Cox vs. Adams. No. 23.-JAMES B. Cox, plaintiff in error vs. PATRICK ADAMS, defendant in error. [1] A makes his note at Columbus, Georgia, payable generally to B, or bearer. B transfers it to C by delivery, and C indorses it to D. C held to be an indorser, and not a guarantor. [2.] In a suit by D, the indorsce, against C the indorser, the possession of the note, held prima facie evidence of the delivery of it by B to C. [3.] Each indorsement is a new contract, and the contract of indorsement as to its nature, construction and interpretation is governed by the Lex Loci contractus; and the remedies thereon by the law of the place where the suit is instituted. JOHNSON & WILLIAMS, for plaintiff in error. The indorsement is a contract of guaranty. 2 Root R. 225; Hotchkiss, 440, 441. In support of the second assignment. Stephens, 304; 2 Kent, 456, 460; 17 Johns. R. 511; 5 East. R. 124; B. & P. 188; 3 T. R. 77; 1 Swift, 323; 4 Johns. R. 285. In support of the third assignment. If a party is entitled to a charge he ought to have it direct and positive. 7 Cranch, 506; 2 Peters Dig. 138. The issue was supported by the testimony and therefore the charge should have been given. Rules of Pleadings. HINES HOLT, for defendant in error in reply. By the Court-NISBET, J, delivering the opinion. The promissory note upon which the action in the Court below was brought, was made by Thomas Flemming at Columbus, (without further designation of place,) on the 15th of April, 1840. It is payable generally, one day after date, to William Hargrove or bearer. It was negotiated, by delivery, to the defendant Cox, and by him indorsed to the plaintiff. The action was brought against the indorser Cox, by Patrick Adams, his indorsee. The defendant pleaded that he indorsed the note in the State of Alabama, where the payee, Hargrove, resided at the time; that he, the defendant, also at the time of the indorsement, lived in that State, and that by the laws of Alabama, the liability of the indorser is conditional; that is, he is liable only when the maker is sued to insolvency. The plaintiff read in evidence the note and indorse Cox ts. Adams. ment thereon, and closed his case; when the defendant proved, that the indorsement was made in the State of Alabama, and after the note had been made and delivered to Hargrove—that he, (the defendant,) and Hargrove resided in Alabama at the time of making and at the time of indorsing the note, and that the maker of the note, Flemming, and the plaintiff, lived in the State of Georgia. He also read in evidence certain acts of the Legislature of Alabama and an adjudication of the Supreme Court of that State, declaratory of the law of that State, regulating indorsements, and in support of the plea. Here the parties rested the case. Upon this state of the facts several very important questions were made before the Court below, and which are now before us for review. Before entering, however, upon the consideration of the points made by the defendant's plea, I notice the demurrer to the writ which was overruled by the presiding Judge, and is also brought here for revision. The defendant, demurring, said— The plaintiff's writ discloses [1.] that the note sued on is made payable to bearer, and is negotiable by delivery-that by delivery it came into the hands of Cox, the defendant, and was by him indorsed in blank; that this indorsement was a contract of guaranty, and ought to have been declared upon as such; that the plaintiff, has sued the defendant as an indorser, and therefore the writ is demurrable. We differ from the learned counsel and believe with the presiding Judge. We think the plaintiff justly conceived his action, and that the demurrer was properly overruled. This note was negotiable by the payee either by indorsement or delivery at his option. If he had transferred it by indorsement, he would have thereby incurred, whatever liability ordinarily devolves upon an indorser under such circumstances; he however negotiated the note to Cox, by delivery, in the usual course of trade and for value, whereby Cox acquired the same interest in the note which the payee held, and assumed the same relative position to the maker; the title to the note was in him by delivery, and it being made payable to bearer, he became as holder, entitled to transfer it just as the payee might have done by delivery or by indorsement. Having elected to indorse, the pleader was bound to recognise him in the character which the law gives him, and that is the character of indorser. The rule is laid down by Story in these words: "If the bill is negotiable, then the mode of transfer depends upon the manner in which the bill is originally made negotiable. If it is payable to Cox vs. Adams. the bearer, then it may be transferred by mere delivery, but although it may be thus transferred by mere delivery, there is nothing in the law which prevents the payee of a bill payable to himself or bearer, from transferring it if he chooses, by indorsement. In such a case he will incur the ordinary liability of an indorser, from which in case of a mere transfer by delivery, he is ordinarily exempt." Bank of England vs. Newman, 1 Ld. Raymond, 442; Brush vs. Reeves' Adm'rs. 3 Johns. R. 439; Chitty on Bills, ch. 6, p. 219, Idem p. 267, 8 ed.; 1 Selwyn. N. P. Bills of Exchange, 342, 10 ed; Story on Bills, sec. 200. [2] The error next charged upon the Court below, is founded upon its refusal to instruct the jury according to the request of counsel for the defendant, that some evidence of the delivery of the note by Hargrove the payee, to Cox the defendant, was necessary to enable the plaintiff to recover. We have before seen, and it were a useless waste of time to note authorities to so familiar a principle, that delivery of a note or bill payable to bearer, transfers the title. This position, indeed, the counsel for the plaintiff in error does not controvert, but contends that the delivery must be proved. We agree with him in this, that to make out the title of the plaintiff in this cause, some evidence of delivery to Cox is indispensable. That evidence was had. The plaintiff is in possession of a note indorsed to him-being made payable to bearer - he brings suit against the indorser, averring the delivery by the payee to him, and also asserting his own title, derived immediately through the indorsement. The note is read to the jury. Now we hold that the note itself, in the hands of the plaintiff, is prima facie evidence of the plaintiff's title; it is prima facie proof of the delivery to Cox. The custody of the note would be evidence of delivery in an action by Cox against the maker. So also, by reason of that fact, is it evidence of delivery to him in this suit, charging him as indorser. Story on Bills, secs. 415, 416; Chitty on Bills, 8 ed. 425, 428, 429. We understand that the request to the presiding Judge was, that he should instruct the jury that other and further evidence than what the note itself afforded, of its delivery by Hargrove, the payee, to Cox, was necessary before the plaintiff could recover. So understanding the request, and believing that the Court below so understood it, we have no hesitation in declaring our judgment that he did right in declining to comply. See also, upon this point, Chitty on Bills, 10th Am. ed. 636; Per Lord Mansfield, Doug. 632; King vs. Milsom, 2 Camp. 5. Cox vs. Adams. In the further prosecution of this cause in the Court below, the Court was asked by counsel for the defendant upon the case made by the pleadings, to instruct the jury that if the indorsement was made in Alabama, the liability of the defendant was to be regulated by the law of the place where made. The Court refused to instruct the jury in accordance with this request, but did instruct them that, if the note was made in Georgia, the contract of indorsement was to be regulated by the laws of Georgia, though made in Alabama, unless it was stipulated otherwise between the parties. To the charge given, and also to the refusal of the Court to charge as requested, the defendant excepted. The most serious question made in this record is the one thus presented. Serious, not so much on account of its inherent difficulties, for we consider the authorities clear upon the point, but because we are now to settle a rule by which numerous contracts and large interests, in this and our sister and adjoining States are to be governed. The record establishes the following facts, to wit, the note is payable generally, the maker resided in Georgia when it was made, the indorsement was made in Alabama, the payee and indorser lived in Alabama at the time the indorsement was made, and, by the laws of that State, this indorser would not be liable unless the maker was sued to the first court after the note fell due, and not liable until the maker, was sued to insolvency. In the outset of this discussion we distinguish between reme- [3.] dies, (the mode of proceeding, in order to enforce contracts,) and the character and construction of them. As to remedies upon contracts and their incidents, they are regulated and pursued according to the law of the place where the action is instituted. "Actor sequitur forum rei." This principle is part of the jus gentium. "The reasons for this doctrine, (says Mr. Story,) are so obvious that they scarcely require any illustration. The business of the administration of justice by any nation is, in a peculiar and emphatic sense, a part of its public right and duty. Each nation is at liberty to adopt such forms and such a course of proceeding, as best comport with its convenience and interests and the interests of its own subjects, for whom its laws are particularly designed. The different kinds of remedies, and the modes of proceeding best adapted to enforce rights and guard against wrongs in any nation, must materially depend upon the structure of its own jurisprudence. What would be well adapted to the jurisprudence, either customary or positive, of one nation, for rights which it Cox vs. Adams. cognised, or duties which it enforced, or for wrongs which it redressed, might be wholly unfit for that of another nation, either as having gross defects, or steering wide of the appropriate remedial justice. The jurisprudence of one nation may be very refined and artificial, with a multitude of intricate and perplexed proceedings; that of another may be rude, uninformed, and harsh, consisting of an undigested mass of usages. It would be absolutely impracticable to apply the process and modes of proceeding of the one nation to the other. Besides, there would be an utter confusion in all judicial proceedings, by attempting to engraft upon the remedies of one country, those of all other countries whose subjects should be parties or be interested therein. All that any nation can, therefore, be justly required to do, is to open its own tribunals to foreigners in the same manner and to the same extent as they are open to its own subjects, and to give them the same redress, as to rights and wrongs, which it deems fit to acknowledge in its own municipal code for natives and residents." Story's Conflict of Laws, sec. 557; 2 Kent 461; 5 Clark & Finnelly R. 1, 13, 14; 10 Barn. & Cress. 903; 1 Barn. & Adol. 284; 2 Scott, 304; 1 Hodges, 206; 2 Bing. N. C. 202; 4 Moore & Scott, 328; 8 Peters U. S. R. 361; 3 Gill & Johns. 234; 4 Cow. R. 408; 2 Burrow, 1084; 2 Mass. 84; 14 Johns. R. 346; 2 Rand. Virg. R. 303; 13 Peters R. 378, 379. We therefore say, that so far as concerns this contract, the law of this State, where the suit was instituted, governs the remedy. Another proposition which we lay down is, that a contract to pay money generally, is a contract to pay any where. All debts between the original parties are payable every where, unless some special provision is made to the contrary. Debts have no situs, but accompany the creditor every where. The debtor may be sued in any jurisdiction, according to the forms of law which obtain in that jurisdiction, if he is therein resident. This suit was therefore rightfully brought in Georgia, where the defendant resided when it was instituted. Story's Conflict of Laws, sec. 317; 13 Mass. R. 1, 6; 6 Cranch. 221. It must not be understood however, that because a note is payable generally, and is therefore payable any where and suable in any jurisdiction, that as between the original parties even, the law of the forum in such a case, governs the contract. It is true, that a decision to this effect has been made in Massachusetts. That decision was made in Braynard vs. Marshall, reported in 8 Pick. R. 194. A negotiable note was made at New York between persons resident there, and was |