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1812.

DICKINSON

against Bowes and Others.

Kay was immaterial. Then another question arose upon the notes, which were in this form :

Workington Bank, 3d July 1809. One Guinea. On demand I promise to pay at the Banking house here to R. W., or bearer, the sum of 11. ls. Od. value received. “For Bowes, Hodgsons, Key, and Co.

J. Hodgson.Thirty-two of these notes were presented at the bankinghouse at Workington, and 5s. 3d. paid on each guinea in part discharge of the notes; and therefore if the first mentioned objection were not well founded, the plaintiff was entitled to recover the remainder of the

money

due on those notes. But as to the rest, it was objected that the plaintiff could not recover on them, not having been presented for payment at the place where they were made payable. It was said in answer, that as presentment was not alleged in the declaration (a), it was not necessary to prove it; and further, that the defendants should have pleaded that they were ready to pay at the place, as in a case of tender. The learned Judge said that the objection appeared upon the record; but to prevent a presumption of presentment after verdict, he held that the place of payment being embodied in the note was of the essence of the contract, as much as the time; and that the plaintiff was not entitled to recover on the unpresented notes, for want of a presentment at the appointed place. But he reserved both the points for the consideration of the Court, and the verdict was to be entered accordingly.

(a) The form of the count was the same as in the first part of the count stated in the next case.

The

1812.

DICKINSON

against BOWES and Others.

The last point was accordingly moved in the last term, by Park (with Littledale) for the defendants; and Topping and Courtenay jun., now appeared for the plaintiff: but the Court did not think it necessary to hear any argument,

Lord ELLENBOROUGH, C. J. said that it had been already decided upon demurrer (a) 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.

The Court therefore directed the verdict to be entered for 251. 4s., the residue of the sum due upon the notes which had been presented at the banking-house at Workington ; for which they were of opinion that the plaintiff was entitled to recover (b).

(a) Vide Saunderson v. Bowes, 14 East. 500.

(6) See the next case.

THE

Saturday, Howė against Bowes and Others (a).

June 6th. Though, where

THE plaintiff declared in assumpsit, as the holder of a promissory pote is made

a promissory note made by the defendants on the payable at a particular 2d of January 1809, at Workington Bank, that is, at place, a de mand of pay

Penrith in the county of Cumberland, whereby the dement must be fendants then and there promised on demand to pay to made there, in order to give the one R. W. or bearer there, that is to say, at Workington holder a cause of action;

yet Bank aforesaid, five guineas, value received: which note if the makers

was afterwards, and before payment of the sum therein (who had become insolvent) shut up and abandon their shop, that is evidence of a declaration to all the world of their refusal to pay their notes there. (a) See the last case.

specified

1812.

Howe against BOXES.

specified, duly assigned and delivered to the plaintiff, by which he became the bearer thereof, and entitled to the said sum therein specified : of which premises the defendants afterwards had notice, and by means thereof, and by force of the statute, became liable to pay the said sum, &c. when they should be thereunto afterwards requested ; and being so liable, in consideration thereof afterwards promised the plaintiff to pay him, &c. when they should be thereunto afterwards requested. And then the plaintiff averred that after the making of the note, and before the exhibiting of his bill against the defendants in this behalf, “they became insolvent, and then and from thenceforth, until and at the time of the exhibiting of the hill aforesaid, ceased and wholly declined and refused to pay at Workington Bankaforesaid, thesum or sums of money specified in any note or notes issued by them from such bank, to wit, at Penrith aforesaid,” &c. There were other similar counts upon other notes of the same bank, and also a count for money had and received, and another upon an account stated; to all which the general issue was pleaded.

At the trial before Wood B., in Cumberland, the plaintiff proved the notes, and also, in the opinion of the learned Judge, the allegation in the declaration, in excuse of the non-presentation of the notes at the bank, that the defendants became insolvent, and before and until the exhibiting of the bill declined and refused to pay them at the Workington Bank; (which proof was now stated to be that the shop was shut up, and that no payments were made there for some time before the action brought : but there was no proof of these particular notes having been presented there for payment.] This point was left to the jury, Vol. XVI. I

who

1812.

HOWE against Bowes.

who found the fact as alleged, and gave a verdict for the plaintiff for 301. 98., subject to two points of law appearing on the record; 1st, Whether a presentment at the appointed place was necessary: and if necessary, 2dly, Whether insolvency, as alleged in the declaration and found, is a sufficient excuse for non-preferment at the place ?

Park [with Littledale] moved in last Michaelmas term to set aside the verdict as contrary to the evidence, and against law; and Topping and Courtenay jun. now opposed the rule nisi then granted. The latter urged that the objection was rather matter of law upon demurrer, than upon a motion for a new trial; the jury having, with the approbation of the learned Judge at the trial, found the truth of the fact alleged, that the defendants, after they became insolvent, had ceased and wholly declined and refused to pay any of their notes (including the notes in question) at their bank at Workington. If (as the fact was now asserted to be) the house was shut up and abandoned by them, it was nugatory to present the notes for payment there, and it was equivalent to a declaration by them that there was no necessity to make such presentation, as the notes, if presented, would not be paid. The defendants' counsel, on the other hand, denied that there was any evidence given of an application for payment and refusal of the notes in question, which they contended to be necessary, but only general proof of insolvency of the defendants, which was not sufficient; and they requested the Court to refer to the learned Judge for a more particular statement of the evidence on this point from his notes.

Lord

1812.

Howe against Bowes.

Lord ELLENBOROUGH, C. J. observed, that the mere allegation of insolvency, as an excuse for not presenting the notes for payment at the place, would be impertinent; but in this case the allegation (the truth of which, as reported by the learned Judge, was left to the jury and found by them) went further, that the defendants had ceased and wholly declined and refused payment of any of their notes at the place. How then can the question arise? The shutting up of the house might be considered as a refusal to pay the notes there.

Park then urged that if the Court should refuse a new trial on the ground that the question appeared on the record, they would grant the defendants a rule nisi for arresting the judgment.

BAYLEY, J. Here is a general allegation on the record of a refusal to pay at the place, which is found by the verdict.

Lord ELLENBOROUGH, C. J. As it is not disputed that the banking shop was shut up, and that any demand of payment which could have been made there would have been wholly inaudible, that is substantially a refusal to pay their notes to all the world. Therefore, unless for our own satisfaction as to the fact, we shall wish to refer to the Judge's notes, the rule will stand discharged.

No further mention of the case was made in court.

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