People's National Bank of Fayetteville v. Lutterloh , 95 N.C. 495 ( 1886 )

Smith, C. J.,

(after stating the facts). We think the law was correctly laid down by the Court, and the appellant has no just grounds of complaint. The ruling is in accord with that made by this Court in Wittkowski v. Smith, 84 N. C., 671, in its apjiroving quotation from 1 Dan. Neg. Ins., §640, that a draft payable at no definite place in a city or town, must be presented at the maker’s residence or place of business, if he has such, at its maturity, and if he has none, then the presence of the instrument in the place is a sufficient presentation.

While protest of a domestic draft or inland bill, operating alone within the limits of the State, under the commercial law, is not required, and presentation and notice of non-payment are sufficient to charge the drawee and endorsers, we have a statutoiy provision, The Code, §49, declaring that a protest, wherein it is set out that demand yas made, in cases where demand is necessary, and notice given, and the manner in which it was done, shall, as in case of foreign bills, be prima facie evidence of the fact thus stated.

But this is open to disproof, and here it is shown upon the notary’s own testimony that he did not see the drawee on the occasion, and of course could make no demand on him; and that the protest was at the counter of the bank.

We think that notice of the draft’s not having been paid, when no demand had been made on the party primarily liable, and who had funds in his hands provided by the drawee to take up the draft at its maturity, of which his acceptance would seem to be a full acknowledgment, is not sufficient to charge the drawee, and convert his contingent into an absolute and unconditional liability. Brown v. Teague, 7 Jones, 573; and numerous cases cited in 2 U. S. Dig., Title Bills and Notes, §2003.

There is no error, and the judgment is affirmed.

No error. Affirmed.