delivered the opinion of the court.
The material questions presented by this case are, whether the note or instrument in writing-, was admissible evidence in support of the money counts the decía-*240ration; and whether the defendant’s discharge under the insolvent act in Rhodc-Islahd is a bar to the present suit.
1. It would, I think, be a sufficient answer to the first question, that no objection was made upon the trial to the competency of this evidence. Independent of this circumstance, however, the testimony, in my judgment, was admissible in support of the money counts. The note is not for the payment of money, absolutely, and therefore nota negotiable note within the statute, and to be declared upon as such. No doubt appears to have existed in England prior to the statute of Anne, that under a general indebitatus assumpsit, a promissory note might be given in evidence. It has since been held, that, the statute only gives an additional remedy, but does not take away the old one. It may not be admitted as sufficient without further proof of the consideration, (3 Burr. 1525. 2 Ld. Ray. 758. 12 Mod. 380. 3 Term, 181. 2 Wm. Black. 1271.) which, in the present case, is full and satisfactory from the defendant’s own acknowledgment. In June, 1804, when the note was presented to him for payment, he declared it was a just debt; that he owed the money, and would endeavour soon to settle it. This is also sufficient to remove all difficulty on account of the statute of limitations. (2 Wm. Black. 1271.) The defendant also declared that he had been deceived by Thayer, of whom he purchased the lands mentioned in the note— that he supposed Thayer had a title to the lands, but af-terwards found that he had not; and that he, the defendant, was unable to convey the lands agreeably to his note.
The case of Dutch v. Warren, cited and adopted as law, by Lord Mansfield, in the case of Moses & Macfarlan, (2 Burr. 1011.) is very analagous to the present.— The defendant, Warren, had executed a writing to Duidi, whereby he acknowledged to have received a sum of mo-Iiey» as the consideration for some shares in certain cop*241per mines, and containing a promise to transfer the shares as soon as the books should be opened. On failure of doing it, an action was brought, and this writing admitted as good evidence, under the count for money had and received.
2. The more important question in this case relates to the operation of the defendant’s discharge as an insolvent debtor, in the state of Rhode-Island, subsequent to giving the note in question. The contract was made in Massachusetts, the intestate being at the time a permanent resident there. Some doubt appeal’s in the case, as to the residence of the defendant, at the time he gave the note, whether it was in Massachusetts or Rhode-Island. This, however, is unimportant as it respects the result of my opinion. I am willing to admit, what is certainly most favourable to the defendant, that his residence was in Rhode-Island. Had the intestate been a citizen of this state, and the contract made here, the discharge in Rhode-Island would be no bar, within the decision of this court, in the case of Van Raugh v. Van-Arsdaln. (3 Caines, 154.) That case is conformable to what is now considered as the settled rule in England, that a discharge under a foreign bankrupt law is no bar to an action for a debt arising in England, to a creditor residing there also. (1 East, 6.) But we are called upon now to declare the effect of a discharge, upon a demand where the contract was not made here, nor the creditor a resident here. If the contract had been made in Rhode-Island, the parties both residing there, I should think we ought to apply the same rule to them here that would have been applied to them, had the prosecution been in that state.
The reasoning of all the elementary writers, and the decisions of courts of justice, have had a tendency to establish it as a general rule, that the determination of questions founded on contract, depend chiefly on the law of the place where the contract- was made. (Huberus, 2 vol. 13. 1 Tit. 3, p. 26. 3 Dal. 370. Stra. 733, 2 Burr. 1078. Black. Rep. 234, 256. 1 H. Black. 684.)
*242Lord Mansfield, in the case of Robinson fy Bland,{Black. Rep. 258.) says, the general rule established, ex comitate et jure gentium is, that the place where the contract is made, and not where the action is brought, is to be con-in expounding and, enforcing the contract, unless the parties have a view to its being executed elsewhere, in which case it is to be considered according to the laws of the place where the contract is to be executed. In the case of Quin v. Keefe, (2 H. Black, 553) the reasoning of the counsel, and which was adopted by the ehicfjustice, goes very far in establishing, that a bankrupt’s certificate is to operate upon a contract according to the laws of the place where the contract was made.— If this bo a correct rule, and applied to the case before us, I apprehend there can be little doubt that the defendant’s discharge will be unavailable here. If the same rule prevails in Massachusetts, as in our own courts, on this subject, the question is settled by the decision of Raugh v. Van Arsdaln; and that it does, is to be collected from the adjudications of the courts of that Slate and of the United States.
In the case of Greenough v. Emory, in the circuit court of the United Stales, for the district of Massachusetts, (3 Dal. 369.) it appeared that the debt was contracted in Massachusetts, where both parties resided at the time.— defendant afterwards removed to Pennsylvania, and was discharged under the bankrupt act of that state. On his returning to Massachusetts on a visit, he was arrested for the debt, in the state court; the cause was removed to the circuit court of the United Slates, when the defendant pleaded his certificate; but it was held to be no bar to the action, The same principle has been recognized in the supreme court of Massachusetts, in the case of Proctor v. Moore, (Williams' Rep. 198.) so that we may safely conclude, that if this suit had been brought in that state, the defendant would have been held liable, notwithstanding his discharge in Rhode-Island. It appears to be pretty well settled, both in England and in our own courts, that a cessio bonorum, under the laws of the place where the debtor is domiciled, will not operate as a discharge from his creditors universally. And if so, I know no more just or equitable rule, than to apply the lex loci, where the contract was made, or was to be executed.
The defendant can have no reason to complain of the rule of damages adopted on the trial; from his own confession, he must have received from the intestate the full sum mentioned in the note, and the least he can expect, is to refund that sum with the interest, according to the laws of Massachusetts.
Judgment must, accordingly, be given for the plaintiff.
Judgment for the plaintiff.