author: Mr. Justice Thompson

text:
    William Wallace, Plaintiff in Error, vs. Corry M'Connell, Defendant in Error.
    An action was instituted oh a promissory note against the drawer, by which the drawer promised to.pay at the oiHqe of discount and deposite 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 toe tenor of the note,' there was no averment that the note yras presented at the bank, •or demand of payment made there. The defendant pleaded payment and satisfaction of site note, and issue was joined toereóm Afterwards, at toe succeeding term, the defendiht interposed a plea of puis darien continuance, stating, that tour 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 á stay of proceedings until the further proceedings in the case; which remains pndeternSned. lire plaintiff demurred to this plea, and the Circuit Court sustained the demurrer; and judgment was given for toe 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 toe note. Held, that there was ho érror in the judgment of the Circuit Court.
    The aoceptor 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 toe acceptor grows.out of and is to be governed by the terms of his acceptance; and toe liability of the maker of a note grows out of, and is to be governed by the terms of his note; and toe place of payment can be of no more importance-in the one case than in toe other.
    It i^ of toe 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 toe 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 wilt be delivered to him,tafid toe business is closed. But should he Hot ' find the note or bill at too bank, he can deposite his money to meet the note when presented fand should he be afterwards prosecuted, he will be exonerated-from all costs' and damages, upon, proving such tender and deposite. Or should the note or bill be made payable at some place other toan a bank, and no deposite 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 oil promissory notes against the maker, or on bill's of exchange where the suit is - against the maker, in the one case, and toe acceptor in the other, and the note of 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 actibnl 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 defence to be pleaded and proved on his part.
    The jurisdiction-of toe District Court of the United States for the district of Alabama-, and toe right of a plaintiff to prose.cute his suit, having attached by the commencement oft toe suit in the District Court, that right .cannot be taken away or arrested by any proceedings in another Court. An attachment of toe debt by toe process of a state Court, after toe commencement of the suit in.a Court of the United States, cannot affect the right of .toe 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 defence to the suit; and toe defendant would.be prohibited pro-tan to under a recovery had by virtue of the attachment, and could plead such-recovery in bar. So, too, an attachment pending, in a state Court, prior to toe commencement of a quit in toe Court of the United States, may be pleaded in abatement. The attachment of toe debt in such case in the hands' of toq defendant, would fix ittoere in favour of the attaching creditors; and toe defendant could„ not afterwards pay it over to toe plaintiff The attaching creditor would in such a case; acquir^a lien on the debt binding on the defendant, and which therCourts of all other governments, if they recognise such proceedings at all, would not fail to regard. The rule must be reciprocal; and when the suit in one Court ig 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 óf all previous pleas; and the cause of action is admitted to the same extent as if- no other defence had been urged than that contained in the plea.
    IN error to the District Court of the United States for the southern district of Alabama.
    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 Í0, i832, and payable to. the plaintiff or to his order, at the office of discount and deposite of the Bank of the United States, at Nashville, three years and two months after date.
    At the May term, 1836, of the District Court, the plaintiff filed a declaration oh the note, in debt, alleging the non-payment of the note,' although frequent demands had been made of the drawer. No demand was alleged tó have been made at the office of discount and deposite of the Bank of the United States, at Nashvüle.
    The defendant pleaded payment, on which issue was joined, and the case was continued.
    At the succeeding term of the District Court, the defendant filed the following plea: That as to the sum of forty-two hundred and four dollars, part and.parcel of the sum by the said plaintiff in said declaration demanded, he, the said plaintiff, ought not further to have and. • maintain his aforesaid action therefore against him; because he Saith,-that after the said last-continuance of this cause, that is to say,, after the term of this-Court held on the first Monday of May last, and before the Decehiber term aforesaid, to wit, on the eighth day of June, in the year. 1836, at Mobile, to wit, in the district aforesaid, one William J. Blocker, John R, Blocker, and Benjamin Horner, merchants, trading'under the name of Horner, Blocker and Co. by Wüliam J. Blocker one of the said firm, in behalf of himself and hia copartner, caused to be sued out a certain writ of original attachment againát the said Corry M‘Connell, for the sum of forty-two hundred and four dollars; and which said writ was issued by Benjamin Wilkins, a justice of the peace of Mobile county, on the said eighth day of June, in the year 1836, and was directed to the sheriff of Mobile county, and was made returnable to the county Court of Mobile county, which was held bn the second Monday in June, 1836, And the said defendant further avers, that the said plaintiffs in tlje said attachment, were at the time of suing out the same, residents of the state of Alabama; that the said Corry M‘Connell was a nonresident, and citizen of the state óf New York, and that the said plaintiffs did comply with the requisites-of the statute, in such cases made and provided,t by giving bond and security, and filed affidavit, whereby it is shown that the said justice'and the said county Court had jurisdiction of the said attachment, and that the said county Court could lawfully hear and determine the same. And the said defendant further saith, that in said original attachment, such proceedings were had; that he, the said William Wallace was on the said eighth day of June, 1836, summoned as a garnishee by the sheriff of Mobile county, and required to appear before the said county Court, and answer, on oath, what he wag. indebted to said Corry M'Connell. And the said William Wallace, defendant, further saith, that, in obedience to the said summons of garnishment, he, the said William, did appear before the said county Court of Mobile, at the said term of the said county Court held on the second Monday in June, 1836, before the judge of said Court then sitting, and was in said suit of attachment between the said Horner, Blocker and Co., plaintiffs, and Corry M'Connell, defendant, examined on oath, touching his indebtedness to the said Corry M'Connell; whereupon he did declare on oath, that he did execute to the said M'Connell, the note for the sum of four thousand eight hundred and eighty dollars, on which' the said plaintiff in this shit hath declared, that he did pay, on the said note to said' M'Connell, on the ’24th day of September, 1833, the sum of three hundred and seventy-two dollars thirty-four' cents, and that the remainder of said note was due by said Wallace to Said M'Connell, &c. And the said defendant further saith, that in the said attachment by said Court, at the said June term thereof, it was ordered that the proceedings against said M'Connell be stayed for six months, arid that notice be given to the said M'Connell of the pendency of said attachment, by letter, directed to New York.; the said M'Connell being shown to be a resident of the stat.e of New York. And the said defendant, Wallace, further saith, that in the said attachment, and upon the said writ of garnishment, the .said Courtat the said June term, then sitting, did make the further' order-following, to wit:
    It appearing, to the satisfaction of the Court, that William Wallace has been duly summoned as a garnishee, and he having admitted an indebtedness to said defendant, to an amount greater than the amount sued for in the above entitled cause, it is considered by the Court, that said plaintiffs do recover from said garnishee, the sum of forty-two'hundred and four dollars, the amount sued for in said case, together with the cost thereof, and that all proceedings against said garnishee be stayed until the final disposition of said case; wherefore the said cause was, in said county Court, at said June term, continued by said Court,- as well against the said M'Connell as against the said Wallace, till the next term thereof, to be held in due course of law, that is to say, on the second Monday of February, in the year 1837. All which said pro.céedings in the said county Court, in which the- said plea still remains pending and undetermined, are still in frill force, and not reversed, vacated, or otherwise set aside, as by the record and proceedings in said Court, still remaining of record, will more fully and at large appear; and that he, the said defendant, is ready to verify: wherefore, he prays judgment, if the said plaintiffs ought further to have or maintain his said action therefor, against him, this defendant, as to the sum of four thousand two hundred and four dollars, parcel of .the sum by the said plaintiffs above demanded, &c.
    The plaintiff at the same term entered a demurrer to this plea of puis darien continuance, and prayed the Court to render judgment against the defendant for six hundred and seventy-six dollars thirty cents, parcel of the debt of four thousand eight hundred and eighty dollars, the amount of the note, which by the plea was wholly undefended; and as to the said-plea of puis, darien continuance, the plaintiff says that the plea of the defehdant is not sufficient to bar him from maintaining his action on the said note, &c.
    The Court, on the pleadings, gave judgment as follows: “As to the said sum of four thousand two hundred and five dollars; being argued by counsel,' it seems to the Court that said plea, as to the said sum. of forty-two hundred and five dollars, and the allegations therein contained, are not sufficient in law to bar the said plaintiff from having and maintaining his aforesaid action therefor against the said defendant; whereupon, it is ordered by the court, that the said demurrer be sustained; but as to the sum of six hundred and seventy-five dollars, thirty-nine cents, the residue of said plaintiff’s debt, in his declaration mentioned, this day. came the plaintiff, by his attorney, and the said defendant, being solemnly called, came not, but wholly made default, as to the said last mentioned sum, whereby the said plaintiff, therein against him remains altogether undefended. It is therefore considered by the Court, that the said Corry McConnell, plaintiff, do recover against the said William Wallace, defendant, the said sum of four thousand eight hundred and eighty dollars and thirty-nine cents, his debt aforesaid, and also the further ' sum of three hundred and ninety-four dollars, the inteest thereon, assessed by the clerk of this Court by way of damages, for the detention of the same, together with his cost in this cause; the plaintiff remits to the defendant the sum of three hundred and fifty-one dollars, twenty-eight cents.”
    The record of the District Court stated: “In this-cause the Court décided that the plea-of puis da.'ien continuance was a waver of the previous, plea.pleaded by the defendant: there was no default of thé defendant, further than his abandonment, under the decision of the Court, of 'his first plea. In this cause 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 and 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.

      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 attached, 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 deposite 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 under the judgment of that Court. •
    . The plaintiff in error had answered to the attachment* that' he owed to McConnell, 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 his responsibility. But as to the residue of the note, he continued liable to the plaintiff in the District Court, if liable at all. The District Court decided that the plea of the attachment was a waiver of the first plea. This Was not so.; it could operate, only, if it had any operation as to part of it.
    ■ 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 Courts . This he could not do. - It was not a. plea to the attachment, that a suit was pending for the débt 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 sécurity 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 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 defence originally pleaded. Rut 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 cáse in 2 Wendall’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 non-resident, 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 mo 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 liar ble, 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 John. Rep. 221. 20 John. Rep. 229—231, 239, 268. 4 Cowan, 521. 1 Peters’ C. C. R. 245. 8 Cowan, 311, 315. 1 Harris and M'Henry, 236. 2 Harris and 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 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 defence.which is riot 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 defence to a part of a debt claimed from him, must give up a defence which would be equally available against another part of it.
    The authorities do not sustain the position upon which the decision of the District Court was made. When the plea of puis darien continuance goes to a part only of the claim, it has no extent to any other or further part. 1 Alabama Rep. 129. 2 Wendall, 300.
    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 noj;'-*it the bank of deposite, 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 endorser on' a .note of this description, it is necessary to prove such a demand. Smith vs. 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 twjat 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.
    As to the first question, it is insisted, on the'part of McConnell, 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 defence or bar to that. suit. And for authority on this point, reference is made to 3 Wilson, 297—304. Brooks vs. Smith, 1 Salkeld, 280. Savage’s case, 1 Salkeld, 291. 5 Johns. Reps. 101. 5 Taunton, 558. 4 Durnford and East’s Reps. 312. 16 Eng. Com. Law Reps. 78 and 79.
    As McConnell’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, &c., and the cases cited in thé.note thereto; and also to the case of Kenner and Bussard vs. 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 it; nor can even the plaintiff afterwards proceed thereon.”
    Upon the whole matter, therefore, it is confended 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 irom 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 deposíte of the Bank of the 'United States, at Nashville, four thousand eight hun dred and eighty dollars, ninety-nine, cents, value received.” The declaration sets out'this note according to its terms, and alleges the promise. Aa pay at the office ,of discount and deposite of the Bank of the United States, at Nashville; without averring that the note was presented at the bank or demand of payment made there. The defendant pleaded payment and satisfaction of the note; and issue being joined thereupon, the cause was continued until the next term thereafter. At which time the defendant interposed,, a plea puis darien continuance, alleging that the plaintiff, as to the. sum of four thousand two hundred and four dollars, part and parcel of the sum demanded in the declaration, ought not further to have and maintain his action therefor against him, because that sum had been attached by B1 cker and Co., by proceedings commenced by them against the plaintiff in this cause, under the attachment law of Alabama, in which he was summoned as garnishee. And setting out the proceedings against, him according to the-'requirements of that law, and under whicn he was examined on oath; and did declare, that he executed the note to the said McConnell, the plaintiff in this cause, as set out in the declaration; that he had paid on the note three hundred and seventy-two dollars and thirty-four cents, and that the remainder of the said note was due by him to said M‘Con-nell. And the plea further sets out, that under the proceedings on the attachment, the Court had given judgment against him for four thousand two hundred and -four dollars and costs; but with a stay of all further proceedings until the further disposition of the case, and which remains yet undetermined.

To this plea -the plaintiff demurred. And the Court sustained the demurrer, and gave judgment for the plaintiff for six hundred and seventy-fivé dollars and thirty-nine cents, the residue of the plaintiff’s, debt in his declaration mentioned, by default; and thereupon gave a final judgment for the plaintiff for the full amount of the note, four thousand eight hundred and eighty dollars, the debt aforesaid, and three hundred and ninety-four dollars, the interest assessed by tpe clerk, together with his cost. And the plaintiff remits upon the record the sum of three hundred and fifty-one dollars. and twenty-eight cents; and the questions arising upon this record have been made and argued under the following objections:

1. That the declaration is bad for want of an averment that the note was presented, and payment demánded at the office of discount and deposite'pf the Bank of the United States, at Nashville.

2. That the matters pleaded of the proceedings under the attachment laws of Alabama, were sufficient to bar the action, as to the amount of the sum so attached; and that the demurrer ought therefore to have been overruled.

3. That the judgment by nil dicit, for the six hundred and seventy-five dollars and thirty-nine cent's, was erroneous.

The question raised as to the sufficiency of the declaration in a case where the süit is by the payee against the maker of a promissory note, never has received the direct decision of this Court. In the case of the Bank of the United States vs. Smith, (11 Wheat. 172.) the note upon which the action was founded was made payable at the office of discount and deposite of the Bank of the United States, in the city of Washington; and the suit was against the endorser, and the question turned upon the sufficiency of the averment in the declaration óf a demand of payment of the maker. And the Court said, when in the body of a note, the place of payment is designated} the endorser has a right to presume that the maker has provided funds at such place to pay the note; and has a right to require the holder to apply at such place for payment. In the opinion delivered in that case, the question now presented, in the case before us is stated: and it said, whether where the suit is against the maker of a promissory note, or the acceptor of a bill of exchange, payable at a particular place, it is necessary to aver a demand of payment at Such place, and upon the trial to prove such demand; is a question upon which conflicting opinions have been entertained in the Courts in Westminster Hall. But that the question in such case may, perhaps, be considered at rest in England, b}r the decision of the late case of Rowe vs. Young, (2 Brod. and Bing. 165.) in the House of Lords; where it was held, that if a bill of exchange be accepted, payable at a particular place, the declaration on such bill, against the acceptor, must ave/presentment at that place, and the averment must be proved. But it is there said a contrary opinion has been entertained by Courts iri this country; that a demand on the maker of aunóte, or the acceptor of a bill payable at a specified place, need not be averred in the declaration or proved on the trial; that it is not a condition precedent to the plaintiff’s right of recovery. As matter of practice, application will generally be made at the place appointed; if it is believed, that funds have been there placed to meet the note or bill. But if the maker or acceptor has sustained any loss by the omission of the holder to make such application for payment, at the place appointed, it is matter of defence to set up by plea and proof. But it is added, as this question does not necessarily arise in this case, we do not mean to be understood as expressing any decided opinion'upon it, although we are strongly inclined to think, that as against the maker of a note or the acceptor . of a bill, no 'averment or- proof of a demand of payment at the place designated •would be'necessary. The.question now before the Court cannot, certainly, be considered as decided by the case of the Bank of the United States vs. Smith. But it cannot be viewed' as the mere obiter opinion of the judge who delivered the judgment of the Court. The attention of the Court was drawn to the question now before the Court; and the remarks made upon it, and the authorities referred to, show that this Court was fully apprized of the conflicting opinions of the English Courts on the question; and that opinions, contrary to that of the House of Lords, in the casé of Rowe vs. Young, had been entertained by some of the Courts in this country : and under this view of the question, the .Court say they are strongly inclined to adopt the American decisions. As the precise question is now presented by' this recofdj it becomes necessary to dispose of it.

.It is not deemed necessary to go into a critical. examination of the English authorities upon this point.; a reference to the case in the House of Lords, which was decided in the year-. 1820, shows the great diversity of opinion entertained by the English' •judges upop this question. It was, however, decided that if a bill of exchange is accepted, payable at a particular place, the declaration in an action on sach bill against the acceptor, must aver presentment at that place, and the averment must be proved. The' Lord Chancellor, in stating the' question, said this was a very fit question to be- brought before the House of Lords, because the state of the law, as actually.administered in the Courts, is such, that it would be infinitely better, to settle it in any way than to permit' so controversial a state to exist any-longer. That the Court of King’s Bench has been of late years in the habit of holding, that such an acceptance as this, is a general acceptance;!and .that it is not necessary to notice it as such in the declaration, or to prove presentment, hut that it must be considered as matter of defence; and ■that the defendant must state , himself ready Ifco pay at the place, and bring the money into' Court, and so bar the action by proving the truth of that defence. On the contrary, the Court of Common Pleas was in the -habit of holding, that an acceptance like this was a qualified acceptance, and that the contract of the acceptor was to pay at the place; and that as matter of pleading, a presentment at the place stipulated must be averred, and that evidence must be given- to sustain t lat averment; and that the holder of the bill has' no cause of action unless such demand has been made.' In that case the opinion of the twelve 'judges, was taken and laid before the House of Lords, and will be found reported in an appendix to the report of the case of Rowe vs. Young, (2 Brod. and Bing. 180.) In which opinions all the cases are referred to in which the question had been drawn into discussion; and the result appears to have been, that eight judges out of the twelve sustained the doctrine of thé King’s Bench on this question; notwithstanding which the judgir nt was reversed

It is fairly to be inferred from an act of parliament passed immediately thereafter, 1 and 2 G-. 4, ch. 78, that this decision was not satisfactory. By that act. it is .declared that “after the 1st of August, 1821., if any person shall accept a bill .of exchange payable at the house- óf a banker or other place, without further expression in his acceptance, such acceptance shall be deemed and taken to be, to all intents and purposes, a general acceptance of such bill. But if the acceptor shall, in his acceptance, express, that he accepts the bill payable at a banker’s house or other place only, and not otherwise or elsewhere; such acceptance shall be a qualified acceptance of such bill; and the acceptor-'shall not be liable to pay the bill, except in default of payment, when such payment shall have been first duly demanded at such banker’s house or other place.” Bayley on Bills, 200, note.

In most of the -eases which -have arisen in the English Courts, the suit has been against the acceptor of the bill; and in some cases a distinction would seem to be made between such a case, and that of a note, when the action is against the maker, and the designated placeis in the body of the note. But there can be no solid grounds upon which such a distinction can rest. The acceptor of a bill stands in- the same relation to the drawee, as the maker of a note does to the payee; and. the acceptor is the principal debtor, in the. case of a bill, precisely like the maker of a note. The liability of the acceptorgrows put of, and is-to be governed by the terms of his acceptance, and the liability of the maker, of a note grows out of, and is to be governed by the terms of his note';and the place of payment can be of no more impórtance- in the one case than in the other. And in some of the cases Where the point was madey the action was against the maker of a promissory note, and the place of payment designated in the body of the note.' The case of Nichols vs. Bowes, 2 Camp. 498, was one of that description, decided in the year 1810; arid it was contended on the trial, that the plaintiff was bound to show that the note was presented at the banking house where it was made payable. But Lórd Ellenborough, before whom the cause was tried, not only decided that na such proof was necessary, but would not suffer such evidence to be given; although the counsel for the plaintiff said' he had a witness in Court to prove the note was presented at the banker’s the day it became" due: his Lordship alleging that he was afraid to admit such evidence, lest doubts should arise as to its necessity-. , And in the case of Wild vs. Renwards, 1 Camp. 425, note, Mr. Justice Báyley, in the year 1809, ruled that if a promissory note is made payable at a particular place, in an action against the maker, there is no' necessity for proving that.it was presentpd there for payment. .

The case of Saunderson vs. Bowes, 14 East, 500, decided in the King’s Bench in the year. 1811, is sometimes referred to'as containing a different rule of construction of the .same words when used in the body of a -promissory note-,'from that: which is given to them when used in the acceptance of a bill of exchange. But it may b.e Well questioned, whether this use warrants any such conclusion. That was an action on a promissory note by the bearer against the maker. The note, as set out in the declaration, was a'promise to. pay on demand at a-specified place, and there Was no averment that a demand of payment had been made at the place designated. To which declaration the defendant demurred; and the counsel in support of the demurrer referred to cases where the rule had been applied to acceptances on bills of exchange;. hut contended that the rule did not apply to a promissory note, when the place is designated in the body of the note. Lord Ellenborough, in the course of the argument, in answer to some cases referred to by counsel, observed; those are eases where money is to be paid, or something to be done at a particular time as well as place, therefore the party (defendant) may readily make an averment, that he was ready at the time and place to pay, and that, the other party was not ready to. receive it; but here the time of payment depends entirely oti the pleasure of the holder of the note. It is true Lord Ellenborough did not seem to-place his opinion, in the ultimate decision of the cause, upon this ground. But the other judges did not allude to the distinction taken at the bar between that case ahd the acceptance of a bill, in like terms; but placed, their opinions upon the terms of the note itself, being a promise to pay on demand at a particular place. And there is certainly a manifest distinction between a promise to pay on demand, at a given place,-and a promise to pay at a fixed time at such place. And it is hardly .to he presumed that Lord Ellenborough intended to. rest his judgment upon a distinction between a promissory note and a bill of exchange, as both he and Mr. Justice Bayley had a very short time before, in the cases of Nichols vs. Bowes, and Wild vs. Renwards, above referred to, applied-the .same rule of construction to promissory notes where .the promise was contained in the body of the note. Where the promise is to pay on demand at a particular place, there-is no cause of aotion until the demand is made; and the maker of the note cannot discharge himself- by an offer of ■payment, the note not being due until demanded.

Thus we see that until the late decision in the House of Lords in .the case of Rowe vs. Young, and the act of parliament passed soon thereafter, this question was in a very unsettled state in the English Courts; and without undertaking to decide between those conflicting) opinions, it may be well ' to look at. the, light ip which this question has been viewed in the Courts in this country.

This question came before'the Supreme Court of the state of New York, in the year 1809, in the case of Foden and Slater vs. Sharp, 4 Johns. Rep. 183; and the Court said the holder of a bill of exchange need not show a demand of .paymentiof 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, hut that no one came to receive the money; and that he was always ready afterwards to pay. This case shows, that the acceptor of a bill, and the maker of a note, were considered as standing on the same footing with respect to a demand of payment at the place designated. And in the case of Wolcott vs. Van Santvoord, 17 Johns. Rep. 248, which came before the same Court in the year 1819, the same question arose. The action was against the acceptor of a bill,payable five months after date .at the Bankof Utica,andthe declaration contained no averment ofademand at the Bank of Utica; and upon a demurrer to the declaration, the Court gave judgment for the plaintiff. Chief Justice Spencer, in delivering the opinion of the Court, observed' that the question had been already decided in the case of Foden vs. Sharp : but considering the great' diversity of opinion among the judges in the English Courts on the question, he took occasion critically to review the cases which had come before those Courts, and shows very satisfactorily, that the weight of authority is in conformity to that decision, and the demurrer was accordingly overruled; and the law in that state for the last thirty years, has been considered as settled upon this point. And,although the action was against the acceptor of a bill of exchange, it is Very evident that this circumstance had no influence upon the decision; for the Court say that in this respect ' the acceptor stands in the same relation to the payee, as the maker of a note does to the indorsee. He is theprincipal,andnotacollateral debtor.

And in the case of Caldwell vs. Cassady, 8 Cowen, 271, decided in the same Court in. the year 1828, the suit was upon a promissory note payable sixty days after date at the Franklin Bank in New York; and the note had not been presented or payment demanded at the bank: the Court said, this case has been already decided by this Court in 'the case of Wolcott vs. Van Santvoord. And after noticing some of the cases in the English Courts, and alluding to the confusion that seemed to exist there upon ihe question, they add: that whatever be the rale in other Courts, the rule in this Court must be considered settled, that where a promissory note is made payable at a particular place on a day certain, the holder of the note is not bound to make a demand at the time and place by way of a condition precedent to the bringing an action against the maker. But if the maker was ready .to pay at the time and place, he may plead it, as he would plead a tender in'bar of damages and costs, by bringing the money into Court.

It is not deemed necessary to notice very much at length the various cases that have arisen in the American Courts upon this question; but barely to refer to such as have fallen under the observation of the Court, and we briefly state the point and decision thereupon, and the result will show a uniform course of adjudication, that in actions on promissory notes against the maker, or on bills of exchange, where the suit is against the maker in the one case, and acceptor in the other, and the note or bill made payable at a specified time and place, it is not necessary to aver in the declaration, or prove on the trial, that, a demand of payment was made in order to maintain the action. But that if the maker or. acceptor was at the- place at the time designated, and was ready and' offered lo pay the money, it wakjnatter. of defence to be pleaded and proved on his part.

The case of Watkins vs. Crouch and Co., in the Court of Appeals of Virginia, 5 Leigh, 522, was a suit- against the maker and endorser, jointly, as. is the course in that state upon a promissory note like the one in suit.. The note was made, payable at a specified time, at the Farmers’ Bank, at Richmond, an.d the Court of Appeals, in the year 1834, decided, that it was nbt necessary to aver and prove a presentation at the bank and demand-pf 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 thq endorser: and the President of the Court went into a very elaborate consideration of the decisions of the English. Courts upon the question; and to show, that upon common law principles, applicable to bonds, notes, and other contracts for the payment of money, no previous demand was necessary in order to sustain the action, but that a tender and readiness to pay must come by way of .defence from the defendant; and that looking upon the note as commercial paper, the principles of the common law were clearly against the necessity of such demand and proof, where the time and place were specified, though it would be otherwise where- the.place, but nbt the time, was specified; a. demand in such case ought to be made: and he examined the, case of Sanderson vs. Bowes, to show, that it. turned upon that distinction, the note being payable on demand at a specified place. The same doctrine was held by the Court -of Appeals, of Maryland in .the case of Bowie vs. Duvall, 1 Gill and Johnson, 175; and the New York cases, as well as that of the. Bank of the United States vs. Smith, 11 Wheat. 171, are cited with approbation, and?fully adopted; and the Court put the case upon the broad ground, that when, the suit is against the maker of a .promissory noté,.payable at a specified, time and. place, no demand is necessary, to be averred, upon the principle that the money to-be-paid. i$. a. debt, from the defendant, fhat it is due generally and "Universally, and. will, continue due, though there be a neglect on the part of-, the creditor to. attend at the time and place, to receive or demand it- That it is matter bf defence on the part of the-defendant to show that he was in. attendance to pay,but that the plaintiff was nbtthereto receive it; which defence genérally .will be in bar pf damages only,,and nbt in -bar. of the debt. The case of Ruggles vs. Patton, 8 Mass. Rep. 480, sanctions the same rule, of construction. The action was on a promissory note for the payment of money, at a-day and place specified; and...the defendant pleaded that he whs . present at the time, and place, and ready and willing to pay according to the tenor of his promises, in the second count of the declaration mentioned, and- avers that the plaintiff was not.then ready or present at the bank to receive, payment, and did not demand the same .of the defendant, as the plaintiff in.his declaration-had alleged.; the Court said this was an immaterial issue.and no bar to an action or promise to páy money.

So also in the state of New Jersey the same rule is-adopted. In the case of . Weed vs. Houten, 4 Halst. N. J. Rep. 189, the Chief Justice says: “The question is whether, in an action, by, the payee, of a promissory note payabjs at a particular place and not on demand, but at time, it is necessary to aver a presentment of the note and demand of payment by the holder at that place, at the maturity of the note. And upon this question he says, I have no hesitation in expressing-my entire concurrence in the American decisions, so far as is necessary for the present occasion; that a special averment of presentment at the- place, is not necessary to-the validity of the declaration, nor is proof óf 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 géneral principles and doctrines of the law, and most assimulated to the- decisions, which bear analogy more or less directly to the subject.”

The same rule has been fully established by the Supreme Court of Tennessee, in the cases of M‘Nairy vs. Bell, and Mulhovin vs. Hannum, 1 Yerger, Rep. 502, and 2 Yerger, Rep. 81, and the rule sustained and enforced upon the same principles and. course of reasoning upon which the other cases referred to have been placed. And no case, in an American Court, has fallen under our noticé, where a contrary doctrine has been asserted and maintained. And it is to be observed, that rtiost of the cases which have arisen in this country, where this question has been drawn info 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 rulés relating to commercial law should be stablé 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 noté or hill 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 after-wards prosecuted, hé would be exonerated from all costs and damages, upon proving such tender and deposite. Or should the note or bill be made payable at some place other than a bank, and no deposite could be made, or he should choose to retain his money in his own possession, an offer to pay at the time ánd place, would'protect him against interest and costs, on bringing the money into Court; so that no practical inconvenience or hazard can result from the establishment of this rule, to the maker or acceptor. But, on the other hand, if a presentment of the note and den and of payment at the time and place, are indispensable to the right of action, the holder might hazard the entire loss of -his whole debt.

The next point presents the question as to the effect and operation of the proceedings under the attachment law of Alabama, as disclosed by the plea puis' darien continuance. The plea shows that the proceedings on the attachment were instituted after the com? mencement 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 forested 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 stiit, there can be. no doubt that it might have been set up as a payment upon the note in question. And if the defendant wpiild have been protected pro tanto', under a recovery had by virtue of the attachment, and could have pleaded such recovery, in bar, the same principle would support a plea in abatement, of an attachment pending prior to the commencement - of the present suit. The attachment of the debt, in such case, in the hands of the defendant, would fix it there in favour of the attaching creditor, and the defendant could not after- . wards pay it over to the plaintiff. The attaching creditor would, in such case, require a lien upon the debt, binding upon the defendant, ánd which the Courts of all other governments, if they recognise such proceedings at all, could not fail to regard. If this.doctrine be well founded,- the priority of suit will determine the right. ■ The rule must be reciprocal; and where the suit in one Court is commenced prior to the institution of proceedings, under attachment in another Court, such proceedings cannot arrest the suit; and the maxim qui prior est tempore,portior est jure,, must govern the case. This' is the doctrine of this Court in the case of Renner and Bussard vs. Marshall, 1 Wheat. 216, and alsp in the case of Beaston vs. The Farmers’ Bank of Maryland, 12 Peters, 102; and is in conformity with the rule that prevails- in; other Courts in this country,, as well as in the English Courts; and. is essential to the protection of the rights of the garnishee; and wifi avbid all collisions in. the proceedings of different Courts, having-the same subject matter before them. 5 John. Rep. 100. 9 John. Rep. 221, and the cases there cited. In the case now before the Court, the.suit was commenced prior to the institution of proceedings under the attachment. The plea was, therefore, bad, and the demurrer properly sustained.

The remaining inquiry is, whether the judgment, by nfi dicit,'for . the @675, was properly given, after overruling the plea puis darien continuance. The argument at the bar was, that as the attachment went only to a part of the debt, the case stood as to the residue upon the original plea of payment. The facts disclosed in the plea, puis darien continuance, do not raise the question intended to he presented; for the defence set up in the plea puis darien continuance goes to the whole cause of action, and leaves no part unanswered. And it may well be questioned, whether such pleading ought to be sanctioned, even if the plea, puis darien continuance, went only to a part of the cause of action. It would introduce great confusion on the record in the state of the pleadings.

It is laid down in Bacon’s Abridgment, (6 Bac. Ab. by Gwillim, 377,) that if after a plea in’bar, the defendant pleads a plea puis darien continuance, this - is a waiver of his bar; and no advantage shall be taken of any thing in the. bar. And it is added, that it seems dangerous to plead any matter puis darien continuance unless you be well advised, because, if. that matter' be determined against y.ou, it is a confession of the matter in issue. This rule was adopted in Kimball vs. Huntington, 10 Wendall, 679. The Court say, the plea puis darien continuance waived all previous pleas, and on the record, the cause of action w'as admitted to the same extent as if no other'defence had been urged than that, contained in this plea,.

In/the case now before the Court, the oath of the defendant taken in the proceedings on the attachment, is made a part of the plea phis darien continuance. And he admits that- he executed the note on which this suit is brought, for $48S0. That he had paid on the note $372 34; and that the remainder of--the. note was due by .him to the plaintiff. And If -the, $4204 attached could not -be dedueted, 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 Southérn District of Alabama, and was argued by counsel. On consideration .whereof, it is ordered and adjudged'by this Court, that the judg-. ment 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.


source: Caselaw Access Project

author: Mr. Chief Justice Taney

license: Public Domain

text:
    Lessee of Samuel Reed, Plaintiff in error, vs. William Marsh, Defendant in 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, is not a part of the record; nor do the reasons on the files of the Court become a part of the record by such certificate.
    A writ of error, under the 25th section of the judiciary act will not lie to a state Court in a case in which the proceedings of the Court which the writ of error seeks to revise, appears from such a certificate, by the clerk of the state Court.
    IN error to the Supreme Court of Ohio, Scioto county.
    This was an action of ejectment, brought in the Supreme Court of the state of Ohio, by the plaintiff in error, against the defendant in error. The declaration, common consent rule, ánd plea of not guilty, are in the usual form, according to .the practice in Ohio. Upon these pleadings the case was tried in the Supreme Court for the county of Scioto, and a general verdict of not guilty was found for the defendant, Marsh. No bill of exceptions was prayed for by either party to the charge of the Court 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 rendition of the verdict, the plaintiff submitted a motion for a new trial; and on the following 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.
    The reasons for a new trial exhibited the. title claimed by the plaintiff in the ejectment, under the ordinance of Congress and acts of Congress relative to lands in, the territory northwest of the Ohio; and alleged, that by the construction '.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 motion stated that the Court had refused to charge the jury upon the matters exhibited by the plaintiff to sustain his title under the acts of Congress, and upon the construction contended for in favour of the tifie set up by 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 surrounding district.of eountiy; and copies of certain acts and ordinances of Congres®, which. the clerk certifies are referred to in the plaintifFs 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 of the judiciary act; and it was not before the Court on any of the principles which had been sustained and decided upon that section of the law.
    The only part of the proceedings in the case, in the state.Court, on which the jurisdiction of this Court is asserted-to'rest, is the refusal of the Court to, grant a new trial, and for refusing certain instructions which were asked,of the Court, upon the construction of acts of Congress in relation to lands on the north and west of the river Ohio. These instructions do not appear in' the record of the cause,' and the evidence that they, were before the Court on the motion for a new trial, is the certificate of the clerk of the Court. The clerk has certified .that they remain on the files of-the Court. Does this certificate make them what .he certifies them, to be, a part of the record ? Certainly, not — nothing can be properly certified as part of the record but what appears such by the record itself.
    If a party .is desirous to bring his case up for revision, upon questions of law, the proper cohrse is to take a bill of exceptions, or have an agreed case on the record.
    Questions analogous to this have been brought before this Court, and have also been decided in the Courts of Massachusetts. Cited Williams vs. Jarvis, 12 Wheaton, 118. Fisher vs. Cockerell, 5 Peters, 253.- M‘Fadden vs. Otis, 2 Massachusetts Reports. 13 Massachusetts Reports, 50.
    As to the cases in which this Court will entertain jurisdiction of cases under the 25th section of the judiciary act of 1789, -cited Crowell vs. Randall, 10 Peters, 368, and'the cases there referred to.
    Mr. Mason, against the motion,
    stated that if the matters certified by the clerk were not regularly before the Court, the plaintiff in error had no case for the consideration of this Court. '
    By the certificate of the clerk, it appeared that in. the motion for a new trial, certain acts of Congress were before the Court; and the title of the plaintiff rested upon their just construction.
    In the state of Ohio there was no law which gave a writ of error to the Supreme Court of the state; and no case can be brought from that Court, but in the manner in which this case is presented.
    Mr. Vinton, in reply,
    insisted .that' the record did not show that the acts of Congress were before the Court on the trial of the cause; or that the Court in their decision had done any thing which could give the Supreme Court of the United States jurisdiction of-the cause :-an application for a new trial, is an appeal to the discretion, of the Court, and the decj lion of the Court upon it, is never the subject of a writ of error.
   Mr. Chief Justice Taney

delivered the opinion of the Court.—

This case, is brought before the Court by a writ of error to the Supreme Court of the state of Ohio, sitting for the county of Scioto, under the 25th section of the judiciary act of 1789; A motion is now made to dismiss the writ upon the ground that the case, as presented, by the record, is not one in which this Court have the’ right to revise, by writ of error, the judgment of a state Court.

It appears from the record* that an action of ejectment for á certain tract of land was brought by the plaintiff against the defendant, and finally tried, and decided in the Supreme Court of the state, sitting for Scioto county. The declaration is in the usual form, to which the plea of not guilty was entered; and upon the trial, the jury found a general verdict for the defendant, upon which the Court entered judgment in his favour.

There was no bill of exception taken in. the case ;. and according, to the judiciary system established in Ohio, a bill of exception could not at that time be regularly taken, when the trial was. had in the Supreme Court of the state. That. Court consists of four judges, two of whom are authorized to-hold the Court in the different counties; but at the. close of each circuit, the four judges are required to meet in bank, at the seat of government, and. decide all questions reserved for their consideration on the circuit: and when the decision is made in bank,'each cause is certified to the bounty from which it was brought, and the judgment is there entered.

In the case before us’ a new trial was moved for, and among other reasons filed in support of the motion, is the refusal of the Court to give certain instructions to the jury, which were requested by the counsel for. the plaintiff; and we gather from the record, though not very distinctly, that- this motion was reserved and heard in bank, and there overruled. The reasons assigned by the plaintiff for a new trial, and the title papers to which they refer, have been transmitted and certified to 'this Court, by the clerk, together with the record of the judgment. It is, however, unnecessary to mention them particularly; because if the points set forth in the motion were raised at the trial and decided by the Court, then it is very clear that the construction of certain statutes of the United- States was drawn in-ipiestion, and the decision in the state Court was against the title claimed under them by the plaintiff. But the difficulty is whether ■these facts are sufficiently authenticated by the record. Can we receive the-certificate of the clerk, that certain papers were offered in evidence, and the statement of counsel upon a motion for a new trial, that certain instructions were refused by the Court, as sufficient evidence of the facts they set forth; and proceed, upon that ground, to take jurisdiction and revise, the judgment of the state Court? We think not. In the case of the lessee of Fisher vs. Cockerell, 5 Peters 254, the Court said, In cases at common law, the course of this. Court has been uniform, not to consider any paper as a part of the 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 appellate jurisdiction, according to the course of the common law. The appellate Court cannot know what evidence was given to the jury, unless it, js spread on the record, in a proper legal manner. The unauthorized certificate of the clerk, that any document was read, or any evidence given to the jury, cannot make that document or that evidence a part of- the record, so as to bring it to the cognizance of this Court.”

We think the doctrine in that case is entirely .correct. The certificate of the clerk cannot'make the papers above mentioned a part of the record; nor can the statement of counsel in the motion for a new trial, authorize us to say that certain questions were raised, and certain opinions given upon such evidence. • It does not follow that the Court admitted that the opinions imputed to them were given at the trial, because they have hot disavowed them in overruling the motiom' On the contrary, it might sometimes happen that such a motion would be overruled, because the Court had not given the instruction mentioned in the motion. There is therefore nothing in the record that could warrant us in assuming that the papers referred to were offered in evidence; nor that the opinions ascribed to the • Court-were actually given. These facts should in some mode or other be' authenticated by the Court itself. This Court have constantly adhered to this rule, and the cases upon the subject were carefully reviewed and considered, in the case of Crowell vs. Randell, 10 Peters, 368; and the rules there stated must be considered as too firmly settled to be shaken.

The writ of error in this case must therefore be dismissed.

This case came on to be heard on the transcript of the record from the Supreme Court of the state of Ohio in and for the county of Scioto, and was argued by counsel: bn consideration whereof, it is ordered and adjudged by this Court that the writ of error be, and the same is hereby dismissed, for want of jurisdiction.


author: Mr. Justice Storv

text:
    The Ocean Insurance Company, Plaintiffs in error, vs. William Polleys, Defendant in error.
    The settled construction given by the Supreme Court to the 25th section of the judiciary act of 1789, is, that to bring a case within the reach of that section,-it must appear on the face of the record of the state Court, either by express terms, or by clear and necessary intendment, that the question of the construction of a clause of a statute of the United States, did actually arise in the state Court; not that it might have ariseh or have been applicable to the case; and that the question was actually decided; not that it might have been decided by the state Court against the title, right, privilege, or exemption, set up by the party. If, therefore, the decision made by the state Court upon the face of the record, is entirely consistent with the construction of the statute contended for bv the party appellant,' no case is made out for the exercise of the appellate jurisdiction of the Supreme Court. ' ■
    In the exercise of the appellate jurisdiction 6f the Supreme Court on the decisions of state Courts, the Supreme Court is not at liberty to resort to forced inferences and conjectural reasonings, or possible, or even probable suppositions of the points raised and actually decided by those Courts. The Court must see,,plainly, that the decision was either directly made of some matter within the purview of the 25th section of the act of 1789 ; or that the decision could not have been such as it ¡was, without necessarily involving such matter.
    It.is to the record, and to the record alone, that the Supreme Court can resort to ascertain its appellate jurisdiction, in cases decided in the Supreme or Superior Court of a state.
    A policy of insurance on a vessel sailing under a register which has been obtained without conforming to the requisitions of the laws of the United States relative to the registry and enrolling of vessels of the United States is not void; and an action may be maintained on such a policy to recover a loss sustained by the assured. The policy may not have been designed to aid, assist, or advance any unlawful purpose; and was a lawful contract in itself, and only remotely connected with the use of the certificate of registry. There are cases in which a contract may be valid, notwithstanding it is remotely connected with an independent illegal transaction; which, however, it is not designed to aid or promote. Suppose a vessel had been actually forfeited for some antecedent illegal act, are all contracts for her future employment void; although there is no illegal object in view, and the forfeiture may never be enforced 1
    IN error to the Supreme Judicial Court of the state of Maiñe.
    The original action was assumpsit on a policy of insurance, dated July 17, 1833, upon the .schooner called the Maryland owned ’by said Polleys, for the term of one year, commencing on the 11th of said July — sum insured @3,000. The schooner during the said year, on June 10, 1834, was totally lost. The general issue was pleaded.
    It appeared on the trial, that a sloop was built in 1816, and was enrolled by the name of the Sophronia, and was again enrolled in the customhouse, in Portland, by the same name, March 24th, 1822. That schooner Mary was built upon the keel, floor timbers and naval timbers pf the said sloop Sophronia, and the size enlarged nearly twelve tons, and the name of the Mary given to her after being so enlarged, and that this was known to the defendants at the-time of executing the policy; and that the certificate of Mark Leavit was procured by said Polleys, and presented to the customhouse to obtain the enrolment of the schooner Mary, without any fraudulent intent to deceive or defraud, but with a fair and honest intention, as the iurv believed. But that the enrolment-of the sloop Sophronia was not first surrendered and delivered up at the customhouse before the issuing of the enrolment of the Mary, which was. On the 3dday of-June, 1833.
    The counsel for the original defendant, on the trial, objected to the admission in evidence of the enrolment of June 3, 1833, as contrary to the laws of the United States; but the judge overruled the objection, and it was admitted: and the counsel further insisted that schooner on the voyage in which she was lost, was sailing under circumstances rendering- her liable to forfeiture for a violation of the laws of the United States, and that therefore, a policy, on a vessel pursuing such a voyage was not valid, or legal and binding.; but the judge also overruled this objection as insufficient to bar the action. The cause was thereupon submitted to the jury, who returned a verdict for the original plaintiff.
    The defendant prosecuted this writ of error. The case was argued by Mr. Fletcher for the plaintiffs, and by Mr. Webster for the defendant..
    For the plaintiff, the following points were submitted.
    1. That the certificate of enrolment of the schooner named in the policy of insurance, enrolled by the name of the Mary, was procured by said Polleys but a short time before the commencement of the year for which she was insured, knowingly in direct violation of the statute of the United States then in full force; of which statute he Was bound to take notice.
    2. That the enrolment of said schooner thus procured by said Polleys, by a new name, was entirely illegal, arid wholly null and void.
    3. That said Polleys, by not delivering up the original certificate ■of registry, incurred a penalty of five hundred dollars;. and by being registered by a new name, the s.chooner lost her "national character, and could no longer be deemed a .ship or vessel of the United States.
    4. That said certificate of enrolment was knowingly used for the schooner on the voyage upon which she was lost during the year for which she was insured, she not being then actually entitled to the benefit thereof. That such use of said enrolment was illegal, and a direct- violation of the- twenty-seventh section of the act aforesaid; and the schooner was thereby rendered liable to forfeiture.
    5. Tha,t a policy of insurance on a vessel prosecuting a voyage under a false and unlawful enrolment.and certificate thereof, and in violation of a statute of the United States,'in the manner aforesaid, is not a‘binding contract; and cannot be enforced in a Court of law.
    - 6. That the said ■ certificate of registry being a void, useless, and illegal'document, the schooner while sailing under its "pretended sanction, was not sea-worthy; and that the implied warranty of seaworthiness was on that account violated.

      Mr. Fletcher, for the plaintiffs in error,
    said, that on the question whether this Court had a right to entertain jurisdiction of this writ of error, to the Supreme Judicial Court of Maine, all the cases were collected in the opinion of this Court, in the case of Crowell vs. Randal, 10 Peters.
    To give the Court jurisdiction under the 25 section of the judiciary act of 1789, by which a writ of error is authorized to the Supreme Court of the state, the plaintiff must claim some privilege or exemption under an act of Congress, which has been denied to him by a misconstruction of the act. There is no necessity that the claim shall appear on the face of the record; if it appear that, unless by a misconstruction of the act, the Court could not have made the decision, or given the judgment complained of.
    The record in the case before the Court, shows more than is required by the decisions of this Court. The counsel for the defendants in the State Court, now the plaintiffs in error, objected to the admission of the enrolment of the vessel insured, in evidence, as the enrolment was contrary to the laws of the United States, and the vessel was.liable to forfeiture.’' A vessel sailing in violation of the law of •the United States, could-not be insured by a valid policy. The record shows that this position was denied, and thus the jurisdiction exists in this Court.
    The law applicable to the facts of this case is clear and explicit. By the act of Congress of December 31, 1792, 2 Laws U. S. ch. 146, when a ship or vessel is altered or increased in burthen, or changed from one denomination to another, she must be registered anew, but by me same name, and the original register must be delivered up ; a penalty of five hundred dollars is imposed for the vio- . lat.ion of this provision of the law: and by the twenty-seventh section of the act, using a register, falsely or fraudulently obtained, if used knowingly, forfeits the .vessel. The act of February 8, 1792, puts coasting vessels under the same regulations as those provided by the act of December 31,1792, “concerning the registering and recording of ships and vessels.” By a circular letter from the Secretary of the Treasury, providing for the execution of these laws, the collector is prohibited licensing,'or enrolling, or registering a ship or vessel, unless her previous register is delivered up.
    The registering, of vessels has been required by all commercial nations. The object of those regulations is the encouragement of ship building, and to prevent frauds on individuals. 3 Kent’s Commentaries, 139. The conduct of the defendant in error was contrary to the policy of the law, and in violation of it. No justification is offered for this act: and it is certain that if the collector had known the' proceeding, he w.ould not have given the register. By the register, a character was given to the vessel to which she was not entitled. She was, in fact, liable for foreign duties.
    , What are the legal consequences of such proceeding ? These are stated in the points submitted to the Court. The schooner was entitled to a register as the Sophronia, not as the Mary; the register originally granted to her should have been delivered up to be can-celled, and when registered anew, her enlarged capacity, and the other alterations which had been made in her, should have been stated.' The defendant in error was answerable for those violations of the law: and he .cannot be permitted to recover on a contract growing out of. this conduct.
    There is a penalty of five hundred dollars imposed for these violations of the law. "Imposing a penalty is'equivalent to an express prohibition of the act for which the penalty is imposed.
    Knowingly using a false register subjects the vessel to forfeiture. Knowing, asmeant by the statutes, is a knowledge of the facts, and does not require a knowledge of the law. In a former act of Congress, “fraudulently using” a false register, was the "language of the statute; but the act of 1792, contains the term “knowingly.” Cited; Carthew’s Rep. 252. 1 Kent’s Commentaries, 467. 1 Binney’s Rep. 10. 5 Barn, and Aid. 335.
    The contract not being binding, cannot be enforced in a Court of law. l Kent’s Commentaries, 291. The " Mary Was constantly violating the laws of the United States. Every voyage was such a violation, and no policy of insurance could protect her in such- proceeding. 12 East, 3031 1 Bos. and Pull. 272. 1 Marshall on Insurance, 52. 6 Mass] Rep. 101. 1 Emerigon,-542, ch. 12, sec. 14. 2 Bos. and Pull. 35.. 2 Douglas’s Rep. 467. 7.Term. Rep. 187. 1 Taunton Rep. 241. The Julia, 1 Cranch, 181.- The Aurora, 8 Cranch, 203. The Hiram, 1 Wheat. 440. 15 Johns. Rep. 25. 12 East, 200. 17-Mass. 258. 2 Bos. and Pull. 370. 1 Maulé'and Selwyn, 593.
    The implied warranty of sea-worthiness was violated by the vessel sailing with false papers. The loss from another cause’ has no influence on this principle. The vessel was insured as the Mary, when her real name was Sophronia. This is a breach of warranty. Citéd, 6 Mass. Rep. 220. 7 T. Rep. 105. 4 Taunton, 373. 3 Kent’s Commentaries, 257. Marshall on Insurance, 221.
    Mr. Webster, for the defendants in error,
    objected to the jurisdiction of the Court." It does not appear that any statute of the'United States was misunderstood. “ Suppose the Court had said the vessel is forfeited, but the insurance is valid; does this give jurisdiction ? The enrolment, although imperfectly made, was in evidence. Has the Superior Court of Maine decided on the effect of an act of Congress ? This.does not- appear, because- one of the parties has a defence connected with- the statute. It does not give this Court jurisdiction to revise the decision of the Court before which the defence was made. If the state Court have decided wrong on the facts., yet it does not appear the statute has been misinterpreted.
    The enrolment, although irregularly obtained, was a legal paper. The parties could be visited by a penalty, but this was not a forfeiture of the vessel. To maintain that a contract made for the protection of the property of the owner of such a vessel is void, it must be shown that, by the manner of obtaining the enrolment, the party was deprived of any and all property in the vessel; dr that. She contract was made in aid of an illegal act. The case agreed exempts the assured from all fraud.
    The contract of insurance was legal. It had nothing to do with, the act of the owner in obtaining an enrolment. It stood separate and apart from all the former transactions. It was not like a contract of insurance on a vessel carrying an enemy’s license, where the license makes the property enemies’ property.
    In reply to the cases cited by the counsel for the plaintiff in error, Mr. Webster said, they all established that the contract was itself unlawful. In such a casé, a Court of law will give no assistance to enforce such an agreement.
    But the acts of Congress did not make the forfeiture of the vessel, under siich circumstances, absolute, even if any forfeiture could be enforced. Proceedings against her were necessary. The government could alone enforce the law, and until this was done, the sailing of the vessel was lawful. The power to remit for any penálty or forfeiture, under such circumstances, is given by the statute. Thus, until the government had fully manifested its claim, and had refused a remission, no one could allege any thing against the vessel.
    The Mary .was a registered vessel of the United States, and had a right to protection as such. If a revolt had been committed on board of her, it would have been punished. If she had been attacked by a foreign military force, the government of the United States would have interfered. Cited, 13 Pickering’s Rep. 518. 15 East, 364. 4' Taunton, 589. 13 Mass. Rep. 589. 6 Greenleaf’s Reports, 63.
   Mr. Justice Storv

delivered the opinion of the Court.

This is a writ of error to the Supreme Judicial Court of the state of Maine. The original action was assumpsit on a policy of insurance, dated the 17th of June, 1833, whereby the Ocean Insurance Company insured three thousand dollars on the schooner Mary, owned by Polleys, at sea or in port, for the term of one year, commencing the risk-on the 11th of July, 1833, at noon, and ending the Hill of July, 1834, at noon. The schooner was" totally lost by the perils of the sea on the 10th of June, 1834, while the policy was in force. At the trial, on the general issue, it appeared in evidence thai a sloop was built in 1816, and enrolled by the name of Sophronia, and was again enrolled in’ the customhouse in Portland, by the same name on the 24th of March, 1822. The schooner Mary was built upon the keel, floor timbers, and naval timbers of the said sloop Sophronia, the size was enlarged nearly twelve tons, and the name of Mary was given to her after being so enlarged; and this was known to the Insurance Company at the time of executing the policy, A certificate of one Mark Leavit was procured by Polleys, and presented to the' customhouse to obtain an enrolment of the schooner Mary, without any fraudulent intent to deceive or defraud, but with fair and honest intentions, as the jury believed. But the enrolment of the Sophronia was not first surrendered and delivered up at the customhouse before the ■ issuing of the enrolment of the Mary, on the 3d of June’, 1833.. Upon these facts, which appear upon the bill of exceptions taken at the trial, the counsel for the Insurance Company objected to the admission in evidence of the said enrolment Of the Mary of the 3d of June, 1833, as contrary-to the laws of the United States; but the'Judge who sat'at the trial overruled ■the objection, and the enrolment was admitted. The same.counsel further insisted that the said schooner orí the voyage on which she was. lost,- was sailing under circumstances rendering her liable to forfeiture for a violation of the laws of the United States; and that therefore. a policy on a vessel pursuing such a Voyage, was not valid, or legal and binding. But the said Judge also overruled this objection as insufficient to bar the action. Other points arose at the trial, upon which, however, it is unnecessary for us to dwell; because they are in no shape cognizable by this Court in the exercise of its appellate jurisdiction over the judgments and decrees of the state Courts, under the 25th section of the judiciary act of 1789, ch. 20. The jury found a verdict for the plaintiff, (Polleys,) which was confirmed by the whole Court; and judgment passed thereon accordingly for him.

Two questions have been argued before, us. The first is, whether upon the face of the record any case is made out for the exercise of the appellate jurisdiction of this Court under the 25th section of the act of 17S9, ch. 20. The next is, whether the state Court has in fact misconstrued the laws of the United States, upon the points in controversy at the trial to the .prejudice of the Insurance Company.

In our judgment it is wholly unnecessary to consider the last question, because we are of opinion that upon the face of the record no case is shown for the exercise of the appellate jurisdiction of this Court. The only clause of the 25th section of the judiciary act of 1789, ch. 20, conferring this appellate jurisdiction, which is applicable to the present case, is, that where there is drawn in question in .the state Court the construction of a clause of a statute of the •United States, and the’decision of the state Court is against the title, right, privilege or exemption set up or claimed by either party, under that clause of the statute;, the settled construction of this Court is, that to bring any case- within the reach of the 25th section, it must appear upon the face of the record of the state Court, either by express terms, or by clear and necessary intendment, that the question did actually arise in the state Court, not that it might have arisen, or have been applicable to the case; and that the question was actually decided, not that it might have been decided by the state Court, against the title, right, or privilege, or exemption set up by the party. If therefore the decision made by the state Court is upon the face of this record entirely consistent with the construction of the statute contended for by the party appellant, no case is made out for the exefcise of the appellate jurisdiction of this Court.

Let us now apply this doctrine to the circumstances of the present case. vThe first objection was to the admission'of the enrolment of the Mary as evidence to the jury upon the ground that it was “contrary to the. laws of the United States;” meaning,undoubtedly, that it was obtained contrary to the requirements of the act of Congress concerning the registering and recording of ships or vessels, parsed on the 31st of December, 1792, ch. 45. That act, in the 14th section, provides, among other things, that when any ship or vessel which shall have been registered pursuant to the act, shall be altered in form or burden by being lengthened or-built upon, or from one denomination to another, by the mode'or method of riging or fitting, the ship or vessel shall be registered anew by her former name; otherwise she shall cease to be deemed a ship or vessel of the United States : and upon her being registered anew, the former'certificate of registry is to bo delivered up to the collector: and if not so delivered up, except where it is destroyed or lost or unintentionally mislaid, the owner is made liable to the forfeiture of five hundred dollars. Now, it is observable, that the present policy contains no warranty or representation of the national character of the Mary; and therefore the only assignable reason for offering the new enrolment, (as it is called,) meaning the new certificate of registry, in evidence was to establish the ownership of the vessel to be in Polleys. For this purpose it was clearly admissible, however irregularly or' wrongfully this enrolment may have been obtained at the customhouse. The Court, might, . therefore, very properly have admitted the paper in evidence for this purpose, and, for aught that appears on the record, actually did so, without in the slightest degree contesting that it had been obtained contrary to the laws of the United States. In this view, as a matter of’ evidence proper for the consideration of the jury on the question of ownership, it.is clear, that the decision does not fall within the appellate jurisdiction of this Court, under the 25th section of the act of 17S9, already referred to.

Then as to the other point. The objection made by the counsel for the Insurance Company was, that the schooner (Mary,) on the voyage on which she was lost, was sailing under circumstances rendering -her liable to forfeiture for a violation of the laws of the United. States; and that therefore a policy oil a vessel pursuing such a voyage was not valid, or legal and binding. But the Judge also over-) ruled this objection, as insufficient to bar the action. The objection was founded on the. 27th section of the ship registry act of 1792, ch. 45, above referred to; which' declares, that if any certificate of registry or record shall be fraudulently or knowingly used for any ship or vessel not then actually entitled to the benefit thereof, according to. the .true intent of this act,.such.ship or vessel shall be forfeited to the United States,'with her tackle, apparel, and furniture. - The objection then,, as insisted on by the counsel for the Insurance Company, involved two distinct propositions. The first was, that the schooner was sailing on the voyage under circumstances which rendered her liable to forfeiture. The second was, that the policy on her was therefore void. Now, the first might have been most fully admitted by thé Court, and yet the second have been denied, upon the ground that the policy was a lawful contract in itself, and only remotely connected with the illegal use of the certificate of registry; and in fio respect designed to aid, assist, or advance any such illegal purpose. We all know that there are cases where a contract may be valid, notwithstanding it is remotely connected with an independent illegal transaction, which, however, it is not designed to aid or promote. The case of Armstrong vs. Toler, 11 Wheat. R. 258, presented a question of this sort, and was decided in favour pf such a contract. But cases might easily be put, where the doctrine itself would admit of a far more simple and easy illustration. Suppose the Mary had been repaired in port, and the shipwrights had known the circumstances under which she had obtained the new certificate of registry; would they in consequence of such knowledge alone, have lost their title to recover for their own work and labour ? Suppose a vessel had been actually forfeited by somé antecedent illegal act, are all contracts for her future employment void; although there is no illegal object in view, and the forfeiture may never be enforced ?

In order to bring the present case within'the jurisdiction of .this Court, it must clearly appear on the face of the record that the state ’ Court did decide "against the construction of the laws of tire United States, insisted on by the Insurance' Company : for if the Court did decide in favour of that construction, and yet held the policy valid upon other grounds consistently with that decision, we have nothing to do with the'latter point, and have no right to inquire, whether it was a just application of the general principles of commercial law, or not. Now, so far is it from appearing on the face of the record, that the state Court decided against the construction of the laws of the, United States, insisted on by the Insurance Company; that the contrary may be fairly inferred from the language of the Court in overruling the objection. The objection was overruled as “ insufficient to bar the action;” that is, the action on the policy was still maintain-able, notwithstanding the Mary, “was sailing under circumstances rendering her liable to forfeiture for a violation of the laws” of the United States.

In the exercise of the appellate jurisdiction of this Court over the' decisions of state Courts, we are not .at liberty to resort to forced inferences and conjectural reasonings, or possible or even probable suppositions of the points raised and actually decided by those Courts. We must see plainly that the decision was either directly made of some matter within the purview of the 25th section of the act of 1798; or that, the decision could not have been what it was without necessarily involving such matter. In the present case we can arrive upon the record at no such conclusion. The consequence is, that the cause must be dismissed for want of jurisdiction.

’ We have been furnished with a copy of the opinion of the learned Judges in the state. Court in this very case; and we are gratified in finding that it abundantly confirms the deductions which., we have drawn from the récord. But it is proper to add, that that opinion, if it had been otherwise, could not have had any influenee upon our present opinion; since it constitutes no part. of. the record; arid it is tó the record, and the .record only, that we can resort to - ascertain our appellate jurisdiction in cases of this sort.

The writ of error is. accordingly dismissed for want of jurisdiction. ■