President, &c., of Bank of Commerce agt. The Rutland & Washington R. R Co. the Code, if the plaintiff is a nonresident, when the cause of action arose, or the subject matter of the action is situated within this state. The subject matter of the action in this case is not situated in this state. The property of a nonresident defendant here, out of which a creditor seeks to compel payment of a general debt, is not the subject of the suit to recover the debt.

If the subsequent amendment of §§ 134, 5, limiting the service of summons to cases, where the cause of action arose in this state, or the defendants had property here, is to be considered as modifying § 427, then a foreign corporation may be sued, whenever it has property here. It is shown that the defendant had not only forty thousand dollars in value of personal property within this state, but claims to own and run about forty miles of railroad here. But that fact was not made to appear in the original affidavit; and the plaintiffs should make a strong case of mistake to warrant them in now changing the whole ground upon which their attachment issued. Indeed, the counsel for the plaintiffs does not put the case upon that ground, but insists that the cause of action arose here. If it did, the defendant can be sued here under all our statutes on the subject.

It seems to me well settled, that where a contract is made at one place, and is to be performed at another, the contract as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of performance. (Stor. Conf. L., §§ 280-1, and notes; Burckle agt. Eckhart, 3 Comst. 132; Andrew agt. Pond, 13 Pet. 778; Fanning agt. Consequa, 17 John. R. 511; 4 Cow. 410, note; 1 W. Bl. R. 259; 2 Kent. 460, 393.) And the rule seems to be the same with regard to bills of exchange and promissory notes. (Story on Bills, §§ 131, 129, 145; Cooper agt. E. of Waldegrave, 2 Beav. 282.)

There has been some contrariety of opinion as to the contract of an endorser; and the law in relation to fixing him as such. (Stor. on Bills, §§ 142, 176, 296; Aymar agt. Sheldon, 12 Wend. 439; Rothschild agt. Carrie, 1 Q. B. 43; Cooper agt. Earl of Waldegrave, 2 Beav. 285.) But this bill of exchange may be

President, &c., of Bank of Commerce agt. The Rutland & Washington R. R. Co. considered as drawn upon, and in favor of, and accepted and endorsed by the defendant. The endorsee can sue the Rutland and Washington Railroad Company as acceptor; or as maker of a promissory note. (Chitt. on Bills, 24; Meiller agt. Thompson, 3 M. and G. 576; Story on Bills, § 35, and note.) Consequently the defendant became the principal debtor, and no demand at the Exchange Bank in New-York was necessary before suit. (Stor. on Bills, § 356; Fodin agt. Sharp, 4 John. 183; Wolcott agt. Van Santvoord, 17 id. 248; Wallace agt. McConnell, 13 Pet. R. 136; Green agt. Goings, 7 Barb. 652.) And perhaps Wilde agt. Sheridan, (11 Eng. 380,) was put on that ground. But still, that was strictly the place of performance; and if the company had had funds there to pay the bill, that would have exonerated it from payment of all damages and interest. (Id. Halstead agt. Skelton, 5 Q. B. 86.)

There has been some difficulty in ascertaining what is meant by the phrase "cause of action arose." Especially when the subject matter of the suit is a bill of exchange. (Stor. Conf. of Laws, 317; Wilde agt. Sheridan, 11 Eng. R. 380; Buckley agt. Hamn, 5 Exch. R. 43; Lewis agt. Owen, 4 B. and Ald. 654; Amner agt. Clark, 2 C. M. and R. 468; Hush agt. Long, 4 Eng. R. 199.)

The counsel for the defendant contends, that the contract of loan, or the bill of exchange, is the cause of action. An "action, in the ordinary use, is simply a legal demand of one's right." (See Co. Litt. 285, a; 1 Bac. 46; 1 Toml. Dic. 28.) The Code (§ 2) has given it a little broader sense, perhaps, as suits in equity are now included. "Cause of action," I do not think, is, now at least, synonymous with "chose in action," for the latter phrase, as now used, includes debts, &c., not due ; and indeed stocks; (Ld. Thurlow, 1 Ves. Jr. 198: and see Gillet agt. Fairchild, 4 Den. 80;) though some of the definitions given to it, as well as its etymology, rather import a present right of action. (4 Petersd. 254, r.; 1 Chitt. Gen. Pr. 99; 1 Lill. Pr. 378.)

It has been remarked that, "whatever be the form of action, the breach of duty is substantially the cause of action." (BAY

President, &c., of Bank of Commerce agt. The Rutland & Washington R. R. Co,

LEY, J. in Hornell agt. Young, 5 B. and C. 259; and see Burckle agt. Eckhart, supra, S. C. 3 Den. 279; 2 Saund. R. 63, d, n, m; Batley agt. Faulkner, 3 B. and Ald. 288, 448; Collinge agt. Heywood, 9 A. and E. 633; 1 Cr. and M. 467; 1 Mod. 269.) In Cooper agt. E. of Waldegrave, supra, where the drawer, who was the payee, and the acceptor, both resided in Paris, and the bills were drawn there payable in London, the M. R., in considering the liability of the acceptor, said, “The nonpayment of the money, when the bill becomes due, is a breach in England of the contract which was to be performed in England.” And the same principle governs in the application of the statute of limitations.

The defendant relies upon the case of Western Bank agt. Bank of Columbus. (7 How. Pr. 238.) As to the right of a foreign corporation to sue, the attention of the court does not seem to have been called to the amendment of the revised statutes by the act of 1849. And as to the cause of action, that was a loan made in another state by one foreign corporation to another; to secure the payment of which a bill of exchange had been given, drawn by other persons upon a resident of New-York. But the suit was upon the loan. If the right to bring this suit depends upon the cause of action arising in this state, the plaintiffs could not sue the defendant here for a loan of $25,000 made in Boston. But the suit is upon a bill of exchange.

Motion denied.*

* This order, on appeal, was affirmed at the fourth district general term in September, 1854; the court considering that if the defendant was dissatisfied, the question could be raised in a more solemn way on the trial.

Keeler agt. The Poughkeepsie and Salt Point Plank Road Company.

SUPREME COURT.

LEWIS S. KEELER agt. THE POUGHKEEPSIE And Salt Point PLANK ROAD COMPANY.

The court must be enabled to see from the pleadings, and other papers of the parties, that the trial of the cause must necessarily involve the examination of a long account on either side before they will compel a reference.

Dutchess Circuit, Sept. 1854.-The plaintiff was the contractor to build the plank road of the defendants. He claims that the company violated the contract, so that he is entitled to recover of them on the quantum meruit. The defendants deny the violation of the contract, set up payment, and that the contract, soon after it was entered into, was assigned to the plaintiff, and that the assignee has been paid. The case has been noticed for trial at the present circuit, and defendants now move to refer it, because the trial will involve the examination of a long account.

reasons.

C. SWAN, for plaintiff.

JOHN THOMPSON, for defendants.

DEAN, Justice. I think the motion must be denied, for two If the defendants' answer is true, the trial will not involve the examination of any account; and defendant at least must be held bound by his own allegations.

But even if the plaintiff's view of the case is correct, before it can be established, that issue is to be tried, and then, if decided in the plaintiff's favor, it may be necessary to examine the accounts of the parties. If that issue is found for the defendants, then no accounts are to be examined. A reference can only be compelled where the court can see by the pleadings, or other papers of the parties, that the trial of the cause must necessarily involve the examination of a long account on either side. The cause must, therefore, retain its place on the calendar, unless the parties can agree to a reference.

Williams agt. Christie and others.

SUPERIOR COURT.

WILLIAMS, respondent, agt. CHRISTIE and others, appellants.

Where a written contract to sell and convey real estate was drawn by the widow and her two married daughters, together with the respective husbands of the latter as parties of the first part, and P. H. W., party of the second part, who paid a portion of the consideration down,-signed, sealed, and delivered by all the parties individually, except the two married daughters, in whom was the fee of the property as tenants in common, subject to the widow's right of dower?

Held, in an action by P. H. W. for performance of the contract, and for a deed of the premises, that there was nothing on the face of the agreement which intimated that the husbands were agents, or assumed to act as agents for their wives in signing the contract. And it was settled, that every written contract made by an agent, in order to be binding upon the principal, must purport on its face to be made by the principal, and must be executed in his name, and not in the name of his agent.

It could not be shown by parol that an alleged agent, in signing his own name to a contract, in fact signed as agent.

In this case all the parties of the first part to the written contract, including the two married women, had, previous to the commencement of this action, joined in making, executing, and acknowledging a warranty deed to P. H. W. of the premises, and by their agent tendered it to him, with a request to perform certain conditions on his part, which at the time was refused by P. H. W., for cause stated. Whereupon a conveyance, on the same day, was made, executed, delivered, and recorded, between the same parties of the first part to third persons, two of the defendants, of the same premises. Held, that the deed to the plaintiff was executed to be specially tendered, and was specially tendered; that the married women not being bound by the contract, it was competent for them to tender a conveyance upon any terms; and such tender being unaccepted by the plaintiff, no new rights were conferred upon him; and it did not, in law or equity, divest or impair the title of the married women, or their power of subsequent disposition.

Present, OAKLEY, Ch. J., DUER, and BosWORTH, JJ.

General Term, June, 1854.-The complaint in this action is filed for the purpose of carrying into effect an agreement for the purchase of certain real property in the city of New-York, dated 29th Nov. 1850. The alleged contract is in writing, and purports to be made between Jane Christie, (entitled to dower in the lands,) Stephen L. Preston, and Margaret Ann his wife, Levi H. Truex and Mary Jane his wife, of the first part, and