
    Boot and Bentley against Franklin.
    NEW-YORK,
    May, 1808.
    Where a bill was drawn on a person residat pool, payable m London, and aftested^br nonacceptance at Liverpool, was protested at p/y,f¡Tj¡°r the declaration the bill not be-knowing where gam^for^ayt ment in LoK' don, ’caused the same to be pro-wasCheld&that the protest for ^sufficient, a,'(1 wh/re no place ol payment in London was specified, in the bill, the holder was not bound to make any inquiry after the drawee there. A general averment of notice of all the preinises in a declaration on a bill is sufficient.
    THIS was an action of assumpsit, by the indorsee • , against the drawer oí a bill oí exchange. The bill was drawn in favour of Franklin, Robinson & Co. on Messrs. Rathbone, Hughes Duncan, of Liverpool, payable in London, being similar to the one mentioned in the prece,ding case.
    - , Ihe declaration, alter stating a presentment to the drawees at Liverpool, their refusal to accept and the consequent protest, proceeded as follows : “ That after-.wards, to wit, on the 5th of November, 1807, being the day on which the said bill became payable, according to the custom of merchants at London, the plaintiffs not having received payment of the said bill or any part thereof, and not knowing where to present the same for . _ . payment in London aforesaid, where the same is made payable, they caused the said bill to be protested for nonpayment at London, according to the said custom of merchants ; of all which said premises the said defendants afterwards, to wit, on the 30th of December, 1807, at 1 7 the city of New-Tork, had notice. By reason whereof/’ o {SC*
    
      There was a special demurrer to the declaration, and joinder in demurrer.
    Colden, in support of the demurrer.
    1. There is not a sufficient avern~ent in the declaration of notice to the defendant of the protest for non-acceptanee and non-paymente
    2. The plaintiffs ought to have shown that they presented the bill for payment, or made some inquiry after the drawees in London, and that they, or any person in their behalf, could not be found there. It would be attended with great inconvenience, if the holder~ of a. bill payable at a particular place, might be allowed to say that he did not know where to find the drawee, and, therefore, caused it to be protested, and so look to the drawer for the amount, with damages. He ought to state at least~ that he made some inquiry~ that he used due diligence to find the drawee.
    Boyd, contra.
    1. There is a sufficient allegation of notice in the declaration. After setting forth the presentment for acceptance, and protest, and the subsequent protest for non-payment, it says, " of all which premises the said defendant had mtice," lzc. This is accordhig to approved piecedents to be found in the books.
    
    2. After the bill had been refused acceptance by the drawees who lived at Liverpool, it was useless to inquire for them in London. To whOm, or at what place h~ London, was the holder to present the bill for payment ? Marius says, that where a bill is drawn on a person in Southampton, payable Ia London, and is refused ance by the drawee, to whom it has been - presented at Southampton, it may be either protested at Southdi~zpton~ or at London for non-acceptance, and though the holder, whenthe bill becomes due, must present it for payment in London~ according to the tenor of the bill, yet if a particular ho~ise be not expressed, but only that the bill is payable in London, the holder may, if the money is not brought to him in three days after the bill is due, cause it to be protested for non-payment in London, in the usual m~nner~ it is no where - said, that in such the NEW-YORK, 
      holder is bound to make inquiry after the drawee at any particular place. In the case of Stark v. Cheesman,
      
       it was objected, that the declaration merely stated that the drawee could not be found, without showing that inquiry had been made after him; but it was held, that it was according to the custom of merchants, and that it was not necessary to state that the holder made inquiry after the drawee.
    
    
      Harison, in reply. In the case from Cartherv, there was a motion in arrest of judgment after verdict, and when the declaration stated that the drawee was not to be found, the court might intend, that it was after a reasonable inquiry. All the writers on bills of exchange, and Marius among the rest, say that a bill must be presented where it is made payable, and it ought to be shown that some attempt at least has been made to find the drawee there.
    
      
       Chitty, 2d ed. 331. Bayley, 100.
    
    
      
       Advice concerning bills, &c. 26.
    
    
      
      
         Carth. 509.
    
   Kent, Ch. J.

delivered the opinion of the court. The declaration in this suit varies from the one in the former cause, in these particulars only, viz. it states that after the bill was protested at Liverpool for non-acceptance, it was, when payable, protested at London for non-payment, w’ith an averment that the holders did not know where to present the same for payment in London; and it then avers, that of all the premises the defendant had notice.

The special demurrer to this declaration states that the plaintiffs have not alleged that the bill was presented to the drawees for payment, nor that the plaintiffs endeavoured to find the drawees, or made inquhy, or search for them.

Upon the argument, the declaration was objected to as bad, in matter of substance, for the want of a distinct averment that the defendant had notice of the non-acceptance. The answer to this objection is, that the general averment of notice of all the antecedent premises was sufficient, and is conformable to approved precedents. 7I19 reasonableness of the nptiqe, eithqr of the. ñoñ-ácceptance or non-payment, is a question that canhsi ar;se Upon the pleadings. It depends upon the testimony tó be disclosed at the trial. The other objection stated as a cause of demurrer, has been anticipated, in a great measure, by what was observed in the former case. 1$ was not incumbent upon the plaintiffs to state that inquiry was made in London for the drawees: lex neminem cogit ad vana seu inutilia. No place in London being pointed but to which the holders might resort, and the drawees residing at Liverpool, an attempt to search for them in such a city as London, would have been' without any object or effect. Nor were the holders bound to go elsewhere, to seek the drawees, as the bill had directed the payment tobe in London. They conformed their conduct to the tenor of the bill. They were in London on the day of payment* ready to receive payment* and they did all that they were enabled to do ; they caused the bill to be there protested. The declaration in this case also states suEcient to entitle tlie plaintiffs to recover.

Judgment for the plaintiffs..  