Huber v Steiner
| Jurisdiction | England & Wales |
| Judgment Date | 17 June 1835 |
| Date | 17 June 1835 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 80
IN THE COURT OF COMMON PLEAS
S. C. 2 Scott, 304; 1 Hodges, 206; 2 D. P. C. 781; 4 L. J. C. P. 233. Applied, Don v. Lippmann, 1837, 4 Cl. & F. 13Harvis v. Quine, 1836, L. R. 4 Q. B. 657. Referred to, Phillips v. Eyre, 1870, L. R. 6 Q. B. 26.
80 HITBEB V. STEINER 2 BING. (N. C.) 203. hubek v. stbinbk. June 17, 1835. [S. C. 2 Scott, 304; 1 Hodges, 206; 2 D. P. C. 781; 4 L. J. C. P. 233. Adopted, Don v. Uppmawn, 1837, 5 Cl. & F. 13; Boms v. Quine, 1869, L. E. 4 Q. B. 657. Referred to, Phillips v. Eyre, 1870, L. E. 6 Q. B. 29.] The French law of prescription with respect to promissory notes, appertains ad tempus et modum actionis instituendae and not ad valorem contractiis; and therefore the payee of such notes may sue the maker, if resident in England, during six years from the time they become due. Assumpsit on a promissory note made by the Defendant on the 12th of May 1813, and payable to the order of the Plaintiff, May 10th 1817. The Defendant pleaded, first, the general issue; secondly, the Statute of Limitations; thirdly, that at the time of making the promissory notes, the Plaintiff and Defendant were merchants and traders domiciled and living and carrying on business in the kingdom of France, and subject to the laws of France, and that the promissory notes were made and delivered within the kingdom of France by the Defendant to the Plaintiff, they then respectively being such subjects of France and traders as aforesaid; and that by the law of France, then and continually from thence, and now subsisting, all actions upon promissory notes are and were wholly barred, precluded, and estopped after five years from the date of the respective protests upon the said promissory notes, and that five years from the date of the protests had long elapsed : Fourthly, That, by the law of France, all actions upon promissory notes are and were wholly barred, precluded, and estopped after five years from the dates [!203] of the respective protests thereon; provided, nevertheless, that the alleged debtor is compellable, if so required, to make oath that he is no longer indebted; and the Defendant was ready and willing, and had been so from the expiration of the said period of five years, and thereby offered, if thereunto required, to make oath that he was no longer indebted upon the said promissory note. The Plaintiff replied, to the second plea, that he was beyond sea from the time of the cause of action accruing, and traversed the law of France in manner and form as stated in the third and fourth pleas. At the trial before Vaughan J., it appeared that the promissory note was made at Mulhausen, which, at the time the note bore date, was subject to the law of France. At that time the Plaintiff and Defendant were both domiciled at Mulhausen; but shortly after the making of the note, and nearly four years before it became due, quitted Mulhausen, the Plaintiff going to Switzerland, the Defendant to England, where he had ever since resided, and been domiciled. The jury found a verdict for the Plaintiff on the first and second pleas, and for the Defendant on the third .and fourth, with leave for the Plaintiff to move to enter a verdict for 2371., the amount of the note, in case the Court should be of opinion that the French law of prescription formed no defence to the action, the evidence as to that law, given by a French advocate, being unsatisfactory. Taddy Serjt. having obtained a rule nisi accordingly, on the ground that the French law of prescription affected only the creditor's remedy, and not the merits of the contract,-Prescriptio et executio non pertinent ad valorem contractus sed ad tempus et modum actionis instituendse,-(Huber, de conflictu Legum, s. 7), and that as [204] to the remedy, the debtor was subject to the law of the country in which he was domiciled when the creditor sued,-Williams v. Jones (13 East, 450), British Linen Company v. Dmmmond (10 B. & C. 903), De La Fegav. Fianma,-(l B. & Adol. 286), Bompas Serjt. and Martin shewed cause. Laws for the limitation of suits are of two kinds; those which bar the remedy, and those which extinguish the debt. It may be conceded that a foreign law, which merely bars the remedy in five years, would not preclude a creditor from suing in this country before the expiration of six; for though the rights and merits of the contract are regulated by the law of the country where it was entered into, the remedy is governed by the law of that country where the debtor is domiciled when the action is brought. But a law of limitation which extinguishes the debt, goes to the rights and merits of the transaction, and precludes the creditor from suing after the debt is extinguished. "Where the statutes of limitation of a particular country not only extinguish the right of action, but the claim or title itself ipso facto, and declare it a nullity after the lapse of the prescribed period, 2 BING. N. C.) 205. HTJBER V. STBINEE 81 in such case the statute may be set up in any other country to which the parties remove, by way of extinguishment."-Storey's Commentaries on the Conflict of Laws, p. 487. Now, the 189th article of the Code de Commerce is as follows :-"Toutes actions relatives aux lettres de change, et a ceux des billets a ordre souscrits par des negocians, marchands, ou banquiers, ou pour faits de commerce, se prescrivent par cinq ans, a cpmpter du jour de prot^t, ou de la derniere poursuite juridique, s'il n'y a eu con-damnation, ou si...
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