Thus in the case of Mackenzie v. Macleod (r) it appeared, that by the law of Scotland a tenant is liable to his landlord, if premises demised are burnt down by the negligence or misconduct of the tenant's servant in the ordinary scope of his employment. The defendant's servant burnt down a house demised to the defendant, in Scotland, by lighting furze and straw with a view to cleanse a chimney which smoked, although she had been cautioned against the danger of such a proceeding. In an action brought against the defendant by his landlord for this injury, it was held, that it was properly left to the jury to say whether the servant was acting within the general scope of her duty; and the jury having found for the defendant, the court refused to grant a new trial.

So where on an issue on a clause in a charter party that the plaintiff on a certain day had been ready to unload a vessel and had received" pratique," the plaintiff proved that the port of unloading was on the coast of Africa, where no custom house or institution for giving "pratique" existed, that he was ready to unload the vessel on that day, and that no impediment to unloading existed, the jury found that the vessel was ready to unload on the day but had not received pratique: held that on this issue the plaintiff was entitled to the verdict, Littledale, J. observing, that "Pratique in this charter party means the moment the vessel begins to unload her cargo at her outward port, and that as soon as a vessel is allowed to unload by the laws or customs of the foreign country, she may be said to have pratique (s).”

In an action for money paid for the defendant's use, but not for necessaries, it appeared that the cause of action accrued in Scotland, and that the defendant was under age. It did not appear from the evidence what was the law of Scotland in regard to the

in France, may be cited before the French courts, to enforce the execution of engagements contracted by him in France with a Frenchman; he may be summoned before the tribunals of France, on account of engagements entered into by him with Frenchmen in a foreign country.

"A Frenchman may be summoned before a French court, for engagements contracted by him in a foreign country, though with a foreigner. In

all causes, except commercial ones, in which a foreigner shall be plaintiff, he shall be required to give security for the payment of the costs and damages incident to the suit, unless he possess in France immoveable property of value sufficient to guarantee such payment."

(r) Mackenzie v. Macleod, 10 Bing. 385; 4 Moo. & S. 219, S. C.

(s) Balley v. De Arroyave, 3 Nev. & P. 114; 7 Ad. & E. 919, S. C.

defendant's liability. Lord Eldon said:" What the law of Scotland is, with respect to the right of recovering against an infant for necessaries, I cannot say; but if the law of Scotland is, that such a contract as the present could not be enforced against an infant, that should have been given in evidence; and I hold myself not warranted in saying, that such a contract is void by the law of Scotland, because it is void by the law of England. The law of the country where the contract arose must govern the contract; and what that law is should be given in evidence to me as a fact. No such evidence has been given, and I cannot take the fact of what that law is without evidence (t)." By the law of France an indorsement in blank does not transfer any property in a bill of exchange, it was therefore held that the holder of a bill drawn in France and indorsed there in blank, cannot recover against the acceptor in the courts of this country (u).

So, where it appeared in an action upon an unstamped Jamaica agreement, that by the law of that island the contract required a stamp, and was void for want of it-the court held that the action in this country could not be maintained (x). But it is only in the case of instruments made in his Majesty's dominions that any objection to the receipt of such instruments for want of a stamp, in pursuance of the law of the place, can be effectually made upon the trial of an action in this country. Our courts do not notice the revenue laws of another state; therefore where assumpsit was brought for money lent in France, and unstamped receipts were produced in proof of the loan, evidence to show that by the law of France such receipts required stamps to render them valid, was rejected (y). This is an exception to the general principle of reciprocity.

The assignee of an Irish judgment by cognovit may sue in this country in his own name (z).

But in seeking to enforce a remedy by action in this country

(t) Male v. Roberts, 3 Esp. R. 163. In a plea the law of Scotland is traversable and must be proved; Woodham v. Edwards, 1 N. & P. 207; 5 Ad. & E. 771.

(u) See Trimbey v. Vignier, 4 M. & Scott, 695; 1 Bing. N. C. 151; 6 C. & P. 25, S. C., a case in which all the cases and law have been collected.

(r) Alves v. Hodgson, 7 T. R. 241; 2 Esp. R. 528, S. C.; and see Clegg

v. Levy, 3 Camp. 166. But the foreign law must be clearly proved by the party objecting, and how, id. and supra, note (t); Miller v. Keinrick, 4 Camp. 155. See Bire v. Moreau, 2 C. & P. 376.

(y) Jumes v. Catherwood, 3 D. & R. 190; post, 95; per Lord Mansfield in Holman v. Johnson, Cowp. 343, 344.

(z) O'Callaghan v. Marchioness of Thomond, 3 Taunt. 82.

6

upon a foreign contract, all the rules and provisions of our law which have relation to and regulate the time and mode of proceeding, and the practical conduct of the suit, shall be consulted, without regard to the foreign law upon the subject of the remedy upon the agreement. As to the remedy, the lex domicilii shall prevail. Tindal, C. J. in Huber v. Steiner (a) has stated the distinction between that part of the law of the foreign country where a personal contract is made which is adopted, and that which is not adopted by our courts, it is-" that so much of the law as affects the rights and merits of the contracts, all that relates ad decisionem litis,' is adopted from the foreign country— so much of the law as affects the remedy only, all that relates ad litis ordinationem, is taken from the lex fori of that country where the action is brought." In the interpretation of this rule the time of limitation of the action is governed by the law of the country where the action is brought, and not by the lex loci contractus. And therefore where by the 189th article of the Code de Commerce, it is declared that "All actions relative to letters of exchange and to bills to order, subscribed by merchants, tradesmen, or bankers, or for matters of commerce, are prescribed (se prescrivent) by five years, if the debt has not been acknowledged by an acte separe, nevertheless the supposed debtors shall be held, if required, to affirm upon oath that they are no longer indebted, and their widows, heirs, or representatives, that they bona fide believe that there is nothing more due;" it was held, that this prescription merely operated in bar of the remedy, and not as an extinguishment of the right or contract itself (b).

An instrument was made in Scotland, which, by the Scotch law, had the operation and effect of a bond; and by that law a term of forty years was allowed, within which a suit might be instituted upon the obligation. To an action brought in this country upon the instrument as a Scotch bond, the defendant pleaded the English statute of limitations: the declaration set forth the Scotch term of limitation. Upon demurrer to the plea, it was considered that the remedy in this country was to be governed by our law of limitation, and that the claim here was barred

(a) Huber v. Steiner, 2 Scott, S04; 2 Bing. N. C. 202, S. C.; Hodges, 206, S. C. And see Anstruther v. Adair, 2 Mylne & K. 513, that the

same rule of construction is adopted in equity.

(b) Huber v. Steiner, ubi supra.

thereby, and the defendant had judgment (c). And a defendant may be arrested here for a debt contracted abroad, (in Portugal,) although the foreign law does not permit an arrest for such a demand (d). But our courts will not adopt foreign rules of evidence even in case of contracts made abroad (e).

But it seems that our courts will not, in some cases, afford redress on a contract made abroad, if it be expressly stipulated in such contract that no proceeding thereon shall be taken in a foreign country. Thus, in Johnson v. Macheilson (ƒ), which was an action for a seaman's wages, it appeared that the seamen were foreigners, and had agreed in their own country" that they would not in foreign parts prosecute payment of any money whatever of the captain, but be satisfied with what he might be pleased to advance them abroad in deduction of their wages." It was contended that the jurisdiction of our courts could not be thus excluded; but Lord Ellenborough said, "If this were merely the regulation of a foreign government, I should leave that government to enforce it, by punishing the infraction of it, or by any other means that might be more effectual. But by the personal contract between the individuals before the court, it is expressly stipulated that the mariners shall not sue the captain for wages in foreign parts. It is impossible for me to say that this stipulation is void. There may be great reason for protecting the captain from suits in foreign countries, where he may have no funds to answer the demands of the mariners; and it may be conducive to the interests of commerce that the mariners should have the strongest inducement to remain in the ship till the adventure is completed. The rate of wages might be in part determined by the condition that they were not demandable till the ship's return home. The agreement was made abroad but it is transitory; and we are bound, as far as we are able, to give it the same construction and effect, which it would receive in the country where it was made." It seems that where money is due upon a contract, it is to be paid according to the currency of the place or country in which it is stipulated that the payment shall be made (g).

(c) The British Linen Company v. Drummond, 10 B. & C. 903, cited in 1 B. & Ad. 284, 285.

(d) De la Vega v. Vianna, 1 B. & Ad. 284. The court overruled the decision in Melan v. Duke de Fitzjames, 1 B. & P. 138. In the latter

case, Mr. J. Heath differed with the
rest of the court of Common Pleas.
(e) Brown v. Thornton, 1 N. & P.

339.

(f) 3 Camp. 44; Gienar v. Meyer, 2 H. Bla. 603.

(g) 3 Chit. Com. L. 109; 1 Powell,

Verba cartarum fortius accipiuntur contra proferentem. A deed or other instrument shall be taken most strongly against the grantor, or contractor. As if tenant in fee simple grant to any one "an estate for life" generally; it shall be construed an estate for the life of the grantee (h). If two tenants in common grant a rent of ten shillings, this is several, and the grantee shall have ten shillings from each; but if they make a lease, and reserve ten shillings, they shall have only ten shillings between them (i). Even in the case of guarantees, if there be any doubt, the contract shall be construed most strongly against the party who becomes bound (k). Therefore, where defendant, in consideration of the plaintiff's withdrawing a distress for rent, undertook to pay the sum due for rent out of the sale of the produce of the effects, this was held to be a positive engagement to pay if the goods were sufficient, and that the defendant could not after proof that the goods produced sufficient to pay the rent, insist as a defence that there were prior claims, and that it was not shown that after satisfying those claims any surplus remained in defendant's hands, Parke, B. observing, "If the defendant meant merely to put plaintiff in the same situation with respect to the claims of other parties as if he had gone on with the distress, he should have made his contract accordingly (1)." In the case of an exception in a lease, &c., it is a general rule of construction, that if there be any doubt about its meaning, the words of the exception, being the words of the lessor, are to be construed favourably for the lessee, and against the lessor (m).

on Contr. 407; Chitty B. 8th ed. 433, 7th ed. 286; id. Index, tit. Foreign Laws and Money; Scott v. Bevan, 2 B. & Ad. 78; post, Index, tit. Interest.

(h) 2 Bla. Com. 380, cites Co. Lit. 42. Blackstone draws a distinction between an indenture and a deed-poll; "for the words of an indenture, executed by both parties, are to be considered as the words of them both: for though delivered as the words of one party, yet they are not his words only, because the other party has given his consent to every one of them. But in a deed-poll executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him; Co. Litt. 134." In the case of contracts not under

seal, there must be a reciprocity of assent and obligation, and yet the rule applies to such contracts where a doubt exists. In the case of crown grants, &c., the rule of construction is, that the instrument shall be taken most favourably for the king, J. Chitty, jun. on Prerogatives of the Crown, $91, &c.

(i) 5 Co. 7b; Plowd. 140; Co. Lit. 197 a, 267 b.

(k) Hargreave v. Since, 6 Bing. 244; 3 M. & P. 573, S. C. Vide per Best, C.J., Evans v. Whyle, 3 M. & P. 136.

(1) Stephens v. Pell, 2 C. & M. 710; 4 Tyr. 6, S. C.

(m) The Earl of Cardigan v. Armıtage, 2 B. & C. 197; per Bayley, J., Bullen v. Denning, 5 B. & C. 847; and Holroyd, J., id., 850; 5 Co. 10 b.