
    McKenzie, Cadow & Co. vs. R. & S. Durant.
    Action may be commenced on a promissory note, on tbe third day of grace.
    "Where a promissory is made payable at a particular place, it need not be averred in the declaration, or proved at the trial, that the note was presented and payment demanded at the place.
    BEFORE MU3STRO, J.} AT SUMTER, FALL TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action upon the following promissory note:
    “ ‘ Charleston, December 21, 1854.
    “ ‘Ninety days after date we promise to pay to the order of McKenzie, Cadow & Co., at the agency of the Bank of the State of South Carolina, in Sumterville, seven hundred and twenty-seven dollars and twenty-two cents, value received.
    “ ‘ R. & S. Durant.’
    “ The testimony of Montgomery Moses, Esq., was,as follows: That on Friday, March the 23d, 1855, R. Durant, one of the defendants, called upon him, and inquired if the note, the one in suit, had been sent to witness, as agent of the Bank, for collection. Witness replied that it had not been sent to him as agent, but had been sent for suit; to which Durant replied, ‘ I have taken legal advice and will not pay it.’ Witness then told him, if you do not pay it on to-morrow, I shall put it in suit. Four or five days previous to this, Sidney Durant, the other co-partner, inquired of witness about the note; said that his brother would call in a few days and arrange it.
    “ The writ was lodged on Saturday afternoon, the 24th of March, between four and five o’clock. The note was not sent to the agent; no demand was made by witness as agent; don’t knpw the distance defendants lived from Sumterville; they reside at or near Lynchburg.
    
      “ It is the custom not to protest when the payer is only endorser ; never protests unless to charge endorser; not desirous of putting to unnecessary expense; this note was payable to plaintiffs and endorsed only by them. The sheriff goes home by railroad; the cars left between five and six o’clock in the evening. The note was lodged in the sheriff’s office in time for him to take it with him that evening.
    “ Here a motion was made by the defendants’ counsel for a nonsuit, on the ground that the action was prematurely brought. I overruled the motion, and told the jury that the plaintiffs were clearly entitled to recover. The jury, however, concluded that my ruling on the law of the case was erroneous, and that the forfeiture of the debt was nothing more than a merited punishment for the premature commencement of the suit, and accordingly found a verdict for the defendants.”
    The plaintiffs appealed and now moved this court for a new trial, on the grounds:
    1. Because his Honor, the presiding Judge, after the facts had all come out, overruled a motion made by the defendants for a non-suit — stating that the plaintiffs were entitled to recover ; notwithstanding which the jury found for the defendants.
    2. Because questions of law are to .be decided by the court —and if this verdict stands the jury will be permitted to be judges of law, as the court instructed the jury that the law was with the plaintiffs.
    3. Because the action was properly brought, and the verdict should have been for the plaintiffs.
    4. Because the finding was capricious, and against law, evidence and the charge of the court.
    
      Haynsworth, Gfreen, for appellants.
    
      Spain, Richardson, contra.
   The opinion of the Court was delivered by

O’Neall, J.,

In this case it is not pretended, that the verdict can stand, but it is supposed, that if set aside a non-suit ought to follow.

1. Because the suit was brought on the third day of grace, whereas the defendants contend, they were privileged from suit for the whole of that day.

The point was considered, and very deliberately decided in Wilson vs. Williman, 1 N. & McC. 440. In that case Judge Richardson, with the concurrence of all his brethren held, “ That the maker of a note may be sued on the third day of grace.”

After such a decision to which practice has ever since conformed, it cannot be expected, that a different rule should now be introduced.

2. It was next urged for the defendant that it was necessary to state in the declaration, and prove on the trial, that the note was presented and payment demanded of the makers “ at the agency of the Bank of the State of South Carolina in Sumterville.”

The casé of Smith vs. Burrill, Harp. App. 518, is decisive of that point. In it Judge Coleock in overruling the decision of Proileau, Recorder, said, “We are of opinion that the place'where, constituted no part of the contract.

“ If the parties meet there, it is well, if either fails the contract is nevertheless binding and the action may be maintained, without an averment that a demand was made at the particular place.”

That is enough for this case. For the proof of M. Moses, Esq., that one of the partners called on him on the second day of grace and told him he had taken legal advice and would not pay the note, if a demand had been necessary to be proved at' the bank agency, would dispense with it. He who tells another that he will not do an act cannot certainly expect him to ask him to do it.

But the maker of the note has no right to expect a demand of payment to be made. It is his business to meet the pay-: ment, when by the terms of it he has promised to make it.

It is only to charge the indorser, that a demand is necessary. It is therefore plain in this case, that the motion for a non-suit was properly overruled by the judge below.

How a jury could undertake virtually to overrule the judge, and order a nonsuit by finding for the defendants, is hard to say. To tjiem the Judge is the law, and they are bound to follow his instructions on legal questions. Whenever they undertake to decide legal questions they incur a great peril, in, that, they may do wrong. -Juries ought to remember, that they are sworn, “ to well and truly try all issues and execute all writs of enquiry, and true verdicts give according to evidence.” An action, be it issue, or writ of, enquiry, can only be well tried, by the jury finding according to the law, as given to them by the judge, and according-to their belief of the facts, as proved before them.

The motion for a new trial is granted.

Wardlaw, Withers, Whitner, Glover and Munro, JJ., concurred.

Motion granted  