Williams v. Wade , 42 Mass. 82 ( 1840 )

Shaw, C. J.

The note declared on, being made in Blinois, both parties residing there at the time, and it also being indorsed in Blinois, we think that the contract created by that indorsement must be governed by the law of that State. The law in question does not affect the remedy, but goes to create, limit, and modify the contract effected by the fact of indorsement. In that which gives force and effect to the contract, and imposes restrictions and modifications upon it, the law of the place of contract must prevail when another is not looked to as a place of performance. Suppose it were shown that by the law of Blinois, the indorsement of a note by the payee merely transferred the legal interest in the note to the indorsee, so as to enable him to sue in his own name, but imposed no conditional obligation on the indorser to pay ; it would hardly be contended that an ac tion could be brought here, upon such an indorsement, if the indorser should happen to be found here, because by our law such an indorsement, if made here, would render the indorser cond> tionally liable to pay the note.

By the law of Illinois, the indorser is liable only after a judg • ment obtained against the maker ; and as no such judgment ap pears to have been obtained on this note, the condition upon which alone the plaintiff may sue is not complied with, and therefore the action cannot be maintained.