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favor of this argument even if it is to be considered. In a case like this there would be no great difficulty in forwarding with the bill instructions for its proper protest such as were finally given. Some such precautions would not be more erroneous than would those otherwise imposed upon a party to a New York bill of ascertaining the law of the foreign country where it was payable, in order that he might learn in what manner the rights secured to him where his contract was made would be altered and perhaps materially impaired.

Therefore, we conclude that no error was committed to the prejudice of appellants, and that the judgment appealed from should be affirmed, with costs.

Cullen, C. J., O'Brien, Edward T. Bartlett, Haight and Chase, JJ., concur.

Vann, J., dissents.
Judgment affirmed.

The Liability of a Person on a Promissory Note is generally governed by the law of the place where it is executed, unless it is made pay. able elsewhere, but matters pertaining to the enforcement of the remedy are governed by the law of the forum: Clark v. Eltinge, 38 Wash. 376, 107 Am. St. Rep. 858; Bailey v. Devine, 123 Ga. 653, 107 Am. St. Rep. 153; Chemical Nat. Bank v. Kellogg, 183 N. Y. 92, 111 Am. St. Rep. 717; Barrett v. Dodge, 16 R. I. 740, 27 Am. St. Rep. 777; Bigelow v. Burnham, 83 Iowa, 120, 32 Am. St. Rep. 294.

The Law of the Place Where an Action is Brought determines what is evidence of presentment and dishonor of promissory notes and inland bills of exchange: Corbin v. Planters' Nat. Bank, 87 Va. 671, 24 Am. St. Rep. 673.

That the Rights of the Holder of a Bill Drawn in One State and payable in another are governed by the law of the latter, see Coffinan v. Bank of Kentucky, 41 Miss. 212, 90 Am. Dec. 371; and that the law of the state in which a bill is drawn and indorsed governs as to protest and notice to charge indorser, see Allen v. Merchants' Bank, 22 Wend. 215, 34 Am. Dec. 289.

WHAT LAW GOVERNS WITH RESPECT TO DEMAND, PROTEST AND NOTICE OF DISHONOR OF A FOREIGN BILL OF EXCHANGE.

I. General Principles Involved, 871.

II. Time of Payment-Days of Grace, 872.

III. Demand, Protest and Notice.

a. Law Governing Necessity of Demand and Protest, 872.

b. Law Governing Time, Manner and Sufficiency of Demand and Protest, 876.

c. Law Governing Necessity of Notice of Dishonor, 878.

d. Law Governing Time, Manner and Sufficiency of Notice of Dishonor, 878.

I. General Principles Involved.

In Scudder v. Union National Bank, 91 U. S. 406, 23 L. ed. 245, the supreme court of the United States has laid down the following rules with reference to contracts, when conflict in laws arise: 1. That matters bearing upon the execution, interpretation and validity of a contract are determined by the law of the place where the contract is made; 2. That matters connected with the performance of a contract are regulated by the law of the place where the contract by its terms is to be performed; 3. That matters relating to procedure depend upon the law of the forum. These rules have been generally adopted by all the courts in determining what law shall govern in regard to foreign bills of exchange. But they have been found difficult of application, because contracts of the class under consideration present features wanting in many other contracts-certain conditions precedent, such as demand, protest and notice of dishonor-all of which conditions, from the very nature of the case, must be performed at a place different from the one where the contract was made. Consequently, complications often arise in applying the second rule above stated, for while the acceptor of a bill undoubtedly contracts to pay at the place of acceptance or at the place fixed for the payment, all the authorities agree that his contract is separate and distinct from that of the drawer or indorser, and adopt the rule laid down in Daniel on Negotiable Instruments, volume 1, section 898: "The drawer of a bill does not bind himself to pay it specially where the acceptor is impliedly or expressly called on to pay it, but his contract is to pay generally, and is consequently construed to be a contract to pay at the place where the bill is drawn."' The obligation of the drawer or indorser of a bill is conditional that if the bill is dishonored and due notice thereof given, they will pay the bill at the place of their contract-that is, where the bill was drawn or indorsed. Hence, in determining the ultimate liability of the drawer or indorser of a foreign bill complications have arisen in applying the second rule laid down in Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. ed. 245, with reference to these conditions precedent. Nor is the difficulty in applying the rule to these conditions precedent at all surprising when we consider, first, that protest is indispensable as to the dishonor of a foreign bill of exchange; second, that there can, of course, be no protest until payment has been demanded and refused; third, that there can be no demand until the bill has matured; and lastly, that nearly every country has a different custom or law-merchant as to days of grace. And as the date of demand is necessarily fixed by the date of maturity, it follows that in determining the time in which demand for payment of a foreign bill is to be made, recourse must be had to the law of the place on which the bill is drawn, rather than the law of the place where it is drawn. This has led to much conflict of opinion with reference to the sufficiency of demand and notice, as we shall hereafter see.

II. Time of Payment-Days of Grace.

As the time when a bill matures manifestly relates to matters of performance, it falls within the second rule laid down in Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. ed. 245, and is governed by the law of the place where the bill is payable, and not the law of the place where it is drawn or indorsed. On this proposition the authorities are practically unanimous, but we cite a few cases where the doctrine is clearly stated: Thorp v. Craig, 10 Iowa, 461; Cribbs v. Adams, 13 Gray (Mass.), 597; Burnham v. Webster, 19 Me. 232; Bank of Orange County v. Colby, 12 N. H. 520; Bowen v. Newell, 13 N. Y. 290, 64 Am. Dec. 550; Amsinck v. Rogers, 189 N. Y. 252, ante, p. 858, 82 N. E. 134, 12 L. R. A., N. S., 875; Pawcatuck Nat. Bank v. Barber, 22 R. I. 73, 46 Atl. 1095; Bryant v. Edson, 8 Vt. 325, 30 Am. Dec. 472; Blodgett v. Durgin, 32 Vt. 361; Walsh v. Dart, 12 Wis. 709; Second Nat. Bank v. Smith, 118 Wis. 18, 94 N. W. 664.

III. Demand, Protest and Notice.

a. Law Governing Necessity of Demand and Protest.-It is settled by the great weight of authority that the necessity of demand and protest as a condition precedent of holding the drawer or indorser of a foreign bill is governed by the law of the place where the bill is drawn or indorsed: Crawford v. Branch Bank, 6 Ala. 12, 41 Am. Dec. 33; Greathead v. Walton, 40 Conn. 226; Bond v. Bragg, 17 Ill. 69; Belford v. Bangs, 15 Ill. App. 76; Gay v. Rainey, 89 Ill. 221, 31 Am. Rep. 76; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79; Thorp v. Craig, 10 Iowa, 461; Huse v. Hamblin, 29 Iowa, 501, 4 Am. Rep. 244; Young v. Harris, 14 B. Mon. (Ky.) 556, 61 Am. Dec. 170; Piner v. Clary, 17 B. Mon. (Ky.) 645; Powers v. Lynch, 3 Mass. 76; Glidden v. Chamberlin, 167 Mass. 486, 57 Am. St. Rep. 479, 46 N. E. 103; Price v. Page, 24 Mo. 65; Aymar v. Sheldon, 12 Wend. 439, 27 Am. Dec. 137; Allen v. Merchants' Bank, 22 Wend. 215, 34 Am. Dec. 289; Carroll v. Upton, 2 Sand. (N. Y.) 171, affirmed 3 N. Y. 272; Artisans' Bank v. Park Bank, 41 Barb. 599; Amsinck v. Rogers, 189 N. Y. 252, ante, p. 858, 82 N. E. 134, 12 L. R. A., N. S., 875; Warner v. Citizens' Bank, 6 S. D. 152, 60 N. W. 746; Green v. Bond, 37 Tenn. (5 Sneed) 328; Raymond v. Holmes, 11 Tex. 54; Nichols v. Porter, 2 W. Va. 13, 94 Am. Dec. 501; Musson v. Lake, 4 How. (U. S.) 262, 11 L. ed. 967.

But some of the cases cited above, going further than the rule stated, hold that the necessity of making demand and protest and giving notice of dishonor, and the circumstances under which the same may be required or dispensed with, in order to hold the drawer or indorser, are governed by the law of the place where the bill is drawn or indorsed. These cases do not dispute the rule that in matters of performance a contract is to be determined by the law of the place where it is to be performed, but insist that demand, protest and the notice of dishonor and the circumstances under which the same may be required or dispensed with are coincidents of the original

contract, and that the drawer or indorser of a foreign bill does not contract to pay at the place upon which the bill is drawn, but only guarantees its acceptance and payment there by the drawee, and agrees that upon default of such payment by the drawee the drawer or indorser will, upon due notice, reimburse the holder at the place where their respective contracts were made. In other words, that the place of performance is the place where the contract is drawn or indorsed. Thus, in Amsinck v. Rogers, 189 N. Y. 252, ante, p. 858, 82 N. E. 134, 12 L. R. A., N. S., 875, it was held that the drawer and indorser of a foreign bill of exchange was discharged by reason of a failure to protest the same in accordance with the law of the place where the bill was drawn, though such failure was due to the different laws prevailing in the country where the bill was payable. In this case the bill was drawn in the city of New York on a firm in Vienna, Austria, and was indorsed and transferred in New York to certain brokers in that city, by whom it was forwarded to Vienna for collection. Though it was presented on the day of its receipt in Vienna, at the request of the drawee, presentation was withdrawn and the bill was not protested. Six days afterward the bill was again presented and payment demanded, but the presentment was again withdrawn at the drawee's request, and no protest made or notice given. Two weeks later payment was again demanded and refused, and nine days thereafter another demand made, and upon refusal to pay, the bill was protested for nonpayment and notice of dishonor given. In an action by the holder against the drawer and indorser, it was conceded by the plaintiff that if the obligation to cause protest and notice of protest was to be governed by the laws of New York where the bill was drawn and transferred, no recovery could be had against the indorsers, but he sought to prove that in Austria, where the bill was payable, the instrument in question was known as a "commercial order," which might be presented as often as occasion arose, each presentment being legally as good as any other, and that no protest or notice of dishonor was required by the laws of that country. In holding that the drawer and indorser was discharged the court said: "It is familiar law that the contracts of the different parties to a bill of exchange are independent and carry different obligations. The drawer of such a bill does not contract to pay the money in the foreign place on which it is drawn, but only guarantees its acceptance and payment in that place by the drawee, and agrees, in default of such payment, upon due notice, to reimburse the holder in principal and damages at the place where he entered the contract. His contract is regarded as made at the place where the bill is drawn, and as to its form and nature and the obligation and effect thereof is governed by the law of that place in regard to the payee and any subscquent holder (citing Story on Bills of Exchange, secs. 131-154). While as to certain details, such as the days of grace, the manner of making the protest, and the person by whom protest shall be made, the law or custom of the place where it is payable will govern, the necessity of making

a demand and protest and the circumstances under which the same may be required or dispensed with are coincidents of the original contract which are governed by the law of the place where the bill is drawn rather than that of the place where it is payable, they constitute implied conditions upon which the liability of the drawer is to attach according to the lex loci contractus" (citing Story on Bills of Exchange, secs. 155-175).

In speaking of the contention that the instrument was not a bill of exchange but a "commercial order," the court continued: “It sufficiently appears that this bill was drawn upon a business house, and was not a check. It was therefore a foreign bill of exchange according to the laws of New York. And so again we are confronted by the inquiry whether the rights of these respondents as to the nature of this instrument shall be measured by the laws of New York or by those of Austria. It seems to us clear that it must be the former. The parties had their places of business in New York. The bill was there drawn and negotiated and transferred to the appellants. The contract of the respondents was executed and consummated there, and, as we have already seen, was to be performed there upon default of the drawers. The law of New York surrounded the parties and the execution of their contract, and in our judgment it would be not only erroneous, but highly unreasonable, to hold that they contracted with reference to any law other than that of New York, or intended that their contract should be other than that which such law made it-a bill of exchange. . . . . It is contended that the decision which we are making will impose much trouble and responsibility upon those who are held for the proper demand and protest of paper in foreign countries where commercial law and usages differ from our own. do not see much balance of weight in favor of this argument, even if it is to be considered. In a case like this there would be no great difficulty in forwarding with the bill instructions for its proper protest such as were finally given. Some such precautions would not be more onerous than would those otherwise imposed upon a party to a New York bill of ascertaining the law of a foreign country where it was payable, in order that he might learn in what manner the rights secured to him where his contract was made would be altered and perhaps materially impaired."

We

In Green v. Bond, 37 Tenn. (5 Sneed) 328, the general questions raised in the foregoing case were discussed, and the reasoning of the court was along the same lines as those just given, and the language equally as strong. In Warner v. Citizens' Bank, 6 S. D. 152, 60 N. W. 746, the payee of two drafts drawn on a bank in the state of Illinois had transferred them to the plaintiff in the state of South Dakota. Having been presented and payment refused in Illinois, plaintiff brought suit against the indorser. The defense was that the plaintiff had not presented the drafts within the time prescribed by the law-merchant as in force in Illinois. The statute of South Dakota had enlarged the time fixed by the law-merchant for presenting bills

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