Wallace v. McConnell
38 U.S. 136

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U.S. Supreme Court

Wallace v. McConnell, 38 U.S. 13 Pet. 136 136 (1839)

Wallace v. McConnell

38 U.S. (13 Pet.) 136

Syllabus

An action was instituted on a promissory note against the drawer by which the drawer promised to pay at the office of discount and deposit of the Bank of the United States at Nashville, three years after date, four thousand and eighty dollars. In the declaration which set out the note according to its terms and alleged the promise to pay according to the tenor of the note, there was no averment that the note was presented at the bank or demand of payment made there. The defendant pleaded payment and satisfaction of the note, and issue was joined thereon. Afterwards, at the succeeding term, the defendant interposed a plea of puis darien continuance, stating that four thousand two hundred and four dollars, part of the amount of the note had been attached by B. and W. in a state court of Alabama under the attachment law of the state, and a judgment had been obtained against him for four thousand two hundred and four dollars and costs, with a stay of proceedings until the further proceedings in the case, which remains undetermined. The plaintiff demurred to this plea, and the circuit court sustained the demurrer, and judgment was given for the plaintiff for six hundred and seventy-nine dollars, the residue of the note beyond the amount attached, and a final judgment for the whole amount of the note. Held that there was no error in the judgment of the circuit court.

The acceptor of a bill of exchange stands in the same relation to the drawee as the maker of a note does to the payee, and the acceptor is the principal debtor in the case of a bill, precisely like the maker of a note. The liability of the acceptor grows out of and is to be governed by the terms of his acceptance, and the liability of the maker of a note grows out of and is to be governed by the terms of his note, and the place of payment can be of no more importance in the one case than in the other.

It is of the utmost importance that all rules relating to commercial law should be stable and uniform. They are adopted for practical purposes, to regulate the course of commercial transactions. When a note or bill is made payable at a particular bank, as is generally the case, it is well known that according to the usual course of business, the note or bill is lodged at the bank for collection, and if the maker or acceptor calls to take it up when

it falls due, it will be delivered to him, and the business is closed. But should he not find the note or bill at the bank, he can deposit his money to meet the note when presented, and should he be afterwards prosecuted, he will be exonerated from all costs and damages upon proving such tender and deposit. Or should the note or bill be made payable at some place other than a bank and no deposit could be made, or he should choose to retain his money in his own possession, an offer to pay the money at the time and place would protect him against interest and costs on bringing the money into court.

In actions on promissory notes against the maker or on bills of exchange where the suit is against the maker, in the one case, and the acceptor in the other, and the note or bill is made payable at a specified time and place, it is not necessary to aver in the declaration or prove on the trial that a demand of payment was made in order to maintain the action. But if the maker or acceptor was at the place at the time designated, and was ready and offered to pay the money, it was matter of defense to be pleaded and proved on his part.

The jurisdiction of the District Court of the United States for the District of Alabama and the right of a plaintiff to prosecute his suit having attached by the commencement of the suit in the district court, that right cannot be taken away or arrested by any proceedings in another court. An attachment of the debt by the process of a state court, after the commencement of the suit in a court of the United States, cannot affect the right of the plaintiff to recover in the suit.

An attachment commenced and conducted to a conclusion before the institution of a suit against the debtor in a court of the United States may be set up as a defense to the suit, and the defendant would be prohibited pro tanto under a recovery had by virtue of the attachment, and could plead such recovery in bar. So too, an attachment pending in a state court, prior to the commencement of a suit in the court of the United States, may be pleaded in abatement. The attachment of the debt in such case in the hands of the defendant would fix it there in favor of the attaching creditors, and the defendant could not afterwards pay it over to the plaintiff. The attaching creditor would in such a case

Page 38 U. S. 137

acquire a lien on the debt binding on the defendant, and which the courts of all other governments, if they recognize such proceedings at all, would not fail to regard. The rule must he reciprocal, and when the suit in one court is commenced prior to proceedings under attachment in another court, such proceedings cannot arrest the suit.

It seems that a plea of puis darien continuance is considered as a waiver of all previous pleas, and the cause of action is admitted to the same extent as if no other defense had been urged than that contained in the plea.

The plaintiff in error, William Wallace, was sued in the District Court of Alabama, exercising the powers of a circuit court of the United States, on the second day of April, 1836, by a capias issued out of that court and returnable on the first Monday of May following. The action was brought on a promissory note, under the seal of the defendant, for four thousand eight hundred and eighty dollars, dated May 10, 1832, and payable to the plaintiff or to his order at the office of discount and deposit of the Bank of the United States at Nashville three years and two months after date.

At the May term, 1836, of the district court, the plaintiff filed a declaration on the note, in debt, alleging the nonpayment of the note, although frequent demands had been made of the drawer. No demand was alleged to have been made at the office of discount and deposit of the Bank of the United States at Nashville.

The defendant pleaded payment, on which issue was joined and the case was continued.

At the succeeding term of the district court, the defendant filed the following plea:

"That as to the sum of forty-two hundred and four dollars, part and parcel of the sum by the said plaintiff in said declaration demanded, he, the said plaintiff, ought not further to have and maintain his aforesaid action therefor against him because he saith that after the said last continuance of this cause, that is to say, after the term of this Court held on the first Monday of May last, and before the December term aforesaid, to-wit, on the eighth day of June, in the year 1836, at Mobile, to-wit, in the district aforesaid, one William J. Blocker, John R. Blocker, and Benjamin Horner, merchants, trading under the name of Horner, Blocker & Co., by William J. Blocker one of the said firm, in behalf of himself and his co-partner, caused to be sued out a certain writ of original attachment against the said Corry McConnell for the sum of forty-two hundred and four dollars, and which said writ was issued by Benjamin Wilkins, a justice of the peace of Mobile County on the said eighth day of June in the year 1836, and was directed to the Sheriff of Mobile County and was made returnable to the County Court of Mobile County, which was held on the second Monday in June, 1836. And the said defendant further avers that the said plaintiffs in the said attachment, were at the time of suing out the same, residents of the State of Alabama; that the said Corry McConnell was a nonresident, and citizen of the State of New York, and that the said plaintiffs did comply with the requisites of the statute, in such cases made

Page 38 U. S. 138

and provided by giving bond and security, and filed affidavit whereby it is shown that the said justice and the said county court had jurisdiction of the said attachment and that the said county court could lawfully hear and determine the same. And the said defendant further saith that in said original attachment, such proceedings were had that he, the said William Wallace was on the said eighth day of June, 1836, summoned as a garnishee by the Sheriff of Mobile County, and required to appear before the said county court and answer on oath what he was indebted to said Corry McConnell. And the said William Wallace, defendant, further saith that in obedience to the said summons of garnishment, he, the said William, did appear before the said County Court of Mobile at the said term of the said county court held on the second Monday in June, 1836, before the judge of said court then sitting, and was in said suit of attachment between the said Horner, Blocker & Co., plaintiffs, and Corry McConnell, defendant, examined on oath, touching his indebtedness to the said Corry McConnell, whereupon he did declare on oath that he did execute to the said McConnell the note for the sum of four thousand eight hundred and eighty dollars on which the said plaintiff in this suit hath declared, that he did pay, on the said note to said McConnell, on 24 September, 1833, the sum of three hundred and seventy-two dollars thirty-four cents, and that the remainder of said note was due by said Wallace to said McConnell, &c. And the said defendant further saith that in the said attachment by said court, at the said June term thereof, it was ordered that the proceedings against said McConnell be stayed for six months and that notice be given to the said McConnell of the pendency of said attachment by letter directed to New York, the said McConnell being shown to be a resident of the State of New York. And the said defendant, Wallace, further saith that in the said attachment, and upon the said writ of garnishment, the said court at the said June term, then sitting, did make the further order following, to-wit: "

"It appearing, to the satisfaction of the court that William Wallace has been duly summoned as a garnishee, and he having admitted an indebtedness to said defendant to an amount greater than the amount sued for in the above entitled cause, it is considered by the court that said plaintiffs do recover from said garnishee the sum of forty-two hundred and four dollars, the amount sued for in said case, together with the cost thereof, and that all proceedings against said garnishee be stayed until the final disposition of said case, wherefore the said cause was, in said county court, at said June term, continued by said court, as well against the said McConnell as against the said Wallace, till the next term thereof, to be held in due course of law -- that is to say, on the second Monday of February, in the year 1837. All which said proceedings in the said county court, in which the said plea still remains pending and undetermined, are still in full force and not reversed, vacated, or otherwise set aside, as by the record and proceedings in said court, still remaining of record,

Page 38 U. S. 139

will more fully and at large appear, and that he, the said defendant, is ready to verify; wherefore he prays judgment if the said plaintiffs ought further to have or maintain his said action therefor, against him, this defendant, as to the sum of four thousand two hundred and four dollars, parcel of the sum by the said plaintiffs above demanded,"

&c.

The plaintiff at the same term entered a demurrer to this plea of puis darien continuance and prayed the court to render judgment against the defendant for six hundred and seventy-six dollars thirty cents, parcel of the debt of four thousand eight hundred and eighty dollars, the amount of the note, which by the plea was wholly undefended, and as to the said plea of puis darien continuance, the plaintiff says that the plea of the defendant is not sufficient to bar him from maintaining his action on the said note, &c.

The court, on the pleadings, gave judgment as follows:

"As to the said sum of four thousand two hundred and five dollars, being argued by counsel, it seems to the court that said plea, as to the said sum of forty-two hundred and five dollars, and the allegations therein contained, are not sufficient in law to bar the said plaintiff from having and maintaining his aforesaid action therefor against the said defendant; whereupon it is ordered by the court that the said demurrer be sustained; but as to the sum of six hundred and seventy-five dollars, thirty-nine cents, the residue of said plaintiff's debt, in his declaration mentioned, this day came the plaintiff, by his attorney, and the said defendant, being solemnly called, came not, but wholly made default, as to the said last mentioned sum, whereby the said plaintiff, therein against him remains altogether undefended. It is therefore considered by the court that the said Corry McConnell, plaintiff, do recover against the said William Wallace, defendant, the said sum of four thousand eight hundred and eighty dollars and thirty-nine cents, his debt aforesaid, and also the further sum of three hundred and ninety-four dollars, the interest thereon, assessed by the clerk of this Court by way of damages, for the detention of the same, together with his cost in this cause; the plaintiff remits to the defendant the sum of three hundred and fifty-one dollars, twenty-eight cents."

The record of the district court stated:

"In this cause, the court decided that the plea of puis darien continuance was a waiver of the previous plea pleaded by the defendant; there was no default of the defendant further than his abandonment, under the decision of the court, of his first plea. In this cause, the defendant moved the court to stay proceedings in the said cause until the final decision of the County Court of Mobile County upon the attachment of Horner, Blocker & Co., which motion was overruled."

The defendant prosecuted this appeal.

Page 38 U. S. 143

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