
    
      ERWIN ET AL. vs. ADAMS.
    
    Eastern District,
    
      April 1831.
    APPEAL EKOM THE COURT OP THE FOURTH DISTRICT, THE JUDGE OP THE THIRD PRESIDING.
    , A demand of payment must be made at the place designated if it exist; if it does not, the plaintiff will recover without.
    This was an action against the maker of a promissory note, made payable at the counting-house of Wm. Kenner and Co., • in New Orleans. •
    At the time the note became due, Kenner and Co. had a counting-house in New-Orleans; but it had ceased to exist at the inception of the suit. The plaintiffs failing to prove a demand, there was judgment of nonsuit, from which they appealed.
   Mathews, J.,

delivered the opinion of the court.

This is a suit against the maker of a promissory note, by the executors of the payee. Judgment of non-suit was rendered in the court below, from which the plaintiffs appealed.

We shall consider the case as submitted without argument. It is true that a brief was handed to the court, signed by Jno. G. Burk, as attorney for the plaintiffs, in which he seems to have departed almost entirely from the substantial merits of the cause, for the purpose of attacking our decision in the case of Mellon vs. Croghan, to be found in 3 N. S. p. 423. His commentaries on this decision, are made in a style and manner so disrespectful, and contain insinuations so improper, that his brief of argument must be rejected, and the clerk of the court be required to return it to him, after taking a copy, leaving further time to consider whether the interest of the public and a proper respect for our official standing, may require any other notice of the offender.

Before proceeding to the investigation of the present cause, it is proper to remark that we consider the decision of the case cited, as altogether correct, and it would govern us in that now under consideration, were the facts entirely similar. J

A demand of Se aUheUpiace ^gnated, if it the plaintiff out.rec0ver with"

rrn , . , , . . „ , , , lhe note on which this action is iounded, was made payable at the counting-house of Wm. Kenner & Co., in New-Orleans; and it does not appear in evidence, that any demand was their made; but it is admitted in the statement of facts, that previous to the commencement of the present suit, the firm had failed and they had no counting-house. This circumstance changes the situation of the parties now before the court, from that of the suitors in the case cited. In that case, it is no where decided that a demand, at the time the note became due, was necessary to charge the maker, but it was considered asa condition precedent to the right of recovery on the part of the plaintiff, that a demand of payment should be made at the place designated, previous to the institution of the suit — sed lex nemineh' coget ad vena et impossibiliae. And, in the present case, it is agreed that at the time of commencing the action, it was impossible to make a demand of payment at the place designated in the note, for no such place existed.

It is, therefore, ordered, &c. that the judgment of the District Court be avoided, reversed and annulled, and proceeding here to give such judgment as ought then to have been given.

It is further ordered, adjudged and decreed, that the plaintiffs and appellants do recover from the defendant and appellee twenty-four hundred and forty-seven dollars and twenty-two cents, with ten per cent, per annum, interest thereon, from the 4th of April, 1823, until paid ; and that the defendant and appellee pay costs in both courts.,  