
    *Barrett v. Wills.
    January, 1833.
    [26 Am. Dec. 315.]
    Promissory Notes — Negotiable at Bank — Presentment —Averment oí  — Tn debt on promissory note, by indorsee against maker, tlie declaration states tbe note as one made negotiable at the bank of V. and avers, that the note, at maturity was duly presented at the bank, and protested for non-payment; the note offered in evidence, was made negotiable at bank: and there was no proof that it was presented at hank for payment: Hjoud, a note made negotiable at bank. Is not therefore payable there also, and so the averment of presentation at bank was wholly immaterial, and need not be proved.
    Same — Payable at Particular Bank — Averment of Presentment. — Quiere, whether, in. the case of a note made payable at a particular bank, it is necessary, in an action on it against the maker, to aver and prove due presentation of the note for payment, at the bank?
    Appellate Practice — Failure to Object to Point in Lower Court — Waiver,  — in a case brought before an appellate court, on complaint of error in a particular point stated in a bill of exceptions, the appellate court will regard only that point, and will not look into objections that might have been, but were not, made in the court below.
    Verdicts-Certainty. — Verdict and judgment for debt claimed in the declaration, with interest &c. subject to a credit for a specified sum, paid at a specified date: this is certain enough.
    Debt, in the circuit court of Amelia, by Wills the indorsee, against Barrett the maker, of a promissory note for 300 dollars, made negotiable at the bank of Virginia, and therefore, placed on the same footing as foreign bills of exchange, by the amended charter of the bank, 2 Rev. Code, ch. 194, l 10, p. 78.
    The declaration stated the note, as a promissory note in writing, commonly called a negotiable note, dated the 8th June 1826, made and delivered by the defendant Barrett to one Southall, for 300 dollars, payable to Southall or order ninety days after date without, set-off, negotiable at the office of the bank of Virginia at Peters-burg; and, after alleging the indorsement thereof by Southall to the plaintiff Wills, averred, that, afterwards, when the note came to maturity, the same was presented for payment at the said office of the bank, and payment thereof demanded there, but the same was then and there not paid, and yet remained wholly due and unpaid. Plea, the general issue.
    At the trial, the defendant filed exceptions to an opinion of the court, stating, that the plaintiff, to support the issue *on his part, offered in evidence the note in the declaration mentioned, which was set out in haec verba, and was a note made negotiable (but not payable also) at the office of the bank of Virginia at Petersburg; and that, there being no other proof, the defendant’s counsel thereupon moved the court to instruct the jury, that the plaintiff could not maintain his action, without proving the averment in his declaration, that the note was presented for payment at the time and place mentioned in the note and declaration ; which instruction the court refused to give the jury; and the defendant excepted to the opinion.
    The jury found a verdict for the plaintiff “for the debt in the declaration mentioned, with interest from the 10th September 1826, subject to a credit for 53 dollars paid on the 26th September 1826;” and the court gave judgment for the plaintiff, pursuant to the verdict, for the debt and interest thereon, subject to the credit of 53 dollars. Barrett applied to this court for a super-sedeas to the judgment which was awarded.
    Allison, for the plaintiff in error, took three objections to the judgment — 1. That, as the declaration averred the presentation of the note for payment at bank, Wills was bound to prove the fact of such presentation there, in order to maintain this action. And adverting to the circumstance, that the note was only made negotiable at the bank, without being expressly made payable there also, and was so described in the declaration ; he insisted, that a note made negotiable at bank, is, by force of that term of the contract, payable there. 2. That it was distinctly stated in the bill of exceptions, that there was no other proof in the cause but the note; that is, no proof of the hand writing of the maker, or of the indorser; without which, certainly, the in-dorsee was not entitled to a verdict. 3. That the. judgment was irregular and uncertain : that the verdict, or if not the verdict, the judgment, at least, shofild have ascertained the exact sum due, instead of being for the debt claimed with interest, subject to á credit for the,sum paid at the specified date; Grays v. Hines, 4 Munf. 437.
    There was no counsel for the defendant in error.
    
      
      Notes -Negotiable at Bank — Where Payable, — In Taylor v. Bank of Alexandria. 5 Leigh 475, it is said, if the object of the demurrer was to assert the necessity of presentment and demand at the bank of Alexandria, that objection is conclusively met by the fact, that the promissory note was not payable there, though it was negotiable there. Citing Barrett v. Wills, 4 Leigh 114. See monographic note on “Bills, Notes and Checks-’ appended to Archer v. Ward, 9 Gratt. 622.
    
    
      
       Appellate Practice — Failure to Hake Objection in Lower Court — Waiver.—The principal case is cited in foot-note, to Newsum v. Newsum, 1 Leigh 86; Rose v. Burgess, 10 Leigh 198.
    
    
      
       Verdicts — Certainty.—The principal case is cited in foot-note to Richards v. Tabb. 4 Call 522.
    
   CARR, J.

As to the first objection, — it is a general rule in pleading, that the declaration must contain an averment of all such facts as are necessary to maintain the plaintiff’s action ; but if, in addition to the necessary averments, it contain one idle and impertinent, so that it may be struck out without affecting the action, such averment is mere surplusage, and the plaintiff will not be held to proof of it. Is the averment here of this character, or is it one necessary' to be stated in the declaration, and proved on the trial, to maintain the plaintiff’s action? Since the case of Row v. Young, 2 Brod. & Bing. 165, 6 Eng. C. L. R. 58, it may be considered as settled in England, that where a promissory note is made payable, or bill of exchange is accepted payable, at a particular place, it is necessary, in an action against the maker or acceptor, to aver and prove a presentment at the place. But the point has been decided differently in the courts of New York, 4 Johns. Rep. 183, 17 Id. 248. And in the case of U. S. Bank v. Smith, 11 Wheat. 171, it is strongly doubted by the supreme court whether such averment and proof be necessary, in a suit against the maker of a note, though it is decided that they are, as against the indorser. This question, however, does not arise in the case before us; for the note is not made payable at any particular place; it is only made negotiable at the office of the bank of Virginia at Petersburg. The counsel, indeed, contended that this, of course, made it payable there; but he cited no authority for this, and I can find no decision to that effect. It would seem strange to me, if it had been so decided,. There is no necessary connexion between the bank where a note is made negotiable, and the place where it is made payable; they are very different operations. In Mandeville v. Union Bank, 9 Crunch 11, chief justice Marshall said—

“By making a note negotiable at a particular *bank, the maker authorizes the bank to advance, on his credit, to the owner of the note, the sum expressed on its face.” But the payrmeut of that note by the maker is quite another matter; it may be payable at large (and is always so where no place is named for payment), or payable at the bank where it is negotiable, or at a different place. This is all matter of express stipulation. In the case just cited, of Mandeville v. Union Bank, there are two instances of notes negotiable at one bank, and payable at a different bank. The note, then, in the case before us, was payable at large, and the averment in the declaration wholly immaterial and idle, of which no proof was necessary. The circuit court, therefore, was right in refusing the instruction.

The next objection is to the form of the verdict and judgment: They are objected to for uncertainty, but I can perceive none. The counsel, in support of his objection, cited, the case of Grays v. Hines. In that case, a judgment on a bond was entered for the penalty, to be discharged by the sum in the condition, “subject to a deduction for the said credits indorsed on the said bond:” here was much uncertainty; the sums to be credited were not specified; the judgment, instead of being complete in itself, referred to another document, which was liable to be changed by the clerk or others. The two cases are wholly different; and I think there is nothing in the objection.

Another objection was relied on in the argument; that the hand writing of the maker, and of the indorser, were not proved. But the record presents no such point. There is a general verdict for the plaintiff on the note; without any objection at the trial for want of such proof; without any motion to the court for instructions on the point; without any demurrer to the evidence. This is an attempt to supply the defect, by making the bill of exceptions operate as a demurrer to evidence; but that point has been too often decided here, to be now stirred.

The other judges concurred, and the judgment was affirmed.  