Chumasero v. Gilbert

Walker, J. It is a rule of uniform application, wherever the common law obtains, that the lex fori governs the remedy. And in the absence of pleadings and proof, it regulates the rights of the parties under the contract. If this is not strictly true, it is so with but few exceptions. When a foreign law is relied upon, either for the recovery of a right, or as a defense, the law must be pleaded and proved. This rule has been repeatedly held by this court, and is regarded as the settled law. Norare we aware that there is any different rule when the effort is made to recover on a written contract, under the common counts; nor have we been referred to any adjudged case which announces such a doctrine. On the contrary, this and other courts have laid down the rule without any limitation, that to recover or defend under a foreign law, it must be pleaded and proved, as any other fact. And it is for the reason that courts cannot judicially know the laws which obtain in other jurisdictions, and to have effect given to them, they must be brought to the knowledge of the court by pleading and proof. The note read in evidence in this case, specified no rate of interest, and in the absence of any specific rate, the presumption is, that the rate is the same at the place of its execution, as it is within the jurisdiction of the court. Where no rate is specified, our statute has authorized the recovery of only six per cent., and the party, to recover more, should have shown by averment in his declaration, that the laws of New York authorized a recovery of a greater rate of interest, and should have sustained the averment by proof. In this case there was no such averment, and there was, consequently, error in permitting proof of that fact. The judgment of the court must therefore be reversed, and the cause remanded. Judgment reversed.