
    Packard vs. The Town of Bovina.
    
      Liability of town — Demand.
    A town is not liable on an order drawn against its treasurer, until after demand and refusal of payment.
    APPEAL from the Circuit Court for Outagamie County.
    Action on town orders. The issue was as to demand and refusal of payment. A witness for the plaintiff testified that, on, etc., she went to the residence of the town treasurer, and presented the orders for payment to a son of the latter, fifteen or sixteen years old, who said that he had no money to pay on the orders, and that his father was at Chicago, and when he got back, he (the son) would tell him of it. “He (the boy) was in the barn when I got there. I presented the order to him in front of the house.” Judgment of nonsuit, etc.; and plaintiff appealed.
    
      Anson Ballard, for appellant,
    contended that the averment of demand, etc., did not need to be proven. Edwards on Bills, 680; Story on Prom. Notes (5th ed.), 207; R. S. ch. 15, §§ 79-85, and ch. 18, §§ 72, 73. The town can suffer no loss for want of presentment or notice; for, by alleging or proving that the treasurer was ready to pay at the time the action was brought, defendant would be discharged from interest and costs. This is the utmost relief or mitigation to which it could be entitled without taking issue on the question of indebtedness. Story on Prom. Notes, § 29; Edwards on Bills, 480; Haxtun v. Bishop, 3 Wend. 21; Kelley n. Mayor, etc., 4 Hill, 623. 2. There was sufficient evidence of presentment and demand to sustain a verdict; and the question should have been left to the jury.
    
      Geo. II. Myers, for respondent.
   Paihe, J.

The judgment in this case must be affirmed. A town is not liable on an order drawn on its treasurer, until the order has been presented for payment,- and payment refused. It is like a bill of exchange or check. There is no default until the drawee has refused payment.

A demand being necessary, it would scarcely be insisted that a demand upon the treasurer’s boy, fourteen or fifteen years old, at the barn, and in the absence of the treasurer, was any demand upon him.

By the Court. — Judgment affirmed, with costs.  