Raymond and another v. Holmes, 11 Tex. 54

Lipscomb, J. On the first point, it is only necessary to say, that it has been the uniform decision of this Court, that suit may be instituted in the county of the residence of any one of the defendants, and the others be brought in by branch citations, to the counties of their respective residences. A plaintiff, however, would not be permitted to abuse the privilege, by a fictitious indorsement, for the purpose of enabling him to bring the real parties, for trial, out of their own county of residence. (Pool v. Pickett, 8 Tex.

R. 122.) The second assignment presents a graver question: it is whether the law of the place where the bill is payable, or that of the place where the bill was drawn or indorsed, is to govern,, and fix the liability of such drawer or indorser. If the former, by the law merchant, notice of protest would have to be proven, to authorize a recovery against the drawers in this case; but if the latter, then, no notice of protest would be necessary to fix the liability, as the suit was brought 'to the first Term of the Court after the accrual of the liability. (Hart. Dig.

Art. 2528.) On this question, there has been some diversity of opinion. On general principles, it would seem that the law of the place drawn upon, should control, as it is a well established rule of law, that when a particular place has been named for the performance of the contract, the law of such place must govern. And such is the rule of decision in England, as to the liability of drawers and indorsers. (1 Adolphus & Ellis, New Rep. 40.) A different rule is believed to prevail in all the American Courts. Mr.

Justice Story, in his work on bills, says that, “ by the Common Law, the pro- “ test is to be made at the time, in the manner and by the per- “ sons, prescribed in the place where the bill is payable. But, “ as to the necessity of making a demand and protest, and the “ circumstances under which notice may be required or dispensed with, these are incidents of the original contract, “ which are governed by the laws of the place where the bill “ was drawn.

They constitute implied conditions upon which “ the liability of the drawer is to attach, according .to the lex “ loci contractus; and if the bill is negotiated, the like re- “ sponsibility attaches, upon each successive indorsement, “ according to the law of the place of his indorsement.” (Sec. 178.) Such has been, so far as we are informed, the uniform doctrine of the Supreme Court of the United States. In that Court, in the case of the United States v. The United States Bank, on a bill drawn in Washington City on Paris, the drawer’s liability was held to rest upon the statute of the State of Maryland. (2 How.

U. S. B. 711.) The same doctrine was sustained in New York, in an able opinion of Chief Justice Nelson, now' one of the Associate Justices of the Supreme Court of the United States. The case was one of strong features and well calculated to command the strictest scrutiny, it being a case, wherein, on this doctrine, the drawer was discharged bjr the law of the place where the bill was drawn, and the indorser was held liable according to the laws of New York, where the bill was indorsed. It was thus: A bill was drawn in one of the French West India Islands, on Davis.

It was drawn payable after sight, and it was indorsed in New York. By the French Code of Commerce, such a bill, to hold the drawer and indorser liable for payment of the bill, required presentation and protest for non-acceptance and also protest for non-payment. The bill was only protested for non-acceptance.

This omission to protest for non-payment at the day of payment, exonerated the drawer, by the law of the place where it was drawn, and the indorser was held liable for payment, by the law of New York, which only required the bill to be protested for non-acceptance, to fix the liability of the indorser. (12 Wend. R. 439.) It does seem, that this case is a striking illustration of the superior advantages of the English rule, over the American, in commercial transactions.

By the former, the liability would be uniform and fixed by the law of the place where the bill ■was payable; while the latter makes it unequal and sometimes unjust, depending upon the law of the place where drawn, and of the place where the several indorsements are made; and it would be more in harmony with the general, if not universal rule of law, that the law of the place where performance is to be made, shall govern, if the English doctrine was sustained, as of universal obligation. Mr.

Justice Story says that the American may seem to form an exception to the rule we have stated ; but he says that it is in strict subservience to that rule, and contends that the drawer and indorser only contract for liability according to the lex loei of the place where drawn or indorsed. (Story on Bills, Sec. 154.) This last proposition is not clear, and satisfactory; because, it would seem, that if it be true, that the drawer and every indorser undertakes that the bill shall be paid at the place of payment named in the bill, it would be difficult, on principle, to reconcile the distinction between such undertaking, and any other contract for performance at a particular place, where the law is different from the lex loei oontraetus.

But the American doctrine has acquired the force of authority, and uniformity must be observed on this question. By our statute, then, protest and notice are dispensed with, on the bringing the suit in the time required. The judgment must therefore be affirmed. Judgment affirmed.