
    HAMER ET AL. vs. JOHNSON; ARCUEIL ET AL., GARNISHEES.
    Eastern Dist.
    
      April, 1840.
    APTEAL PROM THE COMMERCIAL COURT OP NEW-ORLEANS.
    In an action against the maker of a note, payable at a particular place, it is necessary to show presentment of the note, and demand at the place of payment, to entitle the holder to recover.
    The Supreme Court of the United States, in the case of Wallace vs. M‘Connell, 13 Peters, 136, held that it is not necessary to allege and prove a demand of payment, in an action against the maker of a note,or acceptor of a bill; but that it is a matter of defence, if the defendant can show he was ready at the place of payment, and offered to pay, to be pleaded and proved on his part. This court adheres to its former and contrary decision in the case of Mellen vs. Croghan, 3 Martin, JV. S. 423.
    This is an action against the defendant, John Johnson, who signed a promissory note with one Stephen Johnson, as security. The note was executed in the state of Mississippi, “and payable and negotiable at the office of the Planters’ Bank at Manchester,” in that state. The plaintiffs allege, that when the note became due, the defendant or any one' else had no money, either then or afterwards, at the bank to pay such note, and that it remains unpaid.
    • The suit was commenced by attaching property or assets of the defendant in the hands of Arcueil, Peyroux & Co., who were made garnishees, and required to answer interrogatories. Having failed to answer within ten days after service of process, on motion of the plaintiffs’ counsel, a judgmentp'o confessis was entered against them, and which the judge refused to set aside on a rule afterwards taken for that purpose, and to allow them to file answers. The judge presiding considered that garnishees were fixed, if they failed to answer within ten days. They appealed.
    The defendant pleaded a general denial; and without any evidence of a demand of payment at the place where the note r J 1 was made payable, there was judgment for the plaintiffs for the amount of the note, and the defendant appealed.
    
      G. B. Duncan, for the plaintiffs,
    insisted on the affirmance of the judgment against Johnson, and cited the cases of United States Bank vs. Smith, 11 Wheaton, 171, and Wallace vs. M‘Connell, 13 Peters, 136 ; and as against the garnishees) the case of De Blanc vs. Webb, 5 Louisiana Reports, 83, and other cases, were relied on.
    
      Benjamin, for the defendant, contended :
    1. That the court erred in giving judgment for plaintiffs, without any evidence being offered by them of a demand for payment at the place where the' note was made payable. This court has repeatedly decided, after full argument and examination, that such demand is a condition precedent to the right of recovery, and such is now the settled jurisprudence of this state. See amongst other cases :• Mellen vs. Croghan, 3 Martin, N. S., 423; Erwin vs. Adams, 2 Louisiana Reports, 318; Morton vs. Pollard, 10 Louisiana Reports, ■ 552; Warren vs. Allnut, 12 Louisiana Reports, 454.
    
    
      2. In relation to the garnishees, the counsel showed that the judgment pro confessis, was against all law and the previous decision of this court, and cited the case of Proseus vs. Mason et al., 12 Louisiana Reports, 16, and the cases there cited. * Code oj Practice 263.
   Martin, J.,

delivered the opinion of the court.

This case comes before us on two separate appeals.

1. Thé plaintiffs instituted suit by attachment against the defendant, on a joint promissory note which he signed as security. • The note was executed in the state of Mississippi, and made payable to the order of the plaintiffs, at the office of the Planters’ Bank, at Manchester, the first of 'February,,

In an action against the maker of a note, payable at a particular place, it is necessary to show presentment of the note, and demand at the place of payment, to entitle the holder to recover.

The Supreme Court of the United States, in the case of Wallace vs. M‘Connell, 13 Peters, 136, held that it is not necessary to allege and prove a demand of payment, in an action against the maker of a note,or acceptor of a bill; but that it is a matter of defence, if the defendant can show he was ready at the place of payment, and offered to pay, to be pleaded and proved on his part. This court adheres to its former and contrary decision in the case of Mellen vs. Croghan, 3 Martin, N. S. 423.

1839. There was judgment against the defendant, and he has appealed.

2. The plaintiffs propounded interrogatories to Arcueil, Peyroux & Co., as garnishees, requiring them to answer, first, if, they had not under their control, property, moneys, &c., belonging to the defendant, and if so, to state its nature and amount. Second, if they were not indebted to the defendant, and in what amount? These interrogatories were served on the 11th June, 1839, on the garnishees, and ordered to be answered in ten days. On the 28th of June, the garnishees not having answered, judgment pro confessis was entered against them for the amount of the plaintiffs’ demand. This judgment was signed the 26th November, and on the 30th judgment was rendered against the defendant for the original debt. The garnishees have appealed.

I. The counsel for the defendant and appellant contends, that the judge a quo erred in rendering judgment against the defendant, -without any evidence being offered of a demand of payment at the place where the note was made payable; and has referred us to our own decisions to show that the settled jurisprudence of this court is, that such a demand is,a condition precedent to the right of recovery. Mellen vs. Croghan, 3 Martin, N. S., 423; Erwin vs. Adams, 2 Louisiana Reports, 318; Morton vs. Pollard, 10 idem., 552; Warren vs. Allnut, 12 idem., 454.

This is certainly correct, but the adverse counsel relies on the case of Wallace vs. M'Connell, 13 Peters 136, in which *be Supreme Court of the United States held, that it is not necessary to allege and prove a demand of payment in order . . 0 . . r J to maintain an action against the maker or a note or acceptor °f a bill; but is matter of defence, if the maker or acceptor was ready at the place "and offered to pay, to be pleaded and . J , . r J ’ , . proved on his part. 1 he court observes that this was the first time that the question was directly presented for their clecis¡on and they solved it, according to the current of deci- . J. ° sions of the courts in the several states of the Union, without expressing or intimating any opinion, whether the grounds on which this rule was established, were questionable. In England, from whence most, if not all, the other states derive their commercial law, this question was unsettled until the year 1820; the jurisprudence of the Court of Common Pleas being the same as that established by the decision „ . . , , „ , , _ , of this court; and that of the Court of King s Bench, in accordance with the principle lately recognized by the Supreme Court of the United States, in the case above cited. In that year the House of Lords reversed a judgment of the Gourt of King’s Bench, and sanctioned the doctrine, that in an . . i n . i,, _ t , , action against the acceptor of a bill of exchange, payable at a particular place, the plaintiff must aver and prove presentment at the place of payment in order to recover. Rowe vs. Young, 2 Brodcrip & Bingham, 165.

The parliament was induced by this decision, immédiately to pass an act declaring, that after the 1st August, 1821, if a bill of exchange was accepted, payable at the house of a banker, or other place, without further expression in his acceptance, it shall be deemed and taken a general acceptance of such bill; but if the acceptor shall in his acceptance, express that he accepts the bill, payable at a banker’s house or other place only, and not otherwise, or elsewhere, such acceptance shall be a qualified acceptance, and the acceptor shall not be liable to pay the bill except in default of payment, when such payment shall have been first duly demanded at the place of payment.”

We do not consider ourselves at liberty to' change the settled jurisprudence of this court It is meet, that while we settle the rights of the parties litigant before us, the rest of the community should find in our decisions a rule on which they may rest assured that future cases of the same kind will receive the same determination ; that our decisions should be beacons, not decoys or snares. If the principles which we establish are found inconvenient, the legislature may do what was done by the parliament of England, and fix a rule by which future cases may be determined.

The plaintiffs in this case have not shown presentment of the note sued on at the place of payment, and are not consequently entitled to recover. The judgment of the court below must, therefore, be reversed.

II. The judgment against the garnishees being based on t[jat against the defendant, must follow it, and share the same fate.

^ is, therefore, ordered, adjudged and decreed, that both judgments of the Commercial Court be annulled and reversed, and that the case be remanded for a new trial; the plaintiffs and appellees paying costs of the appeal.  