By the Court.
Eyon, J.,
delivering the opinion.
1. As the case had gone off from the docket in the Court below, without a finding, by the jury, of the facts on which the defence rested, we do not think there was any error in the Court’s allowing the case to be reinstated — and as that is the whole of the judgment complained of, the judgment must be affirmed for that reason.
But as the merits of the defence have been argued as admitted facts, we have felt it to be our duty to pass upon the several questions made in the argument, and necessarily involved in the case.
It is insisted, first, by the counsel for plaintiffs in the Court below, that the contrast of the defendants is not that of an indorsement; and, secondly, if an indorsement, that as it was made in Tennessee, the Act of 26th December, 1826, (Cobb, '595), does not affect it; that it is a contract made in the State of Tennessee, and not to be governed by the provisions of that Act.
2. We think the defendants are indorsers. Their written engagement on the back of the note has the legal effect of an indorsement in Georgia, of notes not payable or intended for negotiation in banks. That they stipulate therein to guar'anty the payment of the note, does not the less make them indorsers, under the Act of 1826, already referred to, for by it they have the right to define their liability; and thus may be guarantors, and yet indorsers, within the meaning and provisions of that Act.
3. The next inquiry is, whether the defendants, as indorsers, are entitled to the benefit and protection of the provisions of that Act, the indorsement having been made in Tennessee? We think they can, upon the facts of this case.. The makers of the notes and the indorsers all resided, at the time, in the State of Georgia, and that fact was known and understood at the making of the contract; and the defendants were only there for the purpose of effecting their *213negotiations, and as a matter, perhaps, purely of convenience, where the plaintiffs’ agent for collection happened to be at the time. The contract was not to be performed there, but where all the parties, that is, the makers and indorsers, resided — in the State of Georgia — the plaintiffs and indorsers residing in the State of New York. In such cases, that is, when the contract is made in one place, and to be performed in another, it is a well settled rule, that the contract, in conformity to the presumed intention of the parties, as to its validity, nature, obligation and interpretation, is to be governed by the law of the place of performance. Story’s Conflict of Law, §280. 2 Kent Com. 459.
4. We are very strongly inclined to the opinion that the defence set up to this action by the defendants, under the Act of 1826, does not affect, either the nature, obligation, construction or validity of the contract, but goes only to the remedy; and if that be true, and we, as I have stated, are inclined to think that it is, then the defence is good, no matter where the contract is made or to be performed; and we do not at once so decide the question,- because it is not necessary to the disposition of this case.
JUDGMENT.
Whereupon, it is considered- and adjudged by the Court, that the judgment of the Court below be affirmed.