DCCCV. The Supreme Court of the United States of America has, however, certainly laid down the rule that the statute of limitations of the country, in which the suit is brought, may be pleaded to bar a recovery upon a contract made out of its political jurisdiction, and that the limitation of the lex loci contractús cannot be so pleaded. It considers that this has become a fixed rule of the jus gentium privatum, unalterable either in the United States or in England, except by legislative enactment (m).

But the same court has recognized, as the inferior courts of the same country had done before, the distinction between a law of limitation which went directly to the extinguishment of the debt, claim, or right, and one which operated merely as a bar to the remedy (n).

DCCCVI. A case was brought before Sir William Grant, arising under a possessory law of Jamaica, which converted a possession of seven years under a deed, will, or other conveyance, into a positive absolute title against all the world, without exception in favour of any one, or of any right, however the party claiming may have been situated during that time, or whatever the previous right of property may have been. The great English judge took in this case the distinction between statutes which barred the remedy, and statutes which prohibited the bringing a suit after a limited time (o).

DCCCVII. The foreign jurisprudence upon this matter is perspicuously stated by Massé (p).

Mostyn v. Fabrigas. [In Pitt v. Dacre, L. R. 3 Ch. D. p. 295, it was decided that as to charges on real estate situate abroad, the lex loci rei site, and not the English Statute of Limitations, must be applied.]

(m) Townsend v. Jemison, 9 Howard, (Sup. Ct. U.S. A.) Rep. p. 407. (n) Ibid. at pp. 418, 419; see Shelby v. Guy, 11 Wheaton, Rep. p. 361; Brent v. Chapman, 5 Cranch, Rep. p. 358;

Lincoln v. Battelle, 6 Wend. p. 475 ;

Story, s. 582.

(0) Beckford v. Wade, 17 Vesey, Rep. p. 87.

(p) Droit Comm. num. 74 (ed. 1844); liv. ii. tit. ii. num. 559 (ed. 1874).

There have been various systems :

i. That which governs the prescription-by the law of the domicil of the creditor or obligee;

ii. By the law of the [domicil of the] debtor or obligor; iii. By the law of the place in which the demand for the fulfilment is made;

iv. By the law of the place where the contract is made;

v. By the law of the place of payment, or discharge. DCCCVIII. Pothier (q) alone countenances the first system. Burgundus (r) and Merlin (s) expose the error on which his specious reasoning is founded.

The second system is supported by Merlin (t) and 、 John Voet (u), and by decisions of the superior courts of Cologne and Berlin (x): but what if the debtor or obligor change his domicil? of which domicil is the law to be followed-that of the domicil at the time of making the contract, or that of the subsequent domicil ?

The third system is supported by Huber (y), on the ground that "præscriptio et executio non pertinent ad "valorem contractûs, sed ad tempus et modum actionis "instituendæ, quæ per se quasi contractum separatumque "negotium constituit."

The fourth system is far preferable to the third (z), for it avoids the deplorable consequence of allowing the creditor or obligee to vary, according to his pleasure, the length of time of the prescription, which contradicts, by rendering prescription uncertain, the very end of all prescription; for, as Hertius says, "si actioni non nisi

(y) De Conf. Legum, n. 7, De jurispr. univers. lib. iii. ch. xi. § 34.

(z) Supported by Rocco, lib. iii. cap. xv. p. 375.

"secundum leges, ubi judicium instituitur, præscriberetur, "interdum incertissima forent præscriptionis tempora, quoniam unus homo diversis locis non rarò potest con"veniri" (a).

Nevertheless, Massé rightly pronounces against this fourth system, for prescription is really connected with the execution or fulfilment of the obligation to which it opposes itself as a bar.

The fifth system, therefore, is the right one; it causes the law of the place of fulfilment to prevail when that place is indicated; that of the domicil of the debtor or obligor when it is not, for there the obligation is in that case to be fulfilled. Troplong, Demangeat (b), and, as we have seen, Savigny, agree with Massé; and so, as it would seem, does also the reason of the thing.

DCCCIX. It is a maxim of universal jurisprudence that if the obligee or creditor refuse to receive his due when tendered to him, the debtor or obligor is not to suffer by his caprice, but is entitled to the discharge of his debt or obligation. According to the Roman Law, the debtor must make an offer (oblatio) of capital and interest at the place appointed for payment; this, if refused, was followed by a solemn act of depositing the sum, by a sealing up (obsignatio), either apud ædem sacram or in tuto loco, and by the discharge of the obligation. "Obsignatione totius debitæ pecuniæ solenniter factâ, "liberationem contingere manifestum est;" then follows a condition of importance to the present subject," Sed ita "demum oblatio debiti liberationem parit, si eo loco quo "debetur solutio fuerit celebrata " (c).

Story (d) observes, that a defence or discharge good by the Law of the place where the contract is made, or

(a) De Collis. Leg. § 65.

(b) Fælix, s. 100, note (a) ad finem.

(c) Cod. lib. viii. t. xliii. 9.

(d) Ss. 331, 332.

is to be performed (he means the latter), is good everywhere; so, he observes, say John Voet, Casaregis, Huber, Burgundus, and Dumoulin. Thus infancy, if a valid defence by the lex loci contractús, is valid everywhere. A tender and refusal good by the same Law, either as a full discharge, or as a present fulfilment of the contract, will be respected everywhere (e).

(e) Story, s. 332; Male v. Roberts, 3 Espinasse, Rep. p. 163. Vide post as to payment of Bills of Exchange, chap. xlii.

In vol. i. of the Journal du Droit intern. privé, it is observed as to the Tribunal of the German Empire: "Les décisions rendues jusqu'ici par le Tribunal de l'Empire ne présentent pas de réponse précise à la difficile question de savoir si la portée et la force juridique d'une obligation contractuelle doivent être appréciées d'après la loi du lieu de la naissance du contrat, celle du lieu de son exécution, ou celle du domicile de ceux qui l'obligent. En effet, d'un côté l'avis du Tribunal ne présente aucune hésitation, parce que les lois des différents lieux ou de plusieurs s'accordent entre elles (jugements des 11 Mars, 1873, vol. ix. p. 371 ; 25 Juin, 1872, vol. vii. p. 2 ; et 23 Avril, 1872, vol. vi. p. 78); d'un autre côté le Tribunal n'a réellement examiné dans plusieurs cas que jusqu'à quel point les contractants avaient eu l'intention de se soumettre à la loi d'un lieu déterminé."-Page 132.

CHAPTER XLI.

LEX MERCATORIA.

DCCCX. THE Lex Mercatoria (a) is so important a branch of Private International Law, that it has seemed to the writer of these pages expedient to treat it apart from the general law on obligations which have been the subject of preceding chapters. It is proposed to consider it under the two following divisions, which, though they do not perhaps entirely exhaust the subject, supply principles applicable to every part of it (b).

1. The general Maritime Law; which will include the right of Stoppage in transitu.

2. The mode of carrying on business by Bills of exchange.

DCCCXI. 1. "The maritime law," Lord Mansfield

(a) "To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the customs of merchants, or lex mercatoria; which, however different from the general rules of the common law, is yet engrafted into it and made part of it; being allowed for the benefit of trade to be of the utmost validity in all commercial transactions; for it is a maxim of law that 'cuilibet in suâ arte credendum est.'"-Blackstone's Comment. vol. i. introd. sect. iii. p. 75. [See Dr. Wendt's Papers on Maritime Legislation, 3rd ed. 1888, Introduction, pp. xxiii-xxix.]

(b) The Law Merchant is a system founded on the rules of equity and governed in all its parts by plain justice and good faith.

Master v. Miller, 4 Term Rep. at p. 342, per Buller J.

Lennig v. Ralston, 23 Pennsylvania State Rep. p. 137 (1854). Bell, Commentaries (7th edit.), book iii. part i. ch. iv. “Of Maritime Contracts."

Story, Conflict of Laws, ss. 286 b, 384, 385, 391-402 a; see, too, s. 322b in fine (referring to a bottomry bond), 323, note, 327 a, 327 b.