
    Sylvanus Bryant vs. Sylvester Edson.
    Windsor,
    February, 1836.
    B, residing in New-Hampshire, sold to D, at Cambridge, Massachusetts, where D resided, a quantity of cattle, for which D there gave his promissory note, payable in fifteen days. B brought this note to Vermont, where E signed it. Held, that E was entitled to three days’ grace on this note.
    This was an action on a note of hand of the following tenor:
    “$1456 67. Cambridge, Jan. 2d, 1834.
    “ For value received, we promise to pay Sylvanus Bryant, or’ order, fourteen hundred fifty-six dollars and 67 cents, in fifteen days from date.
    (Signed) REUBEN DAMAN) SYLVESTER EDSON.”
    The writ was prayed out against both signers, and bore date January 20th, 1834, and was served on Edson the morning of that day, and a non est inventus returned as to Daman.
    On the trial, the defendant insisted he was entitled to three days’ grace, which had not transpired at die commencement of the action. And he relied on the statutes of New-Hampshire, where the payee resided, and of Massachusetts, where the note was dated. The statute of Massachusetts, passed in 1825, was shown to be in these words :
    
      “ That all bills of exchange made after the first day of June next, and expressed to be payable at sight, or payable at a future day certain, within this Commonwealth ; and all promissory, negocia-ble notes, orders or drafts, made after the first day of June next, payable at a future day certain, within this Commonwealth, in which there is not express stipulation to the contrary, grace shall be allowed,” &c.
    The plaintiff proved that the note in question was executed by said Daman, at Cambridge, in Massachusetts, and there delivered to the plaintiff on a contract for beef cattle there sold by the plaintiff to said Daman. — That said note was brought by the plaintiff to Woodstock, Vermont, where said Edson resided, who there signed the same.
    The defendant requested the court to charge the jury that the defendant was entitled to grace on said note, and therefore the plaintiff could not recover; and upon the defendant’s entering into a rule that a verdict should be entered for the plaintiff, and judgment rendered thereon by the supreme court, for the amount of said note and cost, if the supreme court should decide that the defendant was not entitled to grace, the court did instruct the jury that said Edson was entitled to grace; — whereupon, verdict ahd-judgment- was ehtbred'for the defendant, átfd the plaintiff ex" óepted-.-
    
      Argument for plaintiff.
    
    'The defence all'rests upon the' question- whether Edsotr was entitled to three days of grace;-
    1.- We Contend he' was not so'entitled1.- No' place of payment fe mentioned iff the note.- if a- demand' upon- Edsón' to’ charge' the' endorser was néeéssáfy,- itr must Be made at Woodstock. — See' An-i-hon’s Nisi Pn-us; p. 6, in note'. And1 her days óf grabé are' allowed- in- Vermont. Nor does- it mate any difference that- Daman' executed- the note' in Massachusetts.- We may as well contend' that- Edson’s executing the note in'- Vermont brings Daman under' the forc'd'of the'-law of Vermont',- a's that D'amhn’s executing- the' note in- Massachusetts brings Edson- under the force of the law of that- state’.-
    Nor does it malte any differeride that' thé riofe' was' given- óri the' áale' ail'd- for the purchase-money óf cattle in-Massachusetts'. There' áre no days of grace upon- that contract5 by the law of Massachusetts,. or of any .other state, fill, by its'being-put- into amóte,- it is' brought’ within- the law merchant.-
    
      2. Edsoti was not entitled to grace by reason of the plaintiff’s' living' in New-Ha'mpshire, where grace is allowed on notes. For' though there are decisions showing that a: note given elsewhere, but expressly made payable in New-Hampshire, shall lie'governed' by the law of that' state,- yef I- find no case in which it has been1 decided- that' the' residence of the payee attached to it' the law merchant df liis'state with regard to grace, when no place of-payment' is expressed in the note; I- haVe been informed that the Contrary óí this was-decided-by this court on the circuit a year ago.-
    3: This casé must' be decided upon the law either5 of Vermont' Of Massachusetts;- in neither of which'is the laW merchant' of Eng-" lknd'exactly adopted;- Judge Story,in his Commentary, on page’ 299, lays down- a-general-rule with regard to the allowance of a'1 time'of payment beyond the1 day' fixed in' negotiable' instruments. He says,- “This period of indulgence is commonly called the days' of grace;- as to-which,- the rule is, that the usage of the place, On' which a-bill-is drawn,’and where payment of a bill‘or note is to be’ ihade, goverhs as to the number of the days of grace to be allowed' thereon;” In this rule he clearly refers to a case where the resi-' dence of the draftee is, -the place where payment is to be made.
    Oivpage 298,-he takes' the rule from-Chitty Ori Bills, 506-7-8 By the common-law the protest must-be made where-'the bill1 is' payable. But the necessity of demand and protest must be governed by the law of the place where the contract is made.” How .far, iheu, are these rules applicable to the present case? This ¡contract was made partly in Massachusetts and-partly in Vermont, Edson may claim that a demand, if made at all, should be made on him here by'the Gommon law adopted here ; but he has ag claim for three days of grace by any law of this state.
    But his counsel have argued, and will again perhaps, that he plaims the benefit of the .contract’s being executed by-Daman in Massachusetts,
    Her,e we may well urge, that to take the ease out of the laws of Vermont, and bring it within the laws of Massachusetts, it must be wholly executed in the latter state,
    But passing over this for the present, what is the law of Massachusetts upon the subject of grace ? Not th.e .common ].aw, but the Jaw peculiar to that state, In Jones vs, Fales, 4 Mass. R. 245, the court state what the law of that state is. On page 251, Judge Parsons says, f‘ By the law of this state, a note is not entitled to grace unless it is expressly made payable with grace.” Such is the law there still, except in the particular cases mentioned in the statute of 1825, which the defendant produces. Those cases arc these ; Bills of exchange, negociable notes, orders and drafts, made after the first day of June then next, and expressly to be payable at sight, or at a future dm/ certain within said Commonwealth. On these the statute allows grace, unless there be a contrary stipulation. The place of payment, always material, is emphatically so in this statute. The place where payable is so important in a bill or note, that, when the same is expressed in the bill or note, and omitted in the declaration, it forms a fatal variance. It was so decided by the supreme court of the U. States.— See Sebre et al. vs. Don, 9 Wheat. 558 — 5 Cond. R. on p. 680.
    The note in question was not expressly made payable in that state. There is no expression in the note about the place of payment. Whether the implication of law, or any understanding or agreement of the parties, not contained in the note, would fix the place of payment in Massachusetts, where one of the signers lived, or in New-Hampshire where the plaintiff lived, in either case the statute cannot affect the time of payment of the note; because that statute anly embraces those bills of exchange, negociable notes, &c. which are mado in that state, and expressly made payable there. All other instruments, and all bills, &,e. of any other description, are governed by the law as it stood before that statute passed; that is, there is no grace, unless it is secured by a stipulation in the instrument itself.
    Creditors have their rights as well as debtors. The rights of creditors to have their pay according to the terms of their written contract, cannot be defeated^ by any custom, usage or law in the debtor’s favor, unless he brings himself fully within that custom, usage or law.
    We say nothing about a point made last year, in reference to the right to sue on the last of the days of grace, not because we think the case then cited, of Leftley vs. Mills, in 4 Term Rep. allowing a tender of payment at eight o’clock in the evening, is valid to overturn all other authorities on the subject,- but because we find the service of the writ was made in the morning of the 20th day.
    On the whole, we conclude it manifest, first, that the plaintiff^ right of action was perfect, by the' terms of the note, before his action was brought — secondly, that the defendant has established no such right to his three days of grace, as can defeat the plaintiff’s right. As to him, the note was not executed in Massachusetts. As an intirefcy,- the note was but partially executed in Massachusetts :■ If it were wholly executed there, it not being expressly payable there, nor expressly payable with grace, the defendant is entitled to no grace.-
    
      Argument for defendant. — The note is expressed to be paid inf fifteen days from date, which in terms excludes the1 day of date from the fifteen; and if it were not so in terms, the law merchant would have the same effect upon the contract.
    The note does not refer to any place of payment, and of course is payable where made, of to the plaintiff in New-Hampshire.— So that whether governed by the lex loci where made or where payable, if is the samé' thin'g.
    In the' case' of Grimshaw vs. Bender ti al. (6 Mass. R. 157,) where a bill of exchange was drawn by plaintiff, a merchant in Manchester, England, in his1 own favor or defendants’, a house in Boston, and accepted by one of the defendants, to be paid in London’, it Was' decided that the bill was a foreign bill of exchange, and subject to be. paid according to the law merchant, as understood in Massachusettsand because, from the terms of the contract, the’ plaintiff must’ seek his remedy in case the bill was dishonored in the country where the acceptors had their domicil.
    There can be no doubt that Daman, the other signer of the note, would be entitled to the usual days of grace;' and it must be supposed that the signer, though he signed- at a different place and-time, merely as a warrantor for the payment by Daman, and having thereby subjected himself to all the liabilities of Daman, is also entitled to all the indulgencies which he could claim.
    Again : It cannot be admitted that where there are t'wo sign'ers of a note, that one is liable to be sued sooner than the other, or liable to a different rule of damages. — Edson places himself in the shoes of Daman, and thereby subjects himself to all his liabilities,- and acquires a right- to all- his privilege arising from the transaction.
    Were it otherwise, and both had been sued' under the same jurisdiction, plaintiff might recover against one, but could not against the other; that is, if both had been sued here, Daman would have been-entitled to days of grace, and so the note as to him would'have been sued before it was due; and as to him,-therefore,-no recovery would be had: but Edson, not being entitled to grace, plaintiff might have had judgment against him, and this on a joint note; and if both had been within the jurisdiction of the court, plaintiff must have sued both; for the action would not lie'against one,, and yet plaintiff could recover against one only.-
    This case furnishes an illustration of the foregoing remarks. The declaration counts against both Daman and Edson, and Edson-is made separately liable, if at all, under the statute; because therels-a non est inventus returned against Daman.
    The law supposes that every contract is made at some place, and is to be performed at some place. This must necessarily be soq because all contracts must be expounded by the laws of some place.
    When the contract does not in terms specify the place of performance, the court attempts to ascertain from the instrument itself the intent of the parties as to the place of performance.
    The lex loci where the contract is made, must generally be the rule by which the contract- is to be construed . But where the parties made the contract in one place, with a view to the performance of it in another place, the lex loci of the latter place must,- in most respects, govern the court in enforcing it.— Where, by the laws of a state in which a contract is made,-though it be negiciabfe,- may Be discharged by payment to the payee after it is endorsed, it cannot be enforced by the endorsee. — 4 Cow. 511-, m. — Hull vs. Blake, 13 Mass. 155-6-7.
    So the interest or damages are to be governed by the lex loci contractus. — S. C. 17 John. 511 — 12 Mass. 4.
    We do not find many decisions reported in this slate.
    
      T. he case of Ripley vs. Greenlcaf (2 Vt. R. 127 — 33) is either „ x , , . . T i reported wrongs or the decision was wrong. It does not appear where the note was made, or where payable. But the decision is, that as the maker resided in the state of New-York, and payment was there demanded, where the days of grace are allowed, it is therefore correct to adopt the same rule here in a case where the demand was made in that state.
    It is insisted on the part of the defendant, that the maker of a promissory note, and probably the endorser also, is entitled to the whole of the day on which it falls due, to raise and pay the money, and cannot be sued till that day has expired.
    But it is sufficient for us in this case, if the maker is entitled to the whole day.
    We are fully aware of those cases in which it is decided that the drawer of a foreign bill of exchange is liable in case of non-acceptance before the bill comes to maturity. This is according to the law merchant, because it was purchased on the condition that the bill shall be accepted when presented, as well as paid when due. — 3 East. 48].
    But it is otherwise with inland bills of exchange, and we contend also as to the promissory notes, especially as between the maker and the payee. — Swift’s Ev. 320.
    Inland bills of exchange may be presented on the last day of payment, and protested, and notice given the next, which will be sufficient to hold the drawer; and we think the same due time applies to promissory notes.
    The endorsor of a foreign bill of exchange, places himself in the situation of the drawer, — every endorsement being regarded as a new bill drawn by the endorsor. — 3 East. 481.
    But the acceptor of an inland bill of exchange has the whole of the third day of grace, and cannot be sued till the next day._4 T. R. no.
    In Leftley vs. Mills, it was decided that the acceptor of an inland bill of exchange had the entire day of the last day of grace to pay the money in, and that a tender made at eight o’clock in the evening was good, and would exonerate the acceptor from cost.
    The case of Jones vs. Fales (4 Mass. 245-51). was an action by the endorsee against the endorsor. Notice was given on the last day of grace: the notes being payable with grace. Parsons, who gave the opinion of the court, is made to say, “ Consequently the note is not due till the expiration of the time of grace, which is three days. I must therefore infer that the endorsor is no,t holden upon bis endorsement oí the notes without bis assent, because the condition on which he agreed to pay was not performed.”
    That the endorsee did not allow the maker the whole three days of grace, before he gave notice to the endorsor of non-payment.
    In Morgan vs. Cuyler, (8 Cow, R. 203,) the ¡three days of grace are allowable between the maker and the holder of a promissory note, and when the notes were declared on in one court, on one of which the three days of grace had not expired when the suit had commenced, defendant was allowed to show this on the trial of the general issue, and plaintiff could not recover on that note.
    The case of Stanton et al. vs. Blossom et al. (14 Mass. 116) is supposed .to be relied on by the plaintiff. This was an action in favor of the assignees oí the drawees against the drawers of a bill of exchange, for non-acceptance of the bill; and the case turned entirely'on the question of notice of the non-acceptance." — The draw-ees refused to accept because they had been served with a trustee process. The payee of the bill supposing, probably, that this was evidence of there being no funds in the hands of the drawees", gave no notice to the drawers before suit. But the drawees had written to the drawers that they had refused acceptance, and assigning the reason. It was decided that defendants were entitled to notice., and that the letter written by the drawees was not sufficient.
    The Nnv-England Bank vs. Lewis et al. (2 Pick. 125) also relied on by the defendant, was an action by the endorsee against the endorsor of a promissory note. The writ was served on the day when the note became due, and before notice was given to the en-dorsos, which was however given on the same day by a notary public ; and decided the action was prematurely brought. The case turned entirely on the question of notice, and nothing is said whether the endorsor would have been liable to be sued on the same day had notice been previously given.
    The case of Shedd vs. Brett (1 -Pick. 401) is also an action by the endorsee of a promissory note against the endorsor. It is in that case decided, that on the refusal of the promisor on the day of payment, notice may be given on the same day. — The writ was dated the same day, but served the next day, in North-Bridge water, after the arrival of the mail. The case turned entirely upon the question of notice, whether it can be issued on the day of payment after the refusal to pay by the maker, and whether putting notice into the post-office was sufficient; and it was decided that the notice was regular. But it is not said that the writ might have been served the same day, nor that a suit commenced against the maker on that day could have been sustained.
    The present is an action directly between the original parties to the note; and no case is found, where in s.uch case, an action has been commenced and sustained on the day on which the note fell due. And the case stands on the same principle as a suit on any other note payable in cash.
    If, therefore, the court is prepared to decide, t hat ip no case the maker of a cash note is entitled to the entire day of payment, to make out and pay the money before becoming liable to a suit, the .decision will be against us.
    This, however, we think will be introducing law new in our courts, and certainly new to the profession in this state. And we appeal to .the.court with confidence, to say whether the law has not been universally construed and practised upon in this state, as it is now contended for by the defendant.
    Should it be said, that in order to aid the plaintiff, (if indeed it would aid him,) the court must intend that the writ was sued in some of the last hours of the day, it is answered, that the court can intend nothing which, if true, the plaintiff might easily have stated and proved at the trial, in order to support a verdict; but here the verdict was for the defendant, and if any presumption can arise, it will be, that it was proved at the trial, that the writ was served in ¡the early part of the day, and so the case seems to understand it; for the question is placed on the mere question whether the defendant is, in this case, entitled to days of grace, under the circumstances proved at the trial, and states in the case in which no question is made or reserved as to the part of the day in which the writ was served.
   ■The opinion of the court was delivered by

Collameb, J.

The obligation of a contract — the duties it implies, and the manner in which it is to be ‘performed, are fully acknowledged to be regulated by the lex loci contractus; while the manner of enforcing the remedy, in case of breach, constitutes no’ .part of the contract, and is regulated by the lex loci fori. This is a distinction apparently clear, but frequently difficult of practical application.

That days of grace are a part of the contract — a part of its obligations and privileges, and therefore to be regulated by the lex loci contractus, has been decided, and does not seem to be now .much controverted. — Story on Conflict of Laws, 299.

This is regulated by the law of the place where the instrument \s payable. In this case, the contract was made in Massachusetts, and there the consideration passed; but the payee belonged to New-Hampsbire. It has sometimes been suggested that this varies the case; but the law makes no distinction on that account.— “ Every contract, whether made between foreigners, or between foreigners and citizens, is deemed to be governed by the law of the place where it is made and is to be executed.” — Story C. L. 233.

After this contract was made in Massachusetts, it was brought to Vermont, and here the defendant, Edson, underwrote it.— Where, under these circumstances, is it to be considered as having been made ? It was made in Massachusetts ; — there the consideration passed — there it bears date — there it was delivered to the plaintiff, and it was afterwards signed by Edson here. There cannot be different obligations on the two signers ; and as the place of date was not colorable,! this defendant executed the contract with reference to the law of the place where the transaction actually took place, and where the note bore date. Suppose a note was actually made in New-York, for money there had, and afterwards that note weve underwritten by a surety here : Most .unquestionably either of those signers would be subject to the payment of seven per cent, interest. This then must be considered a contract made in Massachusetts.

But, as already shown, the days of grace are regulated generally by the place oi payment. This note has in it expressly no place of payment. It is a promise to pay, generally. By what law are such contracts governed ? Where are they considered payable ? It has already been shown the residence of the parties does not govern it.

“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 any other place. To bring a contract within the general rule of the lex loci, it is not necessary that it should be payable exclusively in the place of its origin. If payable every where, 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, obligation or interpretation. All debts between the original parties are payable every where, unless some special provision to the contrary is made; and therefore the rule is, that debts have no situs. The holder takes the contl'act as was originally made, and as in the place where it was made.” — Story C. L. 264.

T. Hutchinson for plaintiff.

Marsh & Williams for defendant.

This note must then be governed by the law of Massachusetts, where it was made. And this brings us to the single question, is grace allowed on such a note by the law of Massachusetts ?

It is insisted by the plaintiff’s counsel, that in order to have grace, the note must, upon its face, expressly be payable in Massachusetts. This argument arises wholly from a mistaken reading of the Massachusetts statute, in the argument for the plaintiff.— The plaintiff’s counsel quote the statute as if bills, notes., drafts, Szc. wer.e all put on the same footing; but this is not so. The first clause of the statute, and in which alone the word expressed is used, relates exclusively to bills of exchange. The latter clause of the statute relating to negotiable notes, orders or drafts, gives grace on all payable on a future day certain, within the sta-te. This includes all, whether expressly or exclusively payable there, or by being actually made there and payable on time, generally, are by the general law payable where made, as already shown ; and so includes this note. We have been favored with no decision by the courts in Massachusetts on this statute; but we entertain ho doubt such is its practical construction, and that grace is there constantly allowed on such notes.

Judgment affirmed.  