as to non-residents, in all its parts; although the language of the repealing clause does not include the term "execution." It cannot be supposed that the Legislature would bar an action on a judgment, and still authorize an execution to be issued on it.

There is another view of this case which, though not much considered in the argument, is deemed important by the court.

And this arises under the Process Act of 68*] 1828. The third section of this act provides, "that writs of execution and other final process issued on judgments and decrees, rendered in any of the courts of the United States, and the proceedings thereupon shall be the same, except their style, in each State, respectively, as are now used in the courts of such State:" "Provided, however, that it shall be in the power of the courts, if they see fit in their discretion, by rules of court, so far to alter the final process in said courts as to conform the same to any change which may be adopted by the Legislature of the respective States for the State courts."

This act adopts, in specific terms, the execution laws of the State; and if the limitation law of 1792 could be considered, so far as its provisions embrace executions, a process act, this Act of 1828 adopts it; and the plaintiffs in the original judgment were bound to conform to its provisions.

To this it is objected that the courts of Virginia have uniformly construed the Act of 1792 as not effecting judgments entered before its passage, and that as the law of 1828 adopts this statute, by the same rule of construction, it cannot operate on judgments rendered prior to that time. The answer to this argument is, in the first place, if the Act of 1792, or any part of it, is to be considered as a process act merely, and not an act of limitations, the Act of 1828 makes it the law of Congress for the State of Virginia, and gives immediate effect to it. If it be viewed as an act of limitations merely, and not for the regulation of process, it then takes effect, as before remarked, as a rule of property; and is a rule of decision in the courts of the United States, under the 34th section of the Judiciary Act. In either case, effect is given to the Act of 1792, and it is decisive of the present controversy.

But if it be considered, as contended, an act of limitations adopted by the Act of 1828, the answer is that the court are to give a construction to the Act of 1828. If this act be clear in its provisions, we are bound to give effect to it, although it may, to some extent, vary the construction of the Act of 1792. And this is no violation of the rule that this court will regard the settled construction of a State statute as a rule of decision. For in this case the construction of the State law, in regard to the effect it shall have, is controlled by the paramount law of Congress.

The words are, "that writs of execution and other final process issued on judgments and decrees rendered;" not on judgments and decrees hereafter rendered. The law provides for executions, not judgments. And it operates on all executions issued subsequent to its passage, without reference to the time when the judgment was rendered.

The judgment in the Circuit Court was entered in 1821, so that seven years of the ten years' limitation of the Act of 1792 had run when it was adopted by the Act of 1828. Now. the question is, shall no effect be given to this Act of Congress in Virginia on judgments before its passage, because of the construction by the Virginia courts of the Act of 1792?

*It must be recollected that this Act of [*64 1828 is a national law, and was intended to operate in the national courts in every State. As it regards some of the States, it may, at first, have operated less beneficially in them than in others. But its provisions took immediate effect in all the States.

It is a sound principle, that where a statute of limitations prescribes the time within which suit shall be brought or an act done, and a part of the time has elapsed, effect may be given to the act; and the time yet to run, being a reasonable part of the whole time, will be considered the limitation in the mind of the Legislature, in such cases.

There may be some seemingly contradictory decisions on this point, in some of the States, which have been influenced by local considerations, and the peculiar language or policy of certain acts of limitations. But the rule is believed to be founded on principle and authority.

The Act of 1828 was passed shortly after the decision of the cases of Wayman v. Southard and The United States Bank v. Halsted, and was intended as a legislative sanction to the opinions of the court in those cases.

This act is more explicit than the previous acts on the same subject, as to the power of the courts of the United States to adopt rules to regulate final process. And it is well remarked, by Mr. Justice Story, in giving the opinion of the court in the case of Beers et al. v. Haughton, 9 Peters, 363, that under this law "the Circuit Court had authority to make such a rule, as a regulation of the proceedings upon final process, so as to conform the same to those of the State laws on the same subject." And this power to adopt rules, so as to conform to the State laws, extends to the future legislation of the States; and as well to the modes of proceeding on executions, as to the forms of the writs.

From the above considerations the court are of opinion, whether the proceedings in the Circuit Court, in issuing the execution and giving a judgment on the forthcoming bond, be considered as regulated by the Process Acts of 1789 and 1792, or by the Process Act of 1828, there is error in the judgment, and that it must be reversed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Virginia, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby reversed with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to law and justice and the opinion of this court.

Error.

LEWIS W. POND, Thomas M. Converse, and Francis L. Wadsworth, Defendants in Error.

Usury under name of exchange question of intent for jury-lex loci-transfer of bill after dishonor.

A bill of exchange, in payment of a debt due on a protested bill, was taken, in New York, from one of the parties to the protested bill. The exchange between Mobile, on which the bill was drawn, was stated to be ten per centum, and was added to the bill, and the damages on the protested bill, with interest, at the rate of interest in New York, from the time the first bill was protested, were added to the bill. It was sent to Mobile and was placed to the credit of the drawees by the indorsee, who received it before it came to maturity. The bill was afterwards protested for nonpayment. An action was brought in Alabama against the indorsers of the bill, one of whom was in New York when the bill was drawn, and who, being liable to suit on the protested bill, gave the second bill to prevent suit being brought against him. The detendants alleged usury in the second bill; the rate of exchange allowed on the bill, being ten per centum, was given, and it being alleged that the highest rate of exchange on Mobile did not exceed five per centum.

Although the transaction, as exhibited, appears, on the face of the account for which the bill was drawn, to be free from the taint of usury, yet if the ten per centum charged as exchange, or any part of it, was intended as a cover for usurious interest, the form in which it was done, and the name under which it was taken, will not protect the bill from the consequences of usury; and if the fact be established, it must be dealt with in the same manner as if the usury had been expressly mentioned in the bill Itself. But whether the charge of ten per centum for exchange between New York and Mobile was intended as a cover for usury or not, is a question exclusively for the jury. It is a question of intention.

In order to enable the jury to decide whether the usury was concealed under the name of exchange, evidence on both sides ought to have been admitted, which tended to show the usual rate of exchange between New York and Mobile when the bill was negotiated.

There is no rule of law fixing the rate which may be charged for exchange. It does not depend on the cost of transporting specie from one place to another: although the price of exchange is no doubt Influenced by it. The general principle in relation to contracts | made at one place to be executed at another, is well settled. They are to be governed by the laws of the place of performance; and if the interest allowed by the laws of the place of performance be greater than that permitted at the place of the contract, the parties may stipulate for the higher interest, without incurring the penalties of When a contract has been made without reference to the laws of the State where it was made, or to the laws of the place of performance, and a rate of Interest was reserved forbidden by the laws of the place where the contract was made, which was concealed under the name of exchange, in order to evade the law against usury, the question is not which law is to govern in executing the contract: unquestionably it must be the law of the State where the agreement was entered into, and the in

usury.

U. S. 343.

A con

N error to the Circuit Court of the United

The plaintiff in error instituted a suit on a bill of exchange, dated at New York on the 11th of March, 1837, drawn by D. Carpenter on Sayre, Converse & Company, Mobile, Alabama, for $7,287.78 in favor of the defendants, Pond, Converse & Company; payable and negotiable at the Bank of Mobile sixty days after date.

The plaintiff in error was a citizen of New York, and the drawers and indorsers of the bill were citizens of Alexandria, Alabama.

The evidence in the Circuit Court proved that Lewis W. Pond, one of the defendants, was in New York in March, 1837, and being indebted to the plaintiff in the sum of six thousand dollars on a bill which had been returned protested from Mobile, and on which suit was about to be brought by the plaintiff, agreed to pay ten per cent, the legal damages on the bill, and ten per cent. in addition, with the legal interest of New York on the bill for the time of its return, being eighteen days, and the charges of protest and postage, by a bill of exchange on Mobile. The bill was drawn in New York, being for the sum of $7,287.78, and was indorsed by Mr. Pond, in the name of the firm, the defendants in error. The bill was indorsed by the plaintiff in error, and was remitted by the plaintiff to S. Andrews, at Mo bile, and was by him set to the credit of H. A. Andrews & Company, of New York. It was received by S. Andrews, with the indorsement of the defendants, before its maturity; and it was a cash credit in the account current between H. M. Andrews & Company, and S. Andrews. The defendant offered evidence under the issue, the statute of New York against usury, and certain depositions, to prove that the bill of exchange was usurious.

One of the witnesses stated that the consideration for this bill was made up by the following account; E. Hendrick's draft on Daniel Carpenter, Montgomery, Alabama, protested,

3. That certain evidence offered by the plaintiff on the question of usury, was improperly rejected.

4. That the rulings and direction of the court on the points of law, as stated in the bill of exceptions, were erroneous.

The provisions of the laws of New York, 1 Revised Stat. 772, on the subject of usury, declare the contract, on which usury shall be 69*] *taken or received, absolutely void; with a saving from the influence of the statute as to bills of exchange, or promissory notes payable to order or to bearer in the hands of an indorsee; who shall have received the same in good faith and for a valuable consideration, and who had not at the time of discounting the bill actual notice that the bill had been originally given upon a usurious consideration, etc. By the laws of Alabama, the interest alone is forfeited.

It is contended that the contract is to be governed by the laws of the place where it was to be executed. The contract on the face of this bill of exchange expresses that it was to be executed elsewhere than where it was made. The parties entered into it with a view to its performance at another place. It is a foreign bill (2 Peters, 586), and of course is dated in one place, and in one State, and made payable, in another State.

The lex loci is to govern, unless the parties have had in view, by the contract, another place of performance; that is to say, if the parties have in view, by the terms of the contract, the city of Mobile, for its performance, it is the law of the place of performance which is to govern and construe the terms of the agreement. 2 Burr. 1077; 8 Johns. 190; 4 Peters, 111 7 Peters, 586. Alabama was not only the place where the contract was to be executed, but this action was instituted in Alabama.

2. As to the second point. Under the laws of Alabama, where on an usurious contract the interest only is forfeited, it was not allowable under a plea of non assumpsit, to put in evidence of usury; because, although by the usury the interest is lost, yet the amount of the bill, deducting the interest, may be recovered. The lex loci is to be regarded, and the trial is to be conducted according to it; and what might under the plea be offered in evidence in New York, could not be admitted in Alabama. The plea was not sustained by the evidence, and did not suit the case.

Supposing the plaintiff to have been in that situation as to the bill, as to be liable to lose the interest on it, as upon an usurious contract, yet it was not under such a plea as this that evidence to charge him with this liability could have been admitted. Supposing that by the law of New York it was usury, yet it was to be punished by the laws of Alabama only.

But if, contrary to these views of the law, the statutes of New York on the subject of this contract are to be applied to it, yet, between the parties to this suit the law has no force. The statute of New York declares that its provisions shall have no application where

an indorser thereof, without actual notice that the bill has been originally given for an usurious consideration. This is an action on a bill of exchange brought by the indorsee, and no proof was given on the trial that he was not an innocent holder, ignorant of the consideration given for this negotiable instrument. It does not anywhere appear to the contrary, but on the contrary the proof was clear and explicit that the bill had been regularly transferred to him before its maturity, and had beeen [*70 placed as a credit in the accounts between him and the house in New York. Nor did it appear that the plaintiff had any knowledge of the asserted usury of the transaction. Supposing, then, that the law of New York must regulate the contract; yet, on the proof submitted on the trial in the Circuit Court, the plaintiff ought to have recovered the amount of the bill.

3. The plaintiff in error contends that certain evidence was refused by the court which ought to have been given.

To prove the contract to have been usurious, certain depositions were read by the defendants; some going to show the original nature of the bill, and the circumstances under which it was made; and other witnesses were examined to show the rate of exchange between New York and Mobile.

The witness examined were all connected with banks; and they proved differences in the rates of exchange from three to five per cent., and even seven per cent. Those institutions had great facilities in doing business in exchange, and they took undoubted and indorsed paper at short dates. If there was any fixed rate of exchange between New York and Mobile it would have been known to these witnesses; and it would have been stated. A charge beyond a fixed rate might be asserted to be usurious. But no fixed rate existed.

When the Circuit Court allowed the defendants to give evidence as to the rates of exchange between New York and Mobile, it would seem no more than proper that the privilege should be allowed to the plaintiff. The facts which would have been exhibited by such evidence were essential to the full exhibition of the plaintiff's case. Charges for exchange vary with the credit and position of the parties to the bills of exchange, and the length of time the bills have to run; with many other circum stances; and among them the balances of trade, influence the amount of such charges materially.

There was no unreasonable charge made upon this bill. It was taken to pay a protested draft, and from a party who had been on the dishonored bill. The credit of such a bill must have been exceedingly doubtful; and the circumstances of the dishonor of its predecessor having been known, it would not have commanded as much as was allowed on it in the exchange market in New York, where it was received.

The plaintiff contends that the ruling and direction of the court on the law were erroneous.

The plaintiff asked the court to instruct the jury that if they were satisfied the excess over legal interest was taken by the parties, without intending to violate the law against usury, they

The question was one of intention. Did the parties mean to violate the law against usury? It was incumbent on the defendants to prove that the original parties to the bill intended usury; and that it was not considered by them a regular mercantile transaction. On the bill itself no usury appears. The parties giving the 71*] bill consented to allow a high rate of exchange for the advantages which they obtained in the exemption of one of the defendants, then in New York, from a suit, which was about to be commenced on the protested bill.

The plaintiff was altogether disconnected with the circumstances under which this bill was originally given. He received it as a re mittance from New York; and before it came to maturity it was placed to the credit of the house in New York as a cash credit. When he presented it for payment, it was refused, on the ground of its having been made in fraud of the law of New York against usury. Thus, negotiable paper, which had passed through different hands, and which was obtained in good faith, was discredited by circumstances which could not have been known to the subsequent holders of it. A purchaser of a bill of exchange may be made at any deduction from its amount, and the contract of purchase is legal.

The judge of the Circuit Court charged the jury that if there was no established rate of exchange between New York and Mobile, the parties had no right to contract for more than the actual expense of transporting specie. But by the evidence given on the part of the defendants, it was fully shown that there was no fixed rate of exchange; and yet the contract was to be made usurious, because more was taken than the cost of transporting specie from Mobile to New York. Such a position destroys all operations of exchange, and thus interrupts the great means of commercial intercourse and dealing. Rates of exchange are fixed or regulated by other rules than those which would be derived from the value of specie at the place on which the bill may be drawn, and the cost of its carriage to the place from which the bill is sent. The experience of every commercial man, and the value of exchange in every com. mercial country, establish this position.

Mr. Ogden, for the defendant, contended that the contract entered into by the bill of exchange on which the suit was brought having been made in New York, was to be governed by the laws of New York. An indorser of a bill of exchange is liable only by the law of the place where the bill is made. 3 Mass. Rep. 77; 5 East. 130; 1 East. 60; 8 Martin's Rep. 34. The law of the contract is the law of New York, where the debt was due; and where it was settled by the bill of exchange on which this suit was brought.

It is said that the evidence of usury could not be given under the plea of non assumpsit; but this is taking for granted that the law of the case that of Alabama, and not that of New York. Evidence to show a usurious consideration is proper evidence under the plea.

There is no evidence of bona fide ownership of this bill in the plaintiff. The bill was remitted for collection, and the plaintiff was the agent of the drawee. The entry of the bill as a'

case. It was no more than a mode of keeping the account between the drawer and the person to whom the bill had been transmitted. The bill was taken in payment of *an [*72 old debt, and that debt is yet due; and for it the creditor has a perfect right to proceed at law.

It matters not what was the intention of the parties; and if they had no view to a usurious dealing, still the law operates on the contract, and makes it void if there actually was usury. Where the months of a year are calculated to be thirty days, and interest for a year charged on each month, it was held to be usury.

Mr. Webster, for the plaintiff in error. This is an action by the indorsee of a bill of exchange residing in Alabama, and the suit is brought in that State. The bill was drawn in New York, to be paid in Alabama; and there is nothing in the record to show that the indorsee, the plaintiff, was in New York, or had anything to do with the bill, until it came into his hands in Alabama. The defendants are described as citizens of Alabama; and presumption is that it was indorsed in Alabama, and was an Alabama transaction.

The true place of the contract is the place of its performance; and the law of Alabama operates upon this bill exclusively, as the contract made by it was to be performed there. Story's Conflict of Laws, 252. A bill drawn in New York, to pay eight per cent. interest in Alabama, where the interest is eight per cent. would not be void by the law of New York. Where there is no actual and express agreement to pay usurious interest, it is entirely a question of intention; and the case to be made out is, that there was a design, either open or covered, to take more than the statute allows as interest.

There can be no rule of law which prohibits the purchase of a bill of exchange at any rate of discount, or which makes such a purchase, if the discount is more than the legal interest, usury. The rates of exchange are always various, and are sometimes uncertain. To apply the law of usury to such contracts would be productive of the greatest injustice.

The law of New York protects all these instruments from the prohibitions of usury, when they get into the hands of bona fide holders without notice of their origin. Every one may buy a bill of exchange in the market at any rate; but if the purchaser sells a bill, with his name upon it, at an illegal discount, it is usury, and the bill is void. Everything in relation to this bill should have been admitted in evidence; and the jury should have been enabled to form a judgment on the intention of the parties; and should have been allowed to know everything as to the state of the exchange between New York and Mobile, and the rate, as applied to bills of all descriptions. One of the witnesses would have proved that twenty per cent. was not a greater rate of exchange than had been paid on doubtful bills.

The party taking the bill had a right to recover from his debtor such an amount as would have paid the amount due to him on the protested bill of exchange in New York. He had a right, then, to the exchange on Mobile, and the exchange from Mobile to New *York. [*78