Levy vs. Cohen.

tinction: the bills were signed and indorsed in Ireland and actually issued by the drawers and passed away to Wallace with authority to fill them up. The amount of the bills were limited by the Irish stamps. The amount of the decision is, that the signing and indorsing by the drawers was a sufficient drawing, and that the filling up the blanks afterwards by a mere agent, or by an agent who had authority coupled with a discretion, was immaterial, and had relation back to the moment when the bill was drawn. The drawers signed the bill, issued it, gave authority to Wallace to fill it up, and use it for himself. They lost all control over it. Le Blanc, J. says, they come as incipient bills of exchange, and so far having the essence of a bill, as it has the name of the drawer and first indorser upon it. The question he says is not whether it was a perfect bill in Ireland, as whether it is a bill drawn in England. How different the case at bar, the note made in Charleston, sent to the indorser, not to be used by him, with no authority to pass it away, to be returned to the maker, or which is the same thing, his agents for this purpose, the Trust Company; to be by the latter discounted for the maker to take up an accommodation paper of the same parties running to maturity in the said Trust Company. The indorser having no authority to negotiate the note, it was issued when the maker procured it to be discounted in Charleston, and then, and not before, it is considered legally made according to the case in 17 Mass. Rep. and other authorities before cited.

It was strongly urged in the argument below that this defence went to the remedy, the lex fori, and not the lex loci. This idea was rejected by the presiding Judge, and we only notice it to say, that the defence goes to the obligation of the contract. It is not like the statute of limitations-it does not bar the plaintiff's right to sue after a certain time, but if he does not pursue a certain course when required, the defendant shall be discharged from the obligation to fulfil his contract.-See Story on notes, Sec. 160-171. In which last section, the very case is put as an illustration of the obligation of the contract.

CHARLTON & MCALLISTER, for defendant in error.

Argument of ROBERT M. CHARLTON.

The defence in this case is founded upon the Statute of Geor

Levy vs. Cohen.

gia, which authorises an indorser of a promissory note to require the holder to proceed to collect the same within three months, and if the holder should fail to do so, the endorser shall be discharged from further liability. Prince, 462, 471.

We contended, before the Court below, that this statute regulated and affected the remedy, or means of recovery, and therefore was to be regarded as the lex fori. Story's Con. of laws, Sec. 576, et seq. Levy vs Boas, 2 Bailey's Rep. 217. Ruggles vs. Keeler, 3 John. Rep. 262. Andrews vs. Heriot, 4 Cowen's Rep. 50S, and note 10 at page 528. Barn. & Cress. 902.

The British Linen Co. rs. Drummond, 10 De la Vega vs. Vianna. 1 Barn. & Adol. 284. Lincoln vs. Batelle, 6 Wend. 475.

The question has been settled in reference to the Statute of Limitation, and this Statute is a quasi Statute of Limitation, giving the holder three months after notice to commence his suit, or lose his remedy against the indorser.

It is true, that this point was decided by the Judge below against us, and he has accordingly so certified; but if he was wrong in this, then however wrong he may have been on the other points, if this point was conclusive for us, this Court will not send the case back. 1 Kelly, 580. 2 Kelly, 381.

2d. If this be not lex fori, then we affirm that it was a Georgia contract so far as the indorser was concerned, and that therefore the lex loci contractus must govern. Powers vs. Lynch, 3 Mass. Rep. 80, 1. Burrows, Hall & Co. vs. Hannegan, 1 McLean's Rep. 315. Slacum vs. Pomery, 6 Cranch's Rep. 221, 224. Musson vs. Lake, 4 Howard's Sup. C. Rep. 278. Williams vs. Wade, 1 Metcalf, 83. Cox vs. Adams, 2 Kelly's Rep. 158. Story on Prom. Notes, Sec. 339, p. 404, and see note 3, p. 405. Story on Con. of Laws, sec. 314.

The fact that this note was payable in Charleston, by the maker, cannot take this case out of the rule thus settled. That was the contract of the maker-that will make the Carolina law applicable to him-but not to us—the contract on the part of the indorser is, not that he will pay the note when and where the maker has promised to pay it, but if the maker does not pay it there, at maturity, that he, the indorser, will thereafter pay it, on request— and that request must of course be made to him where he lived, and where his contract was made, viz in Georgia. So far, then, as our contract is concerned, we made it in Georgia, to be execu

Levy vs. Cohen.

ted in Georgia. Story on Con. of laws, sec. 315. Story on Prom. Notes, sec. 339, and note 3 to page 404. Musson vs. Lake, 4 Howard, 278. Potter vs. Brown, 5 East's Rep. 124. Hicks vs. Brown, 12 John. Rep. 142.

Of course, if this lex loci contractus is to govern, it follows, as a necessary consequence, that any defence or discharge (such as the one we make,) that is sufficient by the law of the State of Georgia, would be good and held valid in every other place and country. Story on Notes, p. 187, sec. 168.

Every holder of this paper took it cum onere, with the right reserved by our contract, to give notice to him to "proceed to collect," and to hold ourselves discharged, if he did not sue within the time prescribed. Story on Notes, p. 188. And this should, especially, be the case here, as the Plaintiff in Error took this note after it became due, and after this defence had attached upon it.

But, whilst these principles of law may be admitted, their relevancy will be denied. It will be said, that this was a Carolina, not a Georgia contract-that though the manual act of indorsement was made here, the paper was not to take effect until it reached Charleston—and, therefore, that was the place where the contract was finally completed and assented to.

To all this, we answer-that the manual act is certainly the essential act to shew where the contract was entered into, unless there be some strong countervailing testimony-that this act was done by us here—that the holder directed his letters to us hereknew us to be residing here, and treated the contract as if made by us here, as he subsequently demanded from the maker “a town (i. e. Charleston) indorser:" that the very fact that this note was a renewal of a former note that had already been discounted by the Charleston Insurance & Banking Company, so far from being against us, is decidedly with us; because, before the original note became due, the Charleston Insurance & Banking Company wrote to defendant, asking him either to waive protest of the old note, or indorse the new note sent to him, and that defendant, in Savannah, answered the letter, and acceded to the request, by indorsing and enclosing the note; and the moment he mailed this letter enclosing the new note, the contract was complete in Georgia: the subsequent discount of the new note was a mere pro forma act, to carry out the contract already entered into, and for all legal purposes, complete and binding upon the parties. Story on

Levy vs. Cohen.

Contracts, p. 53, sec. 84. Adams vs. Lindsell, 1 Barn. & Ald. 681. We affirm, therefore, that our contract was completely assented to in Georgia-neither party could recede from the contract, as soon as the defendant had mailed his letter, and the mail bag was locked. If the mail bag had been robbed, would not the defendant. have been liable to a bona fide holder? If the defendant had died, would not his estate have been answerable?

But suppose it to be true, that the discount of the note in Charleston was necessary to give it perfect vitality, yet, when that vitality was given, it referred or related back to Georgia, where the indorsement was made and where the defendant resided, and this indorsement must still be considered a Georgia contract, or indorsement. Snaith vs. Mingay, 1 Maule & Selwyn, 87.

M. H. MCALLISTER, insisted, further:

That wherever the defence arises ex post facto, and depends upon a local law, that there the law of the Forum must govern. By the Court.-LUMPKIN, J., delivering the opinion.

Dr. H. Lopez, having occasion to raise money in the City of Charleston, South Carolina, offered for discount at the Charleston Insurance and Trust Company, his note, indorsed by the defendant for $300, dated at Charleston and payable at a Bank in that City. It was to be discounted for the accommodation of the maker. The Trust Company refused to discount it, without a City endorser; whereupon the plaintiff indorsed it. It was then discounted. Before its maturity, application was made by Dr. Lopez, for its renewal. This fact was communicated to Cohen, by the Company, through its Secretary. They further informed him, that the time of payment would be extended, provided he would continue his indorsement, either by renewing the old note, or making and establishing a new one in its stead. The letter also mentioned, that Dr. Lopez would correspond with him on the subject. Cohen immediately answered, that he was willing to do either. A short time thereafter, Dr. Lopez forwarded, by letter, to Cohen at Savannah, where he resided, a new note for the amount of the old, including interest, viz: $321 17 cts., payable and negotiable at the Bank of Charleston, who indorsed and mailed it from Savannah to the Company.

Levy vs. Cohen.

David C. Levy subsequently paid the note, and brought suit upon it against Cohen. It seems, that Cohen notified the holders to proceed to collect the note out of the maker before its payment by Levy; and this not having been done, the defendant contended. that his contract of indorsement-having been executed in Georgia-was to be regulated and controlled by the laws of this State; and that by the act of 1831, passed for the benefit and protection. of securities and indorsers, he was discharged from his liability on the note. The statute provides "that any security or indorser may, whenever he thinks proper, after the note or instrument becomes due, require the holder to proceed to collect the same, and if he should not do so within three months, the indorser or security shall be no longer liable." Prince, 471.

Judge Fleming, before whom the cause was tried, in Chatham county, was asked to charge the jury :

1st. That although the name of the defendant may have been written in Georgia upon the note, yet the contract of indorsement was not completed until the note was passed away and put in circulation, which was not done in this State, but in Carolina.

2d. That there was no completion of the contract of indorsement until there was a delivery of the note to, and receipt and acceptance of it by, the said Company in Charleston, it having been made to discount by said Company, to renew a note already discounted there for the accommodation of the maker.

3d. That being an accommodation paper, payable and negotiable on its face in Charleston, and intended to be discounted for the maker at a Bank in Charleston, the note was never uttered or put in circulation as a note, until it was offered for discount, the purpose for which it was made.

4th. That there was no contracting party or indorsee in Georgia, with whom the contract of indorsement could be, or was made, and consummated, and that the indorser could not have passed it away to an indorsee in Georgia, without a fraud or violation of the purpose for which the note was made.

5th. That the place where the contract is finally completed and assented to, is the place of the contract; eo loco, quo ultimus in contrahendo assentitur is the rule, and that place is Charleston in the present case.

But the Circuit Court refused so to instruct the jury; and on the contrary did charge the jury that the contract of indorsement