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dum was no part of the pro- however, agree in this; that mise.

GIBBS, C. J.-The words "payable at Bruce and Co.'s," are not introduced in the body of the bill; they are only inserted in the margin. It is a mere memorandum, not coupled with, nor qualifying, the promise. Look at this instrument; and the promisory note is perfect without it. I say nothing as to any other case. I find I had already determined this point in Price v. Mitchell, and I feel disposed to preserve my own consistency. It would be difficult to say, in most cases, that what is law as regards bills of exchange should not be law as respects promissory notes.

Vaughan, serjeant, again urged the case of Gammon v. Schmoll, and pressed his Lordship to reserve the point.

GIBBS, C. J.-I am only deciding the case before me; but I feel too clear on the subject to reserve the point.

Verdict for the plaintiff. Lens, serjeant, and Scott, for the plaintiff.

Vaughan, serjeant, for the defendant.

Upon this point the decisions in the Courts of King's Bench and Common Pleas are at variance. Both Courts,

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where a particular place of payment is introduced in the body of a bill of exchange; or where and Another a promissory note is made payable at a particular place, in the express terms of the engagement, and not by way of mere memorandum at the foot of the instrument; that, in such case, the bill of exchange, and the promissory note (whe ther the action be against the maker or indorser of the one, or the drawer, indorser, or ac ceptor of the other,) must be presented at that particular place, and a demand be made there, in order to give the holder a cause of action. In such case, moreover, as respects a promissory note, the presentment and demand must be alleged in the declaration. Bowes v. Howe, in error, 5 Taunt. 30. Sanderson v. Bowes, 14 East 500. Dickenson v. Bowes, 16 East 110. Howe v. Bowes, 16 East 112. Huffam v. Ellis, 3 Taunt. 315. Saunderson v. Judge, 2 H. B.

509.

The two Courts are at variance upon this point; where a bill of exchange is made payable at a particular place, by way of memorandum at the foot of the note, such place not being embodied in the note, In Callaghan v. Aylett, the

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payment; and that the neglect so to present it, was equally a discharge to the acceptor as to the drawer. 3 Taunt. 397. So, in Ambrose v. Hopwood, 1 Taunt. 61, where a declaration alleged a bill to have been accepted payable at the house of certain persons at a particular place, it was held, upou special demurrer, necessary to aver that the bill was presented for payment at that place, and not to those persons generally. Such were the decisions in the Common Pleas, when the case of Fenton v. Goundry was argued upon a special demurrer to the declaration; and the Court of King's Bench were unanimous in opinion, that in an action against the acceptor of a bill of exchange, accepted, payable at S. and Co.'s, it was sufficient to allege generally a request by the plaintiff to the defendant to pay the bill, without alleging that it was presented for payment at the particular place. 13 East 459. In a subsequent case, Gammon v. Schmoll, the Court of Common Pleas, in opposition to the case of Fenton v. Goundry, determined, that if a bill was accepted payable at

a particular place, the plaintiff must aver performance of this, like other conditions precedent, by shewing a presentment to the acceptor at the place specified; and that, whether the action were against the drawer or acceptor. 5 Taunt. 344. The Courts, therefore, were at issue upon this point. Ia Trinity Term, 1816, the case of Roe v. Williams came before the King's Bench, upon a special demurrer to a declaration upon a bill of exchange. That case was precisely the same as Fenton v. Goundry, ante. It was an action against the acceptor of a bill accepted

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payable at Sir John Perring and Co.'s," and there was no averment of the presentment, when it became due, at Sir John Perring and Co.'s. The Counsel, in support of the demurrer, cited Gammon V. Schmoll, but theCourt of King's Bench refused to hear the case argued; saying, that they considered the point as having been determined in their judgment in Fenton v. Goundry. Mr. J. Holroyd read a MS. note of the case of Smith v. De la Fontaine, tried before Ld. Ch. J. Mansfield, in 1785; in which his Lordship held, that words, accompanying an acceptance," payable at a par

ticular place," or the words "accepted, payable at, &c." were not words restricting or qualifying the acceptor's liability, but rendering him generally and universally liable, and that it was not necessary to prove a demand at the particular place in an action against such acceptor. Lord Ellenborough added, "that whatever cases might be adduced in favour of, or against, the doctrine laid down by K. B. in Fenton v. Goundry, an invincible argument

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with him for the opinion there given was, the constant and undeviating usage of merchants; who never considered and Another such an acceptance to be a reSEWELL. strictive acceptance; that it was mere matter of convenient arrangement, and did not raise any obligation, on the part of the holder, to demand payment at the particular place."

Upon this judgment a writ of error was brought in the House of Lords; and the case is now pending for judgment.

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ADJOURNED SITTINGS AFTER MICHAELMAS
TERM, AT GUILDHALL, 57 GEO. HI. 1816.

Dec. 9.

1. Upon the dissolution of

a partnership, and a mutual

TH

RACKSTRAW v. IMBER.

HIS was an action on an account stated. It appeared that the plaintiff and defendant had statement and been in partnership as appraisers and auctioneers. The original partnership was contracted by articles, there is an im- not under seal, which contained several provisions:

settlement of

accounts,

plied promise

part of him

a balance is

is not neces

in law, on the 1. That a regular deed of partnership, with the against whom usual covenants, should be drawn up. 2. A spefound, to pay cial clause; that, in case they should dissolve partand an express nership within fourteen years from the commencepromise to pay ment of the articles, neither should be at liberty to carry on the like business in any part of the united kingdoms within seven years next ensuing. No deed of partnership was entered into in pursuance of the articles; and the plaintiff and defendant, tained an after carrying on business for some time togea co-partner- ther, agreed to a dissolution. In May, 1816,

sary.

2. A partnership is commenced

by articles unsealed, in

which is con

agreement for

ship deed.

Such partner ship may at any time be dissolved by

the dissolution was regularly advertised in the London Gazette. On the 25th of June following, parol: and al- they met together to adjust their accounts. At

though one

partner refuse to sign the deed, when tendered to him, he is not thereby precluded from recovering a balance due to him on the partnership account in an action of assumpsit.

this meeting the books were produced, and the plaintiff claimed of the defendant a balance in his favour of 2157. The defendant admitted the sum to be due; and offered to pay it, if the plaintiff would sign a deed which he tendered. In this deed was contained the restrictive articles as to carrying on the like trade within seven years. The plaintiff refused to sign the deed, and brought the present action for the money.

Lens, serjeant, for the defendant.-The plaintiff is not entitled to recover. In order to enable one partner to maintain an action against another for the balance of an account, two things must concur -1. A dissolution of the partnership, 2. A clear and unconditional promise to pay. In the present case, notwithstanding the partnership might be considered at an end as to third persons, it was not dissolved by the parties themselves. The articles still exist; and either might call upon the other to enter into a deed of partnership. 3. The promise to pay the balance was

modified by a condition-I will pay, if you will sign this deed; which you have agreed by the articles to sign. The undertaking, therefore, was not absolute, but conditional; and, allowing the partnership to be dissolved, there must be such an adjustment of accounts as would raise, by inference, a promise to pay. In the present instance, the promise is neither expressed nor implied.

Best, serjeant, contrà, relied on Foster v. Alan

1816.

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v.

IMBER.

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