Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1852-03-05

Tie foHoring opinion 1ras delivered 5y Ru6in C. T.
This is assumpsit on a Bank Note, for 500, dated
October LIST, 1874 and payable to P Rand or bearer
on demand at the branch bank of Cape Fear at Raj
eigh pleas, now assumpst and set off and case
agreed was submitted to the Court to the following
effect: The note belonged to the principal bank at
Raleigh, and the Cashier, through notary public,
presented it at the branch bank of Cape Fear at
Raleigh on the 21st of March, 1851, and demanded
payment and the Cashier of the said branch bank
then offered in payment two bank notes for $50 each
issued by the plaintiff and payable on demand the
one to the bearer at the plaintiffs branch bank at
Milton and the other to the bearer at the plaintiff IS
branch bank at Wilmington, and he refused to make
payment in any other way. The plaintiffs Agent
refused to accept payment in that mode, and this
suit was then Instituted. The Superior Court gave
judgment pro orma for the defendant, and the plain
tiff appealed.
The defence would not be available at common
law under either issue. By presenting the note for
payment action arose to the plaintiff the hold
err; and it is fully settled that promissory note
made payable in the body of it on demand at GER
tain place, becomes due only upon presentment at
that place. Hence the offer of the two notes for $50
in payment did not amount to payment, nor do they
bar by way of set off. There was at one period a
conflict of judicial opinions in England in respect to
acceptance of bill of exchange whether if given
payable at particular place it to be consid-
cred general acceptance special one, requiring
presentment at the place named and the point was
not settled until the opinions of the Lord Chancellor
and all the Judges were taken it in the case of
RoDe VS., Young, Bligh. 39l, and 2 Brod. & Bing.
$50. 1t was there held, that declaration on such
an acceptance was had because it did not aver pre-
sentiment at the designated place. No one of the
Judges expressed a doubt, that, notwithstanding
some previous n1sa prfus cases. the law was that, if
one promise by his note to pay at particular day
and place. there must be demand there. Lord FL
don explicitly laid that down the established law,
and he stated the to be, that the place stands
in the body of the instrument part of it, which
must be declared it is and proved described
in the declaration Indeed it is apparent that it is
an important part of the contract. For, when one
engages to pay money generally without mentioning
place for the payment the law is, that the debtor
must seek the creditor whether the payee Or his as
signee, and at bis peril find him in order to save him
self from the payment of interest and an action
By specifying the place both parties are saved the
trouble but especially the maker as he knows when
to take the money to meet his note at maturity
The law cannot be said to be settled in the United
States exactly in the way in some, and per-
haps most of the Courts distinction has been taken,
that the declaration need not aver the presentment
at the place, but the want of it may be aledged
matter of defence, if a loss arose therefrom, and
the debtor will be discharged pro-rata as if the
note be payable at bank and the debtor deposit
the money there and the bank afterwards fail
Without going through the cases in this country in
detail it sufces to refer to that of Wallace u.s. Nc
ConneH, Is Peters, sc, in which most of them were
cited, and considered by the Supreme Court as es-
tablishng that rule and it then adopted 1t has
indeed been questioned both by Chancellor Kent and
Mr.. Justice Story, who hold the rule laid down in
England to be the true one: according to the plain
of the contract. But it is not material which
position is right in respect to notes payable at GER
tain day as we'll as place. since no one either in
England or here, has supposed, that presentment OF
promisory notes not indispensable when in the
body it is payable on demand at particular place
Ii No. e
whose judgme in ROWe Young. as to the special
acceptance of bill, was reversed ia the House OF
Lords, held this on demurrer to declaration by the
bearer of note payable on demand against the ma
ker, in which presentment ct the designated place
was not averred. S0underson as Bowes IA East 500
The judgment was founded on this: that the maker
did not appear to have been in default before suit
brought and that has not been questionedany where
The cases in this country in which it held that
the declaration need not aver the presentment of
note payable at certain day and place, distinctly
admit it Is otherwise as to note payable on demand
at certain place 1t is expressly laid down in Val
lace Is. NcConneI, that upon a note of the latter
kind the declaration must demand at the
place and Mr.. Justice Thompson in delivering the
opinion Of the Court gives the that until de-
mand the debtor is not in default, and there is
cause of action. There is therefore now no doubt
as to the common law in respect to notes Of this kind
made by natural person that the maker is not
bound topay them until presented at the place, where
they expressed to be payable And there is nc
ground for a distinction upon this point between
notes made by natural person and those made by
corporation. The reason is not less applicable tc
bills of an incorporated bank, payable demand al
different branches which for purposes of local &C
commodatlon the law generally requires to be estab
lished upon shares of the captal adequate TO meet
the notes issued at the respective branches, in re
spect to which punctuaty is of the utmost conse
quence to the public and is usually enforced under
| heavy penalties Every one knows that no individ
ual or bank can at all times and everywhere dis
charge all outstanding liabilities, due and not due
which would make credit useless. Then each pon
OF banking institution having branches, has its owr
liabilities and must Lave its resources and i
can only fulfill its engagements to the public, wher
left to manage its own funds without impedmen
from the law. If the furds appropriated to the bu
sness at place, instead of being left for that pur
pose may be daily diverted therefrom at the pleasure
of the holders Of the notes of every other part of h
institution, it would be maniestly impossible for thu
bank and its branches to meet their notes for am
length OF time. 1t is therefore apparent that th
provisions in the notes that they are PAYABLE on de
mand at the several branches, is of their essence
and consequently there is at common law no liabili
ty on such note but for not paying it, when de
manded according to its tenor
The defence, however. is not founded on the Com
mon law but upon act passed at the last session
of the Assembly, entitled IAN Act in relation to ex
changes of notes between the several banks of thi
State" Yet the discussion Of the rule at Common
law was not the less needful 10 order to proper
derstandng of the nature of the contract consttut
ed by notes in this FORM and of the operation of tn
statute if it be eectual Its principal provision is
that when bank or its branch presents for paymen
note of another bank. the latter may pay its not
the place where the same may be PAYABLE 1t
clear, that the case before the court is within tn