dissenting. — I happen to differ from the court in this cause; and as the question decided is new, and of some importance, there may be no impropriety in expressing my dissent. I am with the plaintiff altogether; but as the court have declared in this cause no opinion as to the second ground of defence, that is, the effect of the contract entered into with Mrs. Gookin, I have nothing to say on that point. But the statute of New-Hampshire, I consider as intended to be a mere local regulation, or statute of limitations, as to the settlement of insolvent estates in their own jurisdiction; or if not so intended, should be here so construed. It is a provision- in an act for the settlement of dead men’s estates, *186different from the common law mode, which would govern if there were no statute, and to settle insolvent estates ordinarily without suits, and to divide the property within their jurisdiction equally. The whole amount of debts, therefore, must be known, before the dividend can be struck; and those that will not, in a prescribed time, exhibit their debts, shall lose their share in the division. And as the demands were to be presented to the commissioners, and not sued, in lieu of saying, like our statute of limitations, that “ all actions shall be commenced and sued within such a time, and not af-terwards,” ft says “shall be far aver barred.”
. Our statute, relating to exhibiting claims before commissioners, says, that if any person neglecting, Sic., “ shall be forever barred from recovering such demand, or from pleading the same in offset in any action whatever.”
These different expressions mean the same thing — that the party shall have no remedy to collect his debt. This is what -all statutes of limitation mean; and the old distinction between the right and the remedy, seems to be at war with the principle, that where there is a legal right there is a remedy. And within the government where the act is passed, this distinction would be idle. It is intended to destroy the right by cutting off the remedy — the only proper way to effect it. But as to foreign jurisdiction, the statute cannot reach the remedy, and therefore it not only does not, but is no evidence that it was intended to affect the right out of the state. Although there was formerly some decisions to the contrary, it is now well settled, that there is no distinction as to where the parties did or do reside, under the head of a discharge of the contract, by the law of the place where made, being a discharge every where, except only under the clause of the constitution of the United States, prohibiting states from passing laws impairing the obligations of contracts: Under that clause, the supreme court of the U. States have decided, that the insolvent laws of a state discharge only the citizens of that state. — Story’s Conflict of Laws, 283, and authorities there cited. So that without regard to the constitution of the United States, this statute, if it discharges any debt, discharges all debts contracted in New-Hampshire, without regard to the residence of the parties. And with regard to the constitution, if the bar or discharge is like a discharge under an insolvent law, it is a discharge of all debts due to citizens of New-Hampshire, wherever the contracts were made, but no bar to debts due to citizens of other states, whether contracted in New-Hampshire or elsewhere.
In Lincoln vs. Battelle, 6 Wendall, 475, it was decided, that a *187foreign law, purporting to extinguish the debt as well as right of action, there being no insolvency or surrender of property, was in the nature of a statute of limitations, affecting the remedy and not the validity of the contract.
In 2 Mason, 151, Judge Story, after discussing the subject, says, that if the subject was new, he would hold !{that where all remedies are bound by the leso loci contractus, there is a virtual extinction of the-right in that place, which ought to be recognized by every other tribunal as of equal validity;” but admitted and decided the law to be otherwise. That distinguished Judge has lately published his Commentaries on the Conflict of Laws, which probably had not come to hand when the case was argued, or it would not have escaped the attention of the counsel. The 14th chapter of this very learned work, which treats of jurisdiction and remedies, is very satisfactory to my mind, that although the learned Judge has liad, and perhaps still has, an individual inclination that the law should be different; yet there are no authorities, English or American, for adjudging any foreign supposed statute of extinguishment, to be other than a statute of limitations. And the admission of so great a judge, that the law is different from what he seems to desire it to be, is to me very convincing. The author, after speaking of the contrary opinion of some continental authorities, says, “ The doctrine of the common law is so fully established on the point, that it would be useless to do more than to state the universal principle which it has promulgated ; that in regard to the merits and rights involved in actions, the law of the place where they originated is to govern. But that all forms of remedies and judicial proceedings are to be according to the law of the place where the action is instituted, without any regard to the domicil of the parties, the origin of the right, or the country of the act.” He shows that the case of Melan vs. Fitzjames, 1 Bos. Pul. 138, where the defendant was discharged from arrest, because upon that contract, he could not have been arrested in France, where it was made, was a mistaken decision, and has been overruled. I will now transcribe his concluding remarks, which apply most directly to the question in controversy in this case, supposing the statute of New-Hampshire was intended to extinguish the debt: It is somewhat long, but in my view very valuable. P. 487, the whole of Sec. 582.— “ But although statutes of limitation or prescription of a place where a suit is brought, may properly be held to govern the rights of par-, ties in such suits, or as the proposition is commonly stated the recovery must be sought and the remedy pursuedwithin the time pres*188cribed by the lex fori, without regard to the lex loci contractus, or the origin of the cause, yet there is a distinction which deserves consideration, and which has often been propounded. It is this: suppose the statutes of limitation of a particular country do not only extinguish 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 are resident within the jurisdiction during all that period, so that it has actually operated upon the case, may not such a statute be set up in any other country to which the parties remove, by way of extinguishment or transfer of the claim or title ? This is a point which does not seem to have received as much consideration in the decisions of the common law as it would seem to require. That there are countries in which' such regulations do exist, is unquestionable. There are states which have declared, that all right to debts due more than a prescribed term of years, shall be deemed extinguished; and that all titles to real and personal property, not pursued within the prescribed time, shall be deemed forever fixed in the adverse possession. Suppose for instance (as has been) personal property is adversely held in a state for a period beyond that prescribed .by the laws of that state; and after that period has elapsed,the possessor should remove in to another state, which has a longer period of prescription; could the original owner assert a title there, against the possessor, whose title, by the local law and the lapse of time, had become final an d conclusive before the removal ? It has certainly been thought, that in such a case, the title of the possessor cannot be impugned. If it cannot, the next inquiry is, whether the bar of a statute e xtinguishment gí a debt, lex loci, ought not equally to be held a preventory exception ? This subject may be thought by some to be open for future discussion. But it should be stated, that as far as the decisions in the American courts go, they do not sustain the distinction. In all the cases however in which the point has been discussed, the statutes under consideration did not extinguish the right, but merely the remedy.”
From this I understand that the notion of making the supposed distinction, so far from being established by the English courts, that they have scarcely thought it worthy of consideration ; and that in America, the author supposes that no case has occurred, where the court considered that any statute meant to extinguish the debt. But that in the cases upon statutes of limitation which have arisen, this distinction has not been countenanced by the courts.— There is, therefore, to say the least, an absence of all authorities in *189support of it. That adverse possession of personal property, during the time required by a statute, will give title, has indeed been decided in Brant vs. Chapman, 5 Cranch, 358; and in other cases on the same principle. That fifteen years adverse possession gives title to land under our statute, and if the question of land title could be tried out of this state, the decision would likely be the same, as the manner of acquiring or transferring the title to property. It is the inherent right of every government to prescribe ; and when acquired, the right to it is not local, but the right to extinguish a contract, although it may be a kindred question, is not by the author himself considered the same.
I am not satisfied that the New-Hampshire act is a statute of ex-tinguishment : I regard it as of the same nature as a statute of limitations ; and that if it did purport to extinguish the debt, I am not 'prepared to sanction such an attempt by any other state or kingdom. Neither authorities, justice, or comity, in my view, requires us to go that length. I see no way consistent with the now settled law, to make any distinction between citizens of New-Hampshire and this state, or other states ; and it would seem invidious to attempt it. The language of the statute comprehends all; and it is not pretended the constitution of the United States affects this case. The circumstance of the creditor’s being in New-Hampshire is of no importance. And to allow the citizens of Vermont to present their claims here, and not those of New-Hampshire, is, in my view, without any good reason; and would equally exclude creditors dwelling in New-York or Massachusetts; and the inconveniences of these exclusive and particular allowances, near the lines of the state, where creditors reside, and property real and personal is ofton owned by the deceased in two states, especially where there is an actual insolvency, would be very great, and what is believed has not hitherto been understood or practised. But each -creditor has exhibited his claims, where he chose; at least, so far as to elect which jurisdiction- And it may often happen that. an estate is insolvent where a person dies- but only over the river, solvent, and perhaps rich; and why not permit the claims to be allowed, in all places, where there is estate, and a representation of insolvency ? And then all the dividends may pay the whole ; and if any neglect in anyplace, they lose the dividend there, if a claim can only be presented in one place : then if this plaintiff had presented his claim, and it had been allowed in New-Hampshire, he would clearly have avoided the supposed extinguishment or bar of the statute; but if the estate there had paid but a portion of the debt, he would have been barred here, because he had complied with the statute there. *190It would seem that the law of the domicil of the deceased should , only govern the payment ol his debts in that government; but the Jaw '0f tjje sfáus should govern as to the allowance of the debts, as it does the distribution of the property among the creditors in case of insolvency, such as the priority of debts. And although the administration taken out where the domicil was, is called the principal, and others ancillary or auxiliary, yet it is rather a verbal than a real distinction; for the debts and effects are often chiefly in other jurisdictions than that of the residence. And the general policy as well as justice of the law, at least in New-England, is to apply the property of the deceased to the payment of the debts before the heirs are let in ; and to effect this, the proceedings must in some manner be in rem. And although a man must die somewhere, he may own property and owe debts every ivhere. And in this country, where we have so many separate governments, it is of great importance that no new and and additional embarrassment should be interposed to the collection of debts against deceased persons, as the delays and shifts of those who settle estates are already very discouraging to creditors. And"the general utility" of a principle should be very clear to induce a decision that may do very great injustice in particular cases, as I fear it will in this.