WILLIAM WALLACE, PLAINTIFF IN ERROR, v. CORRY M'CONNELL, DEFENDANT IN ERROR.

This case comes up on a writ of error from the District Court of the United States for the southern district of Alabama.

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 M'Connell or order, at the office of discount and deposite of the Bank of the United States, at Nashville, four thousand eight hun dred 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 deposite 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 and 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 M'Connell, 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 M'Connell. 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; 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 deposite 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 the Bank of the United States vs. Smith, (11 Wheat. 172.) the note upon which the action was founded was made payable at the office of discount and deposite 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 vs. Young, (2 Brod. and 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 defence 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 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 the Bank of the United States vs. 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 vs. Young, had been entertained by some of the Courts in this country: and under this view of the question, the Court say they are 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 defence; 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 defence. 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 vs. Young, (2 Brod. and 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.

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 the 1st of 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 vs. 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 vs. 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 vs. 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 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 vs. Bowes, and Wild vs. 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 vs. 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 and Slater vs. Sharp, 4 Johns. Rep. 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 to a demand of payment at the place designated. And in the case of Wolcott vs. Van Santvoord, 17 Johns. Rep. 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 vs. 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 say that in this respect the acceptor stands in the same relation to the payee, as the maker of a note does to the indorsee. He is the principal, and not a collateral debtor.

And in the case of Caldwell vs. 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 vs. 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, they add: 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 defence to be pleaded and proved on his part.

The case of Watkins vs. 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 defence 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 vs. 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 vs. Duvall, 1 Gill and Johnson, 175; and the New York cases, as well as that of the Bank of the United States vs. 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 defence 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 defence generally will be in bar of damages only, and not in bar of the debt. The case of Ruggles vs. Patton, 8 Mass. Rep. 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 vs. Houten, 4 Halst. N. J.: Rep. 189, the Chief Justice says: 'The question is whether in an action by the payee of 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 assimulated 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 M'Nairy vs. Bell, and Mulhovin vs. Hannum, 1 Yerger, Rep. 502, and 2 Yerger, Rep. 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 deposite. Or should the note or bill be made payable at some place other than a bank, and no deposite 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 of this rule, to the maker or acceptor. But, on the other hand, if a presentment of the note and den and 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 favour 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 recognise 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, portior est jure, must govern the case. This is the doctrine of this Court in the case of Renner and Bussard vs. Marshall, 1 Wheat. 216, and also in the case of Beaston vs. The Farmers' Bank of Maryland, 12 Peters, 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. Rep. 100. 9 John. Rep. 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 darien continuance, do not raise the question intended to be presented; for the defence 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 any thing 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 vs. Huntington, 10 Wendall, 679. The Court say, 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 defence 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 $4880. 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 $4204 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 per cent. per annum.