
    Halls, Kirkpatrick, & Co. vs. Thomas W. Howell. The Same, vs. Arthur Howell.
    
      fhe Notary of the branch bank in Columbia, on the day that a note discounted in Bank became due, deposited a letter in the post office, directed to the drawer who resided in the country, demanding paymentf and testified that it was the practice of the bank to make demarids in. this way: Held not a sufficient demand of the drcuwer, to charge the endorsers.
    
    These were actions of assumpsit on promissory notes.. The defendants and plaintiffs/- were endorsers of the notes; The plaintiffs being the last endorsers, brought the suits above Stated against the defendants as prior endorsers.
    At the trial, the -plaintiff’s proved the hand writing of the-maker and endorsers; but did not prove any demand of the maker or notice to the endorsers, except the following, viz; That a tetter had been deposited in the post office on the day 4he- note became due, by a notary public* demanding payment of the maker* and at the same time letters were deposited in the post, office for each of the defendants, informing them that the note was unpaid, and requiring immediate payment; but it did appear that either of the said letters had ever been received by the defendants, The notary Qf the bank testified that it bad been the practice of the bank, since its institution, to make demands in this way, where drawers did not reside in the town and had no agents there.
    The testimony on the part of the plaintiffs closed here, and a motion was made for a non-suit, because there was not sufficient evidence of a demand and notice, and because declaration alleged notice to have been given on the day the note became due and the plaintiff failed to prove it. But the presiding judge Overruled the motion, stating that as this was a note made for negotiation m this bank, the demand and notice werfe sufficiently proven. The defendant’s attorney stated that he was prepared to prove that the maker lived within a few miles of Columbia, and that one, if not both of the defendants lived in Columbia, at the time the note became due; but on account of the above opinion of his honor, this evidence was not given.
    The judge charged the jury that the evidence was sufficient to warrant a recovery; who accordingly found for the plaintiffs in both cases.
    The defendant moved for a non-suit in both cases; because the plaintiffs did not prove any demand of payment on the maker of the note.
    
      Chappell, for motion.
    
    On the subject of the necessity of demand and refusal, and notice to endorser, quoted 1 Con. Bee. 69,70, and 2 M‘Cord, 134.
    Admitted that if a note be made payable at a particular place, it is sufficient to demand it there. But this note is not • made payable at the bank: for aught that appears, it was not made with the intention of being discounted in bank. If the mere fact of the note’s having got into, the bank, is to dispense ivith the necessity of demand and notice, the exception that -is contended for, may become universal, for every note may be lodged in bank.
    The letter lodged in'the post office by -the notary, directed to the maker, was no demand, for it is clear that the demand must be personal. Nor if we admit a demand to have been made, was there legal notice to the endorsers.- Notice must be given after demand and .refusal: the letters making demaod'o’f-the drawer and giving notice to the endorsers were lodged in the post office at the same time. We were prepared to prove, chat one of the defendants resided in the town of Columbia,, and if so, it was necessary that the notice should be personal.Chit. on Bills, S36, n. The other lived in the country: but it is- only where the party resides in a post town, that notice by post is sufficient. Chit. 235, 236. n.
    
    
      J\llCord and Preston, eonPa.
    
    It is admitted-that if it be part of a negotiable contract, that payment shall be made at a particular place, it is- unnecessary to make a d-emand-elsewhere. But it is not necessary that the place should appear on the face, of the contract, the appointment of a place may be shewn by parol. Chit, on Bills, 267, n. p. ref erring io 4 Johns. Rep. 285-; 12 Mass. Rep. 172. “If the person at whose house the bill,. &c. is made payable, be himself the holder of it, it is a sufficient demand of payment, for him to inspect his books, and sufficient evidence of a refusal, to find upon such inspection that he had no effects in bis hands.” Chit. 267.
    
    Contracts may be either expressed or implied: it is implied as a. part of the contract of endorsement, that the endorser of a, note will pay, if demand be made of the drawer and he refuses. Is it implied here, that payment shall be made at the bank? Implication may be ascertained by circumstances, general understanding, notorious usage. . In ordinary cases, it it sufficient to present for payment at the house or counting house of the drawcrj the law implies that he contracted to pay there; Is the implication less strong that he who makes a note to be discounted in bank, contracts to pay in bank?
    The established usages of the bank are presumed to be known to its customers, and the contract is made with reference to them. 5 Cranch, 52. The usage of the bank is the law of the transaction. The notorious usage of the hank was clear-. Iv proved “ to make demand in no other way than by thus putting letters into the post office.” The bank of the State is an ' institution not founded on strictly commercial principles, and tire commercial rule must be relaxed, where it is physically impossible to conform to it. The customers of the bank are Scattered over the whole state, and it would be next to an impossibility to make a personal demand on every one. The Usage which it has adopted is not arbitrary, but founded on the necessity of the circumstances.
    There was no evidence about the residence of the endorsers. Notice to them by post is in general sufficient: but the case w'cnt off on the other point.
    
      Chappell, for motion.
    
      ,M‘ Cord &e Preston, contra.
   1 he opinion of the court ivas delivered, hy

Mri Justice Huger.

It is not pretended that in an action against the endorser of a note, a demand on the drawer is not to be proved; but it is contended that as these notes were made to be discounted at the bank, a personal demand was unnecessary, and that a demand was to be implied from the non-payment of the notes. It is perhaps true that such notes, when discounted, are usually paid at the bank when due; but it is also true, that the banks in this state never neglect tomakc a demand on the drawers for payment. If therefore a demand in these cases be unnecessary, it is not because it is authorised by a well established and therefore well understood usage, but because it was the intention of the parties at the time o!' their execution, that the notes were to be paid at the bank. If a waiver of demand is to foe implied from such intention, a demand will become unnecessary in most cases of discounted notes, But how is the fact? Is it under-» stood by the parties to such notes that a demand is waived? If so, why do the banks always make a demand. They make a demand, I apprehend, not because it is understood a demand is waived, but because it is understood that it is not waived. If it be not so understood generally, I can perceive no reason for exempting the notes in question from the general rule. The mo-? fion must therefore be granted.

JVott, Colcock and Johnson, Justices,, concurred.  