that, as the declaration set out the contract verbatim, and alleged it to have been jointly executed, its execution was admitted as to both defendants. There is nothing in these decisions which goes to show that the plaintiff, notwithstanding anything in the language of the rule of court invoked, could not prove that the contract was, in fact, signed at a date different from that appearing on its face. The evidence did not go to show that it was not dated January 2, when it was signed, but went to show that, though dated January 2, it was signed on January 1. It admitted the execution of the contract, but tended to avoid it by proving a fact in regard to it which did not appear on its face, and which went to the merits. This was competent evidence and was not irrelevant or immaterial. All questions as to surprise, or as to reopening the case, or as to the order of proof, were matters of discretion, not reviewable here. 66 66 Another written contract was shown to the plaintiff, and identified by him," and put in evidence by the defendants, dated December 25, 1866. It provided for advances by the defendants to the plaintiff, and for their acceptance of his drafts, and for his payment to them of 2 per cent commission for accepting his drafts." On the language of the contract, so put in evidence, a question was raised as to whether the commission was to be paid on all drafts accepted, or only on those which were in excess of shipments of handles. On his re-direct examination, when first called, the plaintiff stated, without objection, that he had had a duplicate of the contract, which was destroyed by fire; that the copy so introduced was not an exact copy of the one he had, in its reference to the 24 per cent commission; that the one he had was made by one of the defendants; that drafts for handles shipped he was to pay no commissions on; and that those for advances before shipments he was to pay commissions on. He was then asked: "What change was made in the duplicate which you had ?" This question was objected to by the defendants on the ground that it was incompetent and irrelevant, and, there having been no denial of the execution of this contract as pleaded and given notice of by the defendants, it is incompetent to vary it by parol." The objection was overruled, and the defendants excepted. The witness answered that the word "advanced" was inserted after the word "drafts," so as to read "2 per cent commission for accepting his drafts advanced." The defendants contend that the evidence went to a denial of the execution of the contract and was, therefore, incompetent under the rule of court before referred to. The remarks before made apply to this point also. The evidence went to show what the actual written contract between the parties was. It did not go to show that the defendants' copy was not actually signed by the parties. The one copy was as competent evidence of the real contract as the other was. What the plaintiff had testified to in regard to the contents of his original of the contract, was admitted without objection and permitted to stand, and no motion was made to strike it out. The evidence sought by the question objected to only went to explain the previous evidence. A question having arisen as to the quality of the handles furnished to the defendants by the plaintiff in 1867 and 1868, a witness for the plaintiff was asked as to the quality of the handles furnished by the plaintiff to the Old Colony Company in 1867 and 1868. The defendants objected to the question, on the ground that it was irrelevant and incompetent, and not admissible to show the quality of the handles furnished to the defendants. The plaintiff's counsel then stated that he proposed to show, in connection with the offered testimony, that the handles were of the same general quality as those furnished to the defendants. Thereupon the objection was overruled and the defendants excepted, and the witness answered that the quality of the handles sent to the Old Colony Company in 1867 and 1868 was good. Evidence had been given for the defendants that the quality of the handles furnished by the plaintiff to the defendants in 1867 and 1868 was inferior to the quality of those he had furnished in previous years. The plaintiff subsequently gave evidence tending to show that the handles furnished by him to the defendants in 1867 and 1868, and the handles furnished by him to the Old Colony Company in 1867 and 1868, were of the same kind and quality. After this evidence was given there was no motion to strike out the evidence so objected to, or to rule upon its admissibility. The evidence objected to was admissible. Alleged errors in the charge to the jury, and in refusals to charge as requested, are urged by the defendants. As to the request to charge respecting the right of the defendants, under the contract of January 27, 1866, to charge the plaintiff back with the full value of such handles as broke in the process of bending, it is sufficient to say that the record discloses that there was a settlement between the parties respecting the 172 dozen handles charged back in 1866 under that contract, and that there was really no question for the jury as to those handles. If the charge given, and the refusal to charge as requested, had the effect to withdraw from the jury the consideration of the 172 dozen, it only effected the result required by the settlement, and worked no injury to the defendants. In regard to the refusal to charge that the plaintiff could recover $1.37 per dozen for only such handles delivered between October 8, 1866, and April 20, 1867, as he had carried out at that price in his bill of particulars, and to the charge to the contrary, it is sufficient to say that the bill of particulars is not in the record, and there is no statement in the bill of exceptions as to its contents; and that when, in the course of the evidence, the claim was made by the plaintiff for $1.37 per dozen for the handles delivered between those dates, the defendants objected that there were three items in April, 1867, carried out in the bill of particulars at $1.25 per dozen, and the plaintiff then and there claimed that the bill of particulars contained a mistake in that respect. The charge of the court was, that while the plaintiff could not recover for any more handles than his bill of particulars set forth, he was not bound by a mistake in carrying out the rate or price, but could show what he was actually to have. We see no error in this, under the circumstances. The request made to charge as to the operations of 1868 was granted, and the instruction given is not open to the objection that the price for 1868 was fixed by the court and was not left to the jury to determine. Although this court reversed the first judgment and remanded the cause for a new trial, and a new trial has been had, with a new judgment, the plaintiffs in error now urge, without having raised the point before, that this court, instead of having awarded a new trial, should have rendered a judgment for the defendants below on the findings made by the circuit court at the first trial, and that it should now do so. The question is not open for this court to review on this writ of error the judgment it rendered on the former writ of error. That judgment has been carried into effect, and the parties who procured it have enjoyed the benefit of it in the new trial they have had. The judgment of the Circuit Court is affirmed. (See S. C., 16 Otto, 320-322.) Partners, when to join in action. In an action upon a covenant-contained in an agreement between the covenantor and "S. and such other parties as he may associate with him under the name of S. & Company," signed and sealed by the covenantor,and signed "S.& Co." by the hand of S., acting in behalf and by authority of the partnership-to pay to "the said S. & Company, parties of the second part," for work to be done by them, all those who are partners at the time of the signing [No. 60.] of the agreement may join. Argued Oct. 31, 1882. Decided Nov. 13, 1882. IN ERROR to the Circuit Court of the United Carolina. The case is sufficiently stated by the court. Messrs. John W. Hinsdale and Samuel F. Phillips, for plaintiffs in error. Messrs. James C. McRae, Augustus S. Merrimon and Thomas C. Fuller, for defendant in error. Mr. Justice Gray delivered the opinion of the court: on their part proper for them to do, the Western Railroad Company of the first part" agrees to pay "unto the said S. Seymour & Company, parties of the second part," certain sums in money, stock and bonds. The agreement states that the parties hereto have interchangeably set their hands," is duly signed and sealed in behalf of the defendant, and is also signed "S. Seymour & Co.," but is not otherwise signed nor sealed in behalf of the plaintiffs or either of them. At the trial, the plaintiffs proved the execution of the agreement declared on, and offered evidence tending to show that Seymour executed it in behalf and by authority of the firm of S. Seymour & Company; that at its date, and until the subsequent stoppage of work under it, the plaintiffs composed that firm; that Seymour and the three others, as the persons whom he associated with himself under the name of S. Seymour & Company, immediately began and afterwards performed work upon the railroad under the agreement, the results of which had ever since been enjoyed by the defendant; and that the defendant knew that the plaintiffs composed the firm of S. Seymour & Company and were working upon its road under the agreement as contractors. But the Judge excluded the evidence, ruled that there was a variance, directed a verdict for the defendant, and rendered judgment thereon; and the plaintiffs alleged exceptions. The court is of opinion that these rulings were erroneous. In an action upon a covenant made with two or more persons, all the covenantees must join, although only one of them seals the agreement. Petrie v. Bury, 5 Dowl. & R., 152; S. C.,3 B. & C.,353; R. R. Co. v. Howard, 13 How., 307, 337. It is not necessary that all of them should be named in the contract; it is sufficient that they are so described therein that they can be identified. Shep. Touch.,236; Gresty v. Gibson, L. R., 1 Exch., 112; Reeves v. Watts, L. R., 1 Q. L. R., 2 C. P., 559. And upon a covenant with a partnership by its partnership name only, all who are partners at the time of its execution may sue. Hoffman v. Porter, 2 Brock., 156; Brown v. Bostian, 6 Jones (N.C.), 1; 1 Lindley, Part. 4th ed., 476. The agreement declared on-by the recital that it is made between the defendant and "Silas Seymour and such other parties as he may associate with him under the name of S. Seymour & Company," by the repeated mention of "the said S. Seymour & Company, parties of the second part," and by the signature of "S. Seymour & Co."-appears to the court to manifest to be that all the persons associated together, under the name of S. Seymour & Company, at the time of the signing of the agreement, should do the work and receive the compensation therein stipulated. This is an action of covenant, brought by Silas Seymour and three other persons, describing themselves as copartners trading in the name and style of S. Seymour & Company, and prosecuted since the death of one of them by the sur-the intention of both parties to the agreement vivors, against the Western Railroad Company, upon an agreement purporting to be made between the defendant of the first part, "And Silas Seymour and such other parties as he may associate with him under the name of S. Seymour & Company of the City of New York, of the second part;" by which "the said S. Seymour & Company, parties of the second part," agree to construct a railroad as therein specified; and, "for and in consideration of the faithful performance by the said S. Seymour & Company, parties of the second part, of all and singular the conditions herein contemplated or contained ⚫Head note by Mr. Justice GRAY. It follows that the plaintiffs, upon proving to the satisfaction of a jury the facts above stated, which they offered to prove, would be entitled to maintain their action. The judgment for the defendant must, therefore, be reversed and the case remanded, with directions to set aside the verdict and order a new trial. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. ELIZA D. PRITCHARD, Exrx. of RICHARD | Com., S. P., 459; Beirne v. Patton, 17 La.,592; PRITCHARD, Deceased. Plff. in Err., v. EX NORTON. (See S. C., 16 Otto, 124-141.) Bond of indemnity-New York law-lex loci contractus-intention of parties—lex fori. The defendant in error, also defendant below, executed and delivered in New York, a bond of indemnity, conditioned to hold harmless and fully indemnify the obligee against all loss or damage arising from the liability of the latter on an appeal bond which he had entered into in Louisiana, as surety for a certain railroad company, defendant in a judgment rendered against it in the courts of that State, and which, being affirmed, he was compelled to pay. By the law of New York, any written instrument, although under seal, was subject to impeachment for want of consideration; and a pre-existing liability, entered into without request, which was the sole consideration of the bond of indemnity sued on, was insufficient. It was otherwise in Louisiana. A suit on the bond having been brought in the Circuit Court of the United States for the District of Louisiana, it is held: 1. That the question of the validity of the bond, as dependent upon the sufficiency of its consideration, is not a matter of procedure and remedy, to be governed by the lex fori, but belongs to the substance of the contract, and must be determined by the law of the seat of the obligation. 2. In every forum a contract is governed by the law with a view to which it is made, because, by the consent of the parties, that law becomes a part of their agreement; and it is, therefore, to be presumed, in the absence of any express declaration or controlling circumstances to the contrary, that the parties had in contemplation a law according to which their contract would be upheld, rather than one by which it would be defeated. 3. The obligation of the bond of indemnity was, either to place funds in the hands of the obligee, wherewith to discharge his liability when it became fixed by judgment, or to refund to him his necessary advances in discharging it, in the place where his liability was legally solvable; and as this obligation could only be fulfilled in Louisiana, it must be governed by the law of that State as the lex loci solutionis. [No. 42.] Submitted Apr. 28, 1882. Decided Nov. 13, 1882. Mouton v. Noble, 1 La. Ann., 192. It is accordingly held by the Louisiana Courts that the debt of another is a sufficient consideration to sustain an obligation. All that the Louisiana law requires is, that the promise to pay the debt of another shall be freely made, and that it shall be in writing. Rev. Stat. of Louisiana, sec. 1443. Mouton v. Noble, 1 La. Ann., 192; Flood v. Thomas, 5 Mart. (N. S.), 562; N. O. Gas Co. v. Paulding, 12 Rob., 378; N. O. & C. R. R. Co. v. Chapman, 8 La. Ann., 98; Keane v. Goldsmith, 12 La. Ann., 560. The Code provides that surety may be given for the principal not only, but for the surety. Civil Code of La., art. 3007; McKerall v. McMillan, 9 Rob. (La.), 19. Messrs. Cephas Brainard and George H. Bates, for defendant in error. The lex loci contractus governs the nature, validity, construction and effect of contracts. Story, Cont., sec. 653; Pars. Cont., 5th ed., Vol. 2, p. 570-1; Add. Cont., 861; Story, Confl. L., 4th ed., sec. 242; Whart. Confl. L., 2d ed., sec. 454, and cases cited; Phil. Int. L., Vol. 4, p. 616; Savigny, Guthrie's 2d ed., 205, 227, 229; In re Glyn, 15 Bk. Reg., 497, 501. This principle has been laid down by this court with so much definiteness as to render a citation of other authorities hardly excusable. Scudder v. Union Nat. Bk., 91 U. S., 406 (XXIII., 245). performed partly in one State and partly in anEven when a contract is by its terms to be other, it has been held proper to construe it according to the law of New York where it was made. Morgan v. N. O. M. & T. R. R. Co., 2 Woods, 244; King v. Harman, 6 La., 607. Where a person assumes an obligation at his own domicil the law of that domicil controls the contract. Whart. Conf. L., 2d ed., sec. 410; Lloyd v. Guibert, L. R., 1 Q. B., 115, 122. The present case is not within the exception to this general rule. Whart. Conf. L., 2d ed., sec. 426. A much stronger case than the present is that of the indorser of a promissory note, whose liability is fixed by the place of indorsement. Aymar v. Sheldon, 12 Wend., 439. [See note in same, 1.] The case is fully stated by the court. Mr. Henry C. Miller, for plaintiff in error: The defendant's obligation was to indemnify a Louisiana surety, against a Louisiana obliga-ion of the court: tion, to be enforced in Louisiana. The idemnity must be deemed to be due, where Pritchard resided, and where the loss was sustained, which the defendant was bound to repair. Where an obligation is executed in one place, expressly or tacitly to be performed in another, then the contract as to its validity, nature and obligation is to be governed by the law of the place of performance. Story, Confl. L., secs. 280, 304, 318; 2 Kent, *Head notes by Mr. Justice MATTHEWS. NOTE.-Lex loci and lex fori as to contracts, including notes and bills, as to drawer, acceptor, indorser, usury, etc. See note to Slacum v. Pomery, 10 U. S. (6 Cranch), 221. Contracts; their interpretation and validity. See note to Bell v. Bruen, 42 U. S. (1 How.), 169. Mr. Justice Matthews delivered the opin This action was brought by the plaintiff in error, a citizen of Louisiana, against the defendant, a citizen of New York, in the Circuit Court for the District of Louisiana, upon a writing obligatory, of which the following is a copy: STATE OF NEW YORK, County of New York. Know all men by these presents that we, Henry S. McComb, of Wilmington, State of Delaware, and Ex Norton, of the City of New York, State of New York, are held and firmly bound, jointly and severally unto Richard Pritchard, of New Orleans, his executors, administrators and assigns, in the sum of fifty-five thousand ($55,000) dollars, lawful money of the United States, for the payment whereof, we bind ourselves, our heirs, executors and admin. istrators firmly by these presents. Sealed with | eration requisite to support it, was to be govour seals, and dated this thirtieth day of June, A. D. eighteen hundred and seventy-four. Whereas, the aforesaid Richard Pritchard has signed an appeal bond as one of the sureties thereon, jointly and severally, on behalf of the defendant, appellant in the suit of J. P. Harrison, Jr. v. The New Orleans, Jackson and Great Northern Railroad Co., No. 9261 on the docket of the Seventh District Court for the Parish of Orleans. L. S. erned by the law of New York, and not of Louisiana; and that if they believed from the evidence that the appeal bond signed by Richard Pritchard as surety, was not signed by him at the instance or request of McComb and Norton, or either of them, and that no consideration passed between Pritchard and McComb and Norton for the signing and execution of the indemnifying bond by them, then that said bond was void for want and absence of any consideration valid in law to sustain it, and no recovery could be had upon it. The plaintiff requested the court to charge the jury, that if they found from the evidence that the consideration for the indemnifying bond was the obligation contracted by Pritchard as surety on the appeal bond, and that the object of the indemnifying bond was to hold harmless and indemnify Pritchard from loss or damage by reason of or growing out of said appeal bond, then that the consideration for said indemnifying bond was good and valid and is competent to support the action upon the bond for the recovery of any such loss or damage sustained by Pritchard. This request the court refused. Exceptions were duly taken to these rulings, which are now assigned for error, there having been a verdict and judgment for the defendant, now sought to be reversed. Now, the condition of the above obligation is such that if the aforesaid obligors shall hold harmless and fully indemnify the said Richard Pritchard against all loss or damage arising from his liability as surety on the said appeal bond, then this obligation shall be null and void; otherwise, shall remain in full force and effect. H. S. McCOMB. [L. S. EX NORTON. Richard Pritchard, of whom the plaintiff in error is executrix, had, on November 20, 1872, joined in a bond as surety for the New Orleans, Jackson and Great Northern Railroad Company, in a suspensive appeal taken by the latter, from a judgment rendered against it in favor of Harrison, in the Seventh District Court for the Parish of Orleans. A judgment was rendered on that appeal in the Supreme Court of the State, May 30, 1876, against the railroad company, in satisfaction of which Pritchard It is claimed on behalf of the plaintiff in erbecame liable to pay and did pay the amount, ror, that by the law of Louisiana the pre-existto recover which his executrix brought this ac- ing liability of Pritchard as surety for the tion. The condition of this appeal bond was, railroad company would be a valid considerathat the railroad company “Shall prosecute its tion to support the promise of indemnity, notsaid appeal and shall satisfy whatever judg-withstanding Pritchard's liability had been inment may be rendered against it, or that the same shall be satisfied by the proceeds of the sale of its estate, real or personal, if it be cast in the appeal; otherwise that the said Pritchard et al., sureties, shall be liable in its place." The defendant set up, by way of defense, that the bond of indemnity sued on was executed and delivered by him to Pritchard in the State of New York, and without any consideration therefor, and that by the laws of that State it was void by reason thereof. There was evidence on the trial tending to prove that the appeal bond was not signed by Pritchard at the instance or request of McComb or Norton, and that there was no consideration for their signing and executing the bond of indemnity passing at the time, and that the latter was executed and delivered in New York. There was also put in evidence the provisions of the Revised Statutes of that State, 2 Rev. Stat., 406, as follows: "Sec. 77. In every action upon a sealed instrument, and when a set-off is founded upon any sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner and to the same extent as if the instrument were not sealed. Sec. 78. The defense allowed by the last section shall not be made unless the defendant shall have pleaded the same, or shall have given notice thereof at the time of pleading the general issue, or some other plea denying the contract on which the action is brought." At the request of the defendant, the circuit court charged the jury that the indemnifying bond, in respect to its validity and the consid curred without any previous request from the defendant below. This claim is not controverted, and is fully supported by the citations from the Civil Code of Louisiana of 1870, articles 18931960, and the decisions of the Supreme Court of that State. Flood v. Thomas, 5 Mart. (N. S.), 562; Gas Co. v. Paulding, 12 Rob. (La.), 378; R. R. Co. v. Chapman, 8 La. Ann., 98; Keane v. Goldsmith, 12 La. Ann., 560. In the case last mentioned it is said that" The contract is, in its nature, one of personal warranty, recognized by articles 378 and 379 of the Code of Practice." And it was there held that a right of action upon the bond of indemnity accrued to the obligee, when his liability became fixed as surety by a final judgment, without payment on his part, it being the obligation of the defendants upon the bond of indemnity to pay the judgment rendered against the surety, or to furnish him the money with which to pay it. The single question presented by the record, therefore, is, whether the law of New York or that of Louisiana defines and fixes the rights and obligations of the parties. If the former applies, the judgment of the court below is correct; if the latter, it is erroneous. The argument in support of the judgment is simple and may be briefly stated. It is, that New York is the place of the contract, both because it was executed and delivered there, and because, no other place of performance being either designated or necessarily implied, it was to be performed there; wherefore, the law of New York, as the lex loci contractus, in both senses, being lex loci celebrationis and lex loci solutionis, must apply to determine not only the form of the contract, but also its validity. On the other hand, the application of the law | tribunal having jurisdiction of the litigation, of Louisiana may be considered in two aspects, according to the law of its own locality. as the lex fori, the suit having been brought in Whether an assignee of a chose in action shall a court exercising jurisdiction within its terri- sue in his own name or that of his assignor, is tory and administering its laws, and as the ler a technical question of mere process, and deloci solutionis, the obligation of the bond of in- terminable by the law of the forum; but whethdemnity being to place the fund for payment er the foreign assignment, on which the plaintin the hands of the surety, or to repay him the iff claims, is valid at all, or whether it is valid amount of his advance, in the place where he against the defendant, goes to the merits and was bound to discharge his own liability. must be decided by the law in which the case has its legal seat. Whart. Confl. L., secs. 735, 736. Upon that point Judge Kent, in the case of Lodge v. Phelps, 1 Johns. Cas., 139; 2 Cai. Cas., 321, said: "If the defendant has any defense authorized by the law of Connecticut, let him show it, and he will be heard in one form of action as well as in the other." It will be convenient to consider the applicability of the law of Louisiana, first, as the lex fori, and then as the lex loci solutionis. 1. The lex fori. The Circuit Court of the United States sitting in the District of Louisiana, in a cause like the present, in which its jurisdiction depends on the citizenship of the parties, adjudicates their rights precisely as would a tribunal of the State, according to the laws of the State; so that, in that sense, there is no question as to what law must be administered. But in case of contract, the foreign law may, by the act and will of the parties, have become part of their agreement, and in enforcing this, the law of the forum may find it necessary to give effect to a foreign law, which, without such adoption, would have no force beyond its own territory. This, upon the principle of comity, for the purpose of promoting and facilitating international intercourse, and within limits fixed by its own public policy, a civilized State is accustomed and considers itself bound to do; but, in doing so, nevertheless adheres to its own system of formal judicial procedure and remedies. And thus the distinction is at once established between the law of the contract, which may be foreign, and the law of the procedure and remedy, which must be domestic and local. In respect to the latter, the foreign law is rejected; but how and where to draw the line of precise classification it is not always easy to determine. The principle is, that whatever relates merely to the remedy and constitutes part of the procedure, is determined by the law of the forum,for matters of process must be uniform in the courts of the same country; but whatever goes to the substance of the obligation and affects the rights of the parties, as growing out of the contract itself or inhering in it or attaching to it, is governed by the law of the contract. The rule deduced by Mr. Wharton, Confl. L., sec. 401, as best harmonizing the authorities and effecting the most judicious result, and which was cited approvingly by Mr. Justice Hunt in Scudder v. Bank, 91 U. S.,411 [XXIII., 248], is, that "Obligations in respect to the mode of their solemnization are subject to the rule locus regit actum; in respect to their interpretation, to the lex loci contractus; in respect to the mode of their performance, to the law of the place of their performance. But the lex fori determines when and how such laws, when foreign, are to be adopted, and, in all cases not specified above, supplies the applicatory law." This, it will be observed, extends the operation of the lex fori beyond the process and remedy, so as to embrace the whole of that residuum which cannot be referred to other laws. And this conclusion is obviously just, for whatever cannot, from the nature of the case, be referred to any other law, must be determined by the It is to be noted, however, as an important circumstance, that the same claim may sometimes be a mere matter of process, and so determinable by the law of the forum, and sometimes a matter of substance going to the merits, and therefore determinable by the law of the contract. That is illustrated in the application of the defense arising upon the Statute of Limitations. In the courts of England and America, that defense is governed by the law of the forum, as being a matter of mere procedure; while in continental Europe, the defense of prescription is regarded as going to the substance of the contract and, therefore, as governed by the law of the seat of the obligation. "According to the true doctrine," says Savigny, Private Inter. Law by Guthrie, 201, "the local law of the obligation must determine as to the term of prescription, not that of the place of the action; and this rule, which has just been laid down in respect to exceptions in general, is further confirmed, in the case of prescription, by the fact that the various grounds on which it rests stand in connection with the substance of the obligation itself." In this view, Westlake concurs, Private Inter. Law, ed. 1858, sec. 250, who puts it, together with the case of a merger in another cause of action, the occurrence of which will be determined by the law of the former cause, Bryans v. Dunseth, 1 Mart. (N. S.), 412, as equal instances of the liability to termination inherent by the lex contractus. But, notwithstanding the contrary doctrine of the courts of England and this country, when the statute of limitations of a particular country, not only extinguishes the right of action, but the claim or title itself, ipso facto, and declares it a nullity, after the lapse of the prescribed period, and the parties have been resident within the jurisdiction during the whole of that period, so that it has actually and fully operated upon the case, it must be held, as it was considered by Justice Story, Confl. L., sec. 582, to be an extinguishment of the debt, wherever an attempt might be made to enforce it. That rule, as he says, has the direct authority of this court in its support in Shelby v. Guy, 11 Wheat., 361-371; its correctness was recognized by Ch. J. Tindal in Huber v. Steiner, 2 Bing. (N. C.), 202; and it is spoken of by Lord Brougham in Don v. Lippmann, 5 Clark & F., 16, as "the excellent distinction taken by Mr. Justice Story." Walworth v. Routh, 14 La. Ann., 205. The same principle was applied by the Supreme Court of Ohio in the case of the R. Co. v. Hine, 25 Ohio |