solutionis of the bill or note, according as the particular decisions mentioned take one or the other view. The purpose here is merely to show that the lex solutionis governs.

2

In Baxter Nat. Bank v. Talbot, suit was brought in Massachusetts against the indorser of a note indorsed in blank in Vermont to the plaintiff. At the time of the indorsement, there had been an oral agreement between the indorser and indorsee (the plaintiff) that the former should not be liable, save to the extent of a certain fund under his control. By the law of Massachusetts (lex fori), evidence could not be introduced of this oral agreement to vary the liability imposed by the indorsement. By the law of Vermont, a contract of indorsement was not an absolute one, but was dependent upon the understanding of the parties, which might be proved. It was urged that the question was one of evidence to be controlled by the lex fori, but the court held it to be part of the obligation of the indorser's contract, to be controlled by the law of Vermont.

8

With respect to the "proper law" governing presentment, notice of dishonor, protest, and other acts of like kind, ordi

2 154 Mass. 213, 28 N. E. 163.

3 In Downer v. Chesebrough, 36 Conn. 39, 4 Am. Rep. 29, a very similar case, the court decided in favor of the lex fori, and yet it is believed both decisions are correct. In Downer v. Chesebrough, supra, an action was brought in Connecticut against the indorser of a note, made and indorsed in New York and payable there, it having been orally agreed between the indorser and indorsee that the indorsement was only for collection. By the New York law parol evidence of this agreement was not admissible; by the law of Connecticut, it was. The court held that the Connecticut law (lex fori) should control, on the ground that it was a matter of evidence pertaining to the remedy.

If we apply to these two cases the criterion mentioned ante, § 180, as the test by which to ascertain whether a particular matter relates to the obliga tion of the contract or to the remedy, it will be found that these cases, conflicting as they appear, are both correctly decided. This test is the inquiry whether the lex solutionis might retroactively be altered to the form of the lex fori without impairing the obligation of the contract under the federal constitution. If it could not be so altered constitutionally, the matter relates to the obligation of the contract. Such would seem clearly to be the case, under the circumstances supposed, in Bank v. Talbot, supra. If the lex solutionis could constitutionally be so altered, the matter relates to the remedy. Such would seem to be equally clearly the case in Downer v. Chesebrough.

narily done at the time and place when and where payment is expected to be made, the courts for the most part agree that the law of the place where the bill or note is payable shall govern.

In Rothschild v. Currie, a bill was drawn in England on a French house, and was accepted and made payable there. The payee (the defendant) indorsed the bill in England to the plaintiff. The bill was dishonored at maturity, of which the defendant was notified according to the law of France, but not in accordance with the law of England. The court held the notice sufficient to charge the indorser."

So, in Hirschfield v. Smith, a bill was drawn in England payable to the drawer's order, directed to and accepted by the drawee in France, payable in France and indorsed by the drawer to the defendant in England, who indorsed it to the plaintiff in England. The bill was presented and dishonored, notice of which was given the defendant in accordance with the laws of France, though not within the time required by English law. It was held that the French rule should govern.

In Brown v. Jones," a bill was drawn in Indiana upon a party in Illinois and made payable there. The drawer indorsed the bill to the plaintiff. It was dishonored, and notice thereof was sent to the drawer and indorser within the time permitted by Illinois law, but not by the law of Indiana. It was held that

the law of Illinois should control.

In all of these cases a liability was sought to be enforced by the ultimate holder of the bill or note against the drawer or indorser, not by an intermediate indorser against a prior indorser. The same principle, however, should control in the latter case, and the lex solutionis of the bill or note (not of the prior indorser's contract) should govern.

8

Thus, in Horne v. Rouquette, a bill of exchange was drawn 41 Q. B. 43, 1 Ad. & El. N. s. 43.

5 See also Rouquette v. Overmann, L. R. 10 Q. B. 525; Wooley v. Lyon, 117 Ill. 244, 57 Am. Rep. 867; Gay v. Rainey, 89 Ill. 221, 31 Am. Rep. 76; Briggs v. Latham, 36 Kan. 255, 59 Am. Rep. 546, 13 Pac. 393; Carnegie Steel Co. v. Construction Co. (Tenn.), 38 S. W. 102; Stubbs v. Colt, 30 Fed. 417. 6 L. R. 1 C. P. 340.

125 Ind. 375, 25 N. E. 452. See also Pierce v. Indseth, 106 U. S. 546. 83 Q. B. Div. 514, 28 Eng. Rep. 424.

in England upon a Spanish house, payable in Spain. It was indorsed in England by the defendant to the plaintiff, who indorsed it in Spain to M, a resident of Spain. Acceptance having been refused in Spain, a delay of twelve days occurred before M wrote to notify the plaintiff of the dishonor. On the receipt of this notice the plaintiff at once notified the defendant. By the law of Spain, no notice of dishonor by non-acceptance was required. Immediate notice was demanded by the law of England. The defendant pleaded want of due notice, but the court held the plaintiff entitled to recover.

In Musson v. Lake,10 a bill was drawn in Mississippi upon a firm in Louisiana. It was indorsed by Lake in Mississippi, and was protested by a notary in Louisiana for non-payment. The protest did not show that the bill itself had been exhibited when the demand was made upon the drawee, as the law of Mississippi (but not that of Louisiana) required. The court took the view that Mississippi was the locus solutionis of the indorser's contract, and held that that law should govern the effect of the presentment. It is believed that the better view would be that the law of Louisiana, as the lex solutionis of the bill, should control such questions as this; for with reference to matters connected with the payment of the bill or note at

• In this case, however, the court did not rest its decision clearly upon the ground that the lex solutionis of the bill should govern the obligation of the defendant indorser's contract, though it is believed the ruling amounts to this. It was placed upon the ground that the liability of the plaintiff upon his Spanish indorsement to M, was to be measured by the law of Spain; that he was responsible to M notwithstanding the delay in the notice of non-acceptance; and that since the plaintiff had paid value to the defendant for the bill, and had himself been legally made liable upon it, he was entitled to look to the defendant for indemnity. If M, instead of looking to the plaintiff, had proceeded at once against the defendant in this case, the decision leaves it entirely unsettled what law would have been applicable. It would seem the better and safer rule that the lex solutionis of the bill or note should control in all such cases, thus making the same law the measure of the liability of all the indorsers, no matter where they indorsed.

10 4 How. 262. See also Slocum v. Pomery, 6 Cr. 221; Powers v. Lynch, 3 Mass. 77; Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 27 Am. Dec. 137; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79; Douglas v. Bank, 97 Tenn 133, 36 S. W. 874.

maturity, protest, dishonor, etc., all the parties should be presumed to have in mind the law of the place of payment, regardless of the situs of their individual collateral contracts.

11

Nor is there any reason to presume that the parties have in mind any other law as determining questions of their general liability, at least if we suppose that the place of performance of the indorser's contract is the place where the bill or note is payable. In inquiries relating to such questions, as whether or not the indorser is liable primarily and immediately, or only after due diligence has been used to induce the maker or acceptor to pay, the subject of the inquiry is the obligation of the indorser's contract, which is to be controlled by the lex solutionis thereof.12

§ 184. Obligation to Pay Interest. If a contract to pay money makes no mention of interest, or though calling for "'interest names no rate at which it shall be paid, it is well settled that the obligation to pay interest on the amount is governed by the lex solutionis of the contract, unless the 11 Scudder v. Bank, 91 U. S. 406, 412.

12 Whether the locus solutionis of the indorser's contract is the place where the bill or note is payable, or the place where the indorsement is made, is a mooted question, though the former view is preferable. See ante, § 165. It so happens that the cases which have so far dealt with the particular inquiry mentioned in the text have taken the latter view, and have therefore held that the law of the place of indorsement controls the steps to be taken against the maker or acceptor before forcing the indorser to pay. Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79; Rose v. Park Bank, 20 Ind. 94, 83 Am. Dec. 306; Nichols v. Porter, 2 W. Va. 13, 94 Am. Dec. 501; Williams v. Wade, 1 Met. (Mass.) 82. See Young v. Harris, 14 B. Mon. (Ky.) 556, 61 Am. Dec. 170; Carlisle v. Chambers, 4 Bush (Ky.), 272, 96 Am. Dec. 304. In Rose v. Park Bank, supra, a note made in Indiana was payable in New York, and was indorsed in both States. By the law of Indiana, an indorser could not be sued until after suit was brought against the maker. The Indiana court, adopting the theory that the loci solutionis of the indorsers' contracts were the places where they were made, held that as to the New York indorsers the law of New York should govern, while as to the Indiana indorsers the law of that State should prevail. This view, it will be observed, throws upon the holder the burden not only of ascertaining the law of each particular place of indorsement, but of ascertaining also the place of such in dorsement at his peril. This doctrine certainly tends to hamper the negotiability of paper.

parties clearly contracted with reference to the law of another State.1

'The same principle applies whether the claim of interest is made against the maker of a note or acceptor of a bill, or whether it be made against the indorser or drawer. But here again must be noted the line of cleavage amongst the authorities as to what is the locus solutionis of the indorser's or drawer's contract. Some of the cases hold that interest is to be computed against the drawer or indorser according to the law of the place where the bill is drawn or the indorsement is made; while others have held that the interest in such cases is to be computed according to the law of the place where the bill or note is payable. The latter is believed to be the better view.'

2

A somewhat different question arises in cases where a certain rate of interest is lawfully reserved in the contract in accordance with its lex celebrationis, payable until maturity, no provision being made for interest after maturity. If in such case we suppose the lex solutionis of the contract to authorize a different rate of interest from that expressly reserved in the contract, it becomes important to ascertain which law shall govern the interest after maturity. The parties having shown their intention to contract for interest under the law of the place where the contract is made, that law should govern also as to the

1. Coghlan v. R. R. Co., 142 U. S. 101; Scotland County v. Hill, 132 U. S. 107, 117; Lanusse v. Barker, 3 Wheat. 101; Kavanaugh v. Day, 10 R. I. 393, 14 Am. Rep. 691; Peck v. Mayo, 14 Vt. 33, 39 Am. Dec. 205; Crawford v. Bank, 6 Ala. 12, 41 Am. Dec. 33; Morris v. Wibaux, 159 Ill. 627, 43 N. E. 837; Stickney v. Jordan, 58 Me. 106, 4 Am. Rep. 251; Sutro Tunnel Co. v. Mining Co., 19 Nev. 121, 7 Pac. 271, 278; Stepp v. Association, 37 S. C. 417, 16 S. E. 134; Cooper v. Sandford, 4 Yerg. (Tenn.) 452, 26 Am. Dec. 239; Ayer v. Tilden, 15 Gray (Mass.), 178, 77 Am. Dec. 355; Consequa v. Fanning, 3 Johns. Ch. (N. Y.) 587, 610; Fanning v. Consequa, 17 Johns. (N. Y.) 511, 8 Am. Dec. 442; Scofield v. Day, 20 Johns. 102; Gibbs v. Fremont, 9 Exch. 24; Cooper v. Earl of Waldegrave, 2 Beav. 282, 284.

2 Gibbs v. Fremont, 9 Exch. 24; Crawford v. Bank, 6 Ala. 12, 41 Am. Dec. 33.

Peck v. Mayo, 14 Vt. 33, 39 Am. Dec. 205; Mullen v. Morris, 2 Barr (Penn.), 85. See ante, § 165.