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this court shall give to have a survey made may, out of, and is to be governed by the terms of his not be misunderstood by the officers whose note, and the place of payment can be of no more

importance in the one case than in the other. duty it will be to have the survey executed. It is of the utmost importance that all rules re.

The decree of the Superior Court of East lating to commercial law should be stable and uni. Florida is affirmed.

form. They are adopted for practical purposes, to regulate the course of commercial transactions.

When a note or bill is made payable at a particular This cause came on to be heard on the tran. bank, as is generally the case, it is well known that script of the record from the Superior Court according to the usual course of business, the note

or bill is lodged at the bank for collection; and it for the District of East Florida, and was ar- the maker or acceptor calls to take it up when it gued by counsel; on consideration whereof, it falls due, it w be delive to him, and the busi

But should he not find the pote or is adjudged and decreed by this court that the pess is closed.

bill at the bank, he can deposit his money to meet decree of the said Superior Court in this cause, the note when presented ; and should he be after: 80 far as it declares the claim of the petitioners wards prosecuted, he will be exonerated from all to be valid, be, and the same is hereby affirmed costs and damages, upon proving, such tender and

Or should the note or bill be made payain all respects; and that a survey be made of ble at some place other than a bank, and no deposit the lands contained in the said concession, ac- could be made, or he should choose to retain his cording to the terms thereof, for the number money in his own possession, an offer to pay the of acres, and at the places therein designated; against interest and costs, on bringing the money provided it does not interfere with the rights of into court. third parties. And it is further ordered by the

In actions on promissory notes against the makcourt that a mandate be issued to the surveyor against the maker, in the one case, and the acceptor

er, or on bills of exchange where the sult 18 of public lands, directing him to do and cause in the other, and the pote or bill is made payable to be done, all the acts and things enjoined on

at a specified time and place, It is not necessary to

aver in the declaration or prove on the trial that a him by law, and as required by the opinion and demand of payment was made in order to maintain decree of this court in this case; and that this the action. But if the maker or acceptor was at case be remanded to the said Superior Court the place at the time designated, and was ready for further proceedings to be had therein in fense to be pleaded and proved on his part. conformity to this decree, and the opinion of The jurisdiction of the District Court of the this court, which must be annexed to the man right of a plaintiff to prosecute his suit, having at

United States for the District of Alabama, and the date.

tached by the commencement of the suit in the Dis. trict Court, that right cannot be taken away or arrested by any proceedings in another court. An at

tachment of the debt by the process of a State

icourt, after the commencement of the sult in a 136'] *WILLIAM WALLACE, Plaintiff in court of the United States. cannot affect the right Error,

of the plaintiff to recover in the suit.

An attachment commenced and conducted to a v.

conclusion before the institution of a suit against

the debtor in a court of the United States, may be CORRY M'CONNELL, Defendant in Error. 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 Action on promissory note-pleading, puis da- such recovery in bar. So, too, an attachment pend rien continuance.

ing 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, An action was instituted on a promissory pote would fix it there in favor of the attaching creditagainst the drawer, by which the drawer promised ors, and the defendant could not afterwards pay it to pay at the office of discount and deposit of the over to the plaintiff. The attaching creditor would Bank of the United States at Nashville, three years in such a case, *acquire a lien on the debt (137 after date, four thousand and eighty dollars.

In binding on the defendant, and which the courts of the declaration which set out the note according to all other governments, if they recognize such proIts terms, and alleged the promise to pay according ceedings at all, would not fail to regard. The rule to the tenor of the note, there was no averment must be reciprocal ; and when the suit in one court that the note was presented at the bank, or demand is commenced prior to proceedings under attachof payment made there. The defendant pleaded ment in another court, such proceedings cannot payment and satisfaction of the note, and issue was arrest the suit. joined thereon. Afterwards, at the succeeding It seems that a plea of puis darien continuance is term, the defendant interposed a plea of puis darien considered as a waiver of all previous pleas, and continuance, stating that four thousand two bun- the cause of action is admitted to the same extent dred and four dollars, part of the amount of the as if no other defense had been urged than that note, bad been attached by B. and w. in a state contained in the plea. court of Alabama, under the attachment law of the State, and a judgment had been obtained against bim for four thousand two hundred and four dollars and costs, with a stay of proceedings until the N error to the District Court of the Unitas further proceedings in the case, which remains undetermined. The plaintiff demurred to this plea, and the Circuit Court sustained the demurrer; and The plaintiff in error, William Wallace, was Judgment was given for the plaintif for six hun sued in the District Court of Alabama, exer. dred and seventy-nine dollars, the residue of the cising the powers of a circuit court of the judgment for the whole amount of the pote. Held, United States, on the second day of April, that there was no error in the judgment of the Cir. 1836, by a capias issued out of that court and cuit Court.

returnable on the first Monday of May followThe acceptor of a bill of exchange stands in the same relation to the drawee as the maker of a note ing. The action was brought on a promissory does to the payee; and the acceptor is the principal note, under the seal of the defendant, for four debtor in the case of a bill, precisely like the maker thousand eight hundred and eighty dollars, of a note. The llability of the acceptor grows out dated May 10, 1832, and payable to the plain. of and is to be governed by the terms of his acceptance, and the liability of the maker of a note grows tiff or to his order, at the office of discount and

deposit of the Bank of the United States at NOTE.—That proof of demand is not necessary as Nashville, three years and two months after to maker of note or acceptor of bill, see note to 6 L. ed. U. S. 443.


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At the May Term, 1836, of the District | sand eight hundred and eighty dollars, on which Court, the plaintiff filed a declaration on the the said plaintiff in this suit'hath declared that note, in debt, alleging the nonpayment of the he did pay, on the said note to said M'Connell, note, although frequent demands had been on the 24th day of September, 1833, the sum made of the drawer. No demand was alleged of three hundred and seventy-two dollars thir. to have been made at the office of discount ty-four cents, and that the remainder of said and deposit of the Bank of the United States note was due by said Wallace to said M'Con. at Nashville.

nell, eta. And the said defendant further saith The defendant pleaded payment, on which that in the said attachment by said court at the issue was joined, and the case was continued. said June term thereof, it was ordered that the

At the succeeding term of the District Court, proceedings against said M'Connell be stayed the defendant filed the following plea: That as for six months, and that notice be given to the to the sum of forty-two hundred and four dol. said M'Connell of the pendency of said attachlars, part and parcel of the sum by the said ment, by letter, directed to New York; the plaintiff in said declaration demanded, he, the said McConnell being shown to be a resident of said plaintiff, ought not further to have and the State of New York. And the said defendmaintain his aforesaid action therefor, against ant, Wallace, further saith, that in the said at. him; because he saith, that after the said lasttachment, and upon the said writ of garnishcontinuance of this cause, that is to say, after ment, the said court at the said June Term, the term of this court held on the first Monday then sitting, did make the further order follow of May last and before the December Term ing, to wit: aforesaid, to wit, on the eighth day of June, in It appearing to the satisfaction of the court the year 1836, at Mobile, to wit, in the district that William Wallace has been duly summoned aforesaid, one William J. Blocker, John R. as a garnishee, and he having admitted an inBlocker, and Benjamin Horner, merchants, debtedness to said defendant, to an amount trading under the name of Horner, Blocker & greater than the amount sued for in the above Co., by William J. Blocker, one of the said entitled cause, it is considered by the court, Arm, in behalf of himself and his copartner, that said plaintiffs, do recover from said garcaused to be sued out a certain writ of original nishee, the sum of forty-two hundred and four attachment against the said Corry M'Connell, dollars, the amount sued for in said case, to. for the sum of forty-two hundred and four dologether with the cost thereof, and that all prolars; and which said writ was issued by Ben- ceedings against said garnishee be stayed until jamin Wilkins, a justice of the peace of Mobile the final disposition of said case; wherefore the County, on the said eighth day of June, in the said cause was, in said County court, at said year 1836, and was directed to the sheriff of June Term, continued by said court, as well Mobile County, and was made returnable to the against the said M'Connell as against the said County Court of Mobile County, which was Wallace, till the next term thereof, to be held held on the second Monday in June, 1836. in due course of law, that is to say, on the seco And the said defendant further avers that the ond Monday of February, in the year 1837. said plaintiffs in the said attachment, were at All which said proceedings in the said County the time of suing out the same, residents of the court, in which the said plea still remains State of Alabama; that the said Corry M'Con- pending and undetermined, are still in full nell was a non-resident, and citizen of the State force, and not reversed, vacated, or otherwise of New York, and that the said plaintiffs did set aside, as by the record and proceedings in comply with the requisites of the statute in said court, still remaining of record, will more 138*j such cases made *and provided, by giv- 1 *fully and at large appear; and that he, (*139 ing bond and security, and filed affidavit, the said defendant, is ready to verify; wherewhereby it is shown that the said justice and fore, he prays judgment, if the said plaintiffs the said County court had jurisdiction of the ought further to have or maintain their said acdaid attachment, and that the said County |tion therefor against him, this defendant, as to court could lawfully hear and determine the the sum of four thousand two hundred and

And the said defendant further saith four dollars, parcel of the sum by the said that in said orginal attachment, such proceed. plaintiffs above demanded, etc. ings were had that he, the said William Wal The plaintiff at the same term entered a delace, was on the said eighth day of June, 1836, murrer to this plea of puis darien continuance, summoned as a garnishee by the sheriff of Mo- and prayed the court to render judgment bile County, and required to appear before the against the defendant for six hundred and sev. said County court and answer, on oath, what enty-six dollars thirty cents, parcel of the debt he was indebted to said Corry M'Connell. of four thousand eight hundred and eighty dol. And the said William Wallace, defendant, lars, the amount of the note, which by the plea further saith that, in obedience to the said was wholly undefended; and as to the said plea summons of garnishment, he, the said William, of puis darien continuance, the plaintiff says did appear before the said County court of that the plea of the defendant is not sufficient Mobile, at the said term of the said County to bar him from maintaining his action on the court held on the second Monday in June, said note, etc. 1836, before the judge of said court then sit The court, on the pleadings, gave judgment ting, and was in said suit of attachment be as follows: "As to the said sum of four thou. tween the said Horner, Blocker & Co. plain. sand two hundred and five dollars, being argued tiffs, and Corry McConnell, defendant, ex- by counsel, it seems to the court that said plea, amined on oath, touching his indebtedness to as to the said sum of forty-two hundred and the said Corry McConnell; whereupon he did five dollars, and the allegations therein condeclare on oath that he did execute to the said tained, are not sufficient in law to bar the said M'Connell, the note for the sum of four thou- plaintiff from having and maintaining his afore


said action therefor against the said defend his responsibility. But as to the residue of the ant; whereupon, it is ordered by the court that note, he continued liable to the plaintiff in the the said demurrer be sustained; but as to the District Court, if liable at all. The District bum of six hundred and seventy-five dollars Court decided that the plea of the attachment thirty-nine cents, the residue of said plaintiff's was a waiver of the first plea. This was not debt, in his declaration mentioned, this day so; it could operate only, if it had any opera. came the plaintiff, by his attorney, and the tion, as to part of it. said defendant, being solemnly called, came not, The case of the defendant in error is put on but wholly made default, as to the said last- the ground that the attachment was no bar to mentioned sum, whereby the said plaintiff, the suit in the District Court of Alabama. therein against him remains altogether unde. This would be so if in the attachment case: the fended. It is therefore considered by the court garnishee could plead the existing action in the that the said Corry M'Connell, plaintiff, do re.

District Court. This he could not do. It was cover against the said William Wallace, defend not a plea to the attachment that a suit was ant, the said sum of four thousand eight hun pending for the debt attached, and this is the dred and eighty dollars and thirty-nine cents, law of Alabama, as it is in all the States in his debt aforesaid, and also the further sum of which attachment laws exist. By the customs three hundred and ninety-four dollars, the in- of London such a plea would be good, but not terest thereon, assessed by the clerk of this 80 here. court by way of damages, for the detention of By the attachment laws of Alabama, every the same, together with his cost in this cause; thing in the shape of goods or credits, whether the plaintiff remits to the defendant the sum of sued for or not, even judgments and money in three hundred and fifty-one dollars twenty- the hands of the sheriff, may be attached; and eight cents.”

the garnishee can only defend himself by showThe record of the District Court stated: “In ing that he had nothing in his hands, and owed this cause the court decided that the plea of nothing to the defendant in the attachment. puis darien continuance was a waiver of the No matter how he owed it, whether sued for previous plea pleaded by the defendant: there or not. Aiken's Digest, 37, sec. 15, 16, 19. was no default of the defendant, further than Nor can the defendant in the attachment his abandonment, under the decision of the suit complain. He has full notice of this procourt, of his first plea. In this case the de- ceeding, and may appear and dissolve the atfendant moved the court to stay proceedings tachment; and he has security for the restorain the said cause until the final decision of the tion of the property in a year and a day, should County Court of Mobile County, upon the at the plaintiff in the attachment have recovered tachment of Horner, Blocker & Co., which mo- improperly. tion was overruled."

In the case before the court, the plea of The defendant prosecuted this appeal. puis darien continuance *is said to have [*141

The case was argued by Mr. Rey for the overruled the plea of payment entered to the plaintiff in error, and by Mr. Crittenden for the plaintiff's declarations, and thus makes it apply defendant.

to the whole of the claim of the plaintiff; when, 140*) *For the plaintiff, it was contended, in fact, its application was for a sum less than

1. That the demurrer should have been over the amount of the note, leaving the balance, six ruled, the matters pleaded being sufficient un- hundred and seventy-five dollars thirty-nine der the attachment laws of Alabama.

cents, undefended. This is founded upon the 2. That the judgment, by nil dicit, as to the supposition that such a plea withdraws the residue of the debt, viz., the $675.39, not at whole defense originally pleaded. But this is tached, was erroneous; inasmuch as it was cov- not so; the plea has no ation but to the ered and defended by the first plea of payment sum stated in it, and in this case, the attachto the whole debt, which plea was not waived ment had seized upon four thousand two hunby the subsequent plea, which only went to dred and five dollars, leaving the residue of the part of the debt claimed in the action; parties note sued upon protected from a judgment of being allowed by the law and practice in Ala- the court on the original plea of payment. The bama to plead any number of pleas to the same case in 2 Wendell's Reports, 300, fully sustains cause of action.

this position. 3. That the declaration on the note does not 2. Do not the attachment laws of the States aver that payment of the note was demanded interpose a bar to a suit commenced before the at the office of discount and deposit of the attachment ? Bank of the United States at Nashville, where It is important that this question should be the same was payable.

considered, and the principle settled, and that Upon the first point, Mr. Key contended that the property of absent debtors shall be liable to the attachment in the State court of Alabama pay their creditors. Much of the credit which was a bar to further proceeding in the District an individual, who is a nonresident, obtains, is Court. If this be not so, the plaintiff in the often derived from the debts due to him at the court below will twice recover the amount of place or in the country in which the credit is his debt from the defendant-once in the Dis- given; as they are considered liable, under the trict Court, and again in the State court; as attachment laws of the States, to the payment his debt to the attaching creditor will be paid of his debts. Thus the credit operations of the ander the judgment of that court.

country are made safer, and commercial transThe plaintiff in error had answered to the actions are beneficially extended. attachment that he owed to M'Connell, the de- It seems to be considered by the District fendant in error, the amount of the debt Court of Alabama that the attachment in the elaimed by the plaintiff in the attachment; and State court could not operate after the comthis, by the attachment law of Alabama, fixed mencement of the suit on the note. But the

says: "A


only question to the original debtor under the As to the first question, it is insisted, on the attachment was, do you owe the money? And part of M'Connell, that neither the pendency of no state of things, such as a suit, or surety for an attachment nor condemnation under it, if the defendant in the attachment, could exempt the attachment be issued after the commencehim from liability for the amount in his hands. ment of his suit, can form any legal defense or

It is said, it is different in England: this is bar to that suit. And for authority on this 80 to some extent. By the attachment law, un-point, reference is made to 3 Wilson, 297-304; der the customs of London, a debt in suit cannot Brooks v. Smith, 1 Salkeld, 280; Savage's case, be attached. But this is not the law in the 1 Salkeld, 291; 5 Johns. Rep. 101; 5 Taunton, States of the United States. The attachment 558; 4 Durnford & East's Rep. 312; 16 Eng. law of England, under the customs of London, Com. Law Rep. 78 and 79. is peculiar in many of its features, although in As M'Connell's suit was brought long before some respects our laws are the same. Customs the attachment pleaded in bar of it, it follows, of London, 265–268. By that law, debts in therefore, that the decision of the court upon suit, debts on judgments, cannot be attached; the demurrer to that plea was correct. If the our laws give no such exemptions.

matter of the plea was available at all, it could It is a settled principle that the property of only have been pleaded in abatement.' i Chitabsent debtors is liable, by legislation, to the ty, 697. payment of their debts. This is a rule in As to the second question, we refer to Chitty's almost all the States of the Union, and it will Pleading, Vol. I., 697, etc. and the cases cited not be disturbed by the courts of the United in the note thereto; and also to the case of KenStates. Cited, Aiken's Digest of the laws of ner and Bussard v. Marshall, 1 Wheaton, 215, Alabama, 37; Serg nt on Attachment, 161; In the case referred to in Chitty, 2 Dallas, 279; 2 Yeates, 192; 9 Johns. Rep. 221; plea puis darien continuance, is not a departure 20 Johns. Rep. 229-231, 239, 288; 4 Cowen, from, but is a waiver of the first plea, and no

1 Peters’s C. C. R. 245; 8 Cowen, 311, advantage *can afterwards be taken of (*143 315; 1 Harris & M'Henry, 236; 2 Harris & it; nor can even the plaintiff afterwards proceed M'Henry, 466; 1 Alabama Rep. 129; 12 Mar. thereon." tin's Rep. 68.

Upon the whole matter, therefore, it is conUpon these authorities, it is immaterial tended that the judgment ought to be affirmed. whether the attachment was commenced before or after the suit was instituted.

Mr. Justice Thompson delivered the opinion 3. It is contended that the plea of puis darien of the court: 148") *continuance is a waiver of all preced This case comes up on a writ of error from ing pleas.

the District Court of the United States for the This may be admitted so far as the plea goes, Southern District of Alabama. but it does not extend beyond the matter of the The action in the court below was founded plea; nor is it an abandonment of a defense upon a note, which, although under seal, is which is not affected by the plea. Where it is considered in Tennessee a promissory note, and pleaded to a part of the bill sued on, and not is in the words following: to the whole amount of it, the original plea “Three years and two months after date, I stands for the residue unaffected by the special promise to pay Corry M'Connell or order, at plea. This must be so, or the grossest injustice the office of discount and deposit of the Bank might arise, as the defendant, who should de- of the United States, at Nashville, four thousire to avail himself of a just defense to a part sand eight hundred and eighty dollars ninetyof a debt claimed from him, must give up a de nine cents, value received." The declaration fense which would be equally available against sets out this note according to its terms, and another part of it.

alleges the promise to pay at the office of disThe authorities do not sustain the position count and deposit of the Bank of the United upon which the decision of the District Court States at Nashville, without averring that the was made. When the plea of puis darien con note was presented at the bank or demand of tinuance goes to a part only of the claim, it has payment made there. The defendant pleaded no extent to any or other further part. 1 Ala- payment and satisfaction of the note; and issue bama Rep. 129, 2 Wendell, 300.

being joined thereupon, the cause was continued The last objection is that there is no aver until the next term thereafter; at which time ment of a demand at the bank of deposit at the defendant interposed a plea puis darien Nashville, and no demand is stated to have continuance, alleging that the plaintiff, as to been made there.

the sum of four thousand two hundred and four Can an action be maintained without proving dollars, part and parcel of the sum demanded that the money was not at the bank of deposit in the declaration, ought not further to have in Nashville, to pay it, and that a demand was and maintain his action therefor against him, made there in conformity with the note ? It because that sum had been attached by Blocker has been decided that as to the indorser on a & Co. by proceedings commenced by them note of this description, it is necessary to prove against the plaintiff in this cause, under the at. such a demand. Smith v. The Bank of the tachment law of Alabama, in which he was United States, 11 Wheat. 171. The same prin- summoned as garnishee; and setting out the ciple should apply in an action against the proceedings against him according to the redrawer.

quirements of that law, and under which he Mr. Crittenden, for the defendant, said there was examined on oath; and did declare that he are but two questions in the case.

executed the note to the said M'Connell, the 1. Whether the plea puis darien continuance plaintiff in this cause, as set out in the declarais a good bar to the action.

tion, that he had paid on the note three hun. 2. Whether that plea was a waiver of the Idred and seventy-two dollars and thirty-four first plea of payment.

cents, and that the remainder of the said note

was due by him to said M'Connell. And the acceptor, must aver presentment at the place, plea further sets out that under the proceedings and the averment must be proved. But it is on the attachment, the court had given judg. there said a contrary opinion has been enter. ment against him for four thousand two hun. tained by courts in this country; that a demand dred and four dollars and costs; but with a on the maker of a note, or the acceptor of a stay of all further proceedings until the further bill payable at a specified place, need not be disposition of the case, and which remains yet averred in the declaration or proved on the undetermined.

trial, that it is not a condition precedent to the To this plea the plaintiff demurred, and plaintiff's right of recovery. As matter of practhe court sustained the demurrer, and gave tice, application will generally be made at the judgment for the plaintiff for six hundred and place appointed, if it is believed that funds have seventy-five dollars and thirty-nine cents, the been there placed to meet the note or bill. But residue of the plaintiff's debt in his declaration if the maker or acceptor has sustained any loss mentioned, by default; and thereupon gave a by. the omission of the holder to make such apfinal judgment for the plaintiff for the full plication for payment at the place appointed, it amount of the note, four thousand eight hun is matter of defense to set up by plea and proof. dred and eighty dollars, the debt aforesaid, and But it is added, as this question does not necthree hundred and ninety-four dollars, the in essarily arise in this case, we do not mean to be terest assessed by the clerk, together with his understood as expressing any decided opinion cost. And the plaintiff remits upon the record upon it, although we are strongly "in. 1'145 the sum of three hundred and fifty-one dollars clined to think that, as against the maker of a 144*) *and twenty-eight cents; and the ques. note or the acceptor of a bill, no averment or tions arising upon this record have been made proof of demand of payment at the place and argued under the following objections: designated would be necessary. The question

1. That the declaration is bad for want of an now before the court cannot, certainly, be con. averment that the note was presented, and pay. sidered as decided by the case of The Bank of ment demanded at the office of discount and the United States v. Smith. But it cannot be deposit of the Bank of the United States at viewed as the mere obiter opinion of the judge Nashville.

who delivered the judgment of the court. The 2. That the matters pleaded of the proceed attention of the court was drawn to the quesings under the attachment laws of Alabamation now before the court, and the remarks were sufficient to bar the action, as to the made upon it, and the authorities referred to, amount of the sum so attached, and that the show that this court was fully apprised of the demurrer ought therefore to have been over conflicting opinions of the English courts on ruled.

the question, and that opinions contrary to that 3. That the judgment by nil dicit, for the six of the House of Lords, in the case of Rowe v. hundred and seventy-five dollars and thirty-nine Young, had been entertained by some of the cents, was erroneous.

courts in this country: and under this view of The question raised as to the sufficiency of the question, the court say they are strongly the declaration in a case where the suit is by inclined to adopt the American decisions. As the payee against the maker of a promissory the precise question is now presented by this nete, never has received the direct decision of record, it becomes necessary to dispose of it. this court. In the case of The Bank of the It is not deemed necessary to go into a criticUnited States v. Smith, 11 Wheat. 172, the note al examination of the English authorities upon upon which the action was founded was made this point; a reference to the case in the House payable at the office of discount and deposit of Lords, which was decided in the year 1820, of the Bank of the United States in the city of shows the great diversity of opinion entertained Washington; and the suit was against the in- by the English judges upon this question. It dorser, and the question turned upon the suffi- was, however, decided that if a bill of exchange ciency of the averment in the declaration of a is accepted, payable at a particular place, the demand of payment of the maker. And the declaration in an action on such bill against the court said, when in the body of a note the acceptor, must aver presentment at that place, place of payment is designated, the indorser and the averment must be proved. The Lord has a right to presume that the maker has pro: Chancellor, in stating the question, said this vided funds at such place to pay the note, and was a very fit question to be brought before has a right to require the holder to apply at such the House of Lords, because the state of the place for payment. In the opinion delivered in law, as actually administered in the courts, is that case, the question now presented in the such that it would be infinitely better to settle case before us is stated; and it said, whether it in any way than to permit so controversial a where the suit is against the maker of a prom- state to exist any longer. That the Court of issory note, or the acceptor of a bill of ex. King's Bench has been of late years in the habit change, payable at a particular place, it is nec. of holding that such an acceptance as this is a essary to aver a demand of payment at such general acceptance, and that it is not necessary place, and upon the trial to prove such demand, to notice it as such in the declaration, or to is a question upon which conflicting opinions prove presentment, but that it must be consid. have been entertained in the courts in West- ered as matter of defense; and that the defend. minster Hall. But that the question in such ant must state himself ready to pay at the case may, perhaps, be considered at rest in Eng. place, and bring the money into court, and so land by the decision of the late case of Rowe bar the action by proving the truth of that 5. Young, 2 Brod. & Bing. 165, in the House of defense. On the contrary, the Court of ComLords, where it was held that if a bill of ex mon Pleas was in the habit of holding that an change be accepted, payable at a particular acceptance like this was a qualified acceptance, place, the declaration on such bill, against the land that the contract of the acceptor was to

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