in behalf of the marshal as plaintiff, if averred to be for the benefit of persons citizens of a different State than that of the defendant, although the marshal's office has expired, and he has ceased to act as such officer. The real plaintiffs are those for whose use the suit is brought.1

VI. RULE OF DAMAGES ON INTER-STATE OBLIGATIONS.

The measure and rule of damages to be awarded for the breach or non-performance of contracts made in one State, and expressed to be performable or payable in another State, it has been held, are the law of the State wherein the contract is made. The lex loci contractus governs in that respect, for the matter is matter of right, appertaining to the obligation of the contract, and not of remedy in reference to the manner, merely, of enforcing it.2 But in cases of promissory notes made payable in a State other than where made, the rule of damages in case of a breach, it would seem, would be that of the place of performance. 3 In cases of tort, the rule of damages is always enforced under the measure of the lex fori, as will be seen hereafter.

VII. CONTRACTS MADE WITH A VIEW TO VIOLATION OF Law of ANOTHER STATE.

Void Contracts. Contracts entered into in one State, with a view to, or in contemplation of, the violation of the laws of another State, or with intent to enable a party to violate the same, are not enforceable in the courts of the latter, although legal in the State, or by the laws thereof, where made.4

Knowledge Alone not Sufficient. There Must be Illegal Intent. A mere knowledge, of a party to a contract, that the other party thereto intends to use an article contracted for by selling the same in another State, in violation of the laws thereof, will not in itself avoid the contract, or prevent a recovery thereon in such

1 Huff o. Hutchinson, 14 How. 586. 2 Jaffray v. Dennis, 2 Wash. C. C. 253; Consequa v. Willings, Pet. C. C. 225; Willings v. Consequa, Ibid. 302.

Story's Conf. of Laws, § 304 b, 307 a.; Foote's Private International Law, 351 et seq.; Field on Damages, §

214; Scofield v. Day, 20 John. 102; Archer v. Dunn, 2 W. & S. 327.

4 Davis v. Bronson, 6 Iowa, 410, 433; Armstrong . Toler, 11 Wheat. 258; Bliss e. Brainard, 41 N. H. 256; Phinney v. Baldwin, 16 Ill. 108; Commonwealth v. Aves, 18 Pick. 193.

other State; there must be some sort of mutuality in the evil or wrong intent, or some purpose of aiding therein.1

Purchase Made in One State by Order from Another State. A purchase made by order from one State, of a person in another State, there sending or forwarding the article bought, to the buyer, is regarded in law as a transaction in the State where the vendor resided, or from wherein he forwards the article, and depends for validity upon the law thereof.2

Contracts of Common Carriers. The contracts of a common carrier to carry property from a point in one State to a point in another, over a route lying partly in each of said States, is governed as to its validity and interpretation by the law of the place where the contract is made and the property to be carried is received. Thus, where a railroad company undertook to carry property from Clinton, in Iowa, to Chicago, in Illinois, over its road between those places, and stipulated for a restriction from the ordinary liability of common carrier, in contravention of a statute law of Iowa inhibiting such restriction, it was held that the contract, being partly performable in each State, was to be governed as to validity by the laws of Iowa, and that, by reason of such illegal restriction, it was void; and that, therefore, the ordinary liability attached to the carrier.4 So, as in Talbott v. The Merchants' Dispatch Transportation Company, above cited, where a contract of transportation was made in Connecticut, for the carriage of property there received to Des Moines, Iowa, in which contract there was a stipulation in favor of the carrier, against loss by fire, and under which contract the property was received and transported as far as Chicago, in Illinois, and was there destroyed by fire, without fault of the carrier, and the laws both of Connecticut and Illinois tolerated such exemption in carriers' contracts, it was held that the carrier was exempt from liability, although the laws of Iowa, where the action was tried,

1 Johnson v. Gregory's Exrs., 4 Met. (Ky.) 363; McIntyre v. Parks, 3 Met. (Mass.) 207; Boothby v. Plaisted, 51 N. H. 436; Tegler v. Shipman, 33 Iowa, 194; Hill v. Spear, 50 N. H. 253.

2 Holman v. Johnson, Cowper, 341; Sortwell v. Hughes, 1 Curtis, 244; Hill v. Spear, 50 N. H. 253; Tegler v. Ship.

man, 33 Iowa, 194; Boothby v. Plaisted, 51 N. H. 436.

8 McDaniel v. Chicago & N. W. R. R. Co., 24 Iowa, 412; Talbott v. Merchants' Dispatch Trans. Co., 41 Iowa, 247.

4 McDaniel v. Chi. & N. W. R. R. Co., 24 Iowa, 412.

and the property was to have been delivered by the carrier, prohibits such contracts and renders the same invalid; such prohibition and invalidity under the Iowa law has no extra-territorial force to invalidate a contract made elsewhere, in case of loss sustained in a State where such exemption was allowed by law.1

VIII. STATUTE OF FRAUDS.

The Statute of Frauds is of the lex loci contractus, and therefore, if a contract made in one State be sued on or brought in question in the courts of another State, a party relying on the Statute of Frauds must rely upon the statute of the State where the contract was made, and must plead and prove the same, with averments and proof also, if not otherwise admitted by the pleadings, of the place of the alleged making of the contract.3 And when proven, the statute is not enforced, strictly speaking, as a law, but as entering into, and forming a part of, the contract. If the contract is not subject to the Statute of Frauds where made, but by the statute of the State where performable, the contract is void, yet it will be held valid, and will be construed by the lex loci contractus.4

IX. COMMERCIAL PAPER AND ENDORSEMENTS.

Law of Place of Payments Governs. Notes and other commercial paper, for payment of money, made in one State and payable in another, are payable, and carry a liability to payment, according to the law of the place where payable.5

Law of Place of Endorsement Governs; Fixes the Liability of the Endorser. But an endorsement thereof is governed by the

Talbott v. Merchants' Dispatch Trans. Co., 41 Iowa, 247.

2 Denny v. Williams, 5 Allen, 1; Forward v. Harris, 30 Barb. 338; Low v. Andrews, 1 Story, 38; Allshouse v. Ramsay, 6 Whart. 331; Scudder v. Union Nat. Bank, 1 Otto, 406; Robb v. Halsey, 11 Sm. & M. 140.

3 Forward v. Harris, 30 Barb. 339. Scudder v. Union Nat. Bank, 1 Otto, 406; Forward v. Harris, 30 Barb.

338; Carrigan v. Brent, 1 McLean, 167.

5 Hunt v. Standart, 15 Ind. 33; Andrews v. Pond, 13 Pet. 65; Freese v. Brownell, 35 N. J. 285; Edwards on Bills, 178; Daniels on Neg. Instru ments, § 879 et seq. So the number of days of grace allowed is governed by the law of the place where the note is payable. Story's Conf. of Laws, § 361.

law where the endorsement is made; for it is not an undertaking to pay at any particular place."

Contracts of Maker and Endorser Distinct. The endorser will not be held to have accepted the place where the note is payable. He makes a new contract; and that contract is governed by the lex loci contractus.

The liability of an endorser, of a bill or note drawn in one State and payable in another, rests upon the law of the State wherein the endorsement is made. The contract of endorsement is distinct in itself, and is an assumption to pay upon such conditions as attend such an act, by the law of the State where the act is done. The construction thereof, and of the diligence to be used by a plaintiff to entitle him to recover against the endorser, must therefore be governed by the laws of the State where the contract of endorsement is made, for it is a contract to pay, if liable at all, where the endorsement is made.3

It may therefore be regarded as settled that a contract of endorsement of negotiable paper is subject to the law of the place where the endorsement is made and completed, without regard to the place of payment or place of making of the note itself; for the contracts of maker and of endorser are separate and distinct. The endorser's liability is conditional, and, as to time or place of payment, is general; therefore a note may be payable at a particular time and place, but an ordinary endorsement thereof is not an undertaking to pay at such time or such place, but is an undertaking to pay generally wherever called on, if the note be not paid by the maker, and he, the endorser, be duly notified thereof.4

The endorsement is a distinct contract from that of making

1 Shaw v. Wood, 8 Ind. 518; Rose v. Thames Bank, 15 Ind. 292; Hutchens v. Hanna, 8 Ind. 533; Trabue v. Short, 5 Cold. 293; Dow v. Rowell, 12 N. H. 49; Dundas v. Bowler, 3 McL. 400; National Bank of Michigan v. Green, 33 Iowa, 140; Daniels on Neg. Instru ments, § 899.

2 Rose v. Thames Bank, 15 Ind. 292. See, also, cases cited in the preceding note.

Chatham Bank v. Allison, 15 Iowa,

357; National Bank of Michigan v. Green, 33 Iowa, 140; Trabue v. Short, 18 La. Ann. 257; Hunt v. Standart, 15 Ind. 35; Holbrook v. Vibbard, 2 Scam. 465; Musson v. Lake, 4 How. 262.

4 Short v. Trabue, 4 Met. (Ky) 299; Holbrook v. Vibbard, 2 Scam. 465; Hunt . Standart, 15 Ind. 33; Lowrey v. Western Bank of Georgia, 7 Ala. 120; Hatcher v. McMorine, 4 Dev. 122; Shaw v. Wood, 8 Ind. 518; Hutchens v. Hanna, 8 Ind. 533.

the paper itself, and is governed, as to its validity, legal effect, and liability of the endorser, by the law of the place where the endorsement is made, and not where the instrument itself was made or is payable.1

Delivery. But the contract of endorsement is not, in law, always made at the place where the endorsement is written upon the bill or note. The true rule is, that the contract is completed only by the delivery of the instrument. So that the endorsement must not only be written, but must be delivered, in order to bind the endorser; hence, as was held in the case above cited, of The Chatham Bank v. Allison, where an endorsement is made in one State and then the bill, and endorsement on it, is sent by the endorser to a bank in a different State, to be collected or negotiated, and, after acceptance by the payee, the bank discounts the bill, the contract of endorsement only became complete as between the endorser and the bank, when the latter discounted the same, and thereby became the holder of it as for the benefit of the bank. In such a case the contract of endorsement is not to be understood as made where the bill is drawn and the name of the endorser written thereon, unless there delivered to the endorsee, but rather where the endorsement is accepted by a consenting endorsee, who takes the same on faith of such endorsement."

The Place of Making not the Place of Delivery. But, although the liability of an endorser of commercial paper is governed by the lex loci contractus, or law of the place where the endorsement is made, yet the endorsement is not complete until delivery thereof, and also of the note or paper itself to those to whom it is intended to become obligatory. Therefore, the place of making the endorsement is that at which the delivery of the note and endorsement occurs, so that if a note be written in one State, and an endorsement be there written thereon, and it remains in the hands of the maker, and delivery to the payee afterward takes place in another State, the latter State is the place where the instruments are made, as the contracts of maker and endorser are only completed by delivery. In such case, the lex loci of

'Chatham Bank v. Allison, 15 Iowa, 357; National Bank of Michigan v. Green, 33 Iowa, 140; Thorp v. Craig, 10 Iowa, 461.

2 Chatham Bank v. Allison, 15 Iowa,

357; Freese v. Brownell, 35 N. J. Law, 286; Campbell v. Nichols, 33 N. J. Law, 81; Daniels on Neg. Instruments, § 868.