
    LITTELL vs. NICHOLS’S adm’rs.
    
      October 28th.
    
    it is the duty of a debtor of money to feek toS make°rpay-riient of his debt, whetefo-found1' ⅛*⅛ áate.
    Therefore the fuch a cafe° accrues, and the defendant may in the 'county where the ere. ditor refides, at moncy'becomes due, and not where the con-
    of 1796.7, p. 28, § 7, tBrad.233
    LITTELL, a resident of Fleming county, gave his note in said county to Robinson, aíso a resident of that COunty, for jj? 150, payable at a future day. Before the note became due, Littell removed to Montgomery, and continued to reside there until áftty the commencement Gf tRjs SUR. Robinson assigned the note, before it was payable, to Nichols, who then wás, and continued until his death, a resident of Mason; and his administrators then were, and still are residents of that county,
    Suit was brought oh this note in Fleming, and the defendant held to bail in that county. The inoney not Rav;ng been in fact demanded there, ñor a capias issued against the defendant in Montgomery. Littell gave special bail, and regularly filed a plea in abatement on' the rules, stating that at the commencement of the action he was a resident of Montgomery county — that the cause of action did not accrue to the plaintiffs in Fleming, and that ¿Rey “ had not issued and had returned non inventus, a capias against him in the county of Montgomery.”
    "The plaintiffs replied that the cause of action did accrue [n Fleming, on which issue was joined. The facts before stated were agreed, and the cause referred to the court without a jury. That court gave judgment for the plaintiff. A writ of error was prosecuted.
    Littell, for plaintiff in error.
    This cause depends upon the construction of the seventh section of the act of 1796-7, concerning quarter session courts ; which, au-thorises a defendant to be held to bail in the county where the cause of action accrues. In construing this statute, we must distinguish between the foundation of an action and the cause of action. Every legitimate contract, and every penal law, may be the foundation of an action ; but there is no cause of action, without a breach. of the one, or a violation of the other.
    That the. cause of action accrues on the breach of contract, and not by making the contract, is conclusively exemplified by a familiar case. A promise is made to pay a sum of money on the happening of a contingency ; that contingency happens, and the suit is brought more than five years after making the contract, but within less after the happening of the contingency ; the statute of limitations will not bar the demand ; because the cause of action accrued within five years, is the language of every judge before whom such a.case has ever come.
    That I am. correct in my position that the breach of contract is the cause of action, I rely upon the following authorities’: 1 Bac. Ab. (Gwil. ed.) 60 — 2 Salk. 669— Carthew 114, 216 — .1 Ld. Raym. 515, 621 — 1 Com. Rep. 205 — 2 Stra. 719, 867, 1160 — 2 Ld. Raym. 795, 838 — 2 Bl. Rep. 528, 563, 794, 796 — \ Dallas 461 — 3 Dallas 220 — 3 Lawyer’s Magazine 566.
    The next question is, to what place does breach.of contract attach ; or in what county did the breach take place ? The answer is obvious : in that county where the contract should have been performed — See 1 Bac. Ab. (Gwil. ed.) 60-^ — 2 Salk. 669 — 1 Salk. 251.
    It is too well settled to be now questioned, that it is the duty of the debtor who.owes money to seek his creditor wherever he may be in the kingdom, in Britain, (say in the state, with us) and pay the debt; and if the law has made the debt assignable, as it is in the present case ; as soon. as the debt is assigned, and notice given to the debtor, the assignee, instead .of the obligee, becomes the creditor, and is clothed with all his rights. A payment ®r tender of payment to the obligee after assignment and notice, would be a nullity. The residence of the creditor *s therefore the place where the law has fixed for the performance of money contracts, where the parties have not themselves fixed upon some other ; and a tender at the residence of the creditor would be good.
    When the parties have made a contract and left the law to fix the place of performance, all the consequences, as to place, attach to that spot, which would have attached to it it it had been ascertained by their express agreement.
    The cause of action therefore accrued, in this instance, in the county of Mason, in which the creditor resided.
    The British doctrine of venue is not analogous to the case in question ; because the statute of Richard II, on which it is founded, directed that all actions arising op pontract, should be brought in the county where the contract was made.
    , If there could be any doubt on this case, the maxim of law, that statutes which go to abridge liberty, shall be strictly construed, would aptly apply and decide it.
    The cause was argued by Marshall for the defendant. The reporter has not been able to procure a note of his argument. The following was
   The Opiniqh of the Court, — In this case it appears that the foundation of this action, that is, the giving the single bill, was in Fleming county ; and that the cause of action, that is, the nonpayment of the money, accrued in Mason county, That the defendant in the court below, when this suit was commenced, was an inhabitant of Montgomery county, and that no capias had issued in the same suit against the said defendant in the said county ; nor was there an endorsement on the writ issued in this suit, of u no bail required but, on the contrary, an endorsement requiring bail; which having been taken advantage of in proper time, it is conceived that the inferior court erred in giving judgment for the plaintiffs in that court on the case agreed ; in as much as it is deemed to be the duty of a debtor to seek his creditor, and to make payment of his debt, wheresoever he may be found within the state , and that the cause of action accrues in the county where the creditor resides, find not where the bond, bill, or note, is given. If a debtor conceives this to be a hardship, he may easily avoid it when he executes the obligation, by making it payable at a particular place, as well as on a particular day. — t—Judgment reversed. 
      
      
         Chambers a fs, V/mn, m pote, poji.
      
     