
    *Hubbard against The President, Directors and Company of the Bank of Chenango.
    Assumpsit to recover 1,000 dollars, and 14 per cent, on that sum, front the time when payment was demanded at 7 r J the defendant’s counter, under the 10th section of the act incorporating the defendants.
    n ;s the duty a banb> ,on the money be* ing demanded. to°pay3witw a reasonable time according to circumstances.
    Any sum of ordinary magnitude should be paid at least during the day of the demand.
    All, however, that can be exacted, is, that the officers of the bank be dilligently employed in making payment according to the order of time when demands are made.
    A bank cannot, at its option, pay out in small pieces when it has large on hand, thus creating delay; and it should keep money ready counted out, or servants sufficient to count it out within a reasonable time.
    If there be unreasonable delay, it amounts to a refusal of payment. And
    
      Held, that the Chenango bank, by such refusal, incurred the penalty of 14 per cent, until tender, under the 10th section of its act of incorporation, (sess. 41, ch. 253, s. 3, 4 Laws N. Y. 269, c.)
    Under that section, a tender of the money, though at the banking house, without notice to the creditor, will prevent the running of the 14 per cent. This tender must, however, be not only of the principal sum, but the 14 per cent, intermediate the time of refusal and tender.
    But a tender of money, to avoid the running of 10 per cent, after refusal of payment^ within the general statute relative to banks, (seas. 41,- cb; 236, S. 3, 4 Laws N. T. 243, c.) must be personal.
    e^u®6 was tried at the Chenango circuit, January 80th, 1827, before Nelson", 0. Judge: and a verdión taken **or plaintiff by consent, subject to the opinion of this court on a case, the material facts of which are as follows:
    The declaration was in assumpsit on various notes of the defendants, with the mofiey counts; to which they pleaded the general issue, and gave notice that they would prove a tender. On Friday, the 24th of June, 1825, soon after the defendants’ bank opened in the forenoon, the plaintiff demaflded specie of the defendants, upon their bills, payable on demand, amounting to, 1,000 dollars, at their counter; and it was not paid on that day, though the plaintiff attended to receive it. When the plaintiff entered the bank, the teller was engaged in counting specie for Thomspon Mead, who had also presented a claim for the sum of *$1,000, the counting of which occupied the teller the whole of the banking hours (which were four, 2 in thé forenoon and 2 in the afternoon,) of that day; and which was not then all counted; the teller working (as the witness said) very moderately. When the plaintiff demanded specie, the cashier said it should be counted out to him, when the teller had finished for those whose money he was theti Counting; but declined counting it himself. The plaintiff offered to take a box of specie at the bank mark; but the cashier declined; saying no boxes should go out of the bank, without being counted over again.
    The defendants offered to show that the plaintiff and others had combined to create a run upon the bank; and had 'raised a fund, for that purpose, of 14,000 dollars ; a part of which was presented by the plaintiff, and part by Thompson Mead, for whom the teller was counting; and that the plaintiff had borrowed part of the money for the purpose of carrying the combination into effect. The judge rejected the evidence its irrelevant; but permitted them to show what amount was carried in for redemption.
    
      A tender of money due on bank notes, must, at the common law, be personal. A tender at the counter of the bank, the creditor not being present, is insufficient.
    A tender must be before suit brought ¡ though it may be after the creditor has directed a suit to be commenced. . .
    It is no objection to a tender in specie,- that it be for too touch; otherwise,- it seems, if the tender he in bank notes.
    The practice of referring questions of fact to the court, in the form of eases subject to their opinion, animadverted upon, as burthensome to the court, and subversive of one of the fundamental principles of our judicial system.
    
      It Appeared that within two days, a large amount'had been presented for payment in specie.- A Mr. Hoyes hád kept up a run for small sums several days. On Thursday, the 23d of June, he came into the bank, saying he had 7.000 dollars. He showed but 1,000 dollars, for which specie was paid. On the same day, Mr. Mead offered to deposit 3,000 dollars, which being declined, he demanded specie for 1,000 dollars. On Friday, Mr. Mead, the elder, demanded specie for another 1,000 dollars, which the teller was counting when the plaintiffpresented his money. The ámount presented in all was, by Hoyes, $7,000; Mead; $3,000; Hubbard, $3,000; Clark, $3,000; and a large sum was also presented by Mr. Clapp.
    The plaintiff had borrowed $3,000 dollars a few days before, a part of which he said he owed to the bank.
    It was proved to have been formerly the custom of this bank, to keep their specie counted in boxes marked with the contents: so that a much greater "sum than was now demanded might have been paid in a few minutes. It *was also the rule of the bank- for the teller, and him alone, to count the specie; and it was usual to count it twice. From the fun which had now been kept up for a few days, the boxes had become deranged by the small change having been takén out of each. The morning on which the demand in question was made, the bank had received 10.000 dbllars in Spebie from the Utica bank; and one of the boxes, on being counted, was found to contain 1,300 dollars, by a mistake of that bank.
    On Saturday morning, the day after the demand; the specie was counted, and put in a box for the plaintiff; being 1,000 dollars, as the teller supposed; and marked with his, the plaintiff’s name; and tendered in payment of his demand, at the defendant’s counter. The plaintiff, who lived in the small village where the defendant’s bank was, was informed of the tender On Monday next ensuing the demand, in the afternoon. He then said he had ordered .a suit to be brought. It. did not appear, however, whether this suit had been commenced before or after the tender. The box was brought into court and offered, but refused. The money was counted by the teller during the.trial, and found to contain 1,004 dollars. How the change came into the box, the teller could not explain.
    The verdict was for $1222 56, being the principal sum, with 14 per cent, from the day of demand, to .the quarto die post of February term, 1827.
    
      & Sherwood, for the plaintiff.
    The plaintiff under the act incorporating the defendants, (sess. 41, ch. 253, s. 10 ; 4 Laws, N. Y. 269, c,) is entitled to recover not only the 1,000 dollars, but also 14 per cent, interest, from the day of demand to the time of judgment.
    It was the duty of the defendants to have paid the money instantly, on the demand being made. There was no need, for this purpose, of counting it "out in pieces. It might have been paid in bags or boxes. A tender in that form is lawful. (5 Rep. 115 ; 10 East, 101; 2 M & S. 86; Peak. N. P. C. 88; 3 Campb. 70; 6 Taunt. 336, and the cases there cited; Suffolk Bank v. Lincoln Bank, *cor. Story, J., U. S. C. C., Maine, May, 1821, .reported in the Hational Intelligencer.) In the last case it was held, that banks must pay ordinary claims within the banking hours of the day when the demand is made; and they must, at their peril, provide servants in sufficient number to count out the money, if it is not already counted and arranged for the purpose of prompt payment; that it must in all cases be paid. within a reasonable time. Here payment was not made during the day.
    The tender was unavailing. After refusal, the defendants were bound to seek the plaintiff, and make a personal tender. The time fixed by the contract had passed. There was a default. ■ It is questionable whether, after that, even a personal tender would avail at common law. Such a tender ought not to excuse payment of the 14 per cent, within the statute. Here was no tender to the plaintiff He was not bound to attend at the bank after default in payment. Beside; a tender on the day following, to have been good, should have included at least one day’s interest at 14 per cent. The proof does not show more than the principal sum.
    But if the tender at the counter should be deemed a compliance with the statute of incorporation, and absolve the defendants from the payment of 14 per cent., still it does not amount to a tender at common law. The defendants are, therefore, liable to pay the principal sum with 10 per cent., under the general statute relative to banks,' (sess. 41, ch. 236, s. 3, 4 Laws N. Y. 243, c.)
    
      J. A. Collier and T. J. Oakley, contra.
    The bank were under no obligation to keep specie ready counted in boxes; and if they were, a sufficient excuse is shown for not having them ready in this case. The teller was the person usually employed in counting money; and was found able to meet ordinary demands in the ordinary way of counting out money. Here was an extraordinary case, a run on the bank; and the plaintiff was informed that the money would shortly be ready for him.
    "'The specie was seasonably tendered. It was before suit brought; and the plaintiff declined receiving it on the sole ground that a suit was ordered. After the assurances which the plaintiff had received, it was his business to be at the bank on the next day, when the tender was made. He knew, or was bound to know, that by the 10th section of the charter, the 14 per cent, stopped running. With this view, a tender could not be made at any other place than the counter. It lay with the plaintiff to show when a suit was commenced. Hot having shown that this was before the tender made, it was good at common law to save both interest and costs. The rule that the money must be ready in boxes, or numerous servants be in waiting to count, may do very well for the extensive business of the city banks; but certainly has no ■ application to the more limited concerns of those in the country. They usually pay, too, in city bills. Demands of specie are not-usual; ati<^ ^oxes are not necessary. They cannot reasonably préthat large amounts bf specie will he demanded. It -g niD^ the course of business with them. This very run, probably, broke in upon and deranged what boxes the defendants had. The box tendered might contain tdo much; Different kinds bf doin tiiay have been mixed, bn sbme of which there was a premium. In Ordinary cases, the debt- or knows the precisé amount and extent of his obligation. Wé could not know it; How then were we to be prepared to meet it in an instant ?
    The eVidencá to show the combination against the bank, should have béen received; This evidence Was competent as giving a character to the transaction; as showing that this was not an ordinary case. Ordinary diligence is enough in any ease. This is conceded by Judge Story, in the case cited from the national intelligencer. He must be understood as speaking in reference to the particular case, when he speaks of servants being employed to count but money; a bank employed extensively in business with a large capital. This was a nisi prim decision; the rule cannot certainly apply as brbadly as the language would seem to warrant wheú taken in the ^abstract; and, ih one branch at least, is not law; for we observe the judge holds in the same case, that the demand of the plaintiffs could not be met by their own bills; As to demand and tender, the time must always be judged of from circumstances. ‘The assistance employed must have reference to a timé when there is no run; when there is but a single demand. But suppose a half dozen demands made and petiding at once; must extraordinary help be called in for the’ occasion, tb meet them ? must all the officers of the bank tie called from their ordinary duties ? We must look to the nature of the business required of banks. The defendants had a right to pay in the ordinary course of their business. If gentlemen combine to run a bank, they must stibmit to á corresponding delay. It is a result produced by themselves. It is their ruti which rendered the bank uhabie to pay by boxes; Their nin had deranged the boxes; and rendered it necessary to count; The teller must be certain that he does not pay more than the, sum due; and two countings were no more than reasonable. Such was the usage at the bank; and.it was a prudent - °Be*
    As to the claim of ten per cent.; the bank are not: bound, in order to avoid this, to follow a creditor about the country, who makes a demand and goes off. The same rule should not he applied in this ease, as to individuals. If the money is set apart, and notice given, this should, stop the interest. It is. an offer to pay at the ordinary place of payment. It is, according to universal custom; which enters into and makes a part of the contract. The court never will compel hanks to pay at any other place than their counter, though no place be mentioned. They never can comply with the ordinary, rules of tender. Intermediate the demand and suit brought, their bills may be transferred through a thousand hands.- Impossibilities should not be -required of them. •
    
      Talcott, (attorney general,) in reply.-
    The point in dispute is the 14 "per cent.; and the court are called on to. decide whether, an express refusal to pay is necessary, to warrant: fthe claim, or whether an implied refusal is sufficient. If the first is necessary, the statute is nugatory * for it can always be evaded. We contend that a substantial refusal is enough; any. unreasonably intentional delay or deviation from the, ordinary course of banking business, amounts to a refusal. By issuing notes which are.a security, for money on demand, they assume all the responsibilities and inconveniences incident to that sort of paper. The notes are the same. o.n their face, as the notes of an individual. The mode of business which the bank or individuals may adopt cannot, vary the time, manner or place, of payment. The 9 th section of the charter declares expressly that the obligation of this bank shall be the same upon their notes as if issued by an individual, and, they must, do their business in the same way. They accepted their, charter subject to this provision. Could an individual excuse himself by saying I baye funds to pay, hut'no. time to count,?” It is his business to Pay or tender the money presently; and of the creditor to see that he does not take too much. The facts show that the. derangement of boxes, and the possible admixture 0f dollars bearing a premium with other money, was a mere pretence. The ordinary demand or amount spoken of by Judge Story, in the case cited, is what may, with due diligence, be counted out in a single day. Here was a whole day employed in paying 1,000 dollars. Judge Story’s intention is to" exclude all pretext of delay. If there was a run on the bank, the defendants knew it; and were bound to meet the exigency of "the case. {Gilbert & Dean v. The Nantucket Bank, 2 Am. Law Journ. 107.) Was not here a sufficient demand to carry ordinary interest? This is the test. All the statute does, is to alter the amount from 7 to 14 per cent. What is prompt'payment when there is no run, is the same when there is" one. Here was a bank of $200,000 capital; and only $14,000 demanded. Was it not their neglect, if they had not money ready to pay this small sum ? The means by which bills are obtained by the holder, does not free them from the obligation of ^prompt payment. The manner of obtaining a note does not vary its obligation.
    To relieve from the 14 per cent, after demand, the tender must be at the banking house. So far, there was a compliance with the statute. But the statute does not say it need not be personal. We say, with the statute, it must be at the banking house; but we add, at the same, it must be a personal tender. If not, if the creditor is not there, he must be sought out. On a contrary construction, all a bank has to do, is to deny payment, on demand; but, as soon as the creditor’s back is turned, shove the boxes forward on the counter, declaring the tender to the air. If they are ready to pay, they escape all difficulty. If they have been diligent, they are in no danger. The evil supposed from a transfer of the bills through different hands is fanciful. A transfer would of itself, relieve from the penalty, That belongs to the person alone who makes the de,mand. But there is another answer. If the bills arc transferred after the demand, and the penalty is not removed by this, it is their own misconduct which causes the mischief. They should have paid at the time. Under the circumstances, the holder was not bound to call the next day. He had no reason to suppose the money would be ready. There was no tender till Monday ; and there never was a tender of enough. The amount is at the peril of the debtor. (3 Campb. 70. 6 Taunt. 336.)
    Under the general statute, the mode of tender is the same as at common law. The debtor must find out the creditor; and tender personally.
   Curia, per Savage, Oh. J.

The principal questions are, 1. Was there a refusal by the bank to redeem their bills on demand ? and 2. If a refusal, was the tender sufficient? Another question may arise, as to the rate of interest which the plaintiff is to recover, if any; and also, whether the judge ought not to have received evidence of the fact, that the plaintiff and other persons had entered into a combination to run the bank; and that the whole of the money belonged to the same fund. If this fact, ^however, be admitted, it does not excuse the defendants from diligence in paying out specie for their bills; and if the fact be otherwise, and no connection exists between those persons who presented bills for redemption, if it was impossible for the officers of the bank to pay out to all who called, they could' not be said to have refused payment to those who did not actually receive it, provided the office hours of the bank were diligently employed in making payment to those who W;ere first entitled by priority of demand.

It can be of no importance, therefore, whether there was a combination or not. The question is, whether the defendants did their duty under existing circumstances ?

The 10th section of the act incorporating the defendants, enacts, that if, at any time, the defendants shall refuse, on -demand being made at their banking house, during the regular hours of doing business, to redeem, in specie or other lawful money of the United States, their said bills, notes or other evidences of debt issued by the said company, the said president, directors and company shall, on pain of forfeiture of their charter, wholly discontinue their business by way of discount, and close their banking operations, until such ' ,, . . , , time as they shall resume the payment of specie; and they Pa.7 an interest on all sums demanded, and not paid in specie on demand, at the rate of 14 per cent, per annum, until the same shall be paid, or tendered to b,e paid in specie at their banking house; and in ease the president, directors and company shall not, within sixty days after ■ such demand and non-payment, pay the same with the interest aforesaid, or make tender thereof in specie at their banking house, their charter shall from thence be null and void, except for- the purpose of doing and settling their concerns.” By the 8d section of an act relative to banks, passed April 21, 1818, it is enacted, “That in case any incorporated bank shall refuse to pay any of its bills or notes hereafter to be issued, in lawful money of the United States, on demand, the holder of such bills or notes shall be entitled to recover the amount thereof in an action on the case for *money lent, with interest thereon, at the rate of 10 per cent, per annum, from the time of such refusal, with costs,”

1. Did the omission to pay, on demand being made, amount to a refusal ?

Very few cases are to be found relating to this point. We have been referred to but two: The first is the case of Gilbert & Dean v. The Nantucket Bank, decided in 1808. (2 Am. Law Journ. 107.) The plaintiffs sent a thirty- dollar bill to the bank for payment. The teller did not actually refuse; but he wasted the time in counting sixpenny- pieces, examined each minutely to see whether they were not five cent pieces ; then added up a sum in arithmetic to ascertain whether sixteen of them wore equal to a dollar. One witness attended 17 days to get 472 dollars, which was counted in less than half an hour in one of the Boston banks. This was held, by the court and jury for Suffolk county, (Mass.,) a refusal to pay, and the plaintiffs recovered. The next case is The Suffolk Bank v. The Lincoln Bank, decided in May, 1821, (U. S. C. C. Maine;) The plaintiffs claimed 3,000 dollars, and damages at 2 per cent, a month, imposed by a law -of Massachusetts on such banks as refuse or neglect to pay their bills on demand. The plaintiffs’ agent demanded payment at the bank. . The cashier offered to pay immediately in Boston bills, part of which were on the Suffolk bank, or in a draft on Boston, which was declined, and specie demanded. The cashier began to count change. He was occupied till near the hour of closing, in counting 500 dollars. He tendered no gold, nor more specie than about 1,000 dollars, which could not have been counted within the bank hours. The agent offered to take specie at the bank count, but the cashier declined, and the agent left the bank and prosecuted. Judge Story pronounced the law to be this: that a demand of ordinary magnitude against a bank ought to be paid within the banking hours of the day on which it is made; and if not, that is such a refusal or neglect as is contemplated by the law. That the plaintiffs were not obliged to take Boston bills, or even their own bills; but might demand specie. That no *man who presents bills at a bank, should be delayed on any pretext whatever; that, it is the duty of banking institutions either to have sums counted, or to have servants sufficient to count them out in a reasonable time. He instructed the jury to inquire whether the sum mentioned could reasonably have been paid within the banking hours of the day on which it was demanded; whether the defendants had unreasonably delayed payment; and whether such delay did not amount to such refusal or neglect as was intended by the law. The jury returned a verdict for the plaintiffs.

The question in the cases just cited, was the same with, that now under consideration ; was there reasonable diligence? Or was there unreasonable delay? The answer must depend on the circumstances of the case. The rule laid down by Mr. Justice Story, no doubt, is the correct one; that banks should have sums counted, or sufficient servants to count them, so that a demand of ordinary magnitude may be paid within the banking hours of the day.. The facts necessary to be noticed are few. The plaintiff demanded 1,000 dollars; the teller, with more than 10,000* dollars specie in boxes, commences by selecting the small, pieces to make payment with; thereby adopting the most *ar^y and'tedious mode in Ms power. The plaintiff .offers to take a box at the bank mark. This. could.-easily have been complied- with by the bank without loss. The- marks must have been,the marks of the Utica bank; and if there was any..error, the loss would'have fallen.either .on,the .plaintiff or theUtica bank. When such an offer is refused, .and .the teller is unable to count 1,000 dollars in four hours, by reason of counting small pieces instead-of dollars, I •think the conclusion is inevitable, that there was a refusal redeem the bills, of. the bank in specie within the true construction of the act of incorporation. That unjustifiable means may have been resorted to by the?plaintiff and others associated with Mm, makes no difference, as to the duties and-liabilities of the defendants.

2. The next question is, have the defendants, made.a sufficient tender to the plaintiff of; the money d.ue him ? At *the common law, if a note be due and payable, and the party liable upon it wishes to save, interest and costs, .it is his duty to seek, the creditor, and offer, payment of the. amount due. Upon-demand -at the bank, these notes ;.were un-doubtedly due..and payable. Independent, therefore,-'of ...any-speciaL provision, if we consider bank motes as promissory notes, the plaintiff would be entitled to the amount of which payment had been demanded and ■ refused, with lawful interest, -until a tender-should be made, to him personally,-.or .the sum due for principal and interest, -and costs, if a suit had been brought. : By the act relative-, to -banks, and for other .purposes, passed the 21st of April, 1818, the same day on - which the act incorporating the defendants ■was passed, the. .interest upon bank notes not paid on deL-mand, is fixed-at ten per - cent. The .plaintiff, then, is -.entitled4o recover his principal and.ten per:cent, interest, unless his, rights .are in. this , case .differently modified by the act of incorporation. The tenth- section of that act was not .intended, as'I apprehend; to relieve, the bank from any duty otherwise obligatory upon them. It -seems to impose additional penalties, to wit: suspension of discounts, ■double interest, and forfeiture of their charter, as the; consequence of a refusal • to redeem ■ their bills on demand. Payment or.tender of principal and interest, at the.bank, within sixty days, prevents the penalty of forfeiture from attaching; and, tender at the bank justifies discounts, and stops the accruing of 14 per .cent, interest. But does it stop interest altogether ? I think not. The court are bound so to construe the two statutes as .to give effect to both, if they are not plainly inconsistent. It seems to me they are not inconsistent. By the one, the plaintiff is entitled to his principal and ten per cent until he receives payment, or a tender is made to him personally. This act seems to define the rights of the creditor. -By the act of incorporation, fourteen per cent are given so long as the defendants refuse to pay specie; and. until they manifest their ability and willingness to do so by either paying the amount demanded or tendering it at the bank. To have imposed the burden of a tender to the person of the holder of the bills, as a condition of their ^resuming business, .would have been unreasonable, as he might not be known. Hence nothing is said in the act, of notice being given to the creditor of the tender at. the bank. And surely the legislature could not have intended to enable the bank, by a tender at. its own counter, to discharge itself from the payment of interest altogether. My .conclusion, therefore, is, that a tender at the bank will relieve against the payment of the fourteen per cent, interest, but not the ten per cent.

It becomes necessary, however, to inquire .whether, the tender was good for any purpose. The demand was on Friday, when interest commenced .running. The tender was on Saturday, and the notice on-Monday. The demand was of .1,00,0 dollars. The tender should of course,have been, of the same sum, and one .day’s interest; and if notice was necessary, of three day’s interest. ,-But as. .this tender is special under the.statute; and,.as I have endeavored to show, for the particular purpose of indicating the solvency of the bank, no notice was necessary, as none is required by the act.

How was the fact, then, as to. the .amount tendered? The teller swears expressly, that the amount tendered was 1,000 dollars in the box. On examination, however, it was found to contain four dollars more , in change. • This might have been subsequently put in .by the" cashier, or 6 , , • 1 -j? ± • i_ l/ . , , . some other person: and it put m- by the teller, but not recollected, the fact might have been shown by the cashier. I think the fair and proper-inference is, that the box, when tendered; contained no more than 1,000. dollars. The evidence upon this fact should have been left to the jury; and I must say that the practice prevailing to a considerable ex tent, "and which seems to be increasing, of calling on this court to determine the fact as well as the law, is not only imposing" unneccesay burthen.*/on us; but is subversive of one of the fundamental principles of our judicial system.

But if the fact was other wise ; if the four dollars were actually in the box, then it is contended that the tender is bad, "as being for too much; that the precise sum must be ^tendered; as the creditor is not bound to give change. On this question, the 3d resolution in Wade's case, (5 Co. 115,) is in point: “that if a man tenders more than he ought to pay, it is good; for omne magus continetin se minus; and the other ought to accept so much of it as is due to him; quando plus fit quam fieri debei videtur etiam illud fieri quod faciendum est. M in majore summa’ coniinetur minor1''

This doctrine was held by Le Blanc, Justice, in Betterbee v. Davis, (3 Campb. 70,) applicable to a tender in coin, but not in a bank note. " A £5 note was offered to pay £3. 10. The reason assigned was, that if good, the tender might be made in such a way as to render it impossible for the creditor to take what is due, and return the difference; and the instance is given of a large note of £50,000. In Douglas v. Patrick, (3 T. R. 683,) a larger sum than was due was offered; and the court held the tender good; for a tender of the greater includes the smaller "sum. In Robinson v. Cook, (6 Taunt. 336,) this rule'seems not to be considered applicable where the tender was made in' bank notes; but the point was not passed upon by the court.

If, therefore, notice was necessary,- and the tender is not to be considered as made until Monday, still it was good, if 1,004 dollars were actually in the box; for the sum was sufficient; and the plaintiff’s refusing on the ground that he had ordered a suit, constitutes no objection to the tender, as no suit appears to have been, at that time, actually commeneed. Briggs v. Calverly, (8 T. R. 629.)

The conclusions of my mind upon the facts, are, that the defendants did not use due diligence in making payment of their bills.when demanded; and that only 1,000 dollars were in the box when tendered at the bank. The latter fact is left somewhat doubtful; but the defendants might have removed all doubt by testimony in their power ; and have not done it. The legal presumption, therefore, is against them. My conclusions upon the law are, that the want of due diligence in redeeming their notes, amounted to a ^refusal within the meaning of the act; and that the tender was insufficient as to amount.

The consequence must be, that the plaintiff is entitled to recover the 14 per cent, interest; and must have judgment upon the verdict as found at the circuit.

Judgment for the plaintiff.

Sutherland, J., not having heard the argument, gave no opinion. 
      
       The true construction of the 11th section of the Maine statute of 1831, o. 119, to regulate banks and banking, is, that if the officers of a bank refuse or delay payment, in gold or silver money, of any bill demanded, and presented for payment at the bank, in the usual banking hours, the corporation is made liable, after fifteen days from such demand, to pay additional damages of twenty-four per cent, per annum. Bryant v. Damariscotta Bank, 6 Shep. 240.
      From proof of a demand for specie for bills presented, the jury may infer that a demand was intended, and understood to be for such coin as constitutes a legal tender. Ib.
      A demand of payment, merely, is sufficient, even if made by an agent, the agency being avowed and the principal disclosed. Ib.
      The Ohio statute of 1839, for regulating banks, providing that, if any bank in the state shall suspend specie payment of its notes, it shall be the duty of the cashier to indorse the refusal upon any note presented for payment, subjects him to a penalty for refusing such indorsement. Held, in an action to recover the penalty for refusing to so indorse a note, that it was not sufficient to allege a refusal to pay the note, and a refusal to indorse the, demand and refusal on the note, but that it was necessary, also, to aver a general suspension of specie payments. Rockwell v. The State, 11 Ohio, 130.
      In the year 1840, the Commercial Bank of Natohes, chartered previously, being in a state of suspension of specie payments, the legislature passed a law that all the banks in the state, by the 1st of April, thereafter, should pay Speoie on their notes of $5; by the 1st of July, on their notes of $10; by the 1st of October; on their'fiote’s of $20; and by the 1st df Januaiy, 1841,-on all their notes, bills,-and other liabilities. Held, that this act wás coñstitutional and valid, and that a failure oh the part of the bank to comply with the provisions of the law would work a forfeiture of its charter. Commercial Bank v. The State, 6 Smedes & Marsh. 599.
     