Fitler v. Beckley

[461] The opinion of the Court was delivered by Huston, J. A capias ad respondendum having been issued by Beckley & Shipman against M. M’Cabe, the sheriff, or his deputy, arrested M’Cabe and allowed him to escape. On the trial of this case, plaintiff showed the writ, proved that M’Cabe was arrested and in custody of the officer; and then to prove the amount for which M’Cabe was liable, showed and proved that M’Cabe made and delivered to the plaintiffs a note as follows: — ■ “f600T3/o Philadelphia, October 4,1839. Seventy days after date I promise to pay to the order of Beckley & Shipman, Six Hundred Dollars Thirty-three Cents, without defalcation, for value received. Payable at the Bank of Northumberland. (Signed) M. M’Cabe.” The witness who proved the note, stated that he helped to pack the goods for which the note was given, and the amount was entered in the books of Beckley & Shipman, and this note given for the amount; that witness gave M’Cabe a receipt for the note, and the books were balanced by the note. That the note had been sent to the Bank of Northumberland for collection; but that, having learned that M’Cabe had made an assignment, the note was sent for, and M’Cabe having come to this city, the writ issued and on the 30th of January 1840, the officer arrested him. The note did not appear to have been protested at Northumberland. The note was then offered in evidence, objected to, and admitted by the court. It does not appear why the note was objected to, nor that the defendant gave any evidence. The Judge told the jury “ that proof of the presentation of the note at the Northumberland Bank was not necessary — such proof is not necessary in the case; nor was it necessary to prove the sale of the goods by the books of original entries — such sale may be proved by other means, though the books do not exist, or are not produced. The argument here was confined to the two first errors assigned — which, in fact, are the same — as the three last are in substance the same. We find a difference of opinion existed between the courts of Common Pleas and King’s Bench, on the question whether a note payable at a particular place must be presented at that place; or if not paid, whether the maker of the note, or acceptor of the bill, might be sued, without proving such' presentation and demand at the place designated. The reason why it was supposed important enough to divide two courts for so long a time, was, perhaps, because such notes were drawn by individual bankers, or by persons who kept their cash at a particular banker’s, and therefore made their notes payable there. The one court held it a condition precedent to a right of action; the other, that if the debtor [462] had the money at the place at the time, and proved this, and brought it into court, it was equivalent to a tender, and threw the costs on the plaintiff. It was found necessary, in order to settle the law, to carry the matter to the highest tribunal, and in 2 B. & B. 65, (6 Eng. Com. Law Rep. 65), we find the case, and the reasons of the two courts for their several opinions at large. The House of Lords decided that it was necessary to present the note or bill at the place; but this did not settle the law; for Parliament enacted, very soon after, that if a note or bill was made or accepted, payable at a particular place, and not elsewhere, it must be demanded at that place — but payable at a particular place, it might, when due, be demanded any where, or recovered wherever suit was brought. The question has been agitated and decided in most of our state courts, and in the Supreme Court of the United States; and in all except one, or perhaps two states, it has been settled that a demand at the place is not necessary. Many of these cases will be found in 13 Peters 144, 5, 7; and in 3 Kent’s Com. 97 (last ed.), and following pages and note. I incline to the opinion in 13 Peters, as above, that if the maker or acceptor, where the money is payable at a bank, pays the money into the bank to the credit of the payee on such note or bill, and leaves it there, it will be a complete discharge, though the money should be lost by robbery of the bank or otherwise; but this case does not call for an opinion of the court on this point. It does not seem, however, that the matter, as alleged, is open in this state; for though no case is recollected where the note was payable in money at a particular place, yet we have in 7 Watts 380, a case where a note,for $45 was payable at a furnace in castings, of a description specified at a certain time; and we held it necessary that the defendant, in order to discharge himself, must prove that he had at the time castings of the requisite description. This would seem to settle the point in this state; but if it was open, there ought to be very strong reasons to induce this court to settle a matter differently from what has been established in all the surrounding states, and in the Supreme Court of the United States. The other error related to the charge as to the non-production of the plaintiffs’ books, to prove the sale and delivery of the goods for which M’Cabe gave the note. This point was not mentioned in the argument before this court. There is nothing in it. The witness was examined without asking for the books. When those errors were assigned, the counsel did not reflect on the difference between the seller of goods, who can only prove the sale and delivery by the production of his book of original entries, which we admit, though the entries were made by the seller, and a third person, who, acting for the owner, sells or packs the goods, and delivers them to the buyer, and then having calculated the [463] amount, or seen it in the book, in the presence of the buyer, receives a note from buyer to seller for the amount; such person can prove the note was given for consideration without the book. Judgment affirmed.