offer, of desiring your agents to hold the bill for a little time. Should you have done so, I shall ever feel most truly thankful. Should, however, the bill be returned to you, let it be immediately transmitted back, when, I assure you, it will meet with payment and costs; and I beg of you not to suffer an improper feeling to be formed against me on the occasion. T. Russell, Esq. Rio de Janeiro. I remain, &c. W. OSTLER. Upon this evidence a verdict was found for the plaintiff, upon the first, fourth, and subsequent counts, and for the defendant, on the second and third counts, with liberty for the defendant to move to enter a nonsuit. F. Pollock, now moved accordingly, upon the objection taken at the trial. Notice of non-acceptance was necessary, considering the testator as standing merely in the relation of drawer of this bill. It was contended at the trial, that the testator's letter of the 22d January, 1826, coupled with evidence of his place of abode in England, was sufficient to shew that the testator had drawn this bill upon himself. But such evidence was clearly insufficient; for no sum was mentioned in the letter, nor was there any evidence to connect that letter with the bill in question. The Court said, that there was evidence for the jury that the testator was the drawee of the bill; which must, therefore, be considered as a mere promissory note, the maker of which would not be entitled to notice. (a) If the allegations in the declaration left the question of identity or non-identity indifferent, the doubt seems to be removed by the evidence. If the declaration be considered as distinctly asserting the non-identity of the drawer and Rule refused (a). drawee (ante, note (a,) or as presenting a patent ambiguity, the objection, supposing the general allegation of notice after the second protest (for non-payment), to be insufficient, would be on the record. SUTTON V. TOOMER. 1827. A. deposits money with B., a banker, on the terms of having a deposit note, by which B. to pay the principal, at ten days' sight, with three per cent. interest, until the day of Anote is given acceptance. accordingly. On receiving interest on this note, A. is shall engage told that B. ASSUMPSIT. The first count stated, that on the 23rd November, 1813, the defendant made his promissory note in writing, and thereby promised to pay, ten days after sight thereof, to the plaintiff or order, 2501., with interest at the rate of two and a half per cent. per annum, to the day of acceptance, whereby defendant became liable to pay, &c. Averment, that the said note was afterwards, to wit, on the 14th day of May, 1825, duly presented to the defendant, who then and there had sight thereof, and then and there paid to the said plaintiff interest on the said sum, to the 23rd November, 1824, and in consideration of the premises, undertook to pay the said sum and interest thereon, from the day and year last aforesaid, according to the tenor and effect of the said note. 2nd count, a similar note payable with three per cent. interest, whereby, &c. Averment of presentment, and that defendant paid interest on the note, at the rate therein mentioned, to the 23rd day of November, 1823. in consideration of the premises, defendant undertook, &c., to pay plaintiff the said last-mentioned sum and interest thereon, from the day and year last aforesaid, at the rate of two and a half per cent. per annum. The third count stated, the making of the note and the payment of the dence to shew interest, as in the second, and then averred, that the de- that a principal sum corfendant, without the request or authority of the plaintiff responding for that purpose, altered the note by striking out the word with, and bear"three," and inserting instead thereof the words "two and a half,” and thereby made the same to appear payable with interest at the rate of two and a half, instead of three And per cent. per annum. And in consideration of the premises, defendant undertook, &c., to pay plaintiff the said last-mentioned sum, and the future interest thereon, at the ance" in such an instrument means "demand;" and as the maker has exercise, the note need not be left with him for acceptance. cannot afford to pay more than two and two and a half" inserted Held, that the payment of interest is evi instead. ing such interest, was the note may be looked at to see the due; and that terms on which the deposit was made. The term " acceptno option to 1827. SUTTON บ. TOOMER. rate last aforesaid. The fourth count differed from the third, by omitting the allegation, that the alteration was made without the request or authority of the plaintiff. The fifth count was wholly silent as to any reservation or payment of interest. The sixth count stated a reservation of interest at three per cent., and a presentment for acceptance; that in consideration of the premises, defendant undertook, &c., to return the note to plaintiff, after having sight thereof, in the same state and condition in which the note was at the time it was so delivered to the defendant, and not to alter the same in any material respect without the previous request or authority of plaintiff for that purpose; yet defendant not regarding, &c., did not nor would return the note to plaintiff, after having had sight thereof as aforesaid, in such state and condition as aforesaid, but wholly refused and neglected so to do; and, on the contrary thereof, afterwards, to wit, on, &c., at, &c., without the previous request or authority of plaintiff for that purpose, wrongfully altered the note, by striking out the word "three," and inserting instead thereof, the words "two and a half;" and thereby made the said last-mentioned note to appear to be payable with interest, at the rate of " two and a half," instead of " three" per cent. per annum, whereby plaintiff hath been hindered and prevented from obtaining payment of the last-mentioned sum, with interest at the rate of three per cent. per annum, according to the tenor and effect of the last-mentioned note, which is still wholly unpaid to plaintiff, to wit, at, &c. The declaration contained counts for money lent, money paid, money had and received, interest, and upon an account stated. The defendant pleaded non assumpsit, and actio non accrevit infra sex annos. At the trial before Best, C. J., at the last Hants assizes (a), it appeared that in the year 1813, when the note was given, (a) Counsel for the plaintiff, Merewether and E. Lawes, Serjts., and Manning; for the defendant, Williams, C. F., and Bayly. defendant carried on business as a banker, in partnership with two persons, of the names of Trim and Kellow. Plaintiff deposited 2507. with the bank, on the 3d November, 1813, and at the same time received the banker's deposit note declared on, which then purported to bear interest at the rate of three per cent. to the day of acceptance. It was stated by the clerk who received the money, that it was deposited on the terms of the note. In 1819, the defendant retired from the bank, and was succeeded by Pritchard, who continued the business in partnership with Trim and Kellow, till 1823, when Trim died, and afterwards with Kellow alone, who had since died insolvent (a). On the 14th May, 1825, plaintiff called at the bank for payment of his interest, which had not been before demanded since the note had been given in 1813. Pritchard carried the note over to defendant, who desired Pritchard to pay the interest; whereupon Pritchard returned to the bank, and paid the interest up to the preceding November, but told plaintiff that they could not afford to continue paying three per cent. interest, and asked him to accept in future two and a half. Plaintiff not having expressly objected to this proposal, Pritchard altered the note, by striking out three and writing over it two and a half, and then returned the note to the plaintiff. In January last, Bell, clerk to Clement, plaintiff's attorney, called on defendant at his house, shewed him the note, and said he came on behalf of plaintiff to demand payment of 250%., deposited by him with Trim and Toomer at the date of the note, and the interest thereof at three per cent; that he would call on him again in thirteen days, for the principal and interest: he then made a similar demand at two and a half per cent. Defendant then requested that the note should be left, and said that the usual course was to leave it for a day, and that unless that were done, and it was so left, he would have nothing to do with it. (a) A former action had been ed the nonjoinder of Toomer. brought against Kellow, who plead Bell 1827. SUTTON v. TOOMER. 1827. SUTTON v. TOOMER. refused to part with the possession of the note, but offered to read it to defendant. Upon this evidence it was contended, on the part of the defendant, that the plaintiff could not recover, first, because the note was void for want of a new stamp upon the alteration in the rate of interest; and secondly, that the note ought to have been left for acceptance. The learned Judge overruled these objections, and directed a verdict for the plaintiff for principal, and for interest, from Nov. 1824, at two and a half per cent., giving to the defendant leave to move the Court for a rule to enter a nonsuit on the last objection, if, on reflection, his counsel should think the objection tenable (a). C. F. Williams now moved for a nonsuit on the ground of non-acceptance, and for a new trial on the objection to the stamp. Upon the first point he urged, that the special contract between these partners rendered an acceptance necessary before payment of the note could be demanded. Here there was no acceptance, and no opportunity to accept, inasmuch as the person who brought the note refused to allow it to remain for the usual time. Upon the other point, the money was deposited distinctly on the terms of the note. It was, therefore, from the note only that the Court could collect the terms on which the money had been deposited; but the plaintiff by consenting to alter the note had made it evidence of a new contract, which required a new stamp, without which it was not admissible in evidence for any purpose (b). Lord Tenterden, C. J.-In using the term " acceptance," the banker must be taken to have meant demand. He could not have refused to accept his own note (c). He had no business to say, "leave the note for acceptance (a) As the want of an acceptance could not have affected the demand for interest, there would have been a difficulty in directing a nonsuit to be entered (b) Rex v. Gillson, 1 Taunt. 95. Rapp v. Allnutt, 15 East, 601; and see Hawkins v. Warre, 5 D. & R. 512; 3 B. & C. 690, S. C. (c) Ante, 124, Roach v. Ostler. |