
    Hubbell v. Lord.
    It seems that a general demurrer ought to be entertained at any time.
    The judgment will not be reversed because the court refused to entertain a general demurrer after answer to the merits where the demurrer could not have been sustained. (Note 77.)
    A note payable at a particular place in the State of Louisiana need not be presented at that place in order to bind the maker prima facie.
    
    Appeal from Galveston. This ivas an action on a promissory note made by Hubbell, payable to Tlios. Medley & Co., or order, at their office in the oily of How Orleans, in the State of Louisiana. There was no averment of presentment for payment at the place indicated. Tlic entry of judgment read : “ This “ day came the parties by their attorneys. The defendant offered to file a “ demurrer by way of amendment, which the court refused to permit, lie having “ previously pleaded in bar to the merits of the cause,” &c. Verdict and judgment for the plaintiff. The errors assigned were—
    1st. The refusal of the court to entertain the defendant’s demurrer.
    2d. The failure to allege and prove a presentment of the note at the place where it was made payable.
    
      Sherwood fy Goddard, for appellant.
    The note being made payable in Hew Orleans, the law of Louisiana must govern, so far as tiie incidents are concerned on which the right of action is based. Iu other words, 'if the matters set forth in the petition would enable the plaintiff to recover under the laws of Louisiana, they could recover here; otherwise, not.
    Heither the State of Texas in its legislative capacity, nor its judiciary, by any construction, could dispense with any of the conditions imposed by the law of the place where the contract was to be executed, and which attacli as conditions precedent to be performed before action could be brought. (Slory on the Const-., yol. 3, p. 250; Green v. Biddle, 8 Wheat. E., 1-84; McCullough v. State of Md., 4 Wheat., 316.)
    Nora 77. — The defendant may except to the petition for insufficiency in substance after answering to the merits. (Oliyer v. Chapman, 15 T., 400; Watson v. Loop, 12 T., 11.)
    The principle of tlie common law, as settled in England in the House of Lords, is Unit, when tlie hill or note is made or accepted, payable at a particular place, “(lie declaration must aver presentment at that place, and the aver-“mont nius? be proved.” (Howe v. Young, 2 Brod. & Bing., 165.)
    Mr. .'Justice Story discusses this subject in his treatise on Promissory Notes, page 257, seel ions,227-S-9; and also cites the ease of Wallace v. McConnell, 13Pet. It., 36. That was a case where the note was payable at United States Branch Bank, at Nashville, Tennessee. By the law of the State of Tennessee at tlie time that note was made, demand at the place of payment was not necessary as a condition precedent to an action against the maker, as is seen by tlie cast's of McNairy v. Bell, 1 Yerger’s Bep., 502, and Mullievrin v. Han-lram, 2 Yerger B., SI.
    Tlie learned commentator, in the note referred to, by way of remark, says: “It may not bo improper for me to add, that being a judge of tlie Supreme “Court of tlie United States when both tlie case of the U. S. Bank v. Smith, “11 Wheal on, 172, and tlie case of Wallace v. McConnell, 13 Peters, 136, were “ decided, I was not present at the argument of the former, and in the latter “case I dissented from tlie opinion of the court, although my dissent was not ‘'expressed in open court.”
    The judge also alludes to the note in 3d Kent’s Com., 97 and 99, where the commentalor holds the English rule to be the true one, and adds: “This is “ the plain sense of tlie contract, and the words, ‘accepted, payable at a given “‘place,’ are equivalent to an exclusion of a demand elsewhere.” Even in the case alluded to in the House of Lords, (Bowe v. Young,) it is impliedly conceded that the king’s bench had maintained that on a note payable at a particular place, demand at that place must be averred and proved — Lord Elden observing that he could not •‘understand the good sense of the “distinction of'tlie King’s Bench, that if a promissory note be made payable at “a particular place the demand must be made there, because the place, being “in the note, is a part of the contract; ” “but if a bill be accepted, payable at “ a particular place, it is not a part of the acceptance and the presentment need “not be there.”
    The law of Louisiana, where the note in this case was made payable, is settled beyond any question to the effect that where tlie note is made payable at a particular place, demand at the place must be averred in the petition and proved at. the. trial. (Mullera. Croyhan. 3 Martin, N. S., 423; Erwin v. Adams, 2 La. B., 318; Warren v. Briscoe, 12 Id., 472; Gale v. Kemper’s Heirs, 10 Id., 208; Warren o. Alluutt, 12 Id., 454; Stillwell v. Bobb, 1 Bob. La. B., 311.)
    This last case was brought up fora rehearing, as appears from Deslix’s Index. See also Lesiix’s Index, p. 357, sections 70, 74.
    
      II. W. Sf M. M. Potter, for appellee.
   Wheeleb, <T.

The precise question in this ease was determined in the case of Andrews v. Hoxie. (5 Tex. R., 171.) The note was made payable in New Orleans, and we Held that it was not necessary to aver presentation of tlie note for payment at that place. Bepeated decisions have settled the law of the court on this question adversely to tlie appellant.

Tlie refusal of the court to entertain tlie demurrer can afford no ground for reversing the judgment, for the reason that had tlie demurrer been considered it was not well taken and must have been overruled. It could not have benefited the defendant if it had been entertained; and he, therefore, cannot have been prejudiced by tlie refusal to entertain it. The refusal to entertain instead of having- considered and overruled it, is a mere irregularity, not of a character to authorize a reversal of the judgment.

Judgment affirmed.'  