11 Tex. 54 | Tex. | 1853
On the first point, it is only necessary to say, that it has been the uniform decision of this Court, that suit may be instituted in the county of the residence of any one of the defendants, and the others be brought in by branch citations, to the counties of their respective residences. A plaintiff, however, would not be permitted to abuse the privilege, by a fictitious indorsement, for the purpose of enabling him to bring the real parties, for trial, out of their own county of residence. (Pool v. Pickett, 8 Tex. R. 122.)
The second assignment presents a graver question: it is whether the law of the place where the bill is payable, or that of the place where the bill was drawn or indorsed, is to govern,, and fix the liability of such drawer or indorser. If the former, by the law merchant, notice of protest would have to be proven, to authorize a recovery against the drawers in this case; but if the latter, then, no notice of protest would be necessary to fix the liability, as the suit was brought 'to the first Term of the Court after the accrual of the liability. (Hart. Dig. Art. 2528.) On this question, there has been some diversity of opinion. On general principles, it would seem that the law of the place drawn upon, should control, as it is a well established rule of law, that when a particular place has
It does seem, that this case is a striking illustration of the superior advantages of the English rule, over the American, in commercial transactions. By the former, the liability would be uniform and fixed by the law of the place where the bill ■was payable; while the latter makes it unequal and sometimes unjust, depending upon the law of the place where drawn, and of the place where the several indorsements are made; and it would be more in harmony with the general, if not universal rule of law, that the law of the place where performance is to be made, shall govern, if the English doctrine was sustained, as of universal obligation.
Mr. Justice Story says that the American may seem to form an exception to the rule we have stated ; but he says that it is in strict subservience to that rule, and contends that the drawer and indorser only contract for liability according to the lex loei of the place where drawn or indorsed. (Story on Bills, Sec. 154.) This last proposition is not clear, and satisfactory; because, it would seem, that if it be true, that the drawer and every indorser undertakes that the bill shall be paid at the place of payment named in the bill, it would be difficult, on principle, to reconcile the distinction between such undertaking, and any other contract for performance at a particular place, where the law is different from the lex loei oontraetus. But the American doctrine has acquired the force of authority, and uniformity must be observed on this question. By our statute, then, protest and notice are dispensed with, on the bringing the suit in the time required. The judgment must therefore be affirmed.
Judgment affirmed.