5 Blackf. 215 | Ind. | 1839
Assumpsit by the last indorsees of two promissory notes against the payees and remote indorsers thereof. The declaration contains two counts, each of
The decision of the Circuit Court was wrong as to the first count, and right as to the second.
This action is founded on promissory notes payable and negotiable at a chartered bank within the state, and is therefore governed by the law merchant. R. C. 1831, p. 94. By that law, when a negotiable note, or bill of exchange, is payable at a particular place, it is necessary in order to charge an indorser, or drawer, to make a presentment of the instrument at the specified place, or, at least, to have it there ready to be given up, if paid, and that notice of nonpayment be given. Bayley on Bills, 200, 201. — Chitt. on Bills, 322. The first count contains the necessary averment of the presentment of the note at the bank, and should have prevailed against the demurrer.
The second count is defective. The allegation that search after the maker was made at the bank in order to present the note to him, is not sufficient. The maker might have had funds in - the bank which might have been applied to the payment of the debt, had the note been produced to the officers of the bank.
The statute of 1836, (R. C. 1838, p. 462,) which enacts that in suits “based on any note, bill of exchange, or other obligation, payable at a particular place, it shall not be necessary to aver in the declaration, or prove on trial, a demand r ,, i . , or payment at such place,” is not applicable to suits between indorsees and indorsers; it was designed to embrace only the maker of a note, “ or other obligation,” and the acceptor of a bill of exchange.
The judgment is reversed, and the proceedings on the first count subsequent to the joinder in demurrer set aside, with costs. Cause remanded, &c.