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
MR. JUSTICE THOMPSON delivered the opinion of the Court.
The action in the court below was founded upon a note which,
although under seal, is considered in Tennessee a promissory note,
and is in the words following:
"Three years and two months after date, I promise to pay Corry
McConnell or order, at the office of discount and deposit of the
Bank of the United States, at Nashville, four thousand eight
hundred and eighty dollars, ninety-nine cents, value received."
The declaration sets out this note according to its terms and
alleges the promise to pay at the office of discount and deposit of
the Bank of the United States, at Nashville, without averring 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 being joined thereupon, the cause was continued until the
next term thereafter. At which time the defendant interposed a
plea puis darien continuance, alleging that the plaintiff,
as to the sum of four thousand two hundred and four dollars, part
and parcel of the sum demanded in the declaration, ought not
further to have and maintain his action therefor against him
because that sum had been attached by Blocker & Co., by
proceedings commenced by them against the plaintiff in this cause
under the attachment law of Alabama in which he was summoned as
garnishee. And setting out the proceedings against him according to
the requirements of that law, and under which he was examined on
oath and did declare that he executed the note to the said
McConnell, the plaintiff in this cause, as set out in the
declaration; that he had paid on the note three hundred and
seventy-two dollars and thirty-four cents, and that the remainder
of the said note was due by him to said McConnell. And the plea
further sets out that under the proceedings on the attachment, the
court had given judgment against him for four thousand two hundred
and four dollars and costs, but with a stay of all further
proceedings until the further disposition of the case, and which
remains yet undetermined.
To this plea the plaintiff demurred. And the court sustained the
demurrer and gave judgment for the plaintiff for six hundred and
seventy-five dollars and thirty-nine cents, the residue of the
plaintiff's debt in his declaration mentioned, by default, and
thereupon gave a final judgment for the plaintiff for the full
amount of the note, four thousand eight hundred and eighty dollars,
the debt aforesaid, and three hundred and ninety-four dollars, the
interest assessed by the clerk, together with his cost. And the
plaintiff remits upon the record the sum of three hundred and
fifty-one dollars and twenty-eight cents,
Page 38 U. S. 144
and the questions arising upon this record have been made and
argued under the following objections:
1. That the declaration is bad for want of an averment that the
note was presented, and payment demanded at the office of discount
and deposit of the Bank of the United States at Nashville.
2. That the matters pleaded of the proceedings under the
attachment laws of Alabama were sufficient to bar the action as to
the amount of the sum so attached, and that the demurrer ought
therefore to have been overruled.
3. That the judgment by
nil dicit, for the six hundred
and seventy-five dollars and thirty-nine cents, was erroneous.
The question raised as to the sufficiency of the declaration in
a case where the suit is by the payee against the maker of a
promissory note, never has received the direct decision of this
Court. In the case of
Bank of the United States v.
Smith, 11 Wheat. 171, the note upon which the
action was founded was made payable at the office of discount and
deposit of the Bank of the United States in the City of Washington,
and the suit was against the endorser, and the question turned upon
the sufficiency of the averment in the declaration of a demand of
payment of the maker. And the Court said when in the body of a note
the place of payment is designated, the endorser has a right to
presume that the maker has provided funds at such place to pay the
note, and has a right to require the holder to apply at such place
for payment. In the opinion delivered in that case, the question
now presented in the case before us is stated, and it said whether
where the suit is against the maker of a promissory note or the
acceptor of a bill of exchange payable at a particular place, it is
necessary to aver a demand of payment at such place, and upon the
trial to prove such demand, is a question upon which conflicting
opinions have been entertained in the courts in Westminster Hall.
But that the question in such case may perhaps be considered at
rest in England by the decision of the late case of
Rowe v.
Young, 2 Brod. & Bing. 165, in the House of Lords, where
it was held that if a bill of exchange be accepted payable at a
particular place, the declaration on such bill against the acceptor
must aver presentment at that place, and the averment must be
proved. But it is there said a contrary opinion has been
entertained by courts in this country; that a demand on the maker
of a note, or the acceptor of a bill payable at a specified place,
need not be averred in the declaration or proved on the trial; that
it is not a condition precedent to the plaintiff's right of
recovery. As matter of practice, application will generally be made
at the place appointed if it is believed that funds have been there
placed to meet the note or bill. But if the maker or acceptor has
sustained any loss by the omission of the holder to make such
application for payment at the place appointed, it is matter of
defense to set up by plea and proof. But it is added, as this
question does not necessarily arise in this case, we do not mean to
be understood as expressing any decided opinion upon it, although
we are strongly
Page 38 U. S. 145
inclined to think that as against the maker of a note or the
acceptor of a bill, no averment or proof of a demand of payment at
the place designated would be necessary. The question now before
the Court cannot, certainly, be considered as decided by the case
of
Bank of the United States v. Smith. But it cannot be
viewed as the mere
obiter opinion of the judge who
delivered the judgment of the Court. The attention of the court was
drawn to the question now before the Court, and the remarks made
upon it and the authorities referred to show that this Court was
fully apprized of the conflicting opinions of the English courts on
the question, and that opinions, contrary to that of the House of
Lords in the case of
Rowe v. Young, had been entertained
by some of the courts in this country, and under this view of the
question, the court said it was strongly inclined to adopt the
American decisions. As the precise question is now presented by
this record, it becomes necessary to dispose of it.
It is not deemed necessary to go into a critical examination of
the English authorities upon this point; a reference to the case in
the House of Lords, which was decided in the year 1820, shows the
great diversity of opinion entertained by the English judges upon
this question. It was, however, decided that if a bill of exchange
is accepted payable at a particular place, the declaration in an
action on such bill against the acceptor must aver presentment at
that place, and the averment must be proved. The Lord Chancellor,
in stating the question, said this was a very fit question to be
brought before the House of Lords, because the state of the law, as
actually administered in the courts, is such that it would be
infinitely better to settle it in any way than to permit so
controversial a state to exist any longer. That the Court of King's
Bench has been of late years in the habit of holding that such an
acceptance as this is a general acceptance, and that it is not
necessary to notice it as such in the declaration or to prove
presentment, but that it must be considered as matter of defense,
and that the defendant must state himself ready to pay at the
place, and bring the money into court, and so bar the action by
proving the truth of that defense. On the contrary, the Court of
Common Pleas was in the habit of holding that an acceptance like
this was a qualified acceptance, and that the contract of the
acceptor was to pay at the place, and that as matter of pleading, a
presentment at the place stipulated must be averred, and that
evidence must be given to sustain that averment, and that the
holder of the bill has no cause of action unless such demand has
been made. In that case, the opinion of the twelve judges was taken
and laid before the House of Lords, and will be found reported in
an appendix to the report of the case of
Rowe v. Young, 2
Brod. & Bing. 180, in which opinions all the cases are referred
to in which the question had been drawn into discussion, and the
result appears to have been that eight judges out of the twelve
sustained the doctrine of the King's Bench on this question,
notwithstanding which the judgment was reversed.
Page 38 U. S. 146
It is fairly to be inferred from an act of Parliament passed
immediately thereafter, 1 and 2 G. 4, ch. 78, that this decision
was not satisfactory. By that act it is declared that
"After 1 August, 1821, if any person shall accept a bill of
exchange payable at the house of a banker or other place, without
further expression in his acceptance, such acceptance shall be
deemed and taken to be, to all intents and purposes, a general
acceptance of such bill. But if the acceptor shall, in his
acceptance, express that he accepts the bill payable at a banker's
house or other place only, and not otherwise or elsewhere, such
acceptance shall be a qualified acceptance of such bill, and the
acceptor shall not be liable to pay the bill except in default of
payment, when such payment shall have been first duly demanded at
such banker's house or other place."
Bayley on Bills 200, note.
In most of the cases which have arisen in the English courts,
the suit has been against the acceptor of the bill, and in some
cases a distinction would seem to be made between such a case, and
that of a note when the action is against the maker, and the
designated place is in the body of the note. But there can be no
solid grounds upon which such a distinction can rest. The acceptor
of a bill 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. And in some of the cases where the point was
made, the action was against the maker of a promissory note, and
the place of payment designated in the body of the note. The case
of
Nichols v. Bowes, 2 Camp. 498, was one of that
description, decided in the year 1810, and it was contended on the
trial that the plaintiff was bound to show that the note was
presented at the banking house where it was made payable. But Lord
Ellenborough, before whom the cause was tried, not only decided
that no such proof was necessary, but would not suffer such
evidence to be given, although the counsel for the plaintiff said
he had a witness in court to prove the note was presented at the
banker's the day it became due, his Lordship alleging that he was
afraid to admit such evidence, lest doubts should arise as to its
necessity. And in the case of
Wild v. Renwards, 1 Camp.
425, note, Mr. Justice Bayley, in the year 1809, ruled that if a
promissory note is made payable at a particular place, in an action
against the maker there is no necessity for proving that it was
presented there for payment.
The case of
Saunderson v. Bowes, 14 East 500, decided
in the King's Bench in the year 1811, is sometimes referred to as
containing a different rule of construction of the same words when
used in the body of a promissory note, from that which is given to
them when used in the acceptance of a bill of exchange. But it may
be
Page 38 U. S. 147
well questioned whether this use warrants any such conclusion.
That was an action on a promissory note by the bearer against the
maker. The note, as set out in the declaration, was a promise to
pay on demand at a specified place, and there was no averment that
a demand of payment had been made at the place designated. To which
declaration the defendant demurred, and the counsel in support of
the demurrer referred to cases where the rule had been applied to
acceptances on bills of exchange, but contended that the rule did
not apply to a promissory note when the place is designated in the
body of the note. Lord Ellenborough, in the course of the argument,
in answer to some cases referred to by counsel, observed those are
cases where money is to be paid, or something to be done at a
particular time as well as place, therefore the party (defendant)
may readily make an averment, that he was ready at the time and
place to pay, and that the other party was not ready to receive it;
but here, the time of payment depends entirely on the pleasure of
the holder of the note. It is true Lord Ellenborough did not seem
to place his opinion, in the ultimate decision of the cause, upon
this ground. But the other judges did not allude to the distinction
taken at the bar between that case and the acceptance of a bill in
like terms, but placed their opinions upon the terms of the note
itself, being a promise to pay on demand at a particular place. And
there is certainly a manifest distinction between a promise to pay
on demand at a given place and a promise to pay at a fixed time at
such place. And it is hardly to be presumed that Lord Ellenborough
intended to rest his judgment upon a distinction between a
promissory note and a bill of exchange, as both he and Mr. Justice
Bayley had a very short time before, in the cases of
Nichols v.
Bowes and
Wild v. Renwards, above referred to,
applied the same rule of construction to promissory notes where the
promise was contained in the body of the note. Where the promise is
to pay on demand at a particular place, there is no cause of action
until the demand is made, and the maker of the note cannot
discharge himself by an offer of payment, the note not being due
until demanded.
Thus we see that until the late decision in the House of Lords
in the case of
Rowe v. Young, and the act of Parliament
passed soon thereafter, this question was in a very unsettled state
in the English courts, and without undertaking to decide between
those conflicting opinions, it may be well to look at the light in
which this question has been viewed in the courts in this
country.
This question came before the supreme court of the State of New
York in the year 1809 in the case of
Foden & Slater v.
Sharp, 4 Johns. 183, and the court said the holder of a bill
of exchange need not show a demand of payment of the acceptor, any
more than of the maker of a note. It is the business of the
acceptor to show that he was ready at the day and place appointed,
but that no one came to receive the money, and that he was always
ready afterwards to pay. This case shows that the acceptor of a
bill and the maker of a note were considered as standing on the
same footing with respect
Page 38 U. S. 148
to a demand of payment at the place designated. And in the case
of
Wolcott v. Van Santvoord, 17 Johns. 248, which came
before the same court in the year 1819, the same question arose.
The action was against the acceptor of a bill, payable five months
after date at the Bank of Utica, and the declaration contained no
averment of a demand at the Bank of Utica, and upon a demurrer to
the declaration, the court gave judgment for the plaintiff. Chief
Justice Spencer, in delivering the opinion of the court, observed
that the question had been already decided in the case of
Foden
v. Sharp, but considering the great diversity of opinion among
the judges in the English courts on the question, he took occasion
critically to review the cases which had come before those courts,
and shows very satisfactorily that the weight of authority is in
conformity to that decision, and the demurrer was accordingly
overruled, and the law in that state for the last thirty years has
been considered as settled upon this point. And although the action
was against the acceptor of a bill of exchange, it is very evident
that this circumstance had no influence upon the decision, for the
court said that in this respect the acceptor stands in the same
relation to the payee as the maker of a note does to the endorsee.
He is the principal, and not a collateral debtor.
And in the case of
Caldwell v. Cassady, 8 Cowen 271,
decided in the same court in the year 1828, the suit was upon a
promissory note payable sixty days after date at the Franklin Bank
in New York, and the note had not been presented or payment
demanded at the bank; the court said this case has been already
decided by this court in the case of
Wolcott v. Van
Santvoord. And after noticing some of the cases in the English
courts and alluding to the confusion that seemed to exist there
upon the question, it added that whatever be the rule in other
courts, the rule in this court must be considered settled that
where a promissory note is made payable at a particular place on a
day certain, the holder of the note is not bound to make a demand
at the time and place by way of a condition precedent to the
bringing an action against the maker. But if the maker was ready to
pay at the time and place, he may plead it, as he would plead a
tender in bar of damages and costs by bringing the money into
court.
It is not deemed necessary to notice very much at length the
various cases that have arisen in the American courts upon this
question, but barely to refer to such as have fallen under the
observation of the court, and we briefly state the point and
decision thereupon, and the result will show a uniform course of
adjudication that 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 acceptor in the other, and the note or bill 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 that 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.
Page 38 U. S. 149
The case of Watkins v. Crouch and Co., in the Court of Appeals
of Virginia, 5 Leigh 522, was a suit against the maker and endorser
jointly, as is the course in that state upon a promissory note like
the one in suit. The note was made payable at a specified time at
the Farmers' Bank at Richmond, and the Court of Appeals, in the
year 1834, decided that it was not necessary to aver and prove a
presentation at the bank and demand of payment in order to entitle
the plaintiff to recover against the maker, but that it was
necessary in order to entitle him to recover against the endorser,
and the president of the court went into a very elaborate
consideration of the decisions of the English courts upon the
question and to show that, upon common law principles applicable to
bonds, notes, and other contracts for the payment of money, no
previous demand was necessary in order to sustain the action, but
that a tender and readiness to pay must come by way of defense from
the defendant, and that looking upon the note as commercial paper,
the principles of the common law were clearly against the necessity
of such demand and proof where the time and place were specified,
though it would be otherwise where the place, but not the time, was
specified; a demand in such case ought to be made; and he examined
the case of
Sanderson v. Bowes to show that it turned upon
that distinction, the note being payable on demand at a specified
place. The same doctrine was held by the Court of Appeals of
Maryland in the case of
Bowie v. Duvall, 1 Gill &
Johnson 175, and the New York cases, as well as that of
Bank of the United States v.
Smith, 11 Wheat. 171, are cited with approbation
and fully adopted, and the Court put the case upon the broad ground
that when the suit is against the maker of a promissory note,
payable at a specified time and place, no demand is necessary to be
averred, upon the principle that the money to be paid is a debt
from the defendant, that it is due generally and universally, and
will continue due though there be a neglect on the part of the
creditor to attend at the time and place to receive or demand it.
That it is matter of defense on the part of the defendant to show
that he was in attendance to pay, but that the plaintiff was not
there to receive it, which defense generally will be in bar of
damages only, and not in bar of the debt. The case of
Ruggles
v. Patton, 8 Mass. 480, sanctions the same rule of
construction. The action was on a promissory note for the payment
of money at a day and place specified, and the defendant pleaded
that he was present at the time and place and ready and willing to
pay according to the tenor of his promises, in the second count of
the declaration mentioned, and avers that the plaintiff was not
then ready or present at the bank to receive payment, and did not
demand the same of the defendant, as the plaintiff in his
declaration had alleged; the court said this was an immaterial
issue, and no bar to an action or promise to pay money.
So also in the State of New Jersey the same rule is adopted. In
the case of
Weed v. Houten, 4 Halst. 189, the Chief
Justice said:
"The question is whether in an action by the payee of
Page 38 U. S. 150
a promissory note payable at a particular place and not on
demand, but at time, it is necessary to aver a presentment of the
note and demand of payment by the holder at that place, at the
maturity of the note. And upon this question he says,"
"I have no hesitation in expressing my entire concurrence in the
American decisions so far as is necessary for the present occasion;
that a special averment of presentment at the place is not
necessary to the validity of the declaration, nor is proof of it
necessary upon the trial. This rule, I am satisfied, is most
conformable to sound reason, most conducive to public convenience,
best supported by the general principles and doctrines of the law,
and most assimilated to the decisions, which bear analogy more or
less directly to the subject."
The same rule has been fully established by the Supreme Court of
Tennessee in the cases of
McNairy v. Bell and
Mulhovin
v. Hannum, 1 Yerger 502 and 2 Yerger 81, and the rule
sustained and enforced upon the same principles and course of
reasoning upon which the other cases referred to have been placed.
And no case in an American court has fallen under our notice where
a contrary doctrine has been asserted and maintained. And it is to
be observed that most of the cases which have arisen in this
country where this question has been drawn into discussion were
upon promissory notes, where the place of payment was, of course,
in the body of the note. After such a uniform course of decisions
for at least thirty years, it would be inexpedient to change the
rule, even if the grounds upon which it was originally established
might be questionable, which, however, we do not mean to intimate.
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 business in commercial
transactions, and the rule here established is well calculated for
the convenience and safety of all parties.
The place of payment in a promissory note or in an acceptance of
a bill of exchange is always matter of arrangement between the
parties for their mutual accommodation, and may be stipulated in
any manner that may best suit their convenience. And when a note or
bill is made payable at a 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 his note or bill at the bank, he can deposit his money to meet
the note when presented, and should he be afterwards prosecuted, he
would 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 at the time and place would protect him against interest and
costs on bringing the money into court, so that no practical
inconvenience or hazard can result from the establishment
Page 38 U. S. 151
of this rule to the maker or acceptor. But on the other hand, if
a presentment of the note and demand of payment at the time and
place are indispensable to the right of action, the holder might
hazard the entire loss of his whole debt.
The next point presents the question as to the effect and
operation of the proceedings under the attachment law of Alabama,
as disclosed by the plea
puis darien continuance. The plea
shows that the proceedings on the attachment were instituted after
the commencement of this suit. The jurisdiction of the district
court of the United States and the right of the plaintiff to
prosecute his suit in that court having attached, that right could
not be arrested or taken away by any proceedings in another court.
This would produce a collision in the jurisdiction of courts that
would extremely embarrass the administration of justice. If the
attachment had been conducted to a conclusion and the money
recovered of the defendant before the commencement of the present
suit, there can be no doubt that it might have been set up as a
payment upon the note in question. And if the defendant would have
been protected
pro tanto under a recovery had by virtue of
the attachment, and could have pleaded such recovery in bar, the
same principle would support a plea in abatement of an attachment
pending prior to the commencement of the present suit. The
attachment of the debt in such case in the hands of the defendant
would fix it there in favor of the attaching creditor, and the
defendant could not afterwards pay it over to the plaintiff. The
attaching creditor would in such case require a lien upon the debt
binding upon the defendant, and which the courts of all other
governments, if they recognize such proceedings at all, could not
fail to regard. If this doctrine be well founded, the priority of
suit will determine the right. The rule must be reciprocal, and
where the suit in one court is commenced prior to the institution
of proceedings under attachment in another court, such proceedings
cannot arrest the suit, and the maxim
qui prior est tempore,
potior est jure must govern the case. This is the doctrine of
this Court in the case of
Renner & Bussard v.
Marshall, 1 Wheat. 216, and also in the case of
Beaston v. Farmers' Bank of
Maryland, 12 Pet. 102, and is in conformity with
the rule that prevails in other courts in this country as well as
in the English courts, and is essential to the protection of the
rights of the garnishee, and will avoid all collisions in the
proceedings of different courts having the same subject matter
before them. 5 John. 100, 9 John. 221, and the cases there cited.
In the case now before the Court, the suit was commenced prior to
the institution of proceedings under the attachment. The plea was
therefore bad and the demurrer properly sustained.
The remaining inquiry is whether the judgment by
nil
dicit for the $675 was properly given, after overruling the
plea
puis darien continuance. The argument at the bar was
that as the attachment went only to a part of the debt, the case
stood as to the residue upon the original plea of payment. The
facts disclosed in the plea
puis
Page 38 U. S. 152
darien continuance do not raise the question intended
to be presented, for the defense set up in the plea
puis darien
continuance goes to the whole cause of action, and leaves no
part unanswered. And it may well be questioned whether such
pleading ought to be sanctioned, even if the plea
puis darien
continuance went only to a part of the cause of action. It
would introduce great confusion on the record in the state of the
pleadings.
It is laid down in Bacon's Abridgment, 6 Bac.Ab. by Gwillim 377,
that if after a plea in bar, the defendant pleads a plea
puis
darien continuance, this is a waiver of his bar, and no
advantage shall be taken of anything in the bar. And it is added
that it seems dangerous to plead any matter
puis darien
continuance unless you be well advised, because if that matter
be determined against you, it is a confession of the matter in
issue. This rule was adopted in
Kimball v. Huntington, 10
Wendall 679. The court said the plea
puis darien
continuance waived all previous pleas, and on the record, the
cause of action was admitted to the same extent as if no other
defense had been urged than that contained in this plea.
In the case now before the Court, the oath of the defendant
taken in the proceedings on the attachment is made a part of the
plea
puis darien continuance. And he admits that he
executed the note on which this suit is brought for $4,880, that he
had paid on the note $372.34, and that the remainder of the note
was due by him to the plaintiff. And if the $4,204 attached could
not be deducted, the whole debt, according to his own admission,
was due, except the $372.34, set up by him to have been paid, and
the plaintiff remits upon the record $351.28, and the judgment will
stand within a few dollars for the amount admitted by the defendant
to be due. And this difference must arise from some error in the
mere calculation, and may easily be corrected.
The judgment of the court below is accordingly
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Southern
District of Alabama and was argued by counsel. On consideration
whereof it is ordered and adjudged by this Court that the judgment
of the said district court in this cause be and the same is hereby
affirmed with costs and damages at the rate of six percent per
annum.
