388
ll'lI:DEBAL REPORTER.
mentary. The law of the place of the contract determines the nature, the obligation, and interpretation of the contract. But when the contract is to be performed in a different place to that in which it is made, the law of the place of performin conformity to the pl'esumed intention of the parties, deteTmines the nature, obligation, and interpretation of the contract. A defence or discharge, good by the law of the place of the :lontract, is good wherever the contract is sought to be enforced; but when the place of performance is not the place where the contract was made, the defence or disoharge is valid or invalid according to the law of the place of performance. The doctrine that a defence or discharge good by the law of the place of the contract is good everywhere, is subject to several qualifications, one of which is that the discharge or defence must not be of such character that it would conflict with the duty of the state where it is sought to be enforced towards its own citizens to recognize it. The laws of a state have no extraterritorial vigor, and are enforced by other states only upon considerations of comity, and these always yield to those higher considerations which demand of every state the protection of its own citizens against the unwarrantable acts of a foreign sovereignty. These familiar general propositions require no citation from the authorities to support them. Applying them here the defence cannot succeed. The plaintiff sues upon s contract which was made in Canada, but was to be performed in ,the state of New York, the place of payment being the place of performance; and a discharge of the obligation which derives its vitality solely from the authority of a. foreign sovereignty, is of no more effect than would be the c.ase if New York were the place where the contract was made. One of the most common instances, in illustration of the rule, is where the defence of usury is interposed, in an action brought here upon an obligation made in .. foreign state, and bearing a higher rate of interest than is permitted by the lawlil of that state. When the obligation is payable here, the cases all agree that the usury laws of the foreign state have no application.
GEBHARD
CANADA SOUTHERN BY. CO.
389
Another class of cases, more analogOlul to the preaent because they involve the effect of an ex post facto discharge of the obligation, is where a discharge in bankruptcy has been obtained under the laws cf the state where the contract was made. Such a discharge is not a defence when the place of performance of the obligation is in a different state. The question has frequently been considered by the supreme court of the United States, and. although generally discussed in connection with constitutional questions, it has been ruled, with the concurrence of all the judges, that, irrespective of other considerations, the discharge is inoperative when obtained in a different state from that where the debt was payable, because the contract and its obligation cannot be affected by the islation of other sta-tes. See opinions of Grier, Daniel, and, Woodbury, JJ., in Cook v. Moffat, 5 How. 295. The decision of the present case may properly rest upon this ground alone, but if the obligations in suit were Canadian contracts the defence would be untenable. The act of the Canadian parliament is an attempt to impair and destroy the obligation of a contract. Undoubtedly it was supposed, in view of the financial embarrassments of the defendant, that the new obligations authorized by the act would be acceptable to the holders of the original bonds, and would be of equal, if not of greater nlue. But the plaintiff was entitled to the money due by the terms of his bonds, and any legislative act which attempts to deprive him of it by compelling him to accept something different, violates fundamental principles of justice, and is in effect an arbitrary confiscation of the plaintiff's property. Although, by the theory of the British constitution, parliament is omnipotent, the jurists and statesmen of England have denied its right to transcend the boundaries which confine the discretion of parliament within the ancient landmarks. When it was proposed by act of parliament to impair vested property rights by remodeling .the charter of the East India Company, in 178:3, the attempt was denounced by Lord Thurlow and Mr. Pitt "as a total subversion of the law and con_ stitution of the country, " and some of the greatest jurists
390
FEDERAL
judges of England have declared that an act of parliament against common right and natural equity is void. Angel on Corporations, § 767. In our own country we regard such acts as so subvorsive of natural rights as not to be within the authority dolegated to the legislative department of the government. It is sometimes supposed that because the constitution of the United States prohibits the state from passing such laws, and is silent as to the United States, the authority to pass them resides in congress by implication. This is an erroneous assumption. As said by Wilson, J., (13 Wend. 328,) "It is now considered an universal and fundamental proposition in every well regulated and properly administered government, whether embodied in a constitutional form or not, that private property cannot be taken for private purposes, nor for public, without just compensation, and that the obligation of contraots cannot be abrogated or essentially impaired. These and other vested rights of the citizen are held sacred and inviolable, even against the plentitude of power of the legislative department." The same views are expressed by the learned author of Cooley's Constitutional Limitations, (176,) as follows: "However proper ana prudent it may be expressly to prohibit those things which are not understood to be within the proper attributes of legislative power, suoh prohibition can never be essential when the extent of the power apportioned to the legislative department is found, upon examination, not to be hoad enough to oover the obnoxious authority. The absence of such prohibition oannot, by implication, confer power." A contract is property; to destroy it partially is to take it, and to do this by arbitrary legislative action is to do it with. out due process of law. Sinking Fund Cascg, 99 U. S. 746-7. If any of our own states had passed such an act as the one under oonsideration it would have been the duty of the courts of that state to treat it as an unlawful exercise of power; and certainly it cannot be expected that this court will tolerate legislation by a foreign state which it would not simction if
BOSENBACH V. DBBYFUS&
891
passed here, and which, if allowed to operate, would seriously prejudice the rights of a citizen of this state. Comity can ask no recognition of such unjust foreign legis. I8tion, and the case falls under the qualifioation of the genera.l rule which prescribes that when the foreign law is repugnant to the fundamental principles of lete jori it will be ignored. Judgment for plaintiff.
ROSENBACH
fl. DBEYlI'tl'SS
and another;
(lJUtrict O()'/J,rt,& D. New York. January 21,1880.) PBACTlCJB--,PLEADmG-.A.HENDMENT
AFTKR sectfon 542 of tho New York Code, as applied by section 914 of the Revised Statutes to the practice and pleading in the circuit and district courts within the state of New York, a complaint is amendable by the party at any time within 20 days aite,ra demurrer thereto.
AMENDMENT-AvERMENT Oll' STATUTE VIOLATED-SAW CAUSE OJ!' ACTION.
-The amendment of & cOll'.plaint by'a changeln the averment oithe statute violated, docs not set out a new cause of action where both statutes were substantiaUy identical, and the last mentioned was passed as a substitute for the one first pleaded.
Chittenden <t Fiero, for plaintiff. Koones wGoldman, for defendants. CHOATE, J. This is an action to reoo'\"er penalties for in. serting notice of copyright on articles not copyrighted. The acts complained of are charged to have been done in year 1818, and the complaint refers to the act of 1810, c. 230, § 98, as the statute violated. On the seventh of July, 1819, the defendants filed and served a demurrer, alleging as grounds thereof-First, that the statute alleged to be violated was repealed by the Revised Statutes, § 5596; second, that, if liable under the statute, the defendants are liable only for one penalty of $100 for the entire edition of the work published, instead of the like penalty for each copy printed; third, that the complaint does not state facts sufficient to constitute a cause of action; fourth, that the supposed causes of action are not set forth
392
FEDERAL REPORTER
fully or at large, but in an abbreviated form, different from the usual and established precedent in all cases, and that the complaint is in other respects uncertain, informal, and insufficient. On the twenty-sixth of August, after the demurrer had been noticed for argument, the plaintiff served a paper entitled an "amended complaint," in form like the original complaint, except that the statute alleged to have been violated was Revised Statutes, § 5596, instead of Statutes 1870, c. 230, § 98. This paper was immediately returned by the defendants' attorneys to the plaintiff's attorneys, with a written notice that they refused to receive it "on the ground that the attempted service thereof, as a matter of course, is unauthorized by, the law and practice of this court, and on the ground that, as we have served and filed a demurrer to plaintiff's declaration herein, you cannot cure the defects in such declaration demurred to except by leave of court, after argument and payment of costs on the demurrer." The defendants now move to strike from the files, as a nullity, the paper called an amended complaint, and for general relief. The New York Code of Procedure provides, (section 542,) that "within 20 days after a pleading, or the answer or demurrer thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs and without prejudice to the proceedings already had." No point has been made that the 20 days after service of the demurrer had expired before the amended complaint was served. The written notice, returning it, put the refusal to receive it on other grounds. This was, perhaps, a waiver of the delay in serving the amended complaint. But, whether this is so or not, the parties upon the argument of this motion have put the case wholly upon other grounds, and submitted the question as one not ot compliance, or failure to comply, with section 542 of the Code, but have rested the case on the question whether that section applies to actions at law
