defendants in this action: that the said paper writing

1862.

SCOTT

V.

was so made by the said Daniel Pilkington, at the request of said Fleming & Alden, and for the purpose PILKINGTON. and with the intention that such paper writing should be exhibited to such parties as might buy the bills of exchange which might thereafter be drawn by the said Fleming & Alden, in the said city of New York, on the said defendants, as evidence of the authority of the said Fleming & Alden to draw said bills of exchange.

"That afterwards the said paper writing was deposited by said Fleming & Alden with the plaintiffs, who were bankers in the city of New York, as evidence of the said authority of the said Fleming & Alden in the premises; and that thereupon the said Fleming & Alden, at the city of New York, drew the several bills of exchange in the pleadings in this action mentioned upon the said defendants; and which said bills of exchange were purhased by the said plaintiffs, at the city of New York, the said plaintiffs, upon such purchase relying upon the faith and credit of the said paper writing as evidence that the said Fleming & Alden were authorized to draw the said bills of exchange, and that the same would be duly accepted by the said defendants.

"That at the time of the drawing of the said bills of exchange, as well as of the purchase thereof by the plaintiffs, the authority contained in the said paper writing, so given by the said defendants, had not been in any manner revoked, withdrawn, or annulled.

"That the said bills of exchange were duly presented by the plaintiffs to the defendants for acceptance at Liverpool, and acceptance thereof in each case refused.

"That the first of said bills was so presented, and acceptance refused, on the 6th August, 1856. That on B. & S.

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D

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V.

PILKINGTON.

that day the value of the money in said bill of exchange expressed was, in the currency of the United States, the sum of 48362 dollars.

100

"That the second of said bills was so presente d,and acceptance refused, on the 27th August, 1856. That on that day the value of the money in the said last mentioned bill of exchange expressed was, in the currency of the United States, the sum of 4836% dollars.

"That the third of said bills was so presented, and acceptance refused, on the 2d September, 1856. That on that day the value of the money in said last mentioned bill of exchange expressed was, in the currency of the United States, the sum of 4836% dollars.

"Upon the foregoing facts I find, as conclusions of law. First. That the said paper writing was a general letter of credit, operating as a promise and undertaking on the part of the defendants to and with every person who should, upon the faith and credit of the authority in said paper writing contained, purchase bills of exchange drawn by Fleming & Alden on the defendants, that said bills of exchange should be duly accepted by the said defendants. Second. That the said contract in its obligations and interpretation is to be governed by the laws of the state of New York, and not by the laws of Great Britain. Third. That the plaintiffs are entitled to recover as damages, by reason of the breaches by the said defendants of said contract in their refusing to accept the said bills of exchange, the value, in the currency of the United States, of each of the said bills of exchange at the said respective times of the presentation thereof for acceptance, with interest.

"I do therefore report that the plaintiffs are entitled to a judgment in the sum of 18,067 dollars,

($18067%), being the aggregate amount of the said three bills, with interest as aforesaid: together with their costs.

"All of which is respectfully submitted.

Dated, New York, February 23, 1860.

Henry Nicholl, Referee.

"Due service of a copy of within Referee's Report is

hereby admitted.

"March 6, 1860.

"John E. Develin, defendants' attorney.

Supreme Court.

City and county of New York. William B. Scott, Robert H. Thorn and Richard C. W. Moore against John Pilkington and Daniel Pilkington.

"This action and all the issues thereon having, by an order of this Court, been referred to Henry Nicholl, Esq., as sole referee, to hear and decide the same, and the said action having been tried before said referee, and said referee having filed his report herein, whereby he finds that the plaintiffs are entitled to a judgment against the defendants, in the sum of 18,0671%% dollars, and costs: Now, on motion of Martin and Smiths, attorneys for the plaintiffs, it is adjudged that the plaintiffs, William R. Scott, Robert H. Thorn and Richard C. W. Moore, recover of the defendants, John Pilkington and Daniel Pilkington, the said sum of 18,067% dollars, together with 565% dollars costs and disbursements, amounting in all to the sum of 18,637 dollars.

"Amount and interest

1862.

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PILKINGTON.

"Costs

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"Filed March 7, 1860, at 2 o'clock and 2 minutes. "All of which we have caused by these presents to be PILKINGTON. exemplified, and the seal of the Supreme Court to be hereto affixed.

V.

"Witness Hon. J. Sutherland, Justice, at the city of New York, the 27th March, 1860, and of our Independence the 84th.

"John Claney, clerk.”

And the defendants further say that the said judgment is erroneous, according to the law in force in the said city and state of New York, and is liable to be reversed by the Court of appeal in that behalf.

And the defendants further say that they the defendants had before the commencement of this action taken, and that they are duly prosecuting proceedings in the said Court of appeal, to obtain the reversal of the said judgment, which proceedings were at the time of the commencement of this action and still are pending in the said Court, and that the said Court has not yet. given judgment thercon.

The plaintiffs took issue on this plea and also replied, that according to the law in force in the said city and state of New York, and according to the practice of the said Supreme Court, and the said Court of appeal, and other Courts there in that behalf at the time of the said judgment, and still existing, execution on such judgments as in the declaration mentioned should not be stayed or delayed by proceedings in error or for reversal, as in the said plea of the defendants mentioned, without the special order of the court or a Judge, unless the person in whose name the proceedings were brought should have given security for the payment of the moneys recovered in and by the

judgment, together with costs; yet the said defendants had not, nor had either of them or any other person, obtained any such leave as aforesaid, or given any such security as aforesaid, but had therein wholly failed and made default, and the plaintiffs were and always had been, notwithstanding such proceedings and appeal in the said plea of the defendants mentioned, according to the practice of the said Courts therein before mentioned, entitled to the fruits of the said judgment, and to receive of and from the defendants the moneys thereby recovered, and to have execution for the same.

To this replication the defendants took issue, and also demurred.

The pleadings and questions in the second action were similar to those in the first.

The demurrers were argued in Easter Term, 1861, on the 16th April; before Cockburn C. J., Crompton and Blackburn JJ. (a).

Mellish, in support of the demurrers.-The causes in America ought to have been determined according to the English law. The rule is that the validity, nature, obligation and interpretation of a contract are to be determined by the law of the place where it is to be performed; Story Confl. Laws, § 280, 4th ed., Dig. Lib., 44, tit. 7, 1. 21, Robinson v. Bland (b), which, in the present case was England, where the bills to be drawn by Fleming & Alden were to be made payable. If that be so, the record shews that the plaintiffs had no cause of action against the defendants, that there was no privity of contract

(a) The argument has been drawn up from the notes of Francis Ellis, Esq.

(b) 2 Burr. 1077.

1862.

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PILKINGTON.