indorsement there must be a delivery as well as a writing of the name on the bill, and that the indorsement is not at the place in which he wrote his name on the bill, but in that in which he delivers it with his name on it. Buckley v. Hann. In Roff v. Miller, which may be cited on the other side, where it was said that there is jurisdiction in the judge of the district where the acceptance is written on the bill, and not where it is delivered, it was assumed that the writ ing the word "accepted" constituted the acceptance without any delivery. It was a case hastily decided, and it is apprehended it is against principle. Secondly, the cause of action is the breach of promise, not the making of the contract. The breach took place when the bill was not paid when due to the holder at Norwich. In point of strict law, a debtor is bound to follow his creditor and find him, and pay him wherever he may be. The breach, therefore, was when the acceptor ought to have paid the bill, but failed. COLERIDGE, J. Both the cases cited seem to assume that the contract is the cause of action. 8 In questions under the Statute of Limitations whether the cause of action accrued within six years, the time begins to run, not from the making, but from the breach of the contract. Huth v. Long shows that the breach of contract is the cause of action. Damages accrued to the plaintiff at Norwich, for at Norwich he was forced to pay the indorsee the amount of the bill in consequence of the default of the defendant. Joyce, in support of the motion. It is incumbent on the plaintiff to show, not only that a material part of the cause of action, but that the whole cause of action arose at Norwich. The cause of action is the contract and breach together. Roff v. Miller is directly in point, and there the distinction was taken between an indorsement and acceptance, that the former is not complete without delivery, while the latter is. The plaintiff could not prove that every thing necessary to the validity of the contract on which he sued was done within the Norwich jurisdiction, for the acceptance was made in London. Secondly, the breach did not take place at Norwich. The defendant, it is clear, never was at Norwich. The contract is not a contract to pay at Norwich. The breach was in the district in which the defendant was when the bill became due and was dishonored. Cur, adv. vult. COLERIDGE, J., now said: This was a rule for a writ of prohibition to the judge of the County Court of Norfolk. The action was by 1 5 Exch. Rep. 43; s. c. 19 Law Jour. Rep (N. s.) Exch. 151. 2 19 Law J Rep. (N. 8.) C. P. 278. Ibid. Q. B. 875. the drawer against the acceptor of a bill of exchange, drawn at Norwich, on the defendant in London, accepted in London, payable at Messrs. Robarts & Co. in London, and sent by the defendant, so accepted, to the plaintiff in Norwich; in which jurisdiction the plaintiff sues by leave of the judge. The question upon the 9 & 10 Vict. c. 95, § 60, is, whether the cause of action, that is, the whole cause of action, arose within the jurisdiction of that county court; and I am of opinion that it did not. Assuming that the cause of action was made up of the contract and the breach of it, it was argued against the rule, that this, being a general acceptance, bound the defendant to pay everywhere, and therefore at Norwich, where the plaintiff was when the bill became due; that the breach, therefore, was at Norwich, by the non-payment there at maturity (which obviously may be true without deciding this rule); and, further, that the acceptance itself was not perfect until the bill had been delivered to the plaintiff at Norwich, so that the contract also must be considered as having been made there. Buckley v. Hann was cited in support of this latter position, in which an indorsement on a bill of exchange written by the defendant in London, and sent by a messenger to the plaintiff at his residence in Middlesex, was held by the Court of Exchequer to be an indorsement made in Middlesex, the mere writing without the delivery being insufficient to constitute an indorsement. But it was admitted that when an acceptance had been written in Piccadilly in one jurisdiction and given to the drawer at Billingsgate in another, the cause of action was held complete in the former jurisdiction by the Court of Common Pleas. Roff v. Miller. This case was decided soon after the former, which appears to have been cited in the arguBut, in truth, the cases do not govern each other, and both appear to me well decided. One purpose of an indorsement is to pass the property in the bill, and that purpose is not effected until actual or constructive delivery. But the acceptor has no property in the bill either before or after acceptance; he must be supposed to receive the drawer's paper, and on it to write his promise without in any way altering the property in the bill. He may, indeed, befor any communication to the drawer of the act done, revoke it, according to Cox v. Troy and modern authorities; but his promise, unless so revoked, is complete, and takes effect from the time when it was made. In saying this, I am aware of a sentence in the judgment of Bayley, J., in that case; but I think his language is to be construed with reference to the question then before the court, which was merely the revocability of an acceptance before communication of it to the holder. In Sinith v. M'Clure, where a declaration by the plaintiff, the drawer, ment. 15 East, 476. stated a delivery to the defendant and an acceptance by him, it was demurred to, because it did not go on to state a delivery back by the defendant to the drawer. Lord Ellenborough said the acceptance admitted by the demurrer must be taken to be perfect; and, if after such an acceptance the acceptor improperly detained the bill in his hands, the drawer might nevertheless sue him on it. It may be said, indeed, that this decision only proves that a perfect acceptance, whatever that imports, gives a right of action, because it implies whatever is necessary to make it perfect; but Lord Ellenborough's language imports at least that an acceptance might, in his opinion, be perfect without delivery; for he considers it may be perfect, though the bill be detained in the acceptor's hands. In the present case, however, the acceptance has been delivered, and the question is, where the contract, which that acceptance raises, is to be considered as made? Upon this point, Story, J., is very explicit in his Conflict of Laws, § 317: "Acceptances of bills are deemed contracts of acceptance in the place where they are made and where they are to be performed. So Paul Voet lays down the doctrine: Quid si de literis Cambii incidat quæstio; quis locus erit spectendus? Is spectendus est locus, ad quem sunt destinatæ, et ibidem acceptatæ. But suppose a negotiable acceptance or a negotiable note made payable generally, without any specification of place, what law is to govern in case of a negotiation of it by one holder to another in a foreign country, in regard to the acceptor or maker? Is it a contract by them to pay in any place where it is negotiated, so as to be deemed a contract of that particular place, and governed by its laws? The Supreme Court of Massachusetts have held that it creates a debt payable anywhere, by the very nature of the contract; and it is a promise to whomsoever shall be the holder of the bill or note. Assuming this to be true, still it does not follow that the law of the place of negotiation is to govern; for the transfer is not, as to the acceptor or maker, a new contract, but it is under and part of the original contract, and springs up from the law of the place where that contract was made. A contract to pay generally is governed by the law of the place where it is made, for the debt is payable there as well as in every other place. To bring a contract within the general rule of the lex loci, it is not necessary that it should be payable [i.e. to be performed] exclusively in the place of its origin. If payable [i.e to be performed] everywhere, then it is governed by the law of the place where it is made, for the plain reason that it cannot be said to have the law of any other place in contemplation to govern its validity, its obligation, or its interpreta tion. All debts between the original parties are payable everywhere, unless some special provision to the contrary is made; and therefore the rule is, that debts have no situs, but accompany the creditor everywhere. The holder, then, takes the contract of the acceptor or maker as it was originally made, and as it was in the place where it was made. It is there that the promise is made to him to pay everywhere." There can be no doubt upon this, that where a bill is sent from one country by the drawer to the drawee in another, who there accepts it and returns it to the drawer, both Voetius and Story would hold that the contract raised by the acceptance was made in the country of the drawee, that being the place ad quem destinatur et ibidem acceptatur. The contract accordingly, in this case, was made in London, and therefore the whole cause of action did not accrue in Norfolk. It follows, then, that the judge of the Norfolk County Court had not jurisdiction, and the rule for a prohibition must be absolute. Rule absolute.1 1 Roff v. Miller, 19 L. J. C. P. 278, accord. Freund v. Importers' Bank, 3 Hun, 689, contra. See Smith v. McClure, 5 East, 476. — ED. 고 CHAPTER III. INDORSEMENT. SECTION I. An Indorsement should import an Order to pay according to the HAWKINS v. CARDY. IN THE KING'S BENCH, MICHAELMAS TERM, 1698. [Reported in 1 Lord Raymond, 860.] THE plaintiff brought an action upon the case upon a bill of exchange against the defendant, and declared upon the custom of merchants, which he showed to be thus: that if any merchant subscribes a bill, by which he promises to pay a sum of money to another man or his order, and afterwards the person to whom the bill was made payable indorses the said bill, for the payment of the whole sum therein contained, or any part thereof, to another man, the first drawer is obliged to pay the sum so indorsed to the person to whom it is indorsed payable; and then the plaintiff shows that the defendant Cardy, being a merchant, subscribed a bill of £46 198. payable to Blackman, or his order; that Blackman indorsed £43 48. of it payable to the plaintiff, &c. The defendant pleaded an insufficient plea. The plaintiff demurred, and the defendant joined in demurrer. And adjudged per totam Curiam, that the declaration is ill. For a man cannot apportion such personal contract, for he cannot make a man liable to two actions, where by the contract he is liable but to one. As if A. grants a rent charge of £20 per annum to B., B. grants £10 to C., C.1 cannot compel the terretenant to attorn. So if lands are conveyed with warranty to A. and B., their heirs and assigns, if partition be made, the warranty is extinct. See Hob. 25, Roll. and Osborne's Case. But if in the principal case the plaintiff had acknowledged the receipt of the £3 158., the declaration had been good. And though it was ǝbjected by Mr. Northey, for the plaintiff, that the plaintiff has made 1 Vide 4 Bac. Abr. 368, 869; 2 Lev. 240. |