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Herring v. Sanger.

It is a

Hopkins, contra.

KENT, J. delivered the the opinion of the court.
settled rule of law that accepting a note for a debt due, is
no payment of the debt, unless it be specially so agreed, or
unless the creditor negotiates the note. It can only postpone
the time of payment of the debt, until a default in the pay-
ment of the note. (1 Salk. 124. 7 Term Rep. 66. 1 Esp. Ca-
ses, 3, 4, 5, 6. 1 Term Rep. 655.) In this case, it is stated,
that by the express agreement of the parties, the note was
not intended to discharge the pre-existent debt, and the re-
ceipt of the plaintiff's agent was given with the express
view and intent of holding the defendant still liable.(a)

The only question that could be made in this case was
whether the plaintiff had used due diligence in making a de-
mand of payment of the note. Admitting this to be like
the case of a creditor accepting a bill for a prior debt, and
that he is bound to use diligence to get the money, and to
give notice of non-payment; yet the plaintiff has done all
that was requisite for him to do. He demanded the money
of the drawer, in person, at Albany, and no objection be-
ing made to the place of damand, it excused the plaintiff

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(a) The transfer of a bill or note does not satisfy an existing debt, unless
it be paid and accepted in good faith for that purpose. (Dayton v. Trull,
23 Wend. 345. Copper v. Powell, Anthon's N. P. 49. Tobey v. Barber, 5
Johuson, 68. Johnson v. Weed, 9 Johnson, 310. Putnam v. Lewis,
8 Johnson, 359. Hoan v. Clute, 15 Johnson, 224. Burdick v. Green,
15 Johnson, 247. Woodcock v. Bennett, 1 Cowen, 711. Higgins
v. Packard, 2 Hall, 547. Sheehy v. Mandeville, 6 Cranch, 253. Gal-
lagher v. Roberts, 2 Wash. C. C. 191; 1 id. 321; 1 id. 156.

Brown v.
Jackson, 2 id. 24 ; 1 id. 512. Denniston v. Imbree, 3 id. 396. Parker v.
United States, Peters' C. C. 256. Newell y. Hussey, 6 Shepley, 249.
Coinstock v. Smith, 2 id. 202. See 4 Mumford, 487. Paine, 285. Henry
v. Donnaghy, Addison, 39. M’Ginn v. Holmes, 2 Watts, 121. Abercrom-
bie v. Mosely, 9 Porter, 145. Dougal v. Coles, 5 Day, 511. Anderson v.
Henshaw, 2 id. 272. Bill v. Porter, 9 Conn. 23. Core v. Hunkinson,
Coxe, 85. Chastain v. Johnson, 2 Bai. 574. Kennell v. Hennesy, Peck,
273. M'Guire v. Gadsby, 3 Call, 234. Slocomb v. Holmes, 1 How. (Miss.)
139. Cate v. Hall, 5 Missouri, 59. Pope v. Tunstall, 2 Pike, 209,
Watson v. Owens, 1 Richard. 111. See 2 Johns. Cas. p. 441, n. (6). to Mur-
ay v. Gouverneur, et al. Chil. on Bills, Am. ed. 1840, p. 180, 1. 1.)
VOL. III.

13

Herring v. Sanger.

[*73) from the necessity of making the demand at the Al

bany bank. No injury could possible have arisen to the drawer of the note from the plaintiff's omission to go to the bank. The personal demand, in this instance, at Albany, without any objection, was a waiver of any further demand, and I am satisfied that the justice of the case, as well as the law, is with the plaintiff.

Judgment for the plaintiff.(b)(c)

(b) (Old note.) See Rogers and Meritt v. Clapp, (2 Caines, 117.) Holmes and Drake v. D'Camp, (1 Johns. Rep. 35.) Markles v. Hatfield, (2 Johns. Rep. 455.) People v. Howell, (+ Johns. Rep, 296.) Tobey v. Barber, (5 Joh ns. Rep. 68.)

(c) See Chitty on Bills, edition of 1848, p. 359, and notes. Story on Proin. Notes, 9 228, 229, and notes. It seems to be somewhat doubtful whether presentment and demand of payment, should be made at the place where a promissory note or bill of exchange is made payable, before an ac. tion can be brought thereon, against the maker or acceptor. The doctrine is thus treated by Judge Story, in his work on Promissory Notes, 9 228, 229, 230 : “In America a doctrine somewhat different prevails, if not universally, at least 10 a great extent. It was probably in the first instance adopted from the supposed tendency of the English authorities to the same result; and there certainly was much conflict in the authorities, until the doctrine was put at rest by the final decision in the House of Lords, a decision, which seems founded upon the most solid principles, and to be supported by the most enlarged public policy, as to the rights and duties of parties. The received doctrine in America seems to be this, that as to the acceptor of a Bill of exchange, and the maker of a Promissory Note, payable at a bank, or other specified place, the same rule applies, that is, that no presentment or demand of payment need be made at the specified place, on the day when the bill or note becomes due, or afterwards, in order to maintain a suit against the acceptor, or maker; and of course, that there need be no averment in the declaration in any suit brought thereon, or any proof at the trial, of any such presentment or demand. But that the omission or neglect is a matier of defence on the part of the acceptor or maker. If the acceptor or ma. ker had funds at the appointed place, at the time, to pay the bill or note, and it was not duly presented, he will, in the suit, be exonerated, not indeed, from the payment of the principal sum, but from the payment of all dama. ges and costs in that suit. If, by such omission or neglect of pre tment and demand, he has sustained any loss or injury, as if the bill or note were payable at a bank, and the acceplor or maker had funds there at the time wbich have been lost by the failure of the bank, then, and in such case, tho acceptor or maker will be exonerated from liability to the extent of the 1098 or injury so sustained.

Herring v. Sanger.

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The ground, upon which the American doctrine is placed, is, that the ac. ceptor or maker is the promissory debtor, and the debt is not as to him discharged by the omission or neglect to demand payment, when the debt became due, at the place where it was payable. Assuming this to be true, it by no means follows, that the acceplor or maker is in default, until a demand of payment has been made at the place of payment ; for the terms of his contract import an express condition, that he will pay upon due presentment, at that place, and not that he will pay upon demand elsewhere ; and the omission or neglect of duty, on the part of the holder, to make preseutment at that place, ought not to change the nature or character of the obligations of the acceptor or maker. Now the right to bring an action presupposes a default on the part of the acceptor or maker; and it may, after all, make a great difference to him, not only in point of convenience, but in point of loss by exchange, as well as of expense, whether, if he agrees to pay the money in Mobile, or in New Orleans, he may be required, without any default on his own part, notwithstanding he has funds there, to pay the same money in New York or in Boston. He may well say ; Non in hæc fædera ceni.

Bat, although the English and American authorities are not in harmony with each other on the question, whether a presentment and demand of payment should be made at the bank, or other place, where a promissory note or a bill of exchange is made payable, before an action can be brought thereon against the maker or acceptor; yet they are entirely in coincidence with each other on the point, that it is indispensable, in order to charge the indorser or the drawer, that a presentment for payment should be made not only at the place, but also on the very day of the maturity of the note or bill, otherwise the indorser or drawer will be absolutely discharged. (Chitty on Bills, ch. 5, p. 172, 173, (8th edit. ;) Id. ch. 7, p. 321-323 ; Id ch. 9, p. 331–400; Bayley ou Bills, ch. 1.99, p. 29, 30 (5th edit. ;) Id. ch. 7, 91, p. 219-223 ; Gibb v. Mather, 2 Cromp. & Jerv. R. 254; S. C. 8 Bing. R. 214. United States Bank v. Smith, 11 Wheat. R. 174. Wallace v. M'Con. nell, 13 Peters, R. 136. Woodbridge v. Brigham, 13 Mass. R. 556. Thom. son on Bills, ch. 6, 92, p. 420-424 (2d edit) Shaw v. Reed, 12 Pick. R. 132. North Bank v. Abbot, 13 Pick. R. 465.") The reasou is, that the un. dertaking of the indorser and drawer is conditional, and consequently, unless there be a strict compliance with the condition, no right can attach against the indorser, or the drawer. (See also $ 228, n. 1.; Bayloy ou Bills, 157, 158, 159.)

Holmes v. Lansing.

Holmes and another against LANSING, Sheriff, &c.

In an action against a sheriff for an escape, if it be averred, or found on the

record, that the sheriff permitted the prisoner to escape, it is equivalent to

a finding of a voluntary escape. The prohibition in the 10th section of the first article of the constitution of

the United States, does not extend to the municipal regulations of the present states, which modify the process and proceedings relative to the re

covery of debts, as establishing jail liberties, d-c. The act, (sess. 24, c. 91,) as to jail liberties, is imperative on the sheriff, who

is bound to grant the liberties to the prisoner on his tendering a sufficient bond; but as this bond is intended only for the sheriff's indemnity, he may waive it, and grant the liberties, without taking the bond ; and he will not therefore, be liable for an escape.

This was an action against the defendant, as sheriff, of the city and county of New York, for an escape.

It was found, by the special verdict, that the defendant, as sheriff of New York, did, "without any compensation or promise therefor, permit John Evers, who was charged in execution at the suit of the plaintiffs, to go at large without the walls of the prison, but within the limits of the liberties thereof, and that he so permitted him, at sundry times, in the months of September, October, and November, 1799.

That he took no bond from the said John Evers, as is men. tioned or required in the act for regulating the liberties of jails. That the said John Evers voluntarily returned with in the walls, before the commencement of the suit against the defendant, which was on the 19th February, 1799." The question was, whether the defendant was responsible

to the plaintiffs as for an escape ? [*74] *KENT, J. delivered the opinion of the court.

1. TE it is found, that the sheriff permitted a person to go at large, it is equivalent to finding that he voluntarily suffered him. The distinction that runs through all the books is between voluntary and negligent escapes, and not between voluntary and permissive escapes. In the case of Vintner v. Allen, (Carter, 212,) there was a scire facias brought on a

Holmes v. Lausing.

judgment, and the defendant pleaded that he was in prison, in custody of the warden of the Fleet, and that the warden permisit illum ire ad largum. On demurrer to this plea, and argument, it was contended on one side, that by permis. sion must be understood negligent, and on the other side, that it must be understood voluntary. Two of the judges appeared, in the first instance, to differ on the import of the word permisit, but, at last, the court concluded it to be a plea of a voluntary escape, and decided upon it as such. In the case of Philips v. Stone, (2 Leon. 118,) the court said, if a prisoner, being in execution, escape with the permission of the jailer, the execution is utterly extinguished, and the prisoner discharged, which was only, at common law, in cases of voluntary escapes. So in the case of Whiting v. Sir G. Reynal, (Cro. Jac. 657,) which was an action of debt against the marshal for an escape, the declaration stated that he suffered the prisoner to go at large, and the court held this equivalent to a voluntary permission.

It might be easy to multiply cases, where the word voluntary has been used, but those I have referred to, and the general language of all the books, are sufficient to show, that if it be averred or found, on the record, that the sheriff permitted a man to escape, the court must understand it to be an escape by consent.(a)

2. I have no doubt, that that the act of the 5th April, 1798, (Rev. Laws, vol. 1. p. 350, sess. 24, c. 91,) regulating the liberties of jails was a valid act and not within the prohibition of the constitution of the United States, that no state should pass laws impairing *the obligation of con- [175] tracts. This law was not intended to impair the remedy of the creditor, by confinement of the debtor's body. We need not give any opinion, whether taking away the remedy by a ca. sa. on pre-existent contracts, would infringe the provision in the constitution, since that question does not arise on this act. It is only a regulation concerning the jails, and rendering them more convenient and healthy:

(a) Graham's Prac. 3d. ed. vol. 1, p. 536, et seq.

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