this court shall give to have a survey made may not be misunderstood by the officers whose duty it will be to have the survey executed. The decree of the Superior Court of East Florida is affirmed.

This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was ar gued by counsel; on consideration whereof, it is adjudged and decreed by this court that the decree of the said Superior Court in this cause, so far as it declares the claim of the petitioners to be valid, be, and the same is hereby affirmed in all respects; and that a survey be made of the lands contained in the said concession, according to the terms thereof, for the number of acres, and at the places therein designated; provided it does not interfere with the rights of third parties. And it is further ordered by the court that a mandate be issued to the surveyor of public lands, directing him to do and cause to be done, all the acts and things enjoined on him by law, and as required by the opinion and decree of this court in this case; and that this case be remanded to the said Superior Court for further proceedings to be had therein in conformity to this decree, and the opinion of this court, which must be annexed to the mandate.

out of, and is to be governed by the terms of his note, and the place of payment can be of no more importance in the one case than in the other. It is of the utmost importance that all rules relating to commercial law should be stable and uniform. They are adopted for practical purposes, to regulate the course of commercial transactions. When a note or bill is made payable at a particular bank, as is generally the case, it is well known that according to the usual course of business, the note or bill is lodged at the bank for collection; and if the maker or acceptor calls to take it up when it falls due, it will be delivered to him, and the busibill at the bank, he can deposit his money to meet But should he not find the note or ness is closed. the note when presented; and should he be afterwards prosecuted, he will be exonerated from all costs and damages, upon proving such tender and deposit. Or should the note or bill be made payable at some place other than a bank, and no deposit could be made, or he should choose to retain his money in his own possession, an offer to pay the money at the time and place would protect him against interest and costs, on bringing the money into court.

In actions on promissory notes against the maker, or on bills of exchange where the sult is against the maker, in the one case, and the acceptor in the other, and the note or bill is made payable at a specified time and place, it is not necessary to aver in the declaration or prove on the trial that a demand of payment was made in order to maintain the action. But if the maker or acceptor was at the place at the time designated, and was ready and offered to pay the money, it was matter of defense to be pleaded and proved on his part.

The jurisdiction of the District Court of the United States for the District of Alabama, and the right of a plaintiff to prosecute his suit, having attached by the commencement of the suit in the District Court, that right cannot be taken away or arrested by any proceedings in another court. An attachment of the debt by the process of a State court, after the commencement of the sult in a court of the United States, cannot affect the right of the plaintiff to recover in the suit.

An attachment commenced and conducted to a conclusion before the institution of a suit against the debtor in a court of the United States, may be set up as a defense to the suit; and the defendant would be prohibited pro tanto under a recovery had by virtue of the attachment, and could plead

rien continuance.

An action was instituted on a promissory note against the drawer, by which the drawer promised to pay at the office of discount and deposit of the Bank of the United States at Nashville, three years after date, four thousand and eighty dollars. In the declaration which set out the note according to its terms, and alleged the promise to pay according to the tenor of the note, there was no averment that the note was presented at the bank, or demand of payment made there. The defendant pleaded payment and satisfaction of the note, and issue was joined thereon. Afterwards, at the succeeding term, the defendant interposed a plea of puis darien continuance, stating that four thousand two hundred and four dollars, part of the amount of the note, had been attached by B. and W. in a State court of Alabama, under the attachment law of the State, and a judgment had been obtained against him for four thousand two hundred and four dollars and costs, with a stay of proceedings until the further proceedings in the case, which remains undetermined. The plaintiff demurred to this plea. and the Circuit Court sustained the demurrer; and judgment was given for the plaintiff for six hundred and seventy-nine dollars, the residue of the note beyond the amount attached, and a final Judgment for the whole amount of the note. Held, that there was no error in the judgment of the Circuit Court.

The acceptor of a bill of exchange stands in the same relation to the drawee as the maker of a note does to the payee; and the acceptor is the principal debtor in the case of a bill, precisely like the maker of a note. The liability of the acceptor grows out of and is to be governed by the terms of his acceptance, and the liability of the maker of a note grows

NOTE. That proof of demand is not necessary as to maker of note or acceptor of bill, see note to

6 L. ed. U. S. 443.

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, would fix it there in favor of the attaching creditors, and the defendant could not afterwards pay it over to the plaintiff. The attaching creditor would in such a case, acquire a lien on the debt [*137 binding on the defendant, and which the courts of all other governments, if they recognize such proceedings at all, would not fail to regard. The rule must be reciprocal; and when the sult in one court is commenced prior to proceedings under attachment in another court, such proceedings cannot arrest the suit.

It seems that a plea of puis darien continuance is considered as a waiver of all previous pleas, and the cause of action is admitted to the same extent as if no other defense had been urged than that contained in the plea.

N error to the District Court of the Unite

The plaintiff in error, William Wallace, was sued in the District Court of Alabama, exercising the powers of a circuit court of the United States, on the second day of April, 1836, by a capias issued out of that court and returnable on the first Monday of May following. The action was brought on a promissory note, under the seal of the defendant, for four thousand eight hundred and eighty dollars, dated May 10, 1832, and payable to the plaintiff or to his order, at the office of discount and deposit of the Bank of the United States at Nashville, three years and two months after

date.

The record of the District Court stated: "In this cause the court decided that the plea of puis darien continuance was a waiver of the previous plea pleaded by the defendant: there was no default of the defendant, further than his abandonment, under the decision of the court, of his first plea. In this case the defendant moved the court to stay proceedings in the said cause until the final decision of the County Court of Mobile County, upon the attachment of Horner, Blocker & Co., which motion was overruled."

The defendant prosecuted this appeal. The case was argued by Mr. Key for the plaintiff in error, and by Mr. Crittenden for the defendant.

140] For the plaintiff, it was contended, 1. That the demurrer should have been overruled, the matters pleaded being sufficient under the attachment laws of Alabama.

2. That the judgment, by nil dicit, as to the residue of the debt, viz., the $675.39, not at tached, was erroneous; inasmuch as it was covered and defended by the first plea of payment to the whole debt, which plea was not waived by the subsequent plea, which only went to part of the debt claimed in the action; parties being allowed by the law and practice in Alabama to plead any number of pleas to the same cause of action.

3. That the declaration on the note does not aver that payment of the note was demanded at the office of discount and deposit of the Bank of the United States at Nashville, where the same was payable.

Upon the first point, Mr. Key contended that the attachment in the State court of Alabama was a bar to further proceeding in the District Court. If this be not so, the plaintiff in the court below will twice recover the amount of his debt from the defendant-once in the District Court, and again in the State court; as his debt to the attaching creditor will be paid ander the judgment of that court.

The plaintiff in error had answered to the attachment that he owed to M'Connell, the defendant in error, the amount of the debt claimed by the plaintiff in the attachment; and this, by the attachment law of Alabama, fixed

The case of the defendant in error is put on the ground that the attachment was no bar to the suit in the District Court of Alabama. This would be so if in the attachment case the garnishee could plead the existing action in the District Court. This he could not do. It was not a plea to the attachment that a suit was pending for the debt attached, and this is the law of Alabama, as it is in all the States in which attachment laws exist. By the customs of London such a plea would be good, but not so here.

By the attachment laws of Alabama, every thing in the shape of goods or credits, whether sued for or not, even judgments and money in the hands of the sheriff, may be attached; and the garnishee can only defend himself by showing that he had nothing in his hands, and owed nothing to the defendant in the attachment. No matter how he owed it, whether sued for or not. Aiken's Digest, 37, sec. 15, 16, 19.

Nor can the defendant in the attachment suit complain. He has full notice of this proceeding, and may appear and dissolve the attachment; and he has security for the restoration of the property in a year and a day, should the plaintiff in the attachment have recovered improperly.

In the case before the court, the plea of puis darien continuance is said to have [*141 overruled the plea of payment entered to the plaintiff's declarations, and thus makes it apply to the whole of the claim of the plaintiff; when, in fact, its application was for a sum less than the amount of the note, leaving the balance, six hundred and seventy-five dollars thirty-nine cents, undefended. This is founded upon the supposition that such a plea withdraws the whole defense originally pleaded. But this is not so; the plea has no operation but to the sum stated in it, and in this case, the attachment had seized upon four thousand two hundred and five dollars, leaving the residue of the note sued upon protected from a judgment of the court on the original plea of payment. The case in 2 Wendell's Reports, 300, fully sustains this position.

2. Do not the attachment laws of the States interpose a bar to a suit commenced before the attachment?

It is important that this question should be considered, and the principle settled, and that the property of absent debtors shall be liable to pay their creditors. Much of the credit which an individual, who is a nonresident, obtains, is often derived from the debts due to him at the place or in the country in which the credit is given; as they are considered liable, under the attachment laws of the States, to the payment of his debts. Thus the credit operations of the country are made safer, and commercial transactions are beneficially extended.

It seems to be considered by the District Court of Alabama that the attachment in the State court could not operate after the commencement of the suit on the note. But the

only question to the original debtor under the attachment was, do you owe the money? And no state of things, such as a suit, or surety for the defendant in the attachment, could exempt him from liability for the amount in his hands. It is said, it is different in England: this is so to some extent. By the attachment law, under the customs of London, a debt in suit cannot be attached. But this is not the law in the States of the United States. The attachment law of England, under the customs of London, is peculiar in many of its features, although in some respects our laws are the same. Customs of London, 265-268. By that law, debts in suit, debts on judgments, cannot be attached; our laws give no such exemptions.

It is a settled principle that the property of absent debtors is liable, by legislation, to the payment of their debts. This is a rule in almost all the States of the Union, and it will not be disturbed by the courts of the United States. Cited, Aiken's Digest of the laws of Alabama, 37; Sergeant on Attachment, 161; 2 Dallas, 279; 2 Yeates, 192; 9 Johns. Rep. 221; 20 Johns. Rep. 229-231, 239, 268; 4 Cowen, 521; 1 Peters's C. C. R. 245; 8 Cowen, 311, 315; 1 Harris & M'Henry, 236; 2 Harris & M'Henry, 466; 1 Alabama Rep. 129; 12 Martin's Rep. 68.

Upon these authorities, it is immaterial whether the attachment was commenced before or after the suit was instituted.

3. It is contended that the plea of puis darien 142*] *continuance is a waiver of all preceding pleas.

This may be admitted so far as the plea goes, but it does not extend beyond the matter of the plea; nor is it an abandonment of a defense which is not affected by the plea. Where it is pleaded to a part of the bill sued on, and not to the whole amount of it, the original plea stands for the residue unaffected by the special plea. This must be so, or the grossest injustice might arise, as the defendant, who should desire to avail himself of a just defense to a part of a debt claimed from him, must give up a defense which would be equally available against another part of it.

As to the first question, it is insisted, on the part of M'Connell, that neither the pendency of an attachment nor condemnation under it, if the attachment be issued after the commencement of his suit, can form any legal defense or bar to that suit. And for authority on this point, reference is made to 3 Wilson, 297-304; Brooks v. Smith, 1 Salkeld, 280; Savage's case, 1 Salkeld, 291; 5 Johns. Rep. 101; 5 Taunton, 558; 4 Durnford & East's Rep. 312; 16 Eng. Com. Law Rep. 78 and 79.

As M'Connell's suit was brought long before the attachment pleaded in bar of it, it follows, therefore, that the decision of the court upon the demurrer to that plea was correct. If the matter of the plea was available at all, it could only have been pleaded in abatement. 1 Chitty, 697.

As to the second question, we refer to Chitty's Pleading, Vol. I., 697, etc. and the cases cited in the note thereto; and also to the case of Kenner and Bussard v. Marshall, 1 Wheaton, 215, In the case referred to in Chitty, he says: "A plea puis darien continuance, is not a departure from, but is a waiver of the first plea, and no advantage *can afterwards be taken of [*143 it; nor can even the plaintiff afterwards proceed thereon."

Upon the whole matter, therefore, it is contended that the judgment ought to be affirmed.

Mr. Justice Thompson delivered the opinion of the court:

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 deposit of the Bank of the United States, at Nashville, four thousand eight hundred and eighty dollars ninetynine cents, value received." The declaration sets out this note according to its terms, and alleges the promise to pay at the office of discount and deposit of the Bank of the United States at Nashville, without averring that the note was presented at the bank or demand of payment made there. The defendant pleaded

The last objection is that there is no averment of a demand at the bank of deposit at Nashville, and no demand is stated to have been made there.

Can an action be maintained without proving that the money was not at the bank of deposit in Nashville, to pay it, and that a demand was made there in conformity with the note? It has been decided that as to the indorser on a note of this description, it is necessary to prove such a demand. Smith v. The Bank of the United States, 11 Wheat. 171. The same principle should apply in an action against the drawer.

Mr. Crittenden, for the defendant, said there are but two questions in the case.

1. Whether the plea puis darien continuance is a good bar to the action.

2. Whether that plea was a waiver of the first plea of payment.

being joined thereupon, the cause was continued until the next term thereafter; at which time the defendant interposed a plea puis darien continuance, alleging that the plaintiff, as to the sum of four thousand two hundred and four dollars, part and parcel of the sum demanded in the declaration, ought not further to have and maintain his action therefor against him, because that sum had been attached by Blocker & Co. by proceedings commenced by them against the plaintiff in this cause, under the attachment law of Alabama, in which he was summoned as garnishee; and setting out the proceedings against him according to the requirements of that law, and under which he was examined on oath; and did declare that he executed the note to the said 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