
    Bowie, use of Ladd, et al. vs. Duvall.
    December, 1829.
    The statute 3d <md 4th Anne, Ch. 9, declares that promissory notes shall he assignable or endorsable over in the same manner as inland bills of exchange are, or may he, according to the custom of merchants; and power is by the same statute given to endorsees, to maintain actions against the drawers, or prior endorsers of such notes, in the same manner as in cases of inland bills of exchange.
    By this statute, bills of exchange and promissory notes are placed on the same footing, and the law applicable to bills, is in general applicable to promissory notes.
    When a bill of exchange is endorsed in full, all the legal interest is transferred to the endorsee, and having the legal interest, he alone is qualified to maintain an action on such hill. He cannot use the name of the payee, because the payee having transferred his interest, can have no competency to maintain an action.
    So where it appeared that the note of the defendant, payable to B or order, had been endorsed as follows, “I assign the within for value received, to L;” signed B, but which endorsement was erased just before the jury was sworn; it was held that an action in the name of B, originally instituted for the use of L, could not he maintained, upon tile note, as there was no evidence from which the jury could infer that the payee and plaintiff was the holder of the note; neither could an action be maintained on the money counts, although there was proof of an express promise to pay the sum demanded in such suit, as that must be considered as enuring to the benefit of him who had a right to the note.
    If anote duly endorsed in full, should, in the regular course of commercial dealing, come back to the hands of a prior endorser, or of the payee, it. would he competent, for such person as the holder, to strike out the endorsement, and sue in his own name.
    English decisions made since the revolution, have no authoritative force here.
    In an action against the maker of a note, payable at the house of the payee and plaintiff, on a certain number of days after date, no demand of payment is necessary to he averred or proved.
    
      Appeal from Prince■ George’s County Court. This was an action of assumpsit, brought by the payee against the maker of a promissory note. The declaration contained a count on a note drawn on the 4th of September, 1821, by the appellee, (the defendant in the court below) for $1387 65, payable sixty days after date, to the appellant (the plaintiff in that court) or order; and also the common money counts. The genera] issue was pleaded.
    1. At the trial, the plaintiff offered in evidence the following promissory note:
    “$1387 65 Prince George’s County, Sept. 4,1821.
    Sixty days after date, I promise to pay Washington Bowie, or order, thirteen hundred and eighty-seven dollars and sixty-five cents,. for value received, and payable at the house of W. Bowie. John Duvall:”
    
    The signature of John Duvall thereto, being admitted to be in the hand writing of the defendant. The defendant then offered in evidence, that the said note had been specially endorsed by the plaintiff as follows: “I assign the within for value received, to John H. Ladd Co. Washington Bowie.”
    
    
      Alexandria, 22d October, 1822. .
    The signature of the plaintiff being admitted, the whole of the said endorsement was erased just before the jury was empanneled. The defendant further proved by the docket entries, that the suit was originally instituted for the use of John H. Ladd 8f Co. The defendant then prayed the court to instruct the jury that the plaintiff was not entitled to recover. Of which opinion the court {Stephen, Ch. J. and Key and Plater, A. J.] were, and so instructed the jury, there being no proof offered' that Washington Bowie, the legal plaintiff, ever had actual possession of the note, after the special endorsement, except that the note was filed in the cause. The plaintiff excepted.
    2. The defendant then, on the above evidence, prayed the court to instruct the jury, that as the plaintiff had not averred in his declaration, that the amount of the said note was demanded by him at the house of Washington Bowie, agreeably to the terms of said note, and no proof of a demand was given to the jury; the plaintiff was not entitled to a verdict, And the court being of that opinion, so instructed the jury. The plaintiff excepted.
    o. In addition to the above evidence, flic plaintiff proved by a competent witness, that after the institution of this suit, the defendant, in conversing with the witness relative to this suit, stated that be was making exertions to pay off the suit against him, and that he could easily do so if he was not forced to sell bis property, and that he only wanted time. That he never, in any numerous conversations to the same effect, intimated to the witness that he had paid the note, or had any defence whatever, except once, when he then staled (after the witness had refused to grant him any indulgence) that lie intended to dispute the claim, and that his counsel bad been so instructed. The witness also stated, that the defendant, in April, 1823, and during the term of Prince George’s County Court, inquired of the witness the number of the case on the docket, and asked the witness, if he believed the court would continue its session until the case should he reached, and then said that if a judgment should be entered, be hoped the witness would give him a stay of execution. At Ibis time the defendant did not say that he had any defence against the claim. The witness further stated that his impression is, that the defendant, at the time he asked for a stay of execution, was willing to have confessed a judgment. The plaintiff then prayed the court lo instruct the jury, that upon this evidence, if believed by the jury, the plaintiff is entitled to recover the amount of said note. But the court refused to give such instruction; and were of opinion, and so directed the jury, that so long as the endorsement aforesaid remained on the nolo, a suit could not be brought on the said note in the name of Washington Boma. The plaintiff then prayed the court to instruct the jury, that if the note was endorsed and delivered lo John II. Ladd 8/ Co. by Washington Bowie, that it was compel,eat for John II. Ladd 8f Co. the endorsees, to have this suit brought in the name of Washington Bowie, for their use, and to authorize the striking out the endorsement to them for that purpose. And that in this case, if the suit was so brought by John II. Ladd fy Co, then the endorsement being struck out after the suit was brought, the plaintiff is entitled to recover. Which instruction-the court refused to give. The plaintiff then prayed the court to instruct the jury, that if the jury believe from the evidence, that after the suit was brought, the defendant acknowledged the justice of the claim, and promised to pay it, or confess judgment, then such acknowledgment is evidence under the money counts;- and also of the plaintiff’s right to recover as the holder of the note. Which instruction was also refused by the court. The plaintiff then prayed the court to- instruct the jury, that if they believe from the evidence, that after this suit was brought, the defendant acknowledged the justice of the debt for which he was sued, and promised to pay or confess judgment, then such acknowledgment is evidence under the money counts. Which instruction the court also refused to give. The plaintiff excepted to all the refusals and opinions of the court. Verdict and: judgment for the defendant; and the plaintiff appealed to this court.
    The cause was argued at June term, 1828, before Buchanan, Ch. J. and Earle, Archer and Dorsey, J.
    
      F. S. Key and J. Forrest for the appellant.
    On the first bill of exceptions, they cited 2 Phill. Evid. 29, (note a.) 11, (noted) Dugan vs. United States, 3 Wheat. 173. Chitty on Bills, 150 (note b.) Biddle vs. Gray, et ux. 2 Harr. & Johns. 328.
    
    On the second bill of exceptions, they cited Rowe vs. Young, 6 Serg. & Lowb. 53. Rhodes vs. Gent. 7 Serg. & Lowb. 84. Bank of the United States vs. Smith, 11 Wheat. 172. Wolcott vs. Santvoord, 17 Johns. Rep. 248. 1 Chitty's Plead. 263,264. 3 Chitty’s Plead. 4, (note a.)
    
    
      J. Johnson and Stonesfreef for the appellee.
    On the first hill of exceptions, they cited Dugan vs. United States, 3 Wheat. 172. Chitty on Bills, 150, (note b.) Clark vs. Pigot, 1 Salk. 126. Theed vs. Lovell, 2 Stra. 1103. Kiersted vs. Rogers & Garland, 6 Harr. & Johns, 282.
    
      On the second bill of exceptions, they cited Wolcolt vs. Southward, 17 Johns. Rep. 254. Bowes vs. Howe, 1 Serg. & Lowb. 8. Trecothick vs. Edwin, 2 Serg. & Lowb. 470. Gammon vs. Schmoll, 1 Serg. & Lowb. 128. Rowe vs. Young, 6 Serg. & Lowb. 105. Rhodes vs. Gent 7 Serg. & Lowb. 84.
   Akcheb, J.

delivered the opinion of the court.

The statute 3d & 4th Anne, ch. 9, declares that promissory notes shall be assignable or endorseable over in the same manner as inland bills of exchange are, or may be, according to the custom of merchants; and power is hy the same statute

name of the payee, because the payee having transferred his interest, can have no competency to maintain an action.

it is true, that if a note duly endorsed in full, should in the regular course of commercial dealing, come back to the hands of a prior endorser, or of the payee, it would he competent for such person as the holder to strike out the endorsement, and sue in his own name. These positions are fully maintained by the Supreme Court of the United States, in the case of Dugan vs. The United Stales, 3 Wheat. 183, where it is said “that, if any person who endorses a bill of exchange to another, whether for value or for purposes of collection, shall come to the possession thereof again, he shall be regarded as the” bona fule holder and proprietor of such bill, and shall he entitled to recovo* notwithstanding there may he on it, one or more endorsements m full, subsequent to the one to him, without producing any receipt Dr endorsement back from either of such endorsees, whoso Dames he may strike from the bill, or not,., as he pleases,”

The correctness then of the opinion of the court below, as expressed in the first bill of exceptions, must depend upon the fact, whether there was any evidence from which the jury could infer, that W. Bowie the payee and legal plaintiff in this case, was at the time of the institution of this suit, the holder of the note upon which this action was brought. The suit is in the name of the payee, and is marked to the use of Ladd 8f Co., to whom the endorsement had been made in full, before the commencement of' the suit. Either Bowie or Ladd § Co. filed the note and directed the use. If Bowie filed the note with its special endorsement, and directed the use, it was evidence not to be disregarded, that Bowie meant the assignment should be perfected. He had in fact by so doing delivered it to Ladd 4r Co.; and Ladd <Sf Co. must be considered in the absence of evidence to the contrary, as assenting to the transfer, it being for their benefit. Nor could Bowie, after the endorsement and the direction to enter it for the use of Ladd or Co., although the legal plaintiff, strike out the use, or interfere with the endorsement without the consent of Ladd fy Co. It is therefore manifest even in this view of the case, that Bowie would have parted with his right, was no longer a holder of the note, and could not maintain a suit. If on the contrary, Ladd <Sf Co. filed the note with the assignment, then the transfer was. clearly complete, and the suit should have been brought in their names, as they were legally entitled to the note, and were the holders thereof. There being then no evidence from which the jury could infer that the payee and plaintiff was the holder of the note, he was not entitled to recover upon the evidence stated in the first bill of exceptions.

The views which have been submitted of the law arising out of the first bill of exceptions, disposes of the two first prayers in the third exception.

We also concur with the court below in the opinions expressed by them on the third and fourth prayers in the third exception. If the right was in Ladd fy Co. there could be no recovery by the plaintiff on the money counts; the promise to pay must be considered as enuring to the benefit of him who had a right to the note, and if the right to the note was in Ladd Co., any promise to Bowie, was without consideration and void. Nor could the promise to pay or confess judgment, if the jury had believed in the existence of the promise, have enabled Bowie to have recovered as bolder, because the right by the endorsement was transferred to Ladd §■ Co. who are to be considered as the holders, in the absence of testimony, showing that the note had got back to the hands of Bowie.

In the second bill of exceptions, tlie court decide that no recovery could be bad by the plaintiif, because be bad not averred in his declaration, that the amount of the said note was demanded by him at the bouse of Washington Bowie, and because.no proof was given to the jury of a demand. The general doctrine that where a note is payable on demand, at a particular place, the averment of a demand and proof of notice is necessary, seems to be well established law in England, as will be seen by consulting the opinions of the twelve judges, delivered in the case of Rowe and Young, % Broderip fy Bingham, even in the case of a suit against the maker of a note. So too it was settled by that decision, that if an acceptance was made payable at a particular place, the averment of a demand and proof thereof was considered indispensable to a recovery, because in each case the place of payment according to the idea of the judges, is made part and parcel of the contract. Such, however, were the inconveniences of the rule, that Parliament, by the statute of 2 Geo. IF. ch. 78, declared that an acceptance at a particular place, should have the effect of a general acceptance, unless the acceptance was made payable at a particular place, and not elsewhere. These English decisions, which have in part been abrogated by the Legislature, as departures from commercial usage and policy, and, where, not interfered with by them, have been considered by some of her most eminent jurists, as departures from the law, [vide Mr. Justice Bayley’s and Mr. Justice .ShhoPs commenlary on Sanderson vs. Bowes, 2 Brod. & Bing. 180, j have no authoritative force here, because the cases in which these doctrines have been settled, have been adjudicated since our revolution, and are against all the analogies of the law, as was clearly demonstrated by Bayley Justice, in his argument in Rowe and Jefferys, and by Ch. J. Spencer, in Wolcott vs. Van Santvoord, 17 Johns. Rep. 250.

The Supreme Court of the United States, in the case of the United States Bank vs. Smith, 11 Wheat. 175, after adverting to the British decisions on tins question say, that a contrary opinion has been entertained in the courts of this country, that a demand on the maker of a note, or the acceptor of a bill, payable at a specific place, need not be averred in the declaration, or proved at the trial. That it is not a condition precedent to the right of recovery, and they intimate their opinion to be in accordance with such determinations. In New York, the law has been considered as settled in the same way, from the case of Foden vs. Sharp, 4 Johns. Rep. 184, decided in the year 1809, where the court say “the holder of a bill of ex- . change need not show a demand of payment of the acceptor, any more than of the maker of a note;” and in 17 Johns. Rep. 248, the court say, in commenting on this case, that such was the doctrine of the English courts at that time, and they there decide that a demand at the place where accepted, is not a condition precedent to the right to recover, and that of course it need not be averred in the declaration.

In deciding in this case, that no demand was necessary to be made, we shall contradict no decided case in this country, which has fallen under our observation. The note it must be , recollected; is payable at the house of the payee and plaintiff, and is not payable on demand there, but sixty days after date. In 11 Wheat. 171, United Slates Bank vs. Smith, it is decided, that if the bank at which a bill or note is payable, be the holder of the bill or note, no demand will be necessary, but an examination into the state of the accounts of the maker in bank, to see whether he has deposited funds, is all that is necessary to be done, to enable the party to recover. The same decision has been made in 12 Mass. 404, with the exception that no examination-of the books was required. In New York, Caldwell vs. Cassedy, 8 Cowan, 271, it was decided, that the place does not e*f'>r into the essence of the contract, unless the promise is to pay on demand at that place, and that consequently where the note is made payable at a particular place merely, no demand is necessary to be averred. This decision meets the present case. But we would not wish to be understood as deciding this case, upon so subtle a distinction, but upon the broad ground, that when the suit is against the maker of a promissory note, no demand is necessary to be averred, upon the principle, that the money to he paid is a debt from the defendant, that it is due generally and universally, that if will continue due, though there he a neglect on the part of the creditor, to attend at the time and place, to receive or to demand, that it is matter of defence on the part of the defendant, to shew that he was in attendance to pay, but the plaintiff was not in readiness to receive, which defence generally, will be in bar of damages only, and not in bar of the debt

It is staled in Sanderson vs. Bowes (14 East. Rep. 500) that the place of payment is inserted in promissory notes as a matter of convenience to the makers, for-it would he very inconvenient if they should bo compelled to answer them every where, when it is notorious that they have made provision to answer them at a particular place. If such be the practice in England, where the makers of notes have generally their bankers, with whom funds are set apart for the special payment of their notes, the construction which prevails there, upon this clause of such an instrument, may have grown out of the commercial usages of the country. But our usages here would seem to lead to a different construction, for it is a matter of notoriety, that parties to this commercial instrument generally collect them in our cities, through the medium of the banking institutions; and they are most frequently made payable there, or at a particular place, not for the convenience of the drawer, hut for the benefit of the holder, that his collection may be facilitated. And this case furnishes an illustration of the fact, for it is perfectly obvious that the home of the payee was the place of payment, here to suit the convenience of the payee, not the maker.

We concur with the court below, in every direction ^iven by them to the jury, but disagree with them in the opinion expressed in the second hill of exceptions.

JUDGMENT AFFIRMED.  