21 Me. 98 | Me. | 1842
The opinion of the Court was by
—The necessity of an averment in a wwit, of a demand on the maker of a noté, or on the acceptor of a bill, and proof in its support, when the same are payable at a certain time and place, has undergone at different times in England a very full, and elaborate discussion by their most distinguished Judges and other jurists. There have been various and conflicting decisions, sometimes founded upon distinctions,
From an examination of the several cases in this country before referred to, and others where the same question has been presented, a different and opposite opinion has prevailed, from that finally adopted in the House of Lords, and has been maintained also by many of the ablest Judges in England. It is believed that in the Courts here, there has been no material want of uniformity, There has been a concurrence in New York, Massachusetts and Maine, and the Supreme Court of the United States haye intimated similar views, so far as they had occasion to indicate an opinion. Our commercial community in their domestic intercourse have accommodated-themselves to the doctrine, which may be regarded as settled. But the question involved in the case at bar has been supposed to be affeGted by reasons, which would lead to different conclusions, whenever there should be occasion to discuss and examine them. We have given attention to the cases referred to, that we may ascertain whether the same principles, which are. applicable to notes, when payment is to be made at a certain time and place will or not also apply tp a case like the present,
In Saunderson v. Bowes, 14 East, 500, Lord Ellenborough makes a distinction, and says that in such a case as the one at bar, the time of payment depends entirely on the pleasure of the holder, and he considers that a previous demand is indispensable. In the same case, Bayley Justice says, “ Now here the terms of the contract are a promise by the defendants to pay on demand at a certain place; then the plaintiff must bring himself within the terms, by showing, that he made a demand upon the defendants at the place,” and such was the opinion of the Court. The last named of these distinguished Judges, never yielded to the doctrine which finally prevailed in the English Courts in reference to bills and notes payable at a particular place and day certain, but resisted it even in the last struggle in the House of Lords. In Caldwell v. Cassidy, 8 Cowen, 271, the Court make the same distinction which was made in the case of Saunderson v. Bowes, though the question now before us, was not then presented so as to require an opinion.
It is settled so far beyond dispute, that authorities are not thought necessary to be cited, that a note payable on demand generally is payable every where, and a suit can be maintained though not preceded by a demand. A previous demand, then, in this State, is unnecessary on a note payable at a particular place on a day certain ; and also on . a note payable on demand generally. In the former, proof that the debtor was prepared at the place and on the day when payment was to be made, to discharge the note, if presented, and bringing the money into Court, would be a bar of damages and entitle him to costs. Why should a different principle be made to apply to the note containing in itself both the terms, which may be disregarded in a note which contains one or the other but not both ? Is there any more necessity for the protection of the debtor’s interests and rights, that a deimand should be made,
In the case Haxton v. Bishop, 3 Wend. 13, the particular question here presented was examined by Chief Justice Savage, and in giving the opinion of the Court, he takes a view different from the one intimated by him in Caldwell v. Cassidy, 8 Cow. 271. In the case in 8 Cow. the Court hold the opinion, that no presentment is necessary to be made on a note payable at a particular place on demand, in order to maintain an action thereon. Bank notes were then in question, but the court illustrate their views by supposing the Bank an individual, who was indebted in that manner.
Whether a distinction is to be made between a note on demand at a day certain, and one simply on demand, it is unnecessary here to determine. If there be no such distinction, the term on demand, when coupled with a day certain would seem to be unnecessary.
From the whole examination, which we have been able to make of the authorities bearing upon the question, and the consideration which we have ‘ given the subject, we are satisfied, that a decision in favor of the defendant in this case, would be virtually a denial of the soundness of the reasons, which sustain the law, that is here settled, that a presentment is unnecessary on a note payable at a particular time and place.
Exceptions are sustained, and a new trial granted.