It is a well established principle of jurisprudence, that the effect and validity of contracts are to be determined by the laws of the place in which they are intended to be performed. The place of performance may be indicated by the terms of the contract itself, or it may be legally inferred from circumstances. If the parties to a contract have a common domicil, the legal presumption in the absence of evidence is, that they intend to perform it there, therefore its validity and meaning will be according to the laws of that domicil. Every forum in the civilized world is presumed to proceed upon these familiar principles, and will enforce the foreign contract in conformity to the laws applicable to it, provided the course of procedure and practice in such forum, admit of their application.
An obvious reason for this, is, that parties are supposed in making their contracts, to settle their terms with reference to the laws of the place of their performance; which laws, by such reference, become a necessary part of the contract itself. If a different rule were to be applied, tbe consequence might often be, that parties, through the accident of being within a foreign jurisdiction, would be involved in obligations into which they never voluntarily entered, or on the other hand, find themselves absolved from such as would have justly bound them by the terms *92as understood and intended by themselves, in entering upon the engagement.
The decisions on this subject are very numerous. The eases of Harrison v. Edwards, 12 Vt. 648, and Wheeler v. Walker 12 Vt. 427, show plainly that the principle is recognized in that State.
The defendant is the maker of the note in suit, which was payable to Parker, and on the 19th day of January 1835, was the holder of a note for a smaller sum against Parker. This, it seems by the laws of Vermont, he may have the benefit of in the way of a set-off against the holder of the note in suit. Of this the plaintiff had notice, and before suit was served with a tender of a sum of money equal to the difference between the sums due on the two notes. The defence was by the laws of the parties’ domicil perfect.
The precise form in which the party avails himself of such a defence in the courts of Vermont is not material. The only "question is, -Whether this defendant, in setting up the matter, has adopted a form by which this court can give him the advantage of it; for we must confine ourselves to our own forms of remedy, and can not adopt those of the foreign tribunal.
The plea of tender and the plea of set-off are forms or modes of defence familiar in our practice, and so is the use of the .brief statement instead of those pleas. A tender may, in either form, be set up as a defence pro tanto. And a set-off is a form in which the note held by the defendánt against Parker on the 19th day of January 1835, may be made to take the effect which the laws of Vermont accord to it as ah answer, for so much, to the action upon the note in suit.
A case is therefore presented, in which the comity of States, and 'the most obvious considerations of justice, require us to give effect to the defence set up. By the laws of the place where the contract was made, which, as *93has been said, form a part of the contract itself which resulted between the parties to this suit from the indorsement under which the plaintiff claims, his right under that act extended no further than to enable him to recover of the defendant the sum which he owed the indorser at the moment of the transfer. This it appears was nothing at ail, except the money which had been tendered, and which has been brought into court.
This right or exemption of the defendant, the form which he has adopted in our court is well fitted to secure to him. Should we refuse to recognize the laws of the neighboring State in this instance, we should he lending the aid of our forum to charge the defendant with an obligation into which he never voluntarily entered, and upon the other party we should confer an advantage to which he was not entitled by the contract which ho made. There must be
Judgment on the verdict.