; and the mere designation of the plaintiff is always made by reference to the lex fori. And as a general rule, if allowed by the lex fori, an assignee may sue in his own name, although he can not so sue at the place of the assignment.1 And if not allowed by the lex fori, he can not sue in his own name, although he might do so at the place of assignment. But we think this doctrine should not be pushed farther than to indicate the mere nominal parties to the suit when it is purely a question of remedy. Thus, if a note were non-negotiable in Virginia, and could not be there indorsed or assigned, yet if negotiable and actually indorsed in Kentucky, so as to completely vest title in the indorsee, the holder would then have an absolute right to recover the amount, and the lex loci contractus should govern. So if by the law of the place of transfer, an executor or administrator may indorse or assign a note, so as to vest title and right to sue completely in his transferee, the latter should be permitted to sue anywhere. This is due to a liberal comity. authorities predominate in number the other way."

8

But the

884. Time within which suit may be brought.—The time within which suit may be brought is purely a question of the forum. Thus suit may be brought immediately in one State by attachment, although at the time no action. would lie in the State where the cause of action arose."

'Foss v. Nutting, 14 Gray, 484; see Pearsall v. Dwight, 2 Mass., 84; also, 2 Parsons, 368, 369, note g, and cases cited; Wharton Confl. of Laws, § 457.

Fisk v. Brackett, 32 Vt., 798; Folcott v. Ogden, 1 H. Bl., 135; Wharton Confl. of Laws, $735; 2 Parsons N. & B., 368.

Story on Bills, § 173; Confl. of Laws, § 354; Trimbey v. Vigmer, I Bing. N. C., 159; O'Callaghan v. Thomond, 3 Taunt., 82; Lee v. Selleck, 33 N. Y., 615; 32 Barb., 522 (semble).

• Owen V. Moody, 29 Miss., 79; Harper v. Butler, 2 Pet., 239; Barrett v. Barrett, 8 Greenl., 353; 2 Parsons N. & B., 373, note v; Story Confl. of Laws, § 350; Wharton Confl. of Laws, § 457.

Goodwin v. Jones, 3 Mass., 514; Thompson v. Wilson, 2 N. H., 291; Stearns v. Burnham, 5 Greenl., 261.

'Clark v. Conner, 2 Strobh., 346; 1 Robinson's Practice (new ed.), 317.

And in like manner the statute of limitations of the forum prevails; and no suit can be maintained if it be barred there, although by the law of the contract there was no limitation, or a less restricted limitation. And suit may be maintained where the limitation of the lex fori has not attached, although by the lex loci contractus action has been formally barred. This doctrine rests upon the ground that the time of suit is purely a matter for local municipal regulation. It may be different in cases where the right, in contradistinction to the remedy, is held by foreign law to be extinguished. Such extinction might operate by comity everywhere.5

885. Form of action.-The necessity of selecting the form of action according to the law of the forum has been well illustrated in the United States in a number of cases where the instrument sued upon was deemed a specialty where made, and a simple contract where the suit was brought; or vice versa. Thus in some of the States a scroll attached to the promisor's name is the same as a common law scal; and covenant or debt would be the proper remedy in the State where the promise was made, assumpsit not lying on a sealed instrument. And, moreover, by the local law the defendant could not plead want of consideration, because of the instrument being sealed. But if suit were brought in a State where a scroll is not recognized as a seal, it has been repeatedly held, that assumpsit would be the proper remedy, and that want of consideration might be pleaded. And the converse has been also held, that al'Mineral Point R.R. Co. v. Barron, 83 Ill., 367.

Nicolls v. Rodgers, 2 Paine C. C., 437.

'Jones v. Hook, 2 Rand., 303; British Linen Co. v. Drummond, 10 B. & C., 903; Byles on Bills [*389], 572.

Power v. Hathaway, 43 Barb., 214; Bulger v. Roche, 11 Pick., 36; Putnam v. Dike, 13 Gray, 535; Estes v. Kyle, Meigs, 34; Huber v. Steiner, 2 Cr. & M., 629; contra, Harrison v. Stacy, 6 Rob. (La.), 15; Goodman v. Munks, 8 Port. (Ala.), 89.

Williams v. Jones, 13 East., 439.

Bank United States v. Donally, 8 Pet., 361; Le Roy v. Beard, 8 How., 451; Williams v. Haynes, 27 Iowa, 251; Douglas v. Oldham, 6 N. H., 150; Andrews

though where made the instrument might be a simple promissory note, yet if where suit was brought it was regarded as a specialty, the appropriate action of debt or covenant should be brought, and the sanctity attached to seals would be imputed to it.1

§ 886. At one time it was held that the extent of the remedy was to be determined by the law of the place of contract, and where suit was brought in England upon a French contract, upon which by the laws of France no arrest could be made, it was held that the defendant could not in England be held to bail ; but the contrary doctrine is now well settled.3

§ 887. Questions of evidence appertain to the remedy, and consequently are controlled by the law of the forum. "Whether a witness is competent or not; whether a certain matter requires to be proved by writing or not; whether certain evidence proves a certain fact or not-this is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it," is the language of Lord Brougham. Accordingly, evidence was admitted in Connecticut to show that a blank indorsement was made for collection only, although by the laws of New York, where the indorsement was made, such evidence was inadmissible." Upon an analogous principle, it has been held in England that as the statute of frauds does not make agreements void, but only prevents their being enforced by action, a

v. Herriott, 4 Cow., 508; Warren v. Lynch, 5 Johns, 239; Steele v. Curle, 4 Dana, 381; 1 Robinson's Practice (new ed.), 234.

'Thrasher v. Everhart, 3 Gill & J., 319.

* Melun v. Fitzjames, 1 B. & P., 138; Talleyrand v. Boulanger, 3 Ves., Jr., 447.

'De la Vega v. Vianna, 1 B. & Ad., 284; Smith v. Spinolla, 2 Johns 198; Sicard v. Whale, 11 Johns, 194; Peck v. Hozier, 14 Johns, 346; Hindley v. Marean, 3 Mason, 90; White v. Canfield, 7 Johns, 117.

'Bain v. Whitehaven, etc., R.R. Co., 3 H. L. Cas., 1; Wharton Conflict of Laws, § 768; Story Confl. Laws, § 635; Phillimore, iv, 662.

'Downer v. Chesebrough, 36 Conn., 39.

parol agreement not to be performed within a year, though made in France, and valid there, could not be enforced in England.1

The certificate of a foreign notary of demand and notice as to a note, though evidence by the law of the place of payment, would be excluded unless admissible by the law of the place where suit is brought.

888. The lex fori undoubtedly applies to the admissibility and credibility of witnesses; but as to the number of attesting witnesses necessary to the validity of a writing, the law of the place where the writing was made would control on the ground locus regit actum. And where the objection is not to the competency of evidence, but to its effect, the law of the place of contract should prevail. Thus a parol acceptance could only be proved by parol evidence, and therefore if valid where made, it would be unreasonable to reject it because by the lex fori an acceptance must be in writing.5

§889. Whether party is bona fide purchaser for value.— So the effect of the transaction in fixing the relations of the parties is, as between them, determined by the lex loci contractus. Thus, if by the lex loci contractus the purchaser acquires the note as a bona fide holder, not subject to the defence of a prior payment, such payment can not be pleaded, although the lex fori would permit it. And whether or not the proprietor of the bill or note is a bona fide holder, is to be determined by the lex loci contractusthat is, the place of payment. The mode and measure of recovery would, however, seem to be a question of the forum.s

1

1 Leroux v. Brown, 12 C. B., 801; 14 E. L. & Ex., 247; Byles on Bills (*390), 573

2 Kirtland v. Wanzer, 2 Duer, 277.

'Mason v. Dousay, 35 Ill., 424.

"Wharton, § 769.

• Ibid.

Harrison v. Edwards, 12 Vt., 651.

'Allen v. Bratton, 47 Miss., 129; Woodruff v. Hill, 116 Mass., 310. • Woodruff v. Hill, 116 Mass., 310; 2 Ames B. & N., 306.

§ 890. In respect to set-off it is laid down by text writers, and by the courts of common law, that a set-off to any action allowed by the local law is to be treated as a part of the remedy; and that, therefore, it is admissible in claims between persons belonging to different States or countries, although it may not be admissible by the law of the country where the debt which is sued was contracted.1 The same principle applies to the mode of attacking consideration. When the lex fori allows a plea of want of consideration in a suit on an obligation, which by the lex loci contractus was sealed, and to which by such latter law no such plea could be offered, the lex fori controls. So as to other legal and equitable defences, where the very contract itself does not exclude them, they are to be controlled by the lex fori. Statutes providing certain exemptions from levy and sale upon execution affect the remedy, and those of the forum prevail.*

$ 891. The courts can take no judicial notice of the laws of another country.-When relied upon, they must be proved as facts, and otherwise it will be presumed that they are the same as the laws of the forum in which suit is brought;" or what is the same in effect, when the laws of the foreign country are not put in proof as facts, the court will apply to the transaction in suft the laws of the forum. Thus the law as to the rate of damages will be presumed to be the same where the bill is drawn in one country, and is sued on in another; so it will be presumed, where the law

6

'Gibbs v. Howard, 2 N. H., 296; Bank of Gallipolis v. Trimble, 6 B. Mon., 600; Story Confl. of Laws, § 575; Wharton Confl. of Laws, § 788; Mineral Point R.R. Co. v. Barron, 83 Ill., 366.

Bliss v. Houghton, 13 N. H., 126.

2

Wharton, § 788.

4

Mineral Point R.R. Co. v. Barron, 83 Ill., 367.

Hunt v. Johnson, 44 N. Y., 27; Dunn v. Adams, 1 Ala., 529; Fouke v. Fleming, 13 Md., 392; Whidden v. Seelye, 40 Me., 247; Legg v. Legg, 8 Mass., 100; Bean v. Briggs, 4 Iowa, 467; Harper v. Hampton, 1 Harr. & J., 687; Bernard v. Barry, 1 Greene (Iowa), 388; Martin v. Martin, 1 Smed. & M., 176; Kuenzi v. Elvers, 14 La. Ann., 391; Hill v. Wilker, 41 Ga., 449; Byles on Bills (Sharswood's ed.), 573, 574; 1 Robinson's Practice (new ed.), 230.

6

* Kuenzi v. Elvers, 14 La. Ann., 391, Merrick, C. J., saying: “On the trial of