celebrationis. These go upon the theory that the contract of the indorser is to pay the bill or note generally, if at all, that is, at the place where he indorses.10

Others hold that the indorser's contract is to make good the bill or note at the place where it was originally designed to be paid, and that that place therefore is the locus solutionis of the indorsement.11

Expediency would seem to pronounce in favor of the latter view, and it is believed to be the better. To give every indorsement its own separate locality would impair most seriously the value of all negotiable instruments, even those which are in fact purely domestic, since the holder could not know where the prior indorsements were made and hence could not tell what the liabilities of the prior indorsers are, nor what steps he must take to secure that liability. The tendency of this rule is to destroy or impair the negotiability of such instruments. On the other hand, to hold the locus solutionis of each indorsement to be identical with the locus solutionis of the original contract creates one single law by which the liabilities of all the indorsers are to be ascertained, and would prevent the inconvenience (to use a mild term) to the holder of having to ascertain and comply with a number of different laws as to protest, notice of dishonor, and other steps to be taken in order to fasten responsibility upon the indorsers.12

10 Story, Confl. L. § 314; Horne v. Rouquette, 3 Q. B. Div. 514, 28 Eng. Rep. 424; Musson v. Lake, 4 How. 262; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79, 84; Park v. Rose Bank, 20 Ind. 94, 83 Am. Dec. 306; Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 443, 27 Am. Dec. 137; Hicks v. Brown, 12 Johns. (N. Y.) 142; Kuenzi v. Elvers, 14 La. Ann. 391, 74 Am. Dec. 434 ; Powers v. Lynch, 3 Mass. 77; Williams v. Wade, 1 Met. (Mass.) 82; Douglas v. Bank, 97 Tenn. 133, 36 S. W. 874; Huse v. Hamblin, 29 Ia. 501, 4 Am. Rep. 244.

11 Hirschfield v. Smith, L. R. 1 C. P. 340; Rothschild v. Currie, 1 Q. B. 43, 1 Ad. & El. N. s. 43; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; Everett v. Vendryes, 19 N. Y. 436; Wooley v. Lyon, 117 Ill. 244, 57 Am. Rep. 867; Peck v. Mayo, 14 Vt. 33, 39 Am. Dec. 205; Carnegie Steel Co. v. Construction Co. (Tenn.), 38 S. W. 102; Pierce v. Indseth, 106 U. S. 546,

12 Hirschfield v Smith, L. R. 1 C. P. 340, 352.

The contract of the drawer of a bill is practically the same as that of an indorser. He undertakes that the drawee will accept the bill when presented and that he will pay it at maturity upon due presentment; and that if the drawee does not accept, or does not pay at maturity, he (the drawer) will upon due notice pay the amount named in the bill, with such damages as may result from non-payment.

The locus celebrationis of this contract of the drawer is manifestly in general the place where the bill is drawn, just as in a corresponding case the locus celebrationis of the indorser's contract is usually the place where the bill or note is indorsed. And the same qualifications are to be noted here as in the case of the indorser.18

With respect to the locus solutionis of the drawer's contract, the same diversity of opinion exists as in the corresponding case of the indorser's contract. Although there is strong authority to the effect that the undertaking of the drawer is to make good the bill at the place where he draws it," the better opinion is believed to be that the drawer undertakes to make good the bill at the place where it is payable.15 It is to be observed that there is this difference between the contract of the indorser and that of the drawer. The former becomes a party to a transaction in the creation of which he has no part, while the drawer himself

13 Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 443, 27 Am. Dec. 137; Everett v. Vendryes, 19 N. Y. 436; Freese v. Brownell, 35 N. J. L. 285, 10 Am. Rep. 239; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79. But see Strawbridge v. Robinson, 5 Gilm. (Ill.) 470, 50 Am. Dec. 420, where the court solemnly decides that a bill which is actually drawn in one State was drawn in another, because the parties intended that it should be so.

14 Freese v. Brownell, 35 N. J. L. 285, 10 Am. Rep. 239; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79; Briggs v. Latham, 36 Kan. 255, 59 Am. Rep. 546, 547; Crawford v. Bank, 6 Ala. 12, 41 Am. Dec. 33; Kuenzi v. Elvers, 14 La. Ann. 391, 74 Am. Dec. 434; Hicks v. Brown, 12 Johns. (N. Y.) 142. 15 Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; Everett v. Vendryes, 19 N. Y. 436; Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 27 Am. Dec. 137; Coffman v. Bank, 41 Miss. 212, 90 Am. Dec. 371; Abt v. Bank, 159 Ill. 467, 42 N. E. 856; National Bank of America v. Indiana Banking Co., 114 Ill. 483, 2 N. E. 401. See Wooley v. Lyon, 117 Ill. 244, 57 Am. Rep. 867; Hirschfield v. Smith, L. R. 1 C. P. 340; Rouquette v. Overmann, L. R. 10 Q. B. 525.

draws the original contract, and may make it payable where he chooses. Hence, much more in the case of the drawer than in that of the indorser ought the locus solution is of his contract to be the place where the bill is payable or upon which it is drawn. 16

§ 166. Situs of Insurance Contracts. If a place is designated for the payment of the money due upon a policy of insurance (as at the principal office of the company, etc.), there will be no difficulty in fixing upon that place as the locus solutionis of the insurance contract. Frequently, however, contracts of insurance are general in character, designating no particular place for the payment of the policy. The locus solutionis will then be generally presumed to be identical with the locus celebrationis.1

But it is by no means always easy to ascertain the locus celebrationis of an insurance contract. The general principle is still the same, namely, that the place where the last act is done that is necessary to make the contract complete and binding is the locus celebrationis.2

Thus if the agreement is that the policy becomes binding upon the insurance company as soon as it is issued, or upon its approval of the application of the insured, the place where such issuance or approval occurs is the locus celebrationis of the contract. 8

16 See Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 27 Am. Dec. 137; Everett v. Vendryes, 19 N. Y. 436; Powers v. Lynch, 3 Mass. 77. 1 Seamans v. Knapp Co., 89 Wis. 171, 27 L. R. A. 362. This is the better view, though the authorities are divided. Some have held, in the case of fire insurance upon buildings, that the situs of the land is the locus solutionis of the insurance policy. See Gibson v. Ins. Co., 77 Fed. 561, 564. Others have held, in case of fire policies upon personal property, and life policies, that the domicil of the owner or beneficiary is the locus solutionis of the contract. See Knights Templars Ass'n v. Greene, 79 Fed. 461; Fletcher v. Ins. Co., 13 Fed. 526; Wood v. Ins. Co., 8 Wash. 427, 36 Pac. 267.

2 See Ford ". Ins. Co., 6 Bush (Ky.), 133, 99 Am. Dec. 663.

8 Equitable, etc. Soc. v. Trimble, 27 C. C. A. 404, 83 Fed. 85; Equitable, etc. Soc. v. Nixon, 26 C. C. A. 620, 81 Fed. 796; Voorheis v. Society, 91 Mich. 469, 51 N. W. 1109; Seamans v. Knapp Co., 89 Wis. 171, 27 L. R. A. 362; State, etc. Ins. Co. v. Brinkley Co., 61 Ark. 1, 29 L. R. A. 712; Hyde v. Goodnow, 3 N. Y. 266, 270.

If the actual or constructive delivery of the policy to the insured is necessary in order to make the contract binding upon the insurance company, the place where such delivery takes place will be the locus celebrationis of the contract.1 A distinction may perhaps be taken here between the case where the insurance company sends its policy directly to the applicant by mail, in which case the delivery will occur where the policy is mailed, and the case where the company mails the policy to a third person in the State of the applicant, to be by him delivered to the insured, in which case the delivery takes place and the insurance contract is entered into in the latter State."

And

Again, the payment of the first premium is often, by the terms of the agreement, made the event upon which the policy is to become binding. In such case, the place where the premium is paid is the locus celebrationis of the insurance contract. upon the same principle, if it is provided that the policy is not to be binding until countersigned by an agent, or until some other act is done, the State where such final act is performed is the locus celebrationis of the contract."

The contract by which the beneficiary of an insurance policy assigns his interest to a third person is of course entirely distinct from the contract of insurance itself. The assignment is an executed contract, and the law of the place where the assignment is made and completed (lex loci contractus) is the proper

Equitable, etc. Society v. Clements, 140 U. S. 226; Hicks v. Ins. Co., 9 C. C. A. 215, 60 Fed. 690; Knights Templar Co. v. Berry, 1 C. C. A. 561, 50 Fed. 511; Wood v. Ins. Co., 8 Wash. 427, 36 Pac. 267; In re Breitung, 78 Wis. 33, 46 N. W. 891; Perry v. Ins. Co., 67 N. H. 291, 33 Atl. 731.

5 See Equitable, etc. Society v. Clements, 140 U. S. 226; State Ins. Co. v. Brinkley Co., 61 Ark. 1, 29 L. R. A. 712. If the insured is notified by letter or otherwise that his application has been accepted, the contract is thereby completed, and the place of the delivery of the policy is immaterial. See Perry v. Ins. Co., 67 N. H. 291, 33 Atl. 731.

Equitable, etc. Society v. Clements, 140 U. S. 226; Hicks v. Ins. Co., 9 C. C. A. 215, 60 Fed. 690; Mut. Ben. L. Ins. Co. v. Robison, 54 Fed. 580, 583; Marden v. Ins. Co., 85 Ia. 584, 52 N. W. 509; Ford v. Ins. Co., 6 Bush (Ky.), 133, 99 Am. Dec. 663.

7 Heebner v. Ins. Co., 10 Gray (Mass.), 131; In re Breitung, 78 Wis. 33, 46 N. W. 891; Gibson v. Ins. Co., 77 Fed. 561, 563. See State Ins. Co. v. Brinkley Co., 61 Ark. 1, 29 L. R. A. 712.

law to regulate it. Thus, in Miller v. Campbell, it was held that a married woman, who was the beneficiary of a Massachusetts policy of insurance, could not assign her interest therein in New York, though the law of Massachusetts permitted it.

In a Wisconsin case, the question was whether a person who had procured a policy of insurance on his own life for the benefit of another and had paid the premiums thereon, might dispose of the insurance by will or otherwise to the exclusion of the beneficiary designated in the policy. By the law of Wisconsin he could do so, and that law was held to govern the assignment (which was made there), though the insurer was a Massachusetts corporation, and by Massachusetts law such an assignment could not be made. 10

8 140 N. Y. 457, 35 N. E. 65.

In re Breitung, 78 Wis. 33, 46 N. W. 891.

10 In this case the court held that the contract of insurance also was made in Wisconsin, and seems to have based its decision largely on that fact The capacity of the insured to make the assignment in question may probably be regarded as a part of the obligation of the contract of insurance, and as such (in this peculiar instance) to be governed by the lex celebrationis of the contract; though in general the lex solutionis of the contract governs the obligation thereof, in the absence of evidence that the parties contracted with reference to any other law. The report does not show where the policy was payable (locus solutionis). The obligation (apart from the validity) of a contract depends upon "the law in the minds of the parties." Post, § 181.