Remick v. O'Kyle , 12 Me. 340 ( 1835 )

Weston C. J.

—In the case of Bacon v. Dyer, argued and determined in the county of Cumberland, ante 19, it was decided by this Court, that where a note is made payable at a certain time and place, no averment or proof of a demand at the time and place appointed need be made, in an action brought thereon by the holder ; but that if the maker had the money ready, and no demand was made, it should be made to appear by way of defence. We refer to that case for the reasons and authorities, upon which the decision was founded.

Another question raised is, whether, although such averment be unnecessary, yet being made, it ought not to be proved. It is a point in this case of very little importance ; for under leave to amend, which would not be refused, the unnecessary 'averment might be stricken from the declaration. We have however looked into the cases cited, and are satisfied that where, as in this case, the whole averment may be stricken out, and still leave the declaration sufficient to entitle the plaintiff to recover, such averment need not be proved.

Judgment for plaintiff.