Dunning v. Chamberlin

The opinion of the Count was pronounced by Mattocks, J. — There is nothing in the first objection. It is the lex loci that governs the contract,' but the lex fori the remedy. . 2. It is immaterial whether the plaintiff should have been allowed to testify to the partnership, as the case shows that it was proved by another witness, that Chamberlin, the defendant, admitted the partnership. 3. Whether an unsatisfied foreign judgment against Curtis, one of the firm, merges or bars the present claims, is not raised by the facts. The judgment was proved only by the plaintiff: he objecting to testify, his testimony was no better than that of any other witness; and it was not competent to provena judgment by parol. A foreign jud g [131] ment must be proved, usually, either by exemplification under the great seal, by a copy proved to be a true copy, or by the certificate of an officer authorized by law, which certificate itself must be properly authenticated. — 1 Stark. Ev. 252-4. As to the statute of limitations, it has been decided in New-York, that the saving of the statute extends as well to foreigners, or those that reside altogether out of the state, as to their own citizens, who may be absent for a time.— 3 John. Rep. 263. — 20 John. Rep. 33. And in the cas¡e of Mazozen & Sperry vs. Foot, 1 Aik. 282, the counsel and the court recognize this principle as the true construction of our statute, although the point in the case was, whether a casual coming within the state was a returning within the statute, as it does not appear that the defendant ever resided, or ever came into the state, until the time this action was commenced, the statute never began to run. The The defendant now inserts a new point in his defence, not made before the auditors. He now insists on lapse of time, as presumption of payment. If this objection was not now out of time, it is well answered by the proof that defendant absconded from Montreal in 1820 — has ever since resided in parts unknown, and the plaintiff had not since seen him until the commencement of this suit. The judgment of the county court is affirmed.