be measured by the law of the place where the note is payable. (hh)1

A note dated in one State, and made in another, is presumed to be payable where dated, and is governed by the laws of that State. (hi)(x) And if a loan is made where the parties reside, and is payable there, and is secured by mortgage of land in another State, the loan as to all questions of usury is governed by the laws

State cannot take notice of the laws of
other States, unless they are proved in the
same manner as other facts." But there
is little doubt that the decision would
have been the same, independently of this
last ground. See further upon this ques-
tion, Champant v. Ranelagh, Prec. in Ch.
128; Connor v. Bellamont, 2 Atk. 382;
Stapleton v. Conway, 1 Ves. 427, 3 Atk.
727; Phipps v. Anglesea, 5 Vin. Abr. 209,
pl. 8; 1 Eq. Cas. Abr. ch. 36, tit.
terest Money (E); Ekins v. East India

In

Co., 1 P. Wms. 395; Anonymous, 3 Bing. 193; Fergusson v. Fyffe, 8 Clark & F. 121; Harvey v. Archbold, Ryan & M. 184; Boyce v. Edwards, 2 Pet. 111; Fanning v. Consequa, 17 Johns. 511; Winthrop v. Carleton, 12 Mass. 4; Foden v. Sharp, 4 Johns. 183; Dewar v. Span, 3 T. R. 425; Bank of Georgia v. Lewin, 45 Barb. 340.

1 Such formalities as presentment, protest, and notice of dishonor, are governed by the law of the place where negotiable paper is payable, for since the acts must be performed there, presumably the parties intended them to be performed in the manner usual there. Rothschild v. Currie, 1 Q. B. 43; Phillips v. Im Thurn, L. R. 1 C. P. 463; Rouquette v. Overman, L. R. 10 Q. B. 525; Pierce v. Indseth, 106 U. S. 546; Todd v. Neal's Adm., 49 Ala. 266; Wooley v. Lyon, 117 Ill. 244. See contra as to notice, however, Aymar v. Sheldon, 12 Wend. 439, 444; Lee v. Selleck, 33 N. Y. 815. So what grace, if any, is allowable on negotiable paper, is determined by the lex loci solutionis. Rothschild v. Currie, supra; Bank of Washington v. Triplett, 1 Pet. 25; Jew. ell v. Wright, 30 N. Y. 264; Cribb v. Adams, 13 Gray, 597. And what interest is recoverable as damages where no rate is specified in the instrument. Camp v. Randle, 81 Ala. 240; Kopelke v. Kopelke, 112 Ind. 435; Campbell v. Nichols, 33 N. J. L. 81; Chase v. Dow, 47 N. H. 405; Kavanaugh v. Day, 10 R. I. 393. — W.

(x) A note dated at a certain place is payable there at the residence or place of business of the maker. Overland G. M. Co. v. McMaster, 19 Utah, 177, 56 Pac. 977; Rose v. McCracken (Tex. Civ. App.), 50 S. W. 152.

An insurance policy issued by a company incorporated and domiciled in a certain State, the plan of which policy includes the statute provisions of that State may, if such was the intention of the parties, be governed by the law of the home office; but even an express stipulation to that effect may be waived or changed by the parties. Horton v. New York L. Ins. Co., 151 Mo. 604, 52 S. W. 356. When the insurance contract is made with a local agent in one State, subject to the ratification of his principal in another State, it becomes, when so ratified, a contract as made and where made by the agent, and is to be interpreted by the laws of that State. Gibson v. Conn. F. Ins. Co., 77 Fed. 561; Equitable L. Ass. Society

v. Winning, 58 id. 541; Mutual Benefit L.
Ins. Co. v. Robison, id. 723; Equitable L.
Ass. Society v. Clements, 140 U. S. 226, 11
S. Ct. 822, 35 L. Ed. 497; Wiestling v.
Warthin, 1 Ind. App. 217, 27 N. E. 576;
Com'th Mut. F. Ins. Co. v. Fairbank Can-
ning Co., 173 Mass. 161, 53 N. E. 373;
Millard v. Brayton, 177 Mass. 533, 59
N. E. 436.

Although the place of performance is prima facie the place of any contract, yet a revival of the insurance may, it seems, if the parties clearly so intended, change the place of the contract to another State. Bottomley v. Met'n L. Ins. Co., 170 Mass. 274, 49 N. E. 438.

The assignment of a life policy is governed by the law where the assignment is made. Union Cent. L. Ins. Co. v. Woods, 11 Ind. App. 335, 39 N. E. 205; Criswell v. Whitney, 13 Ind. App. 67, 41 N. E. 78. An assignment made abroad is governed by the lex loci. Lee v. Abdy, 17 Q. B. D. 309.

of the State where it is made. (hj) If the contract be made in a foreign country, and is sued here, the judgment must be for that amount in the legal tender of this country which would equal the value in the metal which is the legal currency where the contract was made. (hk)

* 586

* If a merchant in New York comes to Boston to buy goods, and there receives them, and gives his note for them, which specifies either Boston or no place for payment, it is a Boston transaction. When the note is due, it may be demanded of the maker wherever he is, but wherever demanded would be construed by the law of Massachusetts. If the note were made payable in New York, it could be demanded nowhere else, and would be construed by the law of New York. If he did not come to Boston, but sent his orders from New York, and the goods were sent to him from Boston, either by a carrier whom he pointed out, or in the usual course of trade, this would be a completion, a making of the contract, and it would be a Boston contract, whether he gave no note, or a note payable in Boston, or one without express place of

*

payment. (i) But if, as before, he gave his note payable in 587 New York, it would be a New York note. And if, by the terms of the orders or the bargain, the property in the goods were not to pass to the purchaser until their arrival in New York, they being previously at the risk of the seller, and then a note was given by the buyer in New York, this would be a New York transaction and a New York note, unless the note was made expressly payable in Boston. Such would be the inferences which we should draw from the reasons of the cases, and from what seem to be the stronger authorities; but many of these questions are not yet distinctly determined by adjudication. It is quite certain that the Roman civil law considered the place of payment or performance as the place of the contract. And this law has much title to respect on a question of this kind, both as the basis of a widely extended system of law now in force, and as the embodiment, in its commercial law, of sound sense and accurate justice.

It is to be noticed, that the payment is to be measured or regulated by the law of the place where the note is by the terms of the contract to be performed, and not by that where it happens to be performed. A note made in Boston may be demanded and sued in England, or vice versa; because a note without a specified place of payment has no controlling place, but may be demanded of the (hj) Cope v. Alden, 53 Barb. 350; (i) Whiston v. Stodder, 8 Mart. (La.) Chase v. Dow, 47 N. H. 405.

(hk) Benners v. Clemens, 85 Penn.

95.

St. 24.

maker wherever he is. But such a note would still be a Boston note or an English note, according to the place of its signature. In fact, all debts are payable everywhere, unless there be some special limitation or provision in respect to the payment; the rule being that debts, as such, have no locus or situs, but accompany the creditor everywhere, and authorize a demand upon the debtor everywhere. (j)

A discharge of a contract under the law of a country which is not that where the contract was made or to be performed, will not discharge the contract in the country where it was made or to be performed. (k)

We have spoken here only of contracts; but the place of a tort may have a bearing on the remedy. In a recent English case it was held, that a British subject may maintain, in the courts of that country, an action against another British subject for an assault committed in another country, although proceedings are pending in that other country relating to the same assault; and even if, by the law of that country, no damages were recoverable for that assault. (kk)

*SECTION VI.

OF THE LAW OF THE FORUM IN RESPECT TO PROCESS AND

REMEDY.

588

Every State holds jurisdiction over all persons and all things within its dominion, and no further. In England and America, foreigners may avail themselves of the courts for suits or defences against each other, in like manner as citizens may. And a person who has property within the jurisdiction of an English or American court, is liable in respect to that property to the action of such court, though he himself may be out of the jurisdiction, provided he receives such notice as the general law of the State or the rules of the court may require. (1)

But on the trial, and in respect to all questions as to the forms, or methods, or conduct of process, or remedy, the law of the place

absent defendants due notice; and there are generally, perhaps universally, rules of court and of practice, for the same purpose. And the principle that they are entitled to this protection is universally recognized. Fisher v. Lane, 3 Wilson, 302, 303; The Mary, 9 Cranch, 126, 144; Bradstreet v. Neptune Ins. Co., 3 Sumner, 600.

*

of the forum is applied. (m) (x) A familiar instance of this is an action on an instrument, which, having a scrawl with a mere locus sigilli (or L. S.) upon it, was made in a State where this is all that is necessary to constitute it a sealed instrument, but is sued in a State where a seal of some kind must be put to it. This instrument must not only be declared on as a simple contract, but * 589 if sued there it is only as a simple contract that it will be there construed, in respect to all the rights and obligations of the parties. (n) So, too, if a negotiable note be given for a debt, the law of the State in which it is given determines whether it operates as a payment of the debt, (nn) If goods be consigned in one State to a commission merchant in another, the interest he may charge is determined by the law of the State in which he lives. (no) The acceptance of a bill is a contract to be performed in and be governed by, the law of the State where it is to be paid. (np) 1

(m) This rule is constantly asserted, not only by all civilians, but in numerous cases in England and in this country. See Robinson v. Bland, 2 Burr. 1077; De La Vega v. Vianna, 1 B. & Ad. 284; Trimbey v. Vignier, 1 Bing. N. C. 151, 159; British Linen Co. v. Drummond, 10 B. & C. 903; Don v. Lippman, 5 Clark & F. 1; Nash v. Tupper, 1 Caines, 402; Pearsall v. Dwight, 2 Mass. 84; Smith v. Spinolla, 2 Johns. 198; Van Reimsdyk v. Kane, 1 Gallis. 374; Lodge v. Phelps, 1 Johns. Cas. 139, 2 Caines's Cas. in Error, 321; Peck v. Hozier, 14 Johns. 346; Jones v. Hook, 2 Rand. 303; Wilcox v. Hunt, 13 Pet. 378; Pickering v. Fisk, 6 Vt. 102; Wood v. Watkinson, 17 Conn. 500. But in Rice et al. v. Courtis, 32 Vt. 460, Redfield, C. J., it was held, that the local rule of policy in that State

requiring a complete change of possession, in case of the transfer of personal property, in order to exempt it from attachment upon process against the transferrer, is universal in its application to all personal property actually within the State.

(n) Andrews v. Herriot, 4 Cowen, 508, overruling Meredith v. Hinsdale, 2 Caines, 362; Bank of United States v. Donnally, 8 Pet. 361; Douglas v. Oldham, 6 N. H. 150; Thrasher v. Everhart, 3 Gill & J. 234; Adams v. Kerr, 1 B. & P. 360; Le Roy v. Beard, 8 How. 451.

(nn) Pecker v. Kennison, 46 N. H. 488.

(no) Cartwright v. Green, 47 Barb. 9. (np) Bright v. Judson, 47 Barb. 29; Everett v. Vendryes, 19 N. Y. 436; Freese v. Brownell, 35 Ñ. J. L. 286.

1 So if a note is made payable in a jurisdiction other than that where it was delivered, the maker will be deemed to contract with reference to the law of the place where it is payable. Stevens v. Gregg, 89 Ky. 461. See also Central Trust Co. v. Burton, 74 Wis. 329. But the obligation of a drawer or indorser is determined by the law of the place where the instrument is drawn or indorsed. Bank of U. S. v. United States, 2 How. 711; Ex parte Heidelback, 2 Low. 526; Lee v. Selleck, 33 N. Y. 615. See also Staples v. Nott, 128 N. Y. 403. W.

-

(x) All matters respecting the remedy to be pursued, including the bringing of suits, the service of process, and the limitation of actions, depend upon the law of the place where the action is brought. Great Western Tel. Co. v. Purdy, 162 U. S. 329, 16 S. Ct. 810, 40 L. Ed. 986; Union Nat. Bank v. Chapman, 159 N. Y. 538, 62 N. E. 672; Luce v. Clarke, 49 Minn. 356, 51 N. W. 1162; Home L. Ins. Co. v. Elwell, 111 Mich. 689, 70 N. W. 334.

All matters connected with the performance of contracts, including presentation, demand, notice, and the like, are regulated by the law of the place where the contract is, by its terms, to be performed. Union Nat. Bank v. Chapman, 159 N. Y. 538, 62 N. E. 672. If it is to be performed partly in one jurisdiction and partly in another, and is in fact so performed, it is governed by the law of either. Porter v. Price, 80 Fed. 655.

Some question has arisen in the case of an arrest in a suit on a contract made where the arrest would not have been permitted by law; and it has been held, that the right to arrest would be that only which was given by the law of the place where the contract was made. (o) It seems, however, to be