the place which governed the contract; and, secondly, that the defendant had a perfect right to make it. This observation is applicable to all the special pleas, and disposes entirely of the second of them, in which the defendant relies on its own disability to borrow money at a higher rate of interest than seven per cent; and also disposes of the third of said pleas, in which the statute of usury of the State of New York is pleaded. There remains, then, only the first plea, in which the point is taken that the Ohio Life Insurance and Trust Company was, by its charter, prohibited from taking more than seven per cent interest. This point is fully presented in the last plea on which issue was taken, and the defendant can, therefore, receive no harm, though the demurrer to its first plea was wrongly sustained. It still had the benefit of that defence under the last plea; and the result is presented to us in the finding of the court. That finding is, that the transac tion was not a loan at all, but only a sale of the bonds; and it is not pretended that the Ohio Life and Trust Company might not purchase securities of this sort at any price it might deem expedient. But the defendant contends that this was a conclusion of law on the part of the court, and that it was erroneous. Surely the question whether a negotiation of bonds was a sale or a loan is ordinarily, and prima facie, a question of fact. To make it a question of law, some fact must be admitted or proved, which is irreconcilable with one conclusion or the other. What fact in this case is irreconilable with the conclusion that this negotiation was a sale? The defendant contends that the fact that the bonds were its own obligations is such a fact, and alleges that in law a party cannot sell its own obligations to pay money. But it cer tainly may do this, if authorized by law to do it; and it is shown. that this very thing was authorized by the laws of Ohio, to the benefit of which the defendant was expressly, as well as by comity, entitled.

Again, the defendant alleges that the exaction of collateral security for the payment of the bonds was a fact wholly irreconcilable with the sale. We do not think so. Once concede that the obligor may sell its own bonds, what difference can it make how fully and strongly they may be secured? The requirement of guaranties can only amount to evidence of intention at most; the weight of which, in connection with all the circumstances of the case, is to be judged of by the tribunal to which the facts are submitted. This has been fairly done in the present case, and the decision is against the defendant.

In this view of the case we do not decide whether the demurrer to the first plea was, or was not, well taken. We are disposed to think that it was; but do not deem it necessary to incumber the case with the discussion of that question.

Judgment affirmed.

WHAT LAW GOVERNS CONTRACT OF DRAWER OR INDORSER.

Everett et al. v. Vendryes (1859), 19 N. Y. 436.

Appeal from the Supreme Court. Action by the indorsee against the drawer of a bill of exchange drawn by the defendant at Carthagena, in New Granada, upon the New Granada Canal and Steam Navigation Company, a corporation created by and having its principal office in this state. It was payable to the order of Manuel Narcisso Jimenes, indorsed by him at Carthagena, and was protested for non-acceptance. The answer denied the indorsement by Jimenes, in general terms. On the opening of the trial before Mr. JUSTICE DAVIES, at the New York Circuit, the defendant asked leave to amend his answer by inserting the laws of New Granada in respect to the indorsement of bills of exchange. The motion was denied, and the defendant took an exception. After the plaintiffs had concluded their proof, the defendant offered to prove the laws of New Granada, and that by such laws the indorsement of Jimenes, which was in the form usual in this State, was void. The plaintiffs objected, on the ground that the said laws were not set forth in the answer; the objection was sustained, and the defendant excepted. The defendant then renewed his motion to amend the answer, tendering the proposed amendment which averred that by the law of New Granada the indorsement of any bill of exchange must contain, first, the name and surname of the person to whom the bill is transferred; second, if the value or consideration be received in cash, in merchandise, or if it be in account; third, the name and surname of the person from whom it is received, or on whose account it is charged, if he should not be the same to whom the bill is transferred; fourth, the date on which the indorsement is made. Also, that "an indorsement not expressing the value or date does not transfer the property in the bill, and it is to be considered as a simple commission for collection." The court denied the motion, and the defendant took an exception. The plaintiff had a verdict

and judgment, which having been affirmed at general term in the first district, the defendant appealed to this court.

Nicholas Hill, for the appellant.

J. T. Williams, for the respondent.

DENIO, J.-The principal contract, the bill of exchange sued on, though made in New Granada, was addressed to a corporation legally resident in New York, and was consequently payable there; and, upon general principles, the laws of this State are to be resorted to in ascertaining its nature and interpretation, and the duties and liabilities which it created. This is too well established to require a reference to books. The indorsement was also made in New Granada, but that is considered to be a separate contract, and the obligations of the parties to it are to be determined according to the law of the country in which it was made; so that if this was a question between indorser and indorsee, we should have to resort to the laws of New Granada to ascertain what obligation Jimenes assumed by indorsing the bill to the plaintiffs. (Aymar v. Sheldon, 12 Wend., 439). But the action is not against Jimenes, the indorser, but against the drawer; and it is the effect of the original contract and not of the auxiliary one, which is in question. By drawing the bill, the defendant undertook that the drawees in New York would pay it to Jimenes, the payee, or to his order, that is, to any person to whom it should be indorsed; and that if the drawees did not so pay it he would himself make such payment. The plaintiffs claim to be indorsees, according to the legal effect of the bill; and the question is, which law is to govern in determining whether they have acquired that character, that of New Granada or New York? If the former, the plaintiffs must fail, because they have not been constituted indorsees with the formalities which the laws of New Granada have prescribed for transferring a bill by indorsement. But the indorsement is in due form according to the laws of New York. I have not been able to find any authority for such a case; but I am of opinion that upon the reason of the thing, the laws of this state should be held to control. These laws are to be resorted to in determining the legal meaning and effect and the obligations of the contract. All the cases agree in this. In this case the point to be determined was, whether the plaintiffs were indorsees and entitled to receive the amount of the bill of the drawees. This was to be determined, in the first instance, when the bill was presented for acceptance and payment in New York. The plaintiffs' title was written on the bill. The question was, whether it made them indorsees according to the effect of the

words of negotiability contained in the bill itself. Those words and the actual indorsement were to be compared, and the legal rules to be employed in making that comparison, were found in the law merchant of the state of New York; and by those rules the indorsement was precisely such a one as the bill contemplated.

Besides, it is reasonable to suppose that, in addressing this bill to the drawees in New York, the defendant contemplated that they would understand the words of negotiability according to the law of their own country; they would naturally be acquainted with that, while they would, in all probability, be ignorant with the commercial code of New Granada. When, therefore, he directed the drawees to pay to the order of the payee, he must be intended to contemplate that whatever would be understood in New York to be the payee's order, was the thing which he intended by that expression in the bill.

The case of Trimbley v. Vignier (1 Bing. N. C. 151) is not in hostility to this conclusion. That was the case of a note made in Paris, the maker and payee being domiciled there; and no place of payment being made, it was payable at the residence of the maker. One claiming to be an indorsee sued the maker in England; but the indorsement to him was in the common blank form used in Great Britain and in this country, while the French Commercial Code, like that of New Granada, required the indorsement of a bill or note to be dated, and to express the consideration, and declared that if it failed to conform to these requirements it should not transfer the paper, but should only amount to a power of attorney. The court held that the law of France governed the contract, and that the plaintiff had not made title to the note. Had it been made payable in England, I presume it would have been held that the law of that country furnished the rule for determining whether the indorsement was sufficient.

For the reasons this briefly stated, I am of opinion that this case was rightly decided in the Supreme Court, and that the judgment should be affirmed.

Judgment affirmed.

Aymar v. Sheldon et al. (1834), 12 Wend. 439.

Error from the superior court of the city of New York, Sheldon and others, as endorsees, brought a suit against B. & I. Q. Aymar, as endorsers of a bill of exchange, bearing date 4th June, 1830, drawn by V. Cassaigne & Co. St. Pierre, at Martinique, on L'Hotelier Freres, at Bordeaux in France, for 4000

francs, payable at 24 days sight, to the order of B. Aymar & Co., the name of the firm of B. & I. Q. Aymar. The plaintiffs set forth the endorsement of the bill of exchange at the city of New York, where, they averred, that they and the defendants, all being citizens of the United States at the time of the endorsement, respectively, dwelt and had their homes; and then aver that on the 11th August, 1830, the bill of exchange was presented to L'Hotelier Freres, at Bordeaux, for acceptance, according to the custom of merchants, and that they refused to accept; whereupon the bill was duly protested for non-acceptance, and notice given to the defendants. The defendant pleaded, 1. Non assumpsit; 2. That the bill declared on was made and drawn in the island of Martinique, a country then, since and now, under the dominion and government of the king of France, by persons there dwelling subjects of the king of France; and that the bill, according to its tenor was payable at Paris in the kingdom of France, by persons then and still residing and dwelling at Bordeaux, in the kingdom of France, subjects of the king of France, to wit, on, &c. at &c.; that the island of Martinique, as well as Paris and Bordeaux, and the persons therein respectively residing, and the drawers and drawees were subject and governed by the laws of the kingdom of France, there and then, and still existing and in force, to wit, on, &c. at &c.; that by the laws of France, then and still at the several places in the plea mentioned, existing and in force, it is established, enacted and provided, in relation to bills of exchange drawn and payable in the countries subject to the laws of France, among other things, in manner and form following, namely: The drawer and endorsers of a bill of exchange are severally liable for its acceptance and payment at the time it falls due. (Code de Commerce, 119). The refusal of acceptance is evidenced by an act denominated protest for non-acceptance, id. 120. On notice of the protest for non-acceptance, the endorsers and drawer are respectively bound to give security, to secure the payment of the bill at the time it falls due, or to effect reimbursement of it, with the expense of protest and re-exchange. The time when a bill of exchange becomes due, if payable at one or more days after sight, is fixed by the date of the acceptance, or by the day of the protest for nonacceptance. The holder is not excused the protest for non-payment by the protest for non-acceptance. After the expiration of the above periods, (certain periods specified in the code, and which, in the case of a bill drawn in the West Indies on France, is one year,) for the presentment of bills at sight, or one or more