of the place where it is done, while it is just when an act has not been done that the question of its necessity arises.

The case of § 231 arose, and was decided in accordance with the §, in Rothschild v. Currie (1841), 1 Q. B. 43, 4 P. & D. 737, Denman, Littledale, Williams, Coleridge; Hirschfeld v. Smith (1866), L. R. 1 C. P. 340, Erle, Byles, Keating, Smith; and Horne v. Rouquette (1878), 3 Q. B. D. 514, Brett, Bramwell, Cotton. In Rouquette v. Overmann, mentioned above under § 230, the discussion did not turn only on the substantial question of the enlargement of time for payment, but also on the formal question of the sufficiency of the demand, protest and notice, as not having been made and given within the original time; and so far as the case turned on that point it is another authority for § 231.

§ 232. But when an indorser has been made duly liable on a bill or note, the notice which he must give to his indorser, or to the drawer if there be no intermediate party, depends on the law governing the contract made by the indorsement to him or by the drawing.

The drawer of the bill, and each indorser of the bill or note, contracts with the next following party to pay him on due notice of the liability being given; and such notice must be measured by the law of the contract, whenever no question arises about the formalities to be observed in a particular place.

No. 3 of s. 72 appears to say that the sufficiency of a notice of dishonour by any holder is to be determined by the law of the place where the bill is dishonoured, for the words "the place where the act is done," with the supplement "or is not done" which it is necessary to understand, appear to refer only to protests. The doctrine which would thus be arrived at conflicts with that laid down in the §, which nevertheless was distinctly asserted by each of the judges in Horne v. Rouquette, quoted under § 231, and seems to be unassailable in principle. I cannot believe that the enactment will be allowed to displace a doctrine possessing such authority, and probably the easiest way of preventing that result will be to interpret No. 3 as applying only to the last holder, which would not be a greater violence than that to which it is sometimes necessary to subject the language of acts of parliament. To apply the words "where the act is done" to the notice of dishohour, even were it possible, would not be a remedy, because an indorsee who is not the last holder may have to give that notice to his indorser in a country which is not that of the indorsement.

In Horne v. Rouquette a further question which did not then arise was noticed, and the decision of it reserved. When an

indorser has been made duly liable on a bill or note, and the indorsement to him was governed by a different law from that governing a still earlier indorsement, or from that governing the drawing of the bill, and he seeks to charge such earlier indorser or the drawer, passing over his immediate indorser, by what law must the sufficiency of the notice he is to give be measured? This question involves that of the interpretation of the contracts made by drawing a bill and putting it in circulation and by indorsing a bill or note.

§ 233. The law governing the drawing and putting in circulation of a bill, or the indorsement of a bill or note will in general. be the law of the place where the bill or note was signed by the drawer or indorser; but if the instrument after being so signed is sent to the taker in another country, the contract, being only completed by the taking, is one of the latter country.

Horne v. Rouquette (1878), 3 Q. B. D., point as to the indorsement to Montforte; Brett, p. 515; Bramwell, p. 521; Cotton, pp. 523, 524. See also Chapman v. Cottrell, quoted under § 229.

§ 234. On the dishonour of a bill of exchange either by nonacceptance or by non-payment at maturity after acceptance, the holder is entitled, as damages due in the latter case from the acceptor and in both cases from the other parties to the bill as guarantors, to the amount of the bill, with interest from the time and at the rate of the place when and where it was payable or would have been so if accepted, and with his costs. He may have recourse to re-exchange: that is, he may draw a new bill at sight, on the drawer or any indorser of the original bill, for such a sum that, if sold at the place where the original bill was payable, it will produce the above amount. The drawee of the new bill, receiving it with the original bill, will become entitled to the latter on paying the former; and will then be able to recover what he has so paid from the acceptor, if any, of the original bill, as damages which he in his turn has incurred by its dishonour. If no new bill be drawn, still the theory of re-exchange determines the amount which the holder can recover from the drawer or an indorser, and which the drawer or an indorser can recover over from the acceptor, if any, supposing that he has himself paid it or that it has been demanded of him and he is liable to pay it. If the contract of the drawer, or of the indorser to whom the holder has recourse, is governed by a law-see § 233 as to this-which fixes a certain percentage on the amount of the original bill in lieu of what would be the actual amount of the

redraft on the theory of re-exchange, or in lieu of any ingredient entering into that amount, then, whether a new bill be drawn or not, such law will determine the liability of the drawer or of such indorser, and that of the acceptor in recovery over.

Francis v. Rucker (1768), Ambler 672, Camden; Auriol v. Thomas, (1787), 2 T. R. 52, Buller and Grose; Walker v. Hamilton (1860), 1 D. F. & J. 602, Campbell, Knight-Bruce and Turner; Suse v. Pompe (1860), 8 C. B. (N. S.) 538, Byles, Erle and (?); Re General South American Company (1877, 7 Ch. D. 637, Malins. The party who sues the acceptor need not have paid the re-exchange, if it has been demanded of him and he is liable for it: De Tastet v. Baring (1809), 11 East 265, Ellenborough and (?). Napier v. Schneider (1810), 12 East 420 (?), may be treated as a mere action against the acceptor by a holder to whom recourse had not been had, and Woolsey v. Crawford (1810), 2 Camp. 445, Ellenborough, are not law.

Where the bills dishonoured had been drawn by a firm in one country on itself in another country, and remained in the hands of parties to whom they had been given by that firm in the first country in connection with transactions which did not contemplate their payment in the other country, the holders were not entitled to damages in the nature of re-exchange from the firm as drawers, but could only treat the bills as promissory notes, or resort to the rights which had been suspended by taking them: Willans v. Ayers (1877), 3 Ap. Ca. 13, Colvile.

In Gibbs v. Fremont (1853), 9 Exch. 25, Alderson, Martin and (?), it was held that the drawer of a bill dishonoured by non-acceptance is liable to pay interest to the holder only at the rate of the place of drawing. No attempt was made to distinguish the case of non-acceptance from that of dishonour by non-payment, or to deny that interest at the rate of the place of payment is the true measure of the damages incurred in either. But for the usual doctrine that the drawer guarantees the acceptance and payment, there was substituted the doctrine that he gives an order for payment, and contracts that if such order should not produce the desired effect he will pay the amount of the bill in the place of drawing. Such a doctrine is inconsistent with the whole theory of re-exchange, and not merely with that part of it which relates to the rate of interest; and it is inconsistent with the first of the two grounds on which Rouquette v. Overmann was decided, § 230. The court, in deciding Gibbs v. Fremont, was influenced by the dicta in Allen v. Kemble, as to which see above, under § 230. In Auriol v. Thomas, u. s., Buller observed that the interest covered by a fixed rate for re-exchange would be that allowed where the bill was payable.

The doctrine of § 234 has not been affected by s. 57 of the Bills of Exchange Act, 1882: Re Gillespie, Ex parte Robartes (1885), 16 Q. B. D. 702, Cave; (1886), 18 Q. B. D. 286, Esher, Lindley and Lopes. See also Re Commercial Bank of South Australia (1887), 36 Ch. D. 522, North.

Obligations quasi ex contractu.

§ 235. An obligation quasi ex contractu, like one arising from tort, is occasioned by the act of one party; but it resembles obligations by contract in that the act which occasions it is a lawful one. We have seen that in Roman law the special forum of an

obligation quasi ex contractu is at the place with which the act that occasions it has the most real connection, and there can be little doubt that the proper law of such an obligation ought generally to be drawn from the same place. For example, any liability under which a husband may lie for the antenuptial debts of his wife is an obligation quasi ex contractu. The act which occasions it is the marriage, and this has the most real connection with the matrimonial domicile, as well otherwise as because the law of that place determines the effect of the marriage at least on the wife's movable property, and a liability for her antenuptial debts cannot fairly be imposed on the husband except in return for an interest which the law may give him in her property. But the same way of thinking which upon the obligation of contracts set up the lex loci celebrati contractus against the lex loci solutionis here sets up the place of celebrating the marriage, as that where the act occasioning the obligation quasi ex contractu happened to occur, instead of the domicile with which that act has the most real connection.

See De Greuchy v. Wills (1879), 4 C. P. D. 362, Grove and Lopes, where a man domiciled in England was also married there after the passing of the Married Women's Property Act, 1870, he was held not liable, beyond the assets derived through his wife as mentioned in the Act, for antenuptial debts contracted by his wife in Jersey; but Lopes thought that notwithstanding his English domicile he would have been further liable if the marriage had taken place in Jersey, and Grove thought that perhaps he would have been.

CHAPTER XIII.

TRANSFER AND EXTINCTION OF OBLIGATIONS.

THE maxim unumquodque dissolvitur eodem modo quo colligatur has always caused a feeling that the questions what law governs the creation of an obligation, and what law governs its extinction, must be in some way related to one another: but various and even confused opinions have been held as to the nature and extent of the relationship. One source of perplexity has been the attempt to distinguish between an obligation and the right of action on it, as if the obligation or vinculum juris which arises on the occasion of a contract or a tort was anything else than the right of action. In the case of a proprietary right a distinction more or less similar may be understood. Wherever physical possession is possible, the law has to deal with an enjoyment which can exist independently of it, and it must choose to whom it will appropriate that enjoyment by maintaining or putting him in possession. Then, the enjoyment of the preferred claimant being protected against disturbance by any one whatever, the right which he is said to have is distinguishable from his power of suing the actual disturber, if any, and that power is a true remedy given for the protection of the right. Often a proprietary right is disconnected from the right of immediate possession, but if the ideas involved in it are thoroughly followed out, possession will always be found to lie at the bottom of them, so long as a corporeal thing, movable or immovable, is concerned. Hence a law which ordains a term of prescription with regard to the property in such a thing is correctly expressed if it purports to bar the right, and when the right is gone there can be no longer a remedy. But in a claim of contract or tort, expectation may exist independently of the law but not enjoyment. The law has not to choose to whom it will give the right, but whether it will give the right. And the right when given is good only against the contractor or tortfeasor. The right of action against him is not distinguishable from any larger right existing in the case, nor is it a remedy