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pay at the place, and that as a matter of plead- | the case of Wild v. Renwards, 1 Camp. 425, note, ing, a presentment at the place stipulated must Mr. Justice Bayley, in the year 1809, ruled be averred, and that evidence must be given to that if a promissory note is made payable at sustain that averment, and that the holder of a particular place, in an action against the the bill has no cause of action unless such de maker, there is no necessity for proving that mand has been made. In that case the opinion it was presented there for payment. of the twelve judges was taken and laid before The case of Saunderson v. Bowes, 14 East, the House of Lords, and will be found reported 500, decided in the King's Bench in the year in an appendix to the report of the case of 1811, is sometimes referred to as containing a Rowe v. Young, 2 Brod. & Bing. 180, in which different rule of construction of the same words opinions all cases are referred to in which the when used in the body of a promissory note, question had been drawn into discussion, and from that which is given to them when used the result appears to have been that eight in the acceptance of a bill of exchange. But judges out of the_twelve sustained the doc. it may be *well questioned whether this [*147 trine of the King's Bench on this question; not use warrants any such conclusion. That was withstanding which the judgment was reversed. an action on a promissory note by the bearer 146*) *It is fairly to be inferred from an against the maker. The note, as set out in act of Parliament passed immediately there the declaration, was a promise to pay on deafter (1 and 2 George IV., ch. 78) that this mand at a specified place, and there was no aver. decision was not satisfactory. By that act it is ment that a demand of payment had been made declared that "after the 1st of August, 1821, if at the place designated. To which declaration any person shall accept a bill of exchange pay- the defendant demurred; and the counsel in able at the house of a banker or other place, support of the demurrer referred to cases where without further expression in his acceptance, the rule had been applied to acceptances on bills such acceptance shall be deemed and taken to of exchange; but contended that the rule did be, to all intents and purposes, a general ac- not apply to a promissory note, when the place ceptance of such bill. But if the acceptor shall, is designated in the body of the note. Lord in his acceptance, express that he accepts the Ellenborough, in the course of the argument, bill payable at a banker's house or other place in answer to some cases referred to by counsel, only, and not otherwise or elsewhere, such ac- observed: those are cases where money is to be ceptance shall be a qualified acceptance of such paid, or something to be done at a particbill, and the acceptor shall not be liable to ular time as well as place, therefore the party pay the bill, except in default of payment, when (defendant) may readily make an averment such payment shall have been first duly de that he was ready at the time and place to manded at such banker's house or other place.” pay, and that the other party was not ready to Bayley on Bills, 200, note.
receive it; but here the time of payment de In most of the cases which have arisen in the pends entirely on the pleasure of the holder of English courts, the suit has been against the the note. It is true Lord Ellenborough did not acceptor of the bill; and in some cases a dis- seem to place his opinion, in the ultimate detinction would seem to be made between such cision of the cause, upon this ground. But a case, and that of a note when the action is the other judges did not allude to the distincagainst the maker, and the designated place is tion taken at the bar between that case and in the body of the note. But there can be no the acceptance of a bill in like terms, but placed solid grounds upon which such a distinction their opinions upon the terms of the note itself, can rest. The acceptor of a bill stands in the being a promise to pay on demand at a par: same relation to the drawee as the maker of a ticular place. And there is certainly a manifest note does to the payee; and the acceptor is the distinction between a promise to pay on demand principal debtor, in the case of a bill, precisely at a given place and a promise to pay at a fike the maker of a note. The liability of the fixed time at such place. And it is hardly acceptor grows out of, and is to be governed by to be presumed that Lord Ellenborough inthe terms of his acceptance, and the liability tended to rest his judgment upon a distinction of the maker of a note grows out of, and is between a promissory note and a bill of exto be governed by the terms of his note; and change, as both he and Mr. Justice Bayley had the place of payment can be of no more im- a very short time before, in the cases of Nichols portance in the one case than in the other. v. Bowes and Wild v. Renwards, above referred And in some of the cases where the point was to, applied the same rule of construction to made, the action was against the maker of a promissory notes where the promise was conpromissory note, and the place of payment tained in the body of the note. Where the designated in the body of the note. The case promise is to pay on demand at a particular of Nichols v. Bowes, 2 Camp. 498, was one of place, there is no cause of action until the that description, decided in the year 1810; and demand is made; and the maker of the note it was contended on the trial that the plaintiff cannot discharge himself by an offer of pay. was bound to show that the note was presented ment, the note not being due until demanded. at the banking house where it was made paya- Thus we see that until the late decision in ble. But Lord Ellenborough, before whom the the House of Lords in the case of Rowe v. cause was tried, not only decided that no such Young, and the act of Parliament passed soon proof was necessary, but would not suffer such thereafter, this question was in a very unsetevidence to be given; although the counsel for tled state in the English courts; and without un. the plaintiff said he had a witness in court to dertaking to decide between those conflicting prove the note was presented at the banker's opinions, it may be well to look at the light in the day it became due; his lordship alleging which this question has been viewed in the that he was afraid to admit such evidence, lest courts in this country. doubts should arise as to its necessity. And in This question came
before the Supremt Court of the State of New York in the year | adjudication, that in actions on promissory 1809, in the case of Foden and Slater v. Sharp, notes against the maker, or on bills of ex4 Johns. Rep. 183, and the court said the change, where the suit is against the maker in holder of a bill of exchange need not show a the one case, and acceptor in the other, and the demand of payment of the acceptor, any more note or bill made payable at a specified time than of the maker of a note. It is the business and place, it is not necessary to aver in the of the acceptor to show that he was ready at declaration, or prove on the trial, that a dethe day and place appointed, but that no one mand of payment was made in order to main. came to receive the money, and that he was al- tain the action. But that if the maker or acways ready afterwards to pay. This case shows ceptor was at the place at the time designated, that the acceptor of a bill, and the maker of a and was ready and offered to pay the money, note, were considered as standing on the same it was matter of defense to be pleaded and 148*] footing with respect *to a demand of proved on his part. payment at the place designated. And in the *The case of Watkins v. Crouch & Co. (*149 case of Wolcott v. Van Santvoord, 17 Johns. in the Court of Appeals of Virginia, 5 Leigh, Rep. 248, which came before the same court in 522, was a suit against the maker and indorser, the year 1819, the same question arose. The ac jointly, as in the course in that State upon a tion was against the acceptor of a bill, payable promissory note like the one in suit. The note five months after date at the Bank of Utica, was made payable at a specified time, at the and the declaration contained no averment of a Farmers' Bank, at Richmond, and the Court of demand at the Bank of Utica, and upon a Appeals, in the year 1834, decided, that it was demurrer to the declaration, the court gave not necessary to aver and prove a presentation judgment for the plaintiff. Chief Justice at the Bank and demand of payment in order Spencer, in delivering the opinion of the court, to entitle the plaintiff to recover against the observed that the question had been already maker; but that it was necessary in order to decided in the case of Foden v. Sharp; but entitle him to recover against the indorser: considering the great diversity of opinion and the president of the court went into a very among the judges in the English courts on the elaborate consideration of the decisions of the question, he took occasion critically to review English courts upon the question; and to show the cases which had come before those courts, that upon common law principles, applicable and shows very satisfactorily that the weight of to bonds, notes, and other contracts for the the authority is in conformity to that decision, payment of money, no previous demand was and the demurrer was accordingly overruled, necessary in order to sustain the action, but and the law in that State for the last thirty that a tender and readiness to pay must come years has been considered as settled upon this by way of defense from the defendant; and that point. And although the action was against looking upon the note as commercial paper, the acceptor of a bill of exchange, it is very evi- the principles of the common law were clearly dent that this circumstance had no influence against the necessity of such demand and proof, upon the decision; for the court say that in this where the time and place were specified, though respect the acceptor stands in the same rela- it would be otherwise where the place, but not tion to the payee as the maker of a note does the time was specified; a demand in such case to the indorsee. He is the principal, and not a ought to be made; and he examined the case of collateral debtor.
Sanderson V. Bowes to show that it turned And in the case of Caldwell v. Cassady, 8 upon that distinction, the note being payable Cowen, 271, decided in the same court in the on demand at a specified place. The same year 1828, the suit was upon a promissory note doctrine was held by the court of Appeals of payable sixty days after date at the Franklin Maryland in the case of Bowie v. Duvali, 1 Gill Bank in New York, and the note had not been & Johnson, 176, and the New York cases, as presented or payment demanded at the bank; I well as that of The Bank of the United States the court said, this case has been already decid- / v. Smith, 11 Wheat. 171, are cited with aped by this court in the case of Wolcott v. Van probation and fully adopted; and the court put Santvoord. And after noticing some of the the case upon the broad ground that when the cases in the English courts, and alluding to the suit is against the maker of a promissory note, confusion that seemed to exist there upon the payable at a specified time and place, no dequestion, they add, that whatever be the rule in mand is necessary to be averred, upon the other courts, the rule in this court must be con principle that the money to be paid is a debt sidered settled, that where a promissory note is from the defendant, that it is generally and made payable at a particular place on a day universally, and will continue due, though certain, the holder of the note is not bound to there be a neglect on the part of the creditor to make a demand at the time and place by way attend at the time and place to receive or deof a condition precedent to the bringing an mand it. That it is a matter of defense on the action against the maker. But if the maker part of the defendant to show that he was in was ready to pay at the time and place, he may attendance to pay, but that the plaintiff was plead it, as he would plead a tender in bar of not there to receive it; which defense generally damages and costs, by bringing the money will be in bar of damages only, and not in bar into court.
of the debt. The case of Ruggles v. Patton, 8 It is not deemed necessary to notice very Mass. Rep. 480, sanctions the same rule of conmuch at length the various cases that have struction. The action was on a promissory arisen in the American courts upon this ques. note for the payment of money, at a day and tion, but barely to refer to such as have fallen place specified; and the defendant pleaded that under the observation of the court, and we he was present at the time and place, and ready briefly state the point and decision thereupon, and willing to pay according to the tenor of and the result will show a uniform course of his promises in the second count of the dec laration mentioned, and avers that the plain-1 such tender and deposit. Or should the note or tiff was not then ready or present at the bank bill be made payable at some place other than to receive payment, and did not demand the a bank, and no deposit could be made, or he same of the defendant, as the plaintiff in his should choose to retain his money in his own declaration had alleged. The court said this possession, an offer to pay at the time and was an immaterial issue and no bar to an ac- place, would protect him against interest and tion or promise to pay money.
costs, on bringing the money into court; so that So, also, in the State of New Jersey the same no practical inconvenience or hazard can result rule is adopted. In the case of Weed v. Houten, from the establishment of this rule to (*151 4 Halst. N. J. Rep. 189, the Chief Justice the maker or acceptor. But, on the other hand, says: “The question is whether in an action if a presentment of the note and demand of 150*) by the payee of a promissory note payment at the time and place, are indispenspayable at a particular place and not on de- able to the right of action, the holder might mand, but at time, it is necessary to aver a pre hazard the entire loss of his whole debt. sentment of the note and demand of payment The next point presents the question as to by the holder of that place, at the maturity of the effect and operation of the proceedings un. the note. And upon this question he says, I der the attachment law of Alabama, as dishave no hesitation in expressing my entire con closed by the plea puis darien continuance. currence in the American decisions, so far as The plea shows that the proceedings on the is necessary for the present occasion; that a attachment were instituted after the commencespecial averment or presentment at the place, ment of this suit. The jurisdiction of the Disis not necessary to the validity of the dec. trict Court of the United States, and the right laration, nor is proof of it necessary upon the of the plaintiff prosecute his suit in that trial. This rule, I am satisfied, is most con- court, having attached, that right could not be formable to sound reason, most conducive to arrested or taken away by any proceedings in public convenience, best supported by the gen. another court. This would produce a collision eral principles and doctrines of the law, and in the jurisdiction of courts that would exmost assimulated to the decisions, which bear tremely embarrass the administration of justice. analogy more or less directly to the subject.” If the attachment had been conducted to a con
The same rule has been fully established by clusion, and the money recovered of the de. the Supreme Court of Tennessee, in the cases fendant before the commencement of the presof M'Nairy v. Bell, and Mulhovin v. Hannum, ent suit, there can be no doubt that it might 1 Yerger Rep. 502 and 2 Yerger Rep. 81, have been set up as a payment upon the note and the rule sustained and enforced upon the in question. And if the defendant would have same principles and course of reasoning upon been protected pro tanto, under a recovery had which the other cases referred to have been by virtue of the attachment, and could have placed. And no case in an American court has pleaded such recovery, in bar, the same princi. fallen under our notice, where a contrary ple would support a plea in abatement, of an doctrine has been asserted and maintained. attachment pending prior to the commencement And it is to be observed that most of the cases of the present suit. The attachment of the which have arisen in this country, where this debt, in such case, in the hands of the de. question has been drawn into discussion, were fendant, would fix it there in favor of the atupon promissory notes, where the place of pay. taching creditor, and the defendant could not ment was, of course, in the body of the note. afterwards pay it over to the plaintiff. The After such a uniform course of decisions for attaching creditor would, in such case, require at least thirty years, it would be inexpedient to a lien upon the debt, binding upon the defend change the rule, even if the grounds upon ant, and which the courts of all other governwhich it was originally established might be ments, if they recognize such proceedings at questionable; which, however, we do not mean all, could not fail to regard. If this doctrine to intimate. It is of the utmost importance, | be well founded, the priority of suit will dethat all rules relating to commercial law should termine the right. The rule must be reciprobe stable and uniform. They are adopted for cal; and where the suit in one court is compractical purposes, to regulate the course of menced prior to the institution of proceedings business in commercial transactions, and the under attachment in another court, such prorule here established is well calculated for the ceedings cannot arrest the suit; and the maxim convenience and safety of all parties.
qui prior est tempore, portior est jure, must The place of payment in a promissory note, govern the case. This is the doctrine of this or in an acceptance of a bill of exchange, is al. court in the case of Renner and Bussard v. ways matter of arrangement between the par- Marshall, 1 Wheat. 216, and also in the case ties for their mutual accommodation, and may of Beaston v. The Farmers' Bank of Maryland, be stipulated in any manner that may best suit 12 Peters, 102, and is in conformity with the their convenience. And when a note or bill is rule that prevails in other courts in this counmade payable at a bank, as is generally the try, as well as in the English courts; and is eg. case, it is well known that, according to the sential to the protection of the rights of the usual course of business, the note or bill is garnishee, and will avoid all collisions in the lodged at the bank for collection; and if the proceedings of different courts, having the maker or acceptor calls to take it up when it same subject matter before them. 5 Johns. falls due, it will be delivered to him, and the Rep. 100; 9 Johns. Rep. 221, and the cases business is closed. But should he not find his there cited. In the case now before the court, note or bill at the bank, he can deposit his mon- the suit was commenced prior to the institution ey to meet the note when presented, and should of proceedings under the attachinent. The he be afterwards prosecuted, he would be exon- plea, was, therefore, bad, and the demurrer erated from all costs and damages, upon proving properly sustained.
The remaining inquiry is, whether the judg. 1 certain papers Oled on which the motion was ment, by nil dicit, for the $675, was properly founded, which are on the fles of the court, is not given, after overruling the plea puis darien üles of the court become a part of the record by continuance. The argument at the bar was such certificate. that as the attachment went only to a part of diciary Act will not lie to a state court in a case in
A writ of error, under the 25th section of the Juthe debt, the case stood as to the residue upon which the proceedings of the court which the writ the original plea of payment. The facts dis- of error seeks to revise, appear from such a certif152*] closed in the plea, puis *darien contin cate, by the clerk of the State court uance, do not raise the question intended to be presented; for the defense set up in the plea of action, and leaves ne part unanswered. And In eo tot counts
N error to the Supreme Court of Ohio, Sci. it may well be questioned, whether such pleading ought to be sanctioned, even if the plea the Supreme Court of the State of Ohio by the
This was an action of ejectment, brought in puis darien continuance went only to a part of the cause of action. It would introduce great plaintiff in error against the defendant in error. confusion on the record in the state of the The declaration, common consent rule, and
plea of not guilty, are in the usual form, ac. pleadings.
It is laid down in Bacon's Abridgment, o cording to the practice in Ohio. Upon these Bac. Abr. by Gwillim, 377, that if after a plea pleadings the case was tried in the Supreme in bar, the defendant pleads a plea puis darien Court for the County of Scioto, and a general continuance, this is a waiver of his bar; and no ant Marsh. No bill of exceptions was prayed
verdict of not guilty was found for the defend. advantage shall be taken of anything in the for by either party to the charge of the court bar. And it is added that it seems dangerous to the jury, nor was the evidence given to the unless you be well advised, because, if that jury made a part of the record, by special vermatter be determined against you, it is a con.
dict, agreed statement of facts, by bill of exfession of the matter in issue. This rule was tion of 'the verdict, the plaintiff submitted a
ceptions, or any other form. After the rendi. adopted in Kimball v. Huntington, 10 Wendell
, motion for a new trial, and on the following 679. The court say the plea puis darien continuance waived all previous pleas, and on the day filed his reasons with the clerk of the
court. record, the cause of action was admitted to the
The court reserved the motion for decision same extent as if no other defense had been by the court in bank, and the motion was, urged than that contained in this plea.
in the case now before the court, the oath of after argument and consideration, overruled. the defendant taken in the proceedings on the title claimed by the plaintiff in the ejectment,
The reasons for a new trial exhibited the attachment, is made a part of the plea puis under the ordinance of Congress and acts of darien continuance. And he admits that he executed the note on which this suit is brought, Congress relative to lands in the territory northfor $4,880; that he had paid on the note west of the Ohio; and alleged, that by the con$372.34; and that the remainder of the note struction of those acts which was asserted by was due by him to the plaintiff. And if the the plaintiff, the land in controversy belonged $4,204 attached could not be deducted, the the statutes by the court on the trial of the
to the plaintiff; and by a misconstruction of whole debt, according to his own admission,
cause, the title of the defendant had been suowas due, except the $372.34, set up by him to
tained. have been paid; and the plaintiff remits upon
The motion stated that the court had refused the record $351.28, and the judgment will stand within a few dollars for the amount ad to charge the jury upon the matters exhibited mitted by the defendant to be due. And this by the plaintiff to sustain his title under the difference must arise from some error in the contended for in favor of the title set up by
acts of Congress, and upon the construction mere calculation, and may easily be corrected.
him. Other reasons for a new trial were also The judgment of the court below is accordingly affirmed with costs.
stated, founded on an allegation that the ver
dict was contrary to evidence, and that certain This cause came on to be heard on the tran- evidence was illegally admitted. script of the record from the District Court of The reasons filed by the plaintiff for a new the United States, for the Southern District of trial, are incorporated into the transcript of Alabama, and was argued by counsel; on con the record, which has been certified up to this sideration whereof, it is ordered and adjudged court. Appended to the record are copies of by this court that the judgment of the said Dis. the plaintiff's patent, copies of the surveyor's trict Court in this cause be, and the same is field-notes of certain surveys made for the hereby affirmed, with costs and damages at the United States; copies of maps and descriptions rate of six per cent. per annum.
of the land in controversy, "and of the (*134 surrounding district of country; and copies of
certain acts and ordinances of Congress, which 153') "LESSEE OF SAMUEL REED,
the clerk certifies are referred to in the plain. Plaintiff in Error,
tiff's fifth reason for a new trial, as the same
remain on the files of the court. WILLIAM MARSH, Defendant in Error.
Mr. Vinton, for the defendant in error,
moved to dismiss the cause for want of juris. What not part of record-writ of error. diction. The certificate of the clerk of the court that a
It was a case removed to this court from the motion was made for a new trial, and reasons and Supreme Court of Ohio, under the 25th section 10 L. ed.
of the Judiciary Act; and it was not before they have the right to revise, by writ of error, tho court on any of the principles which had been judgment of a State court. sustained and decided upon that section of the It appears from the record that an action of law.
ejectment for a certain tract of land was The only part of the proceedings in the case, brought by the plaintiff against the defendant, in the State court, on which the jurisdiction of and finally tried, and decided in the Supreme this court is asserted to rest, is the refusal of Court of the State, sitting for Scioto County. the court to grant a new trial, and for refusing | The declaration is in the usual form, to which certain instructions which were asked of the the plea of not guilty was entered; and upon court, upon the construction of acts of Congress the trial, the jury found a general verdict for in relation to lands on the north and west of the defendant, upon which the court entered the River Ohio. These instructions do not judgment in his favor. appear in the record of the cause, and the evi There was no bill of exception taken in the dence that they were before the court on the case; and according to the judiciary system esmotion for a new trial, is the certificate of the tablished in Ohio, a bill of exception could not clerk of the court. The clerk has certified at that time be regularly taken, when the trial that they remain on the files of the court. was had in the Supreme Court of the State. Does this certificate make them what he certi. That court consists of four judges, two of fies them to be, a part of the record ? Cer-whom are authorized to hold the court in the tainly not-nothing can be properly certified different counties, but at the close of each cir. as part of the record but what appears such by cuit, the four judges are required to meet in the record itself.
bank, at the seat of government, and decide all If a party is desirous to bring his case up for questions reserved for their consideration on revision, upon questions of law, the proper the circuit; and when the decision is made in course is to take a bill of exceptions, or have bank, each cause is certified to the county from an agreed case on the record.
which it was brought, and the judgment is there Questions analogous to this have been brought entered. before this court, and have also been decided In the case before us a new trial was moved in the courts of Massachusetts. Cited, Wil- for, and among other reasons filed in support liams v. Jarvis, 12 Wheaton, 188; Fisher v. of the motion, is the refusal of the court to Cockerell, 5 Peters, 253; M'Fadden v. Otis, 2 give certain instructions to the jury, which Massachusetts Reports; 13 Massachusetts Re. were requested by the counsel for the plaintiff ; ports, 50.
and we gather from the record, though not As to the cases in which this court will en very distinctly, that this motion was reserved tertain jurisdiction of cases under the 25th sec. and heard in bank, and there overruled. The tion of the Judiciary Act of 1789, cited, Crow- reasons assigned by the plaintiff for a new ell v. Randall, 10 Peters, 368, and the cases trial, and the title papers to which they refer, there referred to.
have been transmitted and certified to this Mr. Mason, against the motion, stated that if court by the clerk, together with the record of the matters certified by the clerk were not reg. the judgment. It is, however, unnecessary to ularly before the court, the plaintiff in error mention them particularly, because if the had no case for the consideration of this court. points set forth in the motion were raised at the
By the certificate of the clerk, it appeared trial and decided by the court, then it is very that in the motion for a new trial, certain acts clear that the construction of certain statutes of Congress were before the court; and the of the United States was drawn in question, title of the plaintiff rested upon their just con- and the decision in the State court was against struction,
the title claimed under them by the plaintiff. In the State of Ohio there was no law which But the difficulty is whether these facts are sufgave a writ of error to the Supreme Court of ficiently authenticated by the record. Can we the State; and no case can be brought from that receive the certificate of the clerk that certain court but in the manner in which this case is papers were offered in evidence, and that statepresented.
ment of counsel upon a motion for a new trial, Mr. Vinton, in reply, insisted that the record that certain instructions were refused by the did not show that the acts of Congress were be court, as sufficient evidence of the facts they fore the court on the trial of the cause, or that set forth; and proceed, upon that ground, to the court in their decision had done anything take jurisdiction and revise the judgment of which could give the Supreme Court of the the State court! We think not. In the case 155") United States jurisdiction of the *cause; of The Lessee of Fisher v. Cockrell, 5 Peters, an application for a new trial is an appeal to *254, the court said, "in cases at com. [*156 the discretion of the court, and the decision of mon law, the course of this court has been unithe court upon it is never the subject of a writ form not to consider any paper as a part of the of error.
record which is not made so by the pleadings, or by some opinion of the court referring to it.
This rule is common to all courts exercising ap. Mr. Chief Justice Taney delivered the opin- pellate jurisdiction, according to the course of ion of the court:
the common law. The appellate court cannot This case is brought before the court by a know what evidence was given to the jury, un. writ of error to the Supreme Court of the State less it is spread on the record in a proper legal of Ohio, sitting for the County of Scioto, un. manner. The unauthorized certificate of the der the 25th section of the Judiciary Act of clerk that any document was read, or any evi1789. A motion is now made to dismiss the dence given to the jury, cannot make that docwrit upon the ground that the case, as presented ument or that evidence a part of the record, so by the record, is not one in which this court as to bring it to the cognizance of this court."