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.

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, 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 148*] footing with respect to a demand of payment at the place designated. And in the case of Wolcott v. 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 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 the 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 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, 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

*The case of Watkins v. Crouch & Co. [*149 in the Court of Appeals of Virginia, 5 Leigh, 522, was a suit against the maker and indorser, jointly, as in 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 indorser: 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 The 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 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 a 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. 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 dec

laration mentioned, and avers that the plain- | tiff 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.

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 of this rule to [*151 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

So, also, in the State of New Jersey the same rule is adopted. In the case of Weed v. Houten, 4 Halst. N. J. Rep. 189, the Chief Justice says: "The question is whether in an action 150*] 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 pre-hazard the entire loss of his whole debt. sentment of the note and demand of payment by the holder of that place, at the maturity of the note. And upon this question he says, I have no hesitation in expressing my entire con. currence in the American decisions, so far as is necessary for the present occasion; that a special averment or 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 v. Bell, and Mulhovin v. 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

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 defend ant, 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, portior est jure, must govern the case. This is the doctrine of this court in the case of Renner and Bussard v. Marshall, 1 Wheat. 216, and also in the case of Beaston v. 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 Johns. Rep. 100; 9 Johns. 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 dis152*] closed in the plea, puis *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. Abr. 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 con

fession of the matter in issue. This rule was

adopted in Kimball v. Huntington, 10 Wendell, 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 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 per cent. per annum.

WILLIAM MARSH, Defendant in Error.
What not part of record-writ of error.

The certificate of the clerk of the court that a motion was made for a new trial, and reasons and

certain papers filed on which the motion was founded, which are on the files of the court, a not files of the court become a part of the record by a part of the record; nor do the reasons on the such certificate.

diciary Act will not lie to a State court in a case in A writ of error, under the 25th section of the Juwhich the proceedings of the court which the writ of error seeks to revise, appear from such a certificate, by the clerk of the State court.

IN

N error to the Supreme Court of Ohio, Scioto County.

the Supreme Court of the State of Ohio by the This was an action of ejectment, brought in plaintiff in error against the defendant in error. plea of not guilty, are in the usual form, acThe declaration, common consent rule, and cording to the practice in Ohio. Upon these Court for the County of Scioto, and a general pleadings the case was tried in the Supreme verdict of not guilty was found for the defendfor by either party to the charge of the court ant Marsh. No bill of exceptions was prayed to the jury, nor was the evidence given to the jury made a part of the record, by special verdict, agreed statement of facts, by bill of exceptions, or any other form. After the rendi. motion for a new trial, and on the following tion of the verdict, the plaintiff submitted a day filed his reasons with the clerk of the

court.

The court reserved the motion for decision

by the court in bank, and the motion was, after argument and consideration, overruled. title claimed by the plaintiff in the ejectment, under the ordinance of Congress and acts of west of the Ohio; and alleged, that by the conCongress relative to lands in the territory northstruction of those acts which was asserted by the plaintiff, the land in controversy belonged to the plaintiff; and by a misconstruction of the statutes by the court on the trial of the cause, the title of the defendant had been sustained.

The reasons for a new trial exhibited the

The motion stated that the court had refused to charge the jury upon the matters exhibited by the plaintiff to sustain his title under the contended for in favor of the title set up by acts of Congress, and upon the construction him. Other reasons for a new trial were also stated, founded on an allegation that the verdict was contrary to evidence, and that certain evidence was illegally admitted.

The reasons filed by the plaintiff for a new trial, are incorporated into the transcript of the record, which has been certified up to this court. Appended to the record are copies of the plaintiff's patent, copies of the surveyor's field-notes of certain surveys made for the United States; copies of maps and descriptions of the land in controversy, and of the [*154 surrounding district of country; and copies of certain acts and ordinances of Congress, which the clerk certifies are referred to in the plaintiff's fifth reason for a new trial, as the same remain on the files of the court.

Mr. Vinton, for the defendant in error, moved to dismiss the cause for want of jurisdiction.

It was a case removed to this court from the Supreme Court of Ohio, under the 25th section

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