CHAPTER LEX FORI. CASES WHERE Fifthly, the remedy is to be governed by the law of the country, where that remedy is sought. The following are instances of the supremacy of the lex THE LEX LOCI loci contractus according to the first general rule. CONTRACTUS Foreign accept ance. Foreign indorsement of foreign note. Foreign discharge. An acceptance void, or avoided by the law of the country where it is given, is not binding here. By the law of Leghorn, if a bill be accepted, if the drawer then fail, and the acceptor had not sufficient effects of the drawer in his hands at the time of acceptance, the acceptance becomes void. An acceptor at Leghorn, under these circumstances, instituted a suit at Leghorn, and his acceptance was thereupon vacated. Afterwards, he was sued in England as acceptor, and now filed his bill for an injunction and relief. Lord Chancellor King granted a perpetual injunction, injoining the plaintiff at law from suing on the bill (e). A bill of exchange was drawn in France, and indorsed in blank in France, without following the formalities prescribed by the French law. It was held that the indorsement being void by the French law was void here, for that the contract and indorsement being made in France must be governed by the law of France (f). Where the defendant gave the plaintiff, in a foreign country where both were resident, a bill of exchange drawn by the defendant on a person in England, which bill was afterwards protested here for non-acceptance, and the defendant afterwards, while still resident abroad, became bankrupt there, and obtained a certificate of discharge by the law of that state, it was held that such certificate was a bar to an action here, founded upon an implied assumpsit to pay the amount of the bill, because the implied contract was made abroad (g). So payment of part in discharge of the whole of a debt, though ineffectual by the law of England, will nevertheless bar the whole debt even here, if the payment were made in a foreign country, by the law of which it would have that effect (h). But a discharge by the law of a place where the contract was neither made nor to be performed, is not a discharge (e) Burrows v. Jemimo, 2 Stra. 733; Sel. C. 144; 2 Eq. Ab. 526; see Wynne v. Calendar, 1 Russ. 295. (f) Trimby v. Vignier, 1 Bing. N. C. 151; 4 M. & S. 695; 6 C. & P. 25, S. C.; but see Wynne v. (g) Potter v. Brown, 5 East, 124; 1 Smith, 351, S. C. (h) Ralli v. Dennistoun, 6 Exch. 483. in any other country (i). Therefore, to an action against the acceptor of an English bill, the discharge of the acceptor under a colonial bankruptcy in Australia is no defence (j). It is otherwise in the case of a Scotch bankruptcy, for that operates under a direct enactment of the Imperial legislature (k). An IO U given for money lent in Germany, to play there at games of chance, not illegal in Germany, is valid here (1). CHAPTER The following are cases in which the lex loci solutionis CASES IN has been held to govern. A promissory note, or bill of exchange, payable to bearer, made and payable in England, is transferable by delivery abroad, although by the law of the country where the delivery takes place, mere delivery is inoperative (m). WHICH THE GOVERNS. note or bill. The time of payment is to be calculated according to the Time of payment. law of the country where the bill is made payable (n). For example, the days of grace. The notice of dishonour given and received in a foreign Protest and country must be regulated by the law of that country. It has also been held, that not only the protest but the notice of dishonour transmitted from a foreign country must be regulated by the law of the country where the bill is payable. A bill was drawn in England in favour of the defendant, a payee in England, on a house in Paris, and accepted in Paris, payable there, and indorsed to the plaintiff in England. The bill being dishonoured by non-payment, notice was given to the plaintiff in England, which notice was good according to the French law, but too late according to the English law. The notice was transmitted the same day by the plaintiff to the defendant. An action was brought in England by the plaintiff, the English in (i) Story's Conflict of Laws, s. 342. (j) Bartley v. Hodges, 30 L. J., Q. B. 352. (k) Smith v. Buchanan, 1 East, 6; Phillips v. Allan, 8 B. & C. 477. (1) Quarrier v. Colston, 12 L. J., Chan. 57; 1 Ph. 147, S. C. (m) De la Chaumette v. Bank of England, 2 B. & Ad. 385; 9 B. & C. 208; S. C., Lebel v. Tucker, L. R., 3 Q. B. 77; Gorgier v. Mie ville, 3 B. & C. 45, cited in Miller notice of dis pending. Since there observations were ed. 249. See ante, Chapter on PRESENTMENT FOR PAYMENT. & D. Why decundon appeal CHAPTER Acceptance at a particular place. General accept ance. Rate of interest. IMMORAL, dorsee, against the defendant, an English indorser. It was insisted by the defendant that the requisites of the notice, which was received in England, should, as between the indorsee and indorser both domiciled in England, be regulated by the English law. But the Court of Queen's Bench held, that the bill being payable in France was to be considered, even as between the indorsee and indorser, as a French contract, and that the French law, as to the notice of dishonour transmitted from France to England, must therefore so far prevail (o). Where a bill is made payable at a particular place either by the acceptor himself or by the drawer, the law of acceptance prevailing at that place governs the contract of acceptance (p). But a general acceptance being a contract to pay everywhere, is governed by the law of the place where it is given, for it is payable there as well as in every other place (q). A bill was drawn in California, where the rate of interest is twenty-five per cent., on a drawee at Washington, where the rate of interest is only six per cent. ; in an English action against the drawer the Californian rate of interest is recoverable (r); but in an action against the acceptor the Washington rate of interest would alone be recoverable (s). The third rule is, that contracts immoral, or contrary to ILLEGAL AND the law of nations, or injurious to British public interests, will not be enforced on behalf of a guilty party in our Courts. INJURIOUS CONTRACTS. The reason is, that the laws of foreign countries are admitted in our Conrts, not proprio vigore but ex comitate. The judicial power of every country must reserve to itself a (0) Rothschild v. Currie, 1 Q. B. 43, doubted in Gibbs v. Fremont, 22 L. J., Exch. 5; 9 Exch. 31, S. C.; and by Story, p. 197; but recently recognized and followed by the Court of Common Pleas in Hirschfield v. Smith, 35 L. J., C. P. 177; L. R., 1 C. P. 340. S. C. See also Allen v. Kemble, 6 Moore, P. C. C. 314, where it was held that the drawer is liable, according to the law of the country where the bill is drawn. (p) See the American autho discretion as to the laws it will enforce (t), otherwise it might in some cases be governed by barbarous and pernicious rules. CHAPTER LAWS OF The following are instances of the application of the fourth REVENUE rule, that the English Courts will not regard the revenue laws of other countries (u). OTHER COUN- Bills or notes drawn or made in a foreign independent Stamps on foreign state, or at sea (except those payable to bearer on demand), bills. do not require, in order to their validity in this country (x), a stamp of the country where they are made or drawn (y). "In the time of Lord Mansfield," observes Abbott, C. J. (z), "it became a maxim, that the Courts of this country will not take notice of the revenue laws of a foreign state. There is no reciprocity between nations in this respect. Foreign states do not take any notice of our Stamp Laws, and why should 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." But bills drawn in England and payable abroad are, as we have seen, subject to an English stamp. If a bill be drawn in England, on a person abroad, and made payable in England, by both drawer and acceptor, it requires to be stamped as an inland bill (a). If the bill or note were made in any part of the British on Irish or empire, it must have the stamp appropriated by the law of colonial bills. the place (b). (t) See the American authorities, Byles on Bills, 5th American ed. p. 563. (u) See Pellecat v. Angell, 2 C. M. & R. 311. (x) But as to the new English stamp on foreign bills see the Chapter on THE STAMP. (y) Rotch v. Edie, 6 T. R. 425; Boucher v. Lawson, Rep. temp. Hardwicke, 198; Holman v. Johnson, Cowp. 343; Clugas v. Penaluna, 4 T. R. 467. (z) James v. Catherwood, 3 D. & R. 199; Wynne v. Jackson, 2 Russ. 351; but see the note to (a) Amner v. Clark, 2 C., M. (b) 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. CHAPTER Mode of raising the objection to the want of a stamp. What is such a making within the kingdom as to subject to a stamp. Presumption that to be a foreign bill was drawn abroad If an unstamped) bill tendered in evidence as a foreign bill be really drawn in England, the proper course is for the defendant to object to the admissibility of the bill, and at once to give his evidence on the point, and for the Judge to decide whether it be a foreign or an inland bill (c). A question sometimes arises as to what shall be such a making within this country as to subject to the English Stamp Laws. The firm of B. & C., in Ireland, had one partner, A., resident in this country, where he also carried on a separate trade. They sent him over four signatures, made by them, on copperplate impressions, as drawers and indorsers, with blanks for dates, sums and drawees' names, He filled them up and used them. It was held, that as the bills wers signed in Ireland, they must be considered as made there, and, consequently, that they only required an Irish stamp (d). So, where a bill was drawn in Jamaica, on a stamp of that island only, and a blank was left for the payee's name, it was held that an English stamp was not necessary to the validity of the insertion of the bearer's name in England (e). So, a bill sketched out and accepted here, but afterwards signed by the drawer abroad, is to be considered as made abroad; or vice versâ, signed by the drawer abroad and filled up here (ƒ). The presumption is, that a bill, purporting to be drawn a bill purporting abroad, was really so drawn. But evidence is admissible to show that a bill, purporting to have been drawn abroad, was in fact drawn in England, and was, therefore, formerly void for want of a stamp. If a bill purported to be drawn abroad, and the defence was, that it was drawn here, and therefore should have had a stamp, the proof must have been most distinct and positive. Action on a bill dated Paris, 1st (c) Bartlett v. Smith, 11 M.. & W. 483. No party is estopped from objecting to the stamp; Steadman v. Duhamel, 1 C. B. 288. (d) Snaith v. Mingay, 1 M. & Sel. 87; Baker v. Sterne, 9 Exch. 684. (e) Crutchley v. Mann, 5 Taunt. 529; 1 Marsh. 29, S. C. (f) Barker v. Sterne, 9 Exch. 684. In Chapman v. Cotterell, 34 L. J., Exch. 186, a writ was issued against the defendant as one of the makers of a joint and several promissory note. He was a British subject residing at Florence, where he drew and signed the note, and sent it by post to his brother in England, the other maker of the note. The latter signed it and paid it into a bank. It was held that a cause of action arose in England upon the delivery of the note to the payee. |