
    Mason and Smedes against Franklin and Franklin.
    MEW-YORK,
    May, 1808.
    Where a bill r^erswn™aT Liverpool-puyaMe in London, and the bill was at^Zz^J/oo/^ and-' protested ance,°andCaf-t' teiwards protested for nonpayment, at Lith?dra\vee resided, it was held, that the holder, had a good cause of action against the drawer on non-áccepS f°r atice that it is hot necessary to set forth the paymenUn the plalntlffs’deoladone"ltmaybe rejected as surplusage on a demurrer; that the protest for non-payment at Liverpool was sufficient, as no place of payment was designated in London, and that the holder might, at his election, cause the bill to be protested for non-payment in London, or at the place where Vue drawee resided.
    THIS was an action of assumpsit, against the defendaut3i as indorsors of a bill of exchange. The declaration, in substance, stated, that one John Franklin, on , „ , • - - , the 1st of August, 1807, drew his bill oi exchange on. Messrs. Rathbone, Hughes and Duncan, of Liverpool, requiring them to pay, sixty days after sight, to Franklin, Robinsori& Co. or' order, in London, lS5l. 3s. 2d. sterling ;■ which bill was indorsed by the payees to the defendants, • ..... . and by them to the plaintiffs ; that on- the 16 th September, 1807, .the bill was presented'to the drawees at Liverpool, for acceptance, but "‘they refused to accept the same, upon , . , . • . , r ' V ,. / / ,. which it was protested tor non-acceptance at Liverpool, of which the defendants had notice; that afterwards, on the , . _ , 18th of November, 1807, the said bill was presented to the said Rathbone, Hughes it? Duncan, at'Liverpool, who were requested to pay the same, according to the tenor and ef- . - ■ - , feet thereof, and of the indorsements thereon, to wit, at Liverpool; but that the said Rathbone, Hughes & Duncan, neglected and refused to pay the bill, upon which the said bill' was, indue form of law, and according to the usage custom of merchants, protested at Liverpool afore- - said, of which said several premises, the defendants, aflenvards, to wit, &c. had notice. By reason whereof, &e< The declaration also contained the usual money counts, and an insimul computassenU To the first count in the declaration there was a special demurrer, and joinder. The causes of demurrer assigned were, that there was no allegation in the declaration, that the bill was shown pr presented in London, where it was made payable; nor that the plaintiffs made any search or inquiry, or used any diligence to find any person in London, to whom to present the same for payment; nor that they caused the bill to be protested at London for non-payment, according to the usage and custom of merchants. To the other counts in the declaration there was a plea of non assumpsit, and issue thereon.
    
      Colden, in support of the demurrer.
    The bill in this case being made payable in London, it was the duty of the holder to present it at that place, to have made some inquiry after the drawees or some person to pay the bill; and if no person was to be found, a protest should have been made in London, stating that inquiry had been made there, but that no person was to be found to pay the bill. A protest at Liverpool is a mere nullity. It is no answer to say, that no place in London is designated in the bill for the payment of it. The protest should state that some inquiry had been made there, at the royal exchange, or some place where merchants usually meet, for the drawees, and that they could not be found. So if the drawee be dead, the holder should inquire after his personal representative and present the bill to him. It should appear that the holder has done every thing in his power to get the, bill accepted and paid according to its tenor. I am qware that it will be said, that as the bill was regularly protested for- non-acceptance, the plaintiff had a right to pecover on that protest. But the plaintiff has not only set out the protest for non-acceptance, but has gone further, and stated the protest for non-payment, and having done f.:o? - he is bound to show that the presentment for payment and protest were regular. It' was not necessary, perhaps, to state the protest for non-payment. But if that has been improperly made, it will destroy his action.
    
    The right of action for the non-acceptance of a bill, is founded on the implied assumpsit arising from the face of the bill, and is liable to be defeated by the subsequent neglect of the holder ; for it is his duty, notwithstanding the protest for non-acceptance, to present it again for payment. There is an implied or tacit engagement on the part of the holder, to call on the acceptor for payment.
    
    
      Brinckerhoff, contra.
    The general rule no doubt is,, that the bill must be presented to the drawee. The only case which I find analogous to the present is that of a presentment for acceptance. If the drawee of a bill, says Chitty, cannot be found at the place where the bill states him to reside, and it appears that he never lived there, or that he has absconded, the bill is to be considered as dishonoured. Here the bill was presented to the drawee at Liverpool, who refused to accept it, according to its tenor, and eifect. It was a refusal to pay it at all, either at London, Liverpool, or at any other place. It would be of, no possible advantage after this refusal, to send the bill to London to be protested for non-payment. The law will not require a party to do a useless or nugatory act. The bill was presented and protested according to the usages and customs of Liverpool and London, and local usages in such cases are to be observed. The case of Saunderson and others v. Judge,
      
       cited on the other side, was the case of a promissory note, and a special memorandum was made on the note, that it was to be paid at a particular house.
    
      Harison in reply. It is not denied that an action will lie against a drawee on a protest for non-acceptance, nor that the bill may be presented for acceptance at any place where the drawee may be found, the acceptance being a personal act. But the question is, can a bill be protested for non-payment at any other place than that in which it is made payable. The presumption is that the drawer has provided funds for the payment at that place. He has the right to fix the place of payment, and the" payee takes the bill on the condition of receiving his money at the place designated. The rights of the drawer, in this respect, cannot be varied by the acts of the drawee, or a third person. The plaintiff’s right of action on the protest for nonacceptance may have been complete at the time, but it was liable to be defeated by a subsequent default. If the plaintiff had stated only the protest for non-acceptance, the subsequentsteps would be presumed to be regular until the contrary was shown, but having thought proper to set out the protest for non-payment, he is bound to show that he has performed his duty, by presenting the bill for payment at the place fixed by the parties. It is a part of the contract between the drawer and payee, and the holder must present the bill, according to the terms of it, where it is made payable. There may be some local usages as to days of grace, or of hours of business at a particular banking house, where the bill is to be paid, which may govern ; and such local usages must always be shown. But where the general law of merchants is clear and fixed, no particular usage can vary or controul it.
    
      
       Chitty, (2d Ed.) 185. 2 Hen. Black. 509. Bayley, 58.
    
    
      
      
        Marius, 26. 33.
    
    
      
      
        Chitty, (2d Ed.) 125, 126. Bayley, 58, 59.
    
    
      
      
        Comyns, Pleader, (c. 29.)
    
    
      
      
         Chitty, (2d. Ed.) 108. 181. Kyd, 137. Beawes, 460.
    
    
      
      
        7 Term, 581, 582.
    
    
      
       28. 125.
    
    
      
      
         Chitty, (2d. Ed.) 202.
      
    
    
      
       2 H. B. 509.
    
   Kent, Ch. J.

delivered the opinion of the court. This is a suit upon a foreign bill of exchange, drawn in this city, upon Rathbone, Hughes & Duncan, merchants at Liverpool, and payable sixty days after sight in London. The declaration states, that the bill being regularly indorsed to the plaintiffs, was presented to the drawees for acceptance, but that they refused, and that the same was accordingly protested at Liverpool for non-ac - ceptance, and notice given to the defendants ; that the bill when due and payable, was presented to the drawees at Liverpool for payment, who refused to pay the same, and that it was then protested at Liverpool for non-payment, and notice thereof also given. To this declaration, the defendants demurred specially, and stated for causes of demurrer, that the declaration does not allege that the bill was presented in London for payment, or that the plaintiffs made inquiry, or used diligence to find any person in London, to whom to present the bill for payment,, or that the said bill was, according to the custom of mer■chants, protested in London.

& ! Upon this record, we are of opinion that a good cause of action arose upon the protest for non-acceptance, and were we to admit that the subsequent demand of payment and protest for non-payment were void acts, by being made at Liverpool, they would not destroy the right to recover which had previously vested ; utile per inutile non vitiatur; that part of the declaration containing the subsequent demand and protest might in such case be rejected upon demurrer, as surplusage. But we are of opinion, that as no place of payment in London was designated, the demand for payment and protest for non-payment, were well made upon the drawees personally, at Liverpool. It would have been a very idle act for the holder to have gone into London to make inquiry, when no place in London was pointed out in the bill, and when the drawees resided at Liverpool, and had refused to accept the bill. The law-merchant has not pointed out any particular spot in London for such inquiries* and to have attempted it at large would have been the heighth of absurdity. The common law in general, and especially the commercial law, which forms a distinguished branch of ' it, is founded on the principles of utility and common sense ; and it would be truly surprising, and repugnant to the very spirit of the system, If an inquiry so senseless was requisite to consummate the right of the holder of the bill. It must be a sound rule, that where no particular place of payment is fixed, a demand upon the drawee personally, is good. A general refusal to pay, was a refusal to pay according to the face of the bill. It was equivalent to a refusal to pay in London. We' do not mean to say, that the demand of payment at Liverpool was indispensable, The bill being payable at London, it would have been suf- , ficient for the holder to have been there when the bill fell due, ready to receive payment. In the present case, -a protest at London, or a demand and protest at Liverpool were sufficient, and the holder might take either course. The holders elected to demand payment of the drawers personally, at Liverpool, and to cause the bill to be protested there, and the plaintiffs accordingly did all that" in reason or law can be required to fix the antecedent parties to the bill.

We are, therefore, of Opinion that the plaintiffs are entitled to judgment.

Judgment for the plaintiffs.  