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clear that if the foreign law touches only the remedy or
procedure for enforcing the obligation, as in the case of
an ordinary statute of limitations, such law is no bar to
an action in this country; but if the foreign law extin-
guishes the right, it is as much a bar in this country as
if the extinguishment had been by a release of the party
or an Act of our own legislature. This distinction is well
illustrated on the one hand by Huber v. Steiner (a), where
the French law of five years prescription was held by the
Court of Common Pleas to be no answer in this country
to an action upon a French promissory note, because that
law dealt only with procedure, and the time and manner
of suit, tempus et modus actionis instituendæ, and did not
affect to destroy the right or obligation of the contract,
the valor contractûs, and on the other hand by Potter v.
Brown (b), where the drawer of a bill of exchange at
Baltimore upon a person in England was held discharged
from his liability for the non-acceptance of the bill here
by a certificate in bankruptcy, under the law of the
United States of America, the Court of Queen's Bench
adopting the general rule laid down by Lord Mansfield
in Ballantine v. Golding (c), and ever since recognized,
that "what is a discharge of a debt in the country where
it was contracted, is a discharge of it everywhere." So
that, where an obligation by contract to pay a debt or
damages is discharged and avoided by the law of the
place where it was made, the accessory right of action
in every Court open to the creditor unquestionably falls
to the ground. And by strict parity of reasoning, where
an obligation ex delicto to pay damages is discharged
and avoided by the law of the country where it was
(b) 5 East 124.
(c) Cited by Lord Ellenborough, 5 East 130.

(a) 2 Bing N. C. 202.

[1870.]

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V.

EYRE.

VOL. X.

3 Y

B. & S.

[1870.]

PHILLIPS

V.

EYRE.

made, the accessory right of action is, in like manner, discharged and avoided. Cases may possibly arise in which distinct and independent rights or liabilities or defences are created by positive and specific laws of this country in respect of foreign transactions, but there is no such law, applicable to the present case, unless it be the Colonial Governors Act, 11 & 12 W. 3. c. 12., already discussed and disposed of.

It may be proper to remark before quitting this part of the subject, that the colonial Act could not be overruled upon either of these two latter grounds of objection without laying down that no foreign legislation could avail to take away civil liability here in respect of acts done abroad, so that, for instance, if a foreign country after a revolution or civil war were to pass a general Act of oblivion or indemnity burying in one grave all legal memory alike of the hostilities and of the private retaliations which are the sure results of anarchy and violence, it would, if the argument for the plaintiff prevailed, be competent for a municipal Court of any other country to condemn and disregard as naturally unjust or technically ineffectual the law of a sovereign state disposing, upon the same constitutional principles as have actuated our own Legislature, of matters arising within its territory; a course the adoption of which would be an unprecedented and mischievous disregard of the comity of nations.

We have thus discussed the validity of the defence upon the question argued by counsel touching the effect of the colonial Act, but we are not to be understood as thereby intimating any opinion that the plea might not be sustained upon more general grounds as shewing that the acts complained of were incident to the enforce

ment of martial law (a). It is however unnecessary to discuss this further question, because we are of opinion with the Court below that the colonial Act of indemnity, even upon the assumption that the acts complained of were originally actionable, furnishes an answer to the action.

The judgment of the Court of Queen's Bench for the defendant was right, and is affirmed.

Judgment affirmed.

(a) On this difficult subject the reporters have been favoured by Mr. Justice Willes with the following note referring to authorities and illustrations which will be useful if the question as to matters hastily done in civil war or putting down rebellion being out of ordinary jurisdiction should ever come to be considered judicially.

"As to the exercise of martial law (distinct from statute military law) as part of the prerogative, see Lord Bacon's argument in The Case of the Post-nati of Scotland, Bacon's works by Basil Montagu, vol. 5, pp. 106. 145-6, and his Essay on Plantations, Id. vol. 1, pp. 115. 117; Co. Litt. 11 b. 7.; The Case of the Governor of Derry, 2 Ventr. 314; Commons Debates, vol. 2, (1689), pp. 349. 355. 383; Sir Thomas Hislop's Case, (1820), 62 Annual Register, 180; Elphinstone and another, appts., Bedreechund, and another, respts., 1 Knapp 316; Stats. 43 G. 3. c. 117; 3 & 4 W. 4. c. 4. As to the jurisdiction of one of the American States to authorize the executive government to declare martial law, Luther ▼. Borden, 7 Howard 1, and the argument of Daniel Webster in 6 Webster's Works, 217. 240, 7th ed., where the effect of martial law is considered. The distinction between martial law and military law in an international sense is also clearly laid down in the elaborate work of Calvo, vol. 1, Derecho Internacional, pp. 475, 476. (s. 379, la ley marcial y la ley militar; s. 380, la ley marcial en los estados Europeos) and the authorities referred to."

[1870.]

PHILLIPS

V.

EYRE.

END OF MICHAELMAS VACATION.

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1. Where a defendant appears in per-
son to a writ of summons under The
Common Law Procedure Act, 1852,
15 & 16 Vict. c. 76. s. 30., the memo-
randum required by sect. 31 need not
be delivered by him in person or by an

Notice of. See Metropolis Management attorney for him.
Amendment Act.

ADJOURNMENT.

2. A writ having been issued against
the defendant under The Summary
Procedure on Bills of Exchange Act,
1855, 18 & 19 Vict. c. 67., which by

See Beerhouse. Commissioners, Parlia- sect 1 incorporates The Common Law
mentary.

ADMINISTRATOR.

See Pleading, II.

AMENDMENT.

Procedure Act, 1852, 15 & 16 Vict. c. 76.
ss. 30, 31., and a copy of it having been
left at his house, he, on Monday, No-
vember 1, obtained leave to appear. On
Wednesday, November 3rd, the plaintiffs,
not being aware of that fact, obtained
the usual order for leave to proceed in
three days as if personal service had been

See Bankruptcy Act, III. Lessor and effected. The time for entering an ap-
Lessee, II.

ANIMALS.

See Highway, I.

pearance expired on Saturday the 6th.
On Monday morning the 8th a memo-
randum of the appearance of the de-
fendant was handed in to the office.
The plaintiffs afterwards signed judg-
ment on the same day, and the defendant
was arrested on a ca. sa. The Court set
aside the judgment, but, as the defend-
See Insurance, Marine, I. Limitation, III. ant did not give the plaintiffs notice that

APPEAL.

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