Woodbridge v. Wright , 3 Conn. 523 ( 1821 )

Peters, J.

In 1816, the defendants, residing in New- York, purchased the plaintiff’s goods of his factors, Dorimus and Wilbur. In 1817, the defendant, Wright, was discharged, urn derthe insolventdaws of that state. Dorimus and Wilbur received a dividend on the debt, but refused to sign the diS' charge, and then made known, for the first time, that the goods were the plaintiff’s. The defendant, Wright, coming into this state, was sued by the plaintiff; and the question now is, whether on judgment being rendered, execution shall be issued against his body and estate, or against his estate only,

It is a well settled principle, universally admitted, that contracts are to be construed according to the lex loci contractus, but enforced according to the lex fori—that is, the validity and legal effect of contracts are to be tested, by the law of the country where they are made ; but the remedy for a violation of those contracts, is to be regulated by the law of the country where it is sought. This distinction is not peculiar to the common law, but is found in other municipal codes,J which adopt the civil law as their basis. “ Pour tout ce qui concerne Pordre judiciaref says Emerigon, “ on doit suivre Pusage du lieu ou Pon plaide, mais pour ce qui est de la decision du fon, on doit suivre, en regle generale, les loix du lieu ou le contrat a elepasseM Traite des Assurances, cap. 4. “ Pross-criptio et executiof says, Huber us, “ nonpertinent ad valorem contractus, sed ad lempus el modum actionis mstituendce, adeoque recepta est optima ratione, ut in ordinandis judiciis, loci consue-ludo ubi agitur, etsi de negotio alibi celébralo, specteturN Prce-lec. de Confliclu Legum. vol. 2. lib. 1.

This distinction, I admit, has not always been regarded in England. In the case of Melan v. The Duke de Fitzjames, 1 Bos. & Pull. 138. upon a contract made in France, where the defendant was liable to an action inrem, but not in personam, being arrested in England, was discharged on common bail, by a divided court, on the ground that the case was governed by the lex loci contractus. A similar decision was lately made by Washington, J. in Sergeant v. Pitkin, in the circuit court of the United States in Pennsylvania district, April term, 1819. But with all my respect for that learned Judge, I cannot reconcile it with the decision of the supreme court in Sturges v. Crowninshield, 4 Wheat. Rep. 122. But the case of Melan v. The Duke de Fitzjames is not now considered as law in Eng-¡mdt It was denied by Lord Ellenborough, in Imlay v. Ellefsen, 2 East 453. who considered the opinion of Heath, J. as law. This opinion was adopted, by the supreme court of New-York, in Smith v. Spinolla, 2 Johns. Rep. 198. in the case of a Portuguese debtor, upon a contract made in Madeira, where he was not liable personally. “ If” say the court, “a foreign creditor pursue his debtor hete, he is entitled to the more efficacious remedy provided by our law, for the recovery of’his debt.” The same point was decided, by the same court, in Sicard v. Whale, 11 Johns. Rep. 194. in relation to a debtor discharged under the insolvent law of Pennsylvania ; and recognized in White v. Canfield, 7 Johns. Rep. 117. where the defendant, under the insolvent law of Connecticut, had obtained a discharge from imprisonment. “ But,” say the court, “ it is limited in its object, and local in its effect.”

This distinction has often been recognized, in the application of statutes of limitation. Thus, in Nash v. Tupper, 1 Caines 402. the statute of New-York, (the place of trial,) was holden tobe a bar to an action on a note executed in Connecticut. In Pearsall & al. v. Dwight & al. 2 Mass. Rep. 84. in an action on a note, made in New-York, but sued in Massachusetts, a plea of the statute of New-York was over-ruled. “ The form of the action,” said the court, “ the course of judicial proceeding, and the time when the action may be commenced, must be exclusively directed, by the laws of this commonwealth.” The same point was recently, and unanimously, decided, by this court, in Medbury v. Hopkins, ante 472.

The validity and legal edict of this contract are not now to be questioned : it has passed in rem judicatam. And it has been often decided, that the insolvent laws of the several states, so far as they profess to impair or discharge the obligation of contracts, are repugnant to the constitution of the United States, and are, therefore, void. Sturges v. Crowninshield, 4 Wheat. Rep. 122. Mc Millan v. Mc Neill, 4 Wheat. Rep. 209. The Farmers’ & Mechanics’ Bank v. Smith, 6 Wheat. Rep. 131. Smith v. Mead, ante 253. Hammett & al. v. Anderson & al. ante 304. Medbury v. Hopkins, ante 472.

Is an execution part of the obligation of the contract, or of the remedy? I answer in the language of Chief Justice Marshall: “ The distinction between the obligation of a contract and the remedy given by the legislature to enforce that obligation, exists in the nature of things. Without impairing the obligation of the contract, the remedy may be modified, as the wisdom of the nation shall direct. Confinement of the debtor may be a punishment for not performing j^g con(rac^ or may allowed as a means of inducing him to perform it; but the state may refuse to inflict that punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract; and simply to release the prisoner, is not to impair its obligation.” Sturges v. Crowninshield, 4 Wheat. Rep. 200.

Had this question arisen' in New-York, execution must have been issued against the estate of the debtor only ; because it is part of the remedy, and governed by the lex fori, which every state has a right to prescribe within its own limits, but no further. Sturges v. Crowninshield, 4 Wheat. Rep. 122. Mather v. Bush, 16 Johns. Rep. 233. Roosevelt v. Cebra, 17 Johns. Rep. 108. Post v. Riley, 18 Johns. Rep. 54. But, “ here the creditor is entitled to the more efficacious remedy-provided by our law for the recovery of his debtand the’ discharge, though void as to the obligation of the contract and valid as to the liberation of the person of the debtor, “ ⅛ limited in its object, and local in its effect.” Execution must,-' therefore, issue, as usual, against the estate and body of the defendant.

Chapman, Brainard, and Bristol, Js., were of the same' opinion. ' Hosmer, Ch. J. was not preseft, when the case was argued ; but being afterwards furnished with a statement of the case, and the briefs of counsel, he concurred in the opinion' expressed by his brethren.

Execution to issue in common form.