President of Bank of Wilmington & Brandywine v. Simmons ( 1834 )

By the Court.

Both the first and second objections to the note drawn by the Messrs. Gilpins are equally fatal to the plaintiffs recovery. The variance in the date is conclusive; and the court decided in the Bank of Wilmington and Brandywine vs. Cooper’s administrator, that where a note is made payable at a certain place, demand at that place must be averred and proved; and though the want of funds may excuse the demand, the excuse must be set out'.

Wales and Rogers for plaintiffs. Hamilton and Read, Jr. for defendant.

As to the other note; whenever a man indorses he undertakes to pay the bill provided a demand shall be made on the drawer on the last day of grace and reasonable notice be given him of the non-payment. The demand here should have been made on the 29th of September, 1817. Was it made then? The note has an indorsement in the hand writing of Roche the notary, “noted 29th September,” and his general custom is proved to have been to draw out the protest the day after the demand. The protest here is dated the 30th. If the demand was on that day it is too late and the deft, the indorser is discharged, but if the jury take the indorsement made by the notary with the proof of his practice as the evidence of the demand it was in time. On the other ground; if the bond and judgment include this note the indorser is discharged whether time was given or not, for the security is of a higher nature and merges the note. But the deft, must have proved to the satisfaction of the jury that this note was included in the bond of which no evidence has been offered.

(The court said nothing about the misdescription of this note in the date 28th July for 28th of seventh month, not being clear on the subject, and a decision on that point not being urged.)

Verdict for plaintiff, $1,598 00.