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 17. 1s. Od. value received. "For Bowes, Hodgsons, Key, and Co. Thirty-two of these notes were presented at the banking- (a) The form of the count was the same as in the first part of the count stated in the next case. 1812. DICKINSON against BOWES and Others. 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. (b) See the next case. Saturday, June 6th. Though, where a promissory note is made payable at a holder a cause come insolvent) THI How against Bowes and Others (a). HE plaintiff declared in assumpsit, as the holder of a promissory note made by the defendants on the 2d of January 1809, at Workington Bank, that is, at Penrith in the county of Cumberland, whereby the defendants then and there promised on demand to pay to one R. W. or bearer there, that is to say, at Workington Bank aforesaid, five guineas, value received: which note was afterwards, and before payment of the sum therein shut up and abandon their shop, that is evidence of a declaration to all the world of their refusal to pay their notes there. And specified, duly assigned and delivered to the plaintiff, by 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. 1812. HOWE against BOWES. who found the fact as alleged, and gave a verdict for the plaintiff for 3017. 9s., 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 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. 1812. HOWE against BOWES. |