ers in respect to the acts to be done by him. If the drawee fail to do what the drawer and endorsers have undertaken he shall do, then reference will again be had to the laws of the places of making and endorsing the bill, to determine what notice the holder must give of its dishonor, and what damage the maker or endorsers must pay. Where the contract appears upon the face of it to be made in reference to the laws of divers places, it will be affected accordingly by those laws respectively; but where a contract has reference to no other place, it will be governed by the laws of the place where it is made. (a)

(a) The maker and payee of a note were both citizens and inhabitants of Rode Island, and the maker obtained a discharge under the insolvent laws of that State; it was held that this discharge was a bar to an action by a citizen of Massachusetts, to whom the note was subsequently endorsed. Baker v. Wheaton, 5 Mass. R. 509.

A bill was drawn in France by Bland on himself in England, in favor of Robinson, partly for money lent, and partly for money won at play Lord Mansfeld said, “ the parties had a view to the English law;" and the court held the bill to be void under the English statute against gambling. It was said however that the debt for which the bill was given could not have been legally enforced in France, though it was valid in the court of honor there. Robinson v. Bland. Burr. 1077. Wm. Bl. 256. And this seems to be a material circumstance, for the legality of the consideration is more properly determined by the laws of the place where the consideration passed, and the contract was made, than by those of the place where it is to be executed.

It was held in New York, in a case on a promissory note made in Canada, payable in England, that English interest only could be recovered on the note, not the New York rate of interest. Scofield v. Day. 20 Johns. R. 102.

The same court held that the ability of the drawer to bind himself is to be determined by the law of the place where the bill is drawn. The drawer of a promissory note made in Jamaica and payable in New York, was under twenty-one years old. It was taken for granted by the court that the note would have been void if made in New York, but as it was not proved that the age of infancy or minority was the same in Jamaica as in New York, the maker was held to be liable; for the court said it did not appear that the maker was not of age to bind himself by his contracts, according to the laws of Jamaica, at the time of making the note. Thompson v. Ketcham, 8 Johns. R. 146.

So a note made in Virginia and payable in New York, was held to be governed by the laws of New York. The note was in the usual form, except that it said, "Witness my hand and seal," and the maker's name had after it the letters L. S. with a flourish. The endorsee brought assumpsit upon the note against the maker in New York. Kent C. J. delivered the opinion of the Court. "The note was given in Virginia, and by the laws "of that State it was a sealed instrument or deed. But it was made paya"ble in New York, and according to a well settled rule, it is to be tested

The endorsement being equivalent to the making of a bill or note, the question occurs whether the liability thus incurred shall be regulated by the laws of the place

"and governed by the law of this State. We have never adopted the usage prevailing in Virginia and some other States, of substituting a "scrawl for a seal. A scrawl with a pen is not a seal and deserves no "notice." Warren v. Lynch, 5 Johns. R. 538.

The liability of the drawer in consequence of notice of the dishonor of a bill was held in New York, to depend on the laws of the place where the bill was drawn; and not on those of the place on which the bill was drawn. A bill was drawn at New Orleans on a house in Philadelphia of which the drawer was a partner; and was protested at Philadelphia for non-acceptance and non-payment, of which due notice was given to the drawer in New Orleans; who was subsequently discharged under the insolvent laws of Louisiana. The Court said "the drawer became conditionally liable for the payment, and the condition was the receiving due notice of the dishonor of the bill, and this notice was given in New Orleans. The circumstance of the bill's being drawn upon a person in another state can make no difference. The whole contract and responsibility of the drawer was entered into and incurred in New Orleans." And it was accordingly held that his discharge in New Orleans exonerated him. Hicks v. Brown, 12 Johns. 142.

It was held in Pennsylvania that the damages for which the drawer is liable on a returned bill, are to be determined by the laws of the place where it is drawn, though the suit is commenced against him on the bill in another place. By the statute of South Carolina, March 22, 1786, on "all bills drawn upon persons resident within the United States, and out of that State, and which shall be returned protested, the damages shall be 10 per cent." A bill being so drawn and returned, and a suit afterwards commenced upon it against the drawer, in Pennsylvania, the court adopted the rule of the South Carolina statute in fixing the rate of damages. Hazlehurst v. Kean, 4 Yeates, 19.

A different decision was given upon a very similar case in South Carolina; upon a bill drawn upon Charleston, at Nassau, where the damages upon bills returned protested are 12 1-2 per cent. The bill was accepted at Charleston, but not paid. As the drawer was in Charleston at the time of the dishonor of the bill there was no occasion to return it to Nassau to give notice of the non-payment. In suits in S. Carolina against the drawer and acceptor, the court was of opinion that the holder was not entitled to the damages of 12 1-2 per cent, according to the Nassau rule. Bain v. Ackworth, 1 S. Car. R. 107.

But in a previous case in South Carolina, a different rule seems to have been acted upon. In an action on a bill of exchange drawn in Boston (Mass.) upon persons in S. Carolina, it was left by the court to a special jury of merchants to decide what damages the defendants (probably endorsers-the case does not say) were liable to pay; and whether the damages were to be regulated by the laws and customs of Massachusetts or of South Carolina with regard to bills returned protested. The jury gave interest and 3 per cent. damages, agreeably to the custom of merchants in Boston on inland bills protested. Winthrop V. Pepoon, 1 Bay, 468.

The court of South Carolina however in another case acted upon the rule laid down in Bain v. Ackworth. Cruger in St. Croix drew a bill on himself payable in Charleston, and accepted it himself. After his return

where the bill or note is made, or where it is endorsed, and the courts seem to lean in favor of adopting the laws of the place where the endorsement is made. (a)

to Charleston the bill was presented to him for payment, and protested for non-payment. A question was made as to interest and damages. The jury who tried the case allowed 12 per cent. interest, the legal interest of St. Croix; and 10 per cent. the South Carolina damages on inland bills. The judges were of opinion that as the contract was to be performed in South Carolina, the damages must be governed by the laws of that State; and that as no law in South Carolina regulated the damages where a man draws upon himself, no damages could be recovered; and with regard to interest, only 7 per cent. interest, the legal rate of South Carolina, from the time of the demand. New trial. M'Candlish v. Cruger, 2 Bay, 377.

A member of a New York house accepted a bill in the partnership name at Manchester, in England, payable in London. The bill being dishonored a suit was commenced upon it in New York against the acceptors, and the question arose whether the plaintiffs were entitled to recover interest at the New York rate of 7 per cent. or the English rate of 5 per cent. By the court, "The bill having been drawn in England, and made payable there, the plaintiffs were entitled to 5 per cent. interest only." Foden v. Sharp, 4 Johns. R. 183.

But in a very similar case in Massachusetts a different decision was given. A bill payable in London was accepted at Manchester, England, by a partner of a house established at Boston, Massachusetts, in the partnership name. The partner who thus accepted for the firm, was domiciled in Boston. The bill being dishonored a suit was commenced in Massachusetts against the acceptors. On a question respecting the rate of damages to be recovered, Parsons C. J., giving the opinion of the court, said, "It is manifest that the remedy contemplated by the parties, in the event of the bill being dishonored, must be sought in this State, where the acceptors lived. The instrument must be considered as a foreign bill, having the same effect as if the payee had sent it to Boston, and it had been accepted here payable in London." And 10 per cent. was recovered for re-exchange, according to the Boston rule, in case of a bill drawn here on a foreign country and returned. Grimshaw v. Bender, 6 Mass. R. 157.

"Where a general order is given to draw bills from a certain place, on account of advances there made, the undertaking is to replace the money at that place." Therefore where Barker of New York had authorized Lanusse to draw bills upon him from New Orleans, which he refused to accept after they were drawn, the Court held that Lanusse might recover from Barker, the legal interest at New Orleans, 10 per cent. from the time the bills were protested. Lanusse v. Barker, 3 Wheat. R. 146.

(a) It has been held in New York that a discharge under the insolvent laws of Pennsylvania did not exonerate an endorser from his liability on a note endorsed by him in New York. A promissory note made in Rhode-Island was endorsed in New York by Van Arsdaln, a resident in Pennsylvania, to Van Raugh. Van Arsdaln was discharged of his debts under the insolvent laws of Pennslyvania after a suit had been commenced against him in New York, Van Raugh, the holder of the note,

In one respect a contract may be affected by the laws of a place other than that where it is made, or those to which it has reference, namely, in respect to the remedy, or the means and manner of enforcing it against the contractors. (a)

not being included in the list of creditors, nor the note mentioned among Van Arsdaln's debts in the proceedings under the insolvent laws of Pennsylvania. Mr. Chief Justice Kent said, "We are of opinion that the discharge is no bar. A discharge under the insolvent laws of another State, will not take away the right of a citizen of this State to sue here upon a contract made here." Van Raugh v. Van Arsdaln,

3 Cain. R. 154.

A case came before the Supreme Court of the United States upon a bill drawn in Barbadoes upon England, and endorsed by Slacum at Alexandria, in the District of Columbia; and the question was whether the 15 per cent. damages on dishonored bills allowed by the laws at Alexandria should be allowed in this case. Mr. Chief Justice Marshall, giving the opinion of the court, said, " Although the drawer of the bill was not liable to the damages of Virginia, the endorser is subject to them, he having endorsed the bill in Alexandria. The endorsement is not simply the transfer of the paper, but a new and substantive contract." Slacum v. Pomery, 6 Cranch, 221.

But in an action in N. Carolina upon a bill drawn in the West Indies, and endorsed in New York, the court said, "The question is whether the damages on a protested bill shall be regulated by the laws of the country where it is endorsed, in an action against the endorser. When a bill is endorsed, the endorser places himself in the situation of the original drawer, and subjects himself to the same duties which he was bound to perform. All that can be understood by an endorsement being in the nature of a new bill, is, that the endorser places himself in the situation of the drawer, and must be answerable to the endorsee in the same manner as the drawer must ultimately be answerable to him. Schermerhorn v. Pelham, Cam. & Nor. 452.

A bill was drawn at Demerara on Clapham of Boston (Mass.) payable to Powers. Lynch, a native citizen of the United States resident at Demerara, by his endorsement guarantied its payment. The bill was returned to Demerara protested for non-payment, and payment was demanded of the drawer in that place. By the law of Demerara any person holding a bill protested for non-payment, and demanding payment thereof from the drawer, thereby loses all remedy against an endorser. Lynch coming to Boston, was sued by Powers upon his endorsement. The Court held that the defendant, being discharged by the law of the place where the contract was made, was not liable to an action in the United States. Powers v. Lynch, 3 Mass. R. 77.

(a) An action was brought in New York by an endorsee against the maker of a promissory note dated at Suffield, in Connecticut. By the laws of that State notes were not then negotiable, so as to enable an assignee to sue in his own name, but remained on the footing of choses in action at common law. It was held that the suit was maintainable, whether the contract was to be governed by the law of Connecticut or not. "The admission of the lex loci can have reference only to the nature and construction of the contract and its legal effect, and not to the mode of enforcing it." Lodge v. Phelps, 1 Johns. Cas. 139; 2 Cain. Er. 321.

CHAP. II.

Parties to a Bill or Note.

A BILL or note cannot properly be made or endorsed by, nor can a bill be properly addressed to, any person incapable of making himself responsible for the payment, nor can they be properly made payable or endorsed to any person incapable of suing. (a)

Sect. 2.-Therefore a bill or note cannot properly be made or endorsed by, nor can a bill be properly addressed to an infant (1), except perhaps where it is drawn, endorsed, or accepted for necessaries. (2)

[(a) A note made payable to "the heirs" of a person still living, is good; as the persons intended are sufficiently described. 1 Root, 181] (1) Williams v. Harrison, Carth. 160. 3 Salk. 197. In an action against the drawer of a bill, the defendant pleaded infancy, and the plaintiff demurred, and the court held clearly without argument, that infancy was a good bar, for the bill was drawn by the defendant as a trader in course of trade, and not for necessaries.

[The promissory note of an infant carrying on trade as adult, cannot be enforced against him by the payee who received it in the course of business, without knowing the defendant's nonage. Van Winkle v. Ketcham, 3 Cain. R. 323.]

(2) Williamson v. Watts, 1 Campb. N. P. C. 552. In an action against the acceptor of a bill, the defendant pleaded infancy, and the plaintiff replied that the bill was accepted for necessaries, on which issue was joined on opening the case Sir J. Mansfield C. J. said, "This action certainly cannot be maintained. The defendant is allowed to be an infant, and did any one ever hear of an infant being liable as an acceptor of a bill of exchange? The replication is nonsense, and ought to have been demurred to." He said as the point of law was so clear, he felt strongly inclined to nonsuit the plaintiff; but he heard the evidence, and the plaintiff was nonsuited, on proof that the goods, for which the bill had been given, were not necessaries.

[Trueman v. Hurst, 1 Term Rep. 40. An action was brought on a note given for board and lodging, and for teaching the defendant hairdressing, and upon an account stated; the defendant pleaded infancy, and the plaintiff replied for necessaries. Defendant demurred, and insisted that an infant could not bind himself by a note even for necessaries, and that no action would lie against him on an account stated. The court desired the plaintiff's counsel to confine himself to the last point, from