#### Middleton *versus*Boston Locomotive Works.

In an action against the maker of a promissory note, drawn “ payable and negotiable” at a particular bank, it is not necessary to aver or prove that the note was negotiated at such bank.

Evidence of whether it was or waB not negotiated at such bank is irrelevant.

To make such fact important in any case, the instrument must contain words restricting its negotiability to the place designated.

Error to the District Court of *Philadelphia.*

This was an action brought by the Boston Locomotive "Works against John W. Middleton, on the following promissory note:—

$2084. February 24, 1858.

On the tenth day of May, eighteen hundred and fifty-four, I promise to pay, for value received, to the order of John B. Gray, two thousand and eighty-four dollars, with interest, at the rate of_ six per cent, per annum, from the tenth day of December, eighteen hundred and fifty-three, until paid, payable and negotiable, with*258out defalcation, at the Bank of Pennsylvania, in the city of Philadelphia. John W. Middleton.

Endorsed J. B. Gray. Pay A. Hyatt Smith, Esq., President, or order. R. J. Walker.

A. Hyatt Smith, President R. R. Y. U. R. R. Co.

The plaintiffs gave the note in evidence, *I*

The defendant alleged, that he then offered to prove that the note had not been negotiated at the Bank of Pennsylvania, in the city of Philadelphia, which was rejected by the court; but no such evidence was certified by any bill of exceptions attached to the record.

The court directed the jury to find for the plaintiffs, for the amount of the note and interest, which was done.

The defendant removed the cause to this court, and assigned for .error, the rejection of the evidence and the ruling of the court that the plaintiff was entitled to recover on the note.

*Owgler,*for plaintiff in error.

*W. A. Porter,*contó.

The opinion of the court was delivered by

Lewis, C. J.

No errors have been assigned, nor has the decision of the court, rejecting the evidence, been certified by bill of exceptions as required by law. The judgment must therefore be affirmed. But if the error complained of in the argument had been placed on the record, it could not avail the plaintiff in error either under the pleadings in the cause, or in any other form of pleading. The note'is made “negotiable and payable” at a specified bank. It is not pretended that it has been paid, or that funds have been deposited in the bank for the purpose. The complaint is,-that the holders did not give evidence that he made a demand of payment at the time and place specified. This might be required, in order to charge an endorser; but, according to the American decisions, it is entirely unnecessary when the action is against the maker of the note. Payment is a matter of defence, which he must show as an affirmative fact. The action is a sufficient demand, as against him: 13 *Peters*144; 11 *Wheat.*171; 5 *Leigh*522; 1 *Gill*& *John.*175; 8 *Cowen*271; 8 *Mass.*480; 4 *Halst.*189; 2 *Yerger*81; 10 *N. H. Rep.*423; 2 *W. & Ser.*458. If, when a note is made payable at a particular bank, it be unnecessary to prove that payment was demanded there, it must be equally unnecessary to negotiate it at the bank, although by its terms made “negotiable” there. With, or without such a clause, if the note be in form a negotiable instrument, he may negotiate it there or not at his election. He is not bound to negotiate it at all. If *259the intention be to restrict the holder from negotiating it, except at a specified bank, language of restriction must be inserted. The words “ and not elsewhere,” or words of like import, may answer the purpose. But even this language would not oblige the holder to negotiate the note at all. No cases which we are bound to regard as authority, stand in conflict with this view of the question.

Judgment affirmed.