sentment is neces above-mentioned principle, that an action is of itself 1st. When prea sufficient demand of payment, it is settled, that the sary. acceptor or maker of a note payable generally, and not at a particular place, cannot set up as a defence, the want of a presentment to him even before the commencement of the action, and although the instrument be payable on demand '. There has been much discussion and difference of opinion in the courts upon the effect of a direction upon the bill or note, that the same shall be payable at a particular place, and whether the acceptor of the bill, or maker of the note, can resist an action on account of that direction not having been complied with. Both the courts of King's Bench and Common Pleas agree, that where a particular place of payment is introduced in the body of a bill or note, and not as a mere memorandum at the foot of the instrument, whether the action be against the drawer or acceptor of the bill, or the maker or indorser of the note, the instrument must be presented at that particular place, and a demand be made there, in order to give the holder a cause of action. And that in such case, at acceptor, and it appeared that there was no demand of payment until three months after the bill became due, and the drawer was then insolvent; it was ruled by Lord Mansfield, that this was no defence, for the acceptor of a bill of exchange, or maker of a promissory note, remains always liable; acceptance is proof of having effects in his hands, and he ought never to part with them, unless it appears that the drawer had provided another fund by paying the bill himself. I Rumball v. Ball, 10 Mod. 38.-Frampton v. Coulson, 1 Wils. 33. Capp v. Lancaster, Cro. Eliz. 548.-Prac. Reg. 538.-Reynolds v. Davies, 1 Bos. & Pul. 625. 2 Sanderson v. Bowes, 14 East. 500.-Dickenson v. Bowes, 16 East. 110.-Roche v. Campbell, 3 Campb. 247.--Trecothick v. Edwin, 1 Stark. 468. but see Nicholls v. Bowes, 2 Campb. 498. Sanderson v. Bowes and others, 14 East. 500. A promissory note of the defendant's promising in the body of it, to pay so much at their banking-house at Workington, in Cumberland requires a demand of payment there, in order to give the holder a cause of action if it be not paid. Per Lord Ellenborough, C. J. This is a duty created by the instrument itself, with certain limits and qualifications: the duty did not arise anterior to the instrument. This case is very materially different from that of Fenton v. Goundry, (13 East. 459.) lately decided by this court, which was the case of a bill drawn generally, but accepted payable at a particular place, which special acceptance we considered merely as importing the intention of the Y least as respects a promissory note, the presentment and demand must be alleged in the declaration '. And if the stipulation at the bottom of a note, for payment at a particular place, be printed before the note is complete, it has been holden in the King's Bench, that in such case, a presentment there is necessary. So if the body of the bill, or the address at party, that he would be found when the bill became due, at that place, as his house of business, where he should be prepared to pay it; there the acceptance payable at the place, was no part of the original conformation of the bill itself; but here the words restrictive of payment at the place named, are incorporated in the original form of the instrument, which alone creates the contract and duty of the party. This action upon the note will not lie, unless the plaintiff has demanded payment at the appointed place; and I cannot but say that it is very convenient that such a condition should be incorporated in the note itself; for it would be very inconvenient, that the makers of notes of this description should be liable to answer them every where, when it is notorious that they have made provision for them at a particular place, where only they engage to pay them; then if the request at the place be a condition precedent, it should have been averred, and for want of such an averment, the declaration is bad; but I still think this is distinguishable from the case of Fenton v. Goundry. Dickenson v. Bowes and others, 16 East. 110. Payment of a promissory note made payable at a certain place named in it, must be demanded there before the makers can be sued on it. Lord Ellenborough, C. J. said, that it had already been decided upon demurrer, that if the particular place of payment be embodied in the note, it was part of the condition on which it was made payable; that it should be presented for payment at that place. See also Howe ʊ. Bowes, 16 East. 112. and 5 Taunt. 130. S. P. - Bowes v. Howe, 5 Taunt. 30. Error in Exchequer Chamber from King's Bench, (16 East. 112.) A note, promising in the body of it, to pay, on demand, at a particular place, must be presented, and a demand of payment made at that place, unless the makers discharge the holder from the presentment and demand; and the presentment and demand must be alleged, unless a discharge is shewn. Same cases and Roche v. Campbell, 3 Campb. 247. Indorsee against indorser of a promissory note, describing the note as payable generally, but in the body it was made payable at a particular place. Per Lord Ellenborough. I think there is a fatal variance between them; the declaration represents the promissory note as con taining an absolute and unqualified promise to pay the money; but by the instrument produced, the maker only promises to pay, upon the specific condition that the payment is demanded at a particular place. We have fately held, that where the place of payment is mentioned in the body of the note, it forms a material part of the instrument. There seems to be no doubt, therefore, that it should be set out in the declaration. Plaintiff nonsuited. 2 Trecothick v. Edwin, 1 Stark. 468. The whole of a promissory note being printed, except the names, dates, and sum, and a place of payment inserted at the bottom of the note being also printed, it was sentment is neces the foot of it, contains a request to the drawee to 1st. When prepay the bill in London, an acceptance, payable at a sary. particular place in the Metropolis, requires a presentment there'. But still it is said, that there is no necessity to allege or prove notice of the dishonour held, that as special presentment there is necessary. This was an action on a promissory note made by the defendant. The note was in the usual form, "I promise to pay, &c. at Barclay, Tritton, and Co." The whole of the note was printed, except the names of the parties, the sum, and the date; the words " at Barclay, Tritton, and Co." were at the bottom of the note, and were also printed. It was contended for the defendant, that since the note was made payable at a particular place specified in printed characters, it was incumbent on the plaintiff to prove a special presentment. Lord Ellenborough held, that it was necessary to prove a special present ment, since the stipulation for payment at a particular place, being printed, was to be considered as a part of the note, having been made at the same time. A special presentment was afterwards proved. Verdict for the plaintiff. ' Garnett r. Woodtock and others, 1 Stark. 475. A bill is drawn, payable in London, and is accepted payable at a particular banker's in London (semble), a presentment at that banker's must be proved in an action against the acceptor. Hodge v. Fillis and another, 3 Campb. 463. This was an action by the indorsee against the acceptors of a bill of exchange, drawn in the following form:-Cork, 12th April, 1813.-£2314. 158. 11d. at two months' date of this our first of exchange, second and third of the same tenor and date, not paid, pay to our order £2314. 15s. 11d. and charge the same to account as advised.-W. & A. Maxwell.-To Messrs. Fillis and Co. Plymouth.-Payable in London. The bill was accepted by the defendants, payable at Sir John Perring's and Co. Bankers, London." The first count of the declaration did not state that the bill was made payable at any particular place, either by the drawers or acceptors. The second count stated that it was drawn payable in London, and accepted payable at l'erring's and Co.'s, and contained an averment, that when due, it was presented there for payment. The plaintiff having proved the partnership of the defendants, their hand-writing as acceptors, and the indorsement of W. & A. Maxwell, closed his case. Giffard for the defendants contended, that upon this evidence, the plaintiff was not entitled to a verdict. He could not recover on the first count, for that did not properly describe the bill of exchange; the circumstance of the bill being made payable in London was an essential part of the original contract. The second count described the bill properly, but contained a material averment which had not been proved, viz. that the bill was presented when due at the banker's in London, where it was made payable by the acceptors; without at all consider ing the effect of an acceptance making the bill payable at a particu lar place, where it was drawn, without any mention of a place of payment, there could be no doubt, that where a particular place of payment is denoted both by the drawers and acceptors, that becomes a term of the contract between the parties, and an averment that the bill was presented for payment there, cannot possibly be rejected as irrelevant. Lord Ellenborough expressed himself to be of this opinion. 1st. When presentment is necessary. to the acceptor or maker'; and provided a presentment, and request to pay at the particular place, be averred in the declaration, with the general refusal to pay at the end of the declaration, that is sufficient without alleging a special refusal at the particular place 2. 66 'Pearce v. Pembertley and others, 3 Campb. 261. In an action against the maker of a promissory note, payable at a banking-house, it is not necessary to prove that he had notice of its dishonour. This was an action against the makers of a promissory note, payable at Vere, Bruce, and Co.'s," being presented there for payment when due, the answer was, 66 not sufficient effects." The only point made for the defendant was, that they were entitled to notice of its dishonour; the place where it was made payable being, according to recent decisions, a material part of the instrument; it exactly resembled a bill of exchange, the bankers standing in the place of the drawees. Had it been a bill of exchange, the defendants were clearly entitled to notice, for they had some effects in the hands of Vere, Bruce, and Co. and there was the same reason for their receiving notice, although the form of the instrument was different. They might suppose that the bankers would pay the note; and they ought, as early as possible, to have had information that it would be necessary for them to provide for it themselves, and that their balance at the banking-house remained unappropriated. The necessity of notice to the maker of a promissory note of its dishonour, results from the determination, that his liability does not attach, till payment has been demanded at the place where it is expressed to be payable. But Lord Ellenborough clearly held, that notice was unnecessary; and the plaintiff had a verdict. 2 Butterworth v. Lord Le Despencer, 3 M. & S. 150.-Benson v. White, 4 Dowe's Rep. 334. S. P. Declaration against the maker of a promissory note payable at a particular place, and avers a presentment at the place, and that the defendant licet sæpius requisitus hath hitherto refused, and still doth refuse to pay. Held well upon demurrer, and that a refusal at the particular place need not be averred. Lord Ellenborough, C. J. said, a presentment of the note at the house was a request there to pay the note, and the non-payment of it is a refusal at the house; if it were necessary that there should be a specific refusal in a given form, or by some positive act, it might be argued, that this general refusal would not be good, but a refusal need not be by an affirmative act; the not paying, which is only a negative act, or shutting the door, is a refusal; all therefore that is necessary is, that there should be a special request, and here a special request is averred. In Saunderson v. Bowes, we held, that we could not infer a special presentment from the allegation of a general refusal; all we say here is, that negation of payment every where is a negation of payment at the place. Dampier, J. The ques tion is, whether the general averment at the end of the declaration does not in effect allege, that the defendant did not pay the note at the place where it was made payable. Presentment at the house must be averred; but it has never been decided that a special refusal must appear upon the record, and to determine that it must, would be to impose a grievous burthen on the plaintiff. Judgment for the plaintiff. sentment is neces sary. On the other hand both the courts agree, that if 1st. When prea promissory note be payable generally in the body of it, and there is a memorandum only at the foot denoting that payment shall be made at a particular place, such memorandum does not qualify the contract, and it is not necessary for the holder to allege or prove any presentment at the particular place, and if it be 'Saunderson v. Judge, 2 Hen. Bla. 509. Bayl. 96. A note made payable at the foot of it, at the plaintiff's banking house, was indorsed to them, and when it became due the maker having no effects in their hands, they wrote to one of the indorsers to say it was not honoured, and afterwards brought an action against him, but it appearing that they had made no demand on the maker, they were nonsuited. On shewing cause however, against a rule for a new trial, the court held, that it was no part of the contract in this case that the note should be paid at the house of Saunderson and Co.; and therefore that was not necessary to be stated in the declaration, and that it was sufficient to present the note where the maker made it payable, and as the persons at whose house it was made payable were themselves the holders it was sufficient for them to refer to their books and see whether they had effects in hands, and a new trial was granted. Wild. Rennard, 1 Campb. 425, note. In this case Bayley, J. held, that if a promissory note be made payable at a particular place, there is no necessity for proving, in an action against the maker, that it has been presented there for payment. And upon this case being cited in Sanderson v. Bowes, 14 East. 500. Bayley, J. said, that as far as he could recollect, the place was not incorporated with the body of the note; it was only mentioned, in a memorandum, at the bottom. And in Callaghan v. Aylett, 2 Campb. N. P. C. 551, and Saunderson v. Judge, 2 Hen. Bla. 509. the same distinction is taken. In Price v. Mitchell, 4 Campb. 200. Gibbs, C. J. ruled accordingly; he said, I am of opinion that the words at the foot of this promissory note are only a memorandum where payment may be demanded; had they been inserted in the body of the note they certainly would have formed a part of the contract and evidence of a presentment for payment at Vere's, Smart and Co.'s would have been necessary to charge the defendant. I find this distinction taken in Bayley on Bills, last edition, p. 96. If a note be made payable at a particular place, and that place be mentioned on the body of the note, presentment for payment must be made at that place, but where the place is mentioned in the margin it does not appear that such presentment is necessary; several cases are referred to which seem to sanction the distinction. Indeed where the direction to the place of payment is mentioned in the margin or at the foot of the note (as here) the inspection and perusal of the instrument, I think, shew that this was not intended to be any condition to the absolute promise to pay contained in the body of the note. His Lordship refused to save the point, and the plaintiff had a verdict. Richards v. Lord Milsingtown, 1 Holt, C. N. P. 364. in notes. This was an action by the indorsee against the maker of a promissory note. The note was in the common form; but in the inargin, and underneath the name of the maker, was written, "payable at Bruce and Co.'s" The declaration did not state that the bill had been presented at Bruce and Co.'s; and no evidence of that fact was tendered |