$663. Demand, when necessary.-As against the maker of a promissory note, or the acceptor of a bill of exchange, it is not necessary for the holder to aver or prove a demand of payment: a suit is a sufficient demand, as in other cases of a precedent debt or duty.' The drawee, by accepting the bill, becomes the principal debtor, and thenceforth stands in the same relation to the holder as does the maker of a note."

Where a bill has been presented for acceptance and refused, no further demand of payment is necessary to charge the drawer and indorsers."

When the instrument is drawn payable generally, that is, without specifying any place of payment, the contract is clearly not the same thing as an undertaking to pay in a particular place; for in many cases the place of payment enters into the

1 Foden v. Sharp, 4 John. R., 183; Wolcott v. Van Santvoord, 17 John. R., 248; Caldwell v. Cassidy, 8 Cowen R., 271; Haxtun v. Bishop, 3 Wend., 13; Green v. Goings, 7 Barb. R., 652; Hills v. Place, 48 N. Y., 520; Bank of U. S. v. Smith, 11 Wheat., 171; Fenton v. Gondry, 13 East, 459; Collins

3 Plato v. Reynolds, 27 N. Y., 586; Bk. of Rochester v. Gray, 2 Hill,

227; Walker v. Stetson, 19 Ohio St., 400.

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1

very essence of the agreement between the parties. A promise to pay a given suin of money in the city of New York, imposes upon the promisor a different obligation from a promise to pay the same sum in London or in Calcutta. On this ground it was decided in England, after thorough and elaborate discussion, that an acceptance payable at a particular banking-house in London, the bill being drawn on another place, is a special engagement; so as to render it incumbent upon the holder of the bill, in an action thereon against the acceptor, to aver and prove a demand of payment at the place named.' Of 480* course the substance of the contract is the same, no matter where it is made; and the promisor may discharge his stipulation at the place where he engaged to pay. But in this country the rule of pleading and evidence does not require the holder to take any notice of the place of payment; though the right of the promisor to fulfill his engagement at the place appointed is conceded in all the cases, both here and in England.'

§ 664. In this state, as we have already seen, the holder of a bill of exchange need not show a demand of payment of the acceptor, any more than of the maker of a note. It is the business of the acceptor to show that he was ready, at the day and place appointed, but that no one came to receive the money, and that he was always ready afterwards to pay. The rule was the same in Westminster Hall at the time of its adoption here. In an action against the acceptor of an inland bill of exchange payable at the bank of Utica, where the question came up on a

1 Rowe v. Young, 2 Bligh R., 391; 2 Brod. & B., 165. The act of 1 and 2 Geo. IV., c. 78, passed in 1821, makes all bills accepted, payable at a particular place or house, payable the same as if accepted generally; unless the acceptance makes the bill payable at that “place only, and not otherwise or elsewhere." Rowe v. Young was decided the year before the passage of the statute.

Turner v. Hayden, 4 Barn, & Cres., 1.

2 Hills v. Place, 48 N. Y., 520; Salt Springs Nat. Bk. v. Burton, 58 N. Y., 435; Wallace v. McConnell, 13 Pet., 136; Yeaton v. Berney, 62 Ill., 61; Blair v. Bk., of Tennessee, 11 Humph., 84; Hall v. Allen, 37 Ind., 541; Merchants' Bk. v. Evans, 9 W. Va., 373; McNairy v. Bell, 1 Serg., 502; Montgomery v. Tutt, 11 Cal., 307; Reeve v. Pack, 6 Mich., 240; Howard v. Bowman, 17 Wis., 459; Thiel v. Conrad, 21 La. Ann., 459; Armistead v. Armistead, 10 Leigh, 525.

3 Smith v. Thatcher, 4 Barn. & Ald., 200, and American cases cited above. Hills v. Place, 48 N. Y., 520.

4 Foden v. Sharp, 4 John. R., 184.

demurrer to a declaration, on the ground that it contained no allegation of a presentment at the bank named for payment, Chief Justice SPENCER, after reviewing the authorities on the subject, concludes, "that the time and place of payment are merely modal, forming no essential part of the contract; that it is incumbent on the defendant, whether the payee was at the place at the time appointed or not, to show in his defense that he was there ready and willing to pay, and that the payee did not come; that the consequences of the absence of the payee, under such circumstances, unless he makes a subsequent special demand and there be then a refusal, are merely that he must be content with receiving the sum originally payable; and if he sue without having made a special demand, he loses all claim to damages and costs, and will himself be subject to them. This I consider not only entirely equitable and just, as between the parties, but the old and settled law of the land." The doctrine so laid down has been generally *481 followed in this country,' and applies with equal force where the action is against the maker of a promissory note payable at a particular place. If the place of payment be material to the promisor, it is for him to the take necessary steps to secure the advantage resulting from the stipulation in that respect. In other words, a demand at the place named is not a condition precedent, and need not be averred by the payee or holder of a note; at the same time the maker is at liberty to plead his readiness to pay at the time and place appointed, in bar of damages, though not in bar of the action.*

1 Wolcott v. Van Santvoord, 17 John. R., 248. Mr. Justice VAN NESS dissented from the opinion pronounced in this case, holding a demand of the maker and acceptor necessary in order to charge them. See cases cited by him.

Green v. Goings, 7 Barb. R., 652; 1 Peters R., 604; 11 Wheat., 171; 3 Richardson R., 311.

3 Caldwell v. Cassidy, 8 Cowen R., 271.

4 Ruggles v. Patten, 3 Mass. R., 480; Armistead v. Armistead, 10 Leigh, 525; Fenton v. Gondry, 13 East, 473; Turner v. Hayden, 4 Barn. & Cres., 1. Where the holder of a bill of exchange, accepted payable at a banker's, but not made payable "there only," did not present it for payment, and the banker about three weeks afterwards failed, having had in his hands all that time a balance in favor of the acceptor exceeding the amount of the bill. Held, that the latter was not discharged by the omission to present the bill for payment, the acceptance being in law a general acceptance; decided in 1825. In Fayle v. Bird, 6 Barn. & Cres., 531, which was an action on a bill of exchange drawn by plaintiff on, and accepted by the defendant, payable at a particular place; and held, that it was a general acceptance

The readiness to pay at the time and place is in the nature of a tender and must be kept good; if the maker, after the time of payment, withdraws the money from the bank at which the note was payable, the plaintiff will be entitled to recover the amount of the note with interest and costs.'

§ 665. Bank bills which are promissory notes in form and substance, were for a time spoken of in the courts of this state as forming an exception to the general rule; though no decision to that effect was formally made. At length the question came up for adjudication, and the court in passing upon it,

"bank notes are promissory notes, and actions founded upon them are governed by the same rules. The corporation being a person in law, has the same rights, and is subject to the same liabilities as an individual, unless the act of incorporation varies these rights and liabilities. In relation to promissory notes, it is well settled that in an action on a note payable

on demand, or payable on deinand after a specified time, 482* generally no demand need be proved; *the commence

ment of a suit is a demand. So also, in an action on a note, payable at a particular place, on a particular day, it is not necessary to aver or prove a demand at the time and place; but the readiness of the defendant is matter of defense. It seems to follow that in an action on a note, (bank bill,) payable on demand at a particular place, no demand need be averred or shown; but if the defendant pleads that when the demand was made, that is, when the suit was commenced, he was ready at the place mentioned in the note to make payment, and brings the money into court, he discharges himself from interest and costs.'

995

The case is different where an action is brought by the

under the statute, and that it was not necessary to prove presentment at that place. See stat. 1 and 2 Geo. IV., c. 73; decided in 1827. Hills v. Place, 48 N. Y., 523.

1 Hills v. Place, 48 N. Y., 523.

2 Bank of Niagara v. McCracken, 18 John. R., 493; The Jefferson Co. Bank v. Chapman, 19 id., 322; 8 Cowen R., 271.

3 McKinney v. Whipple, 21 Me., 98; Gammon v. Everett, 25 id., 66; New Hope D. B. v. Perry, 11 Ill., 467; Cash v. Martin, 5 Smed. & M.,

379.

4 The Bank of Utica v. Magher, 18 John. R., 341; Commonwealth v. Simmons, 14 Gray, 59.

Haxtun v. Bishop, 3 Wend., 13; 15 Mass., 447; Montgomery v. Elliott, 6 Ala., 701.