
    Lorenzo A. Besancon, et al. vs. James Shirley.
    An instrument of writing by which the makers promise to pay on a given day to the payee a stated sum “ in notes of the banks of the state of Mississippi, value received, payable and negotiable in any bank in the state of Mississippi ” is a promissory note; is assignable by indorsement under the statute (H. & H. Dig. 373, § 12); and the makers and indorsers thereon may be sued jointly according to the statute (H. & H. Dig. 595, § 33.)
    Where a demurrer was filed to a plea, and the court entered a general judgment sustaining the demurrer, it was held, that the judgment did not extend the demurrer back to the declaration, but limited it to the pleading demurred to ; and only adjudged the plea bad.
    To an action on a note payable in notes of the banks of the state of Mississippi, payable and -negotiable in any bank in the state of Mississippi, the defendants plead that on the day of the maturity of the note, they tendered to a particular bank the bank notes of chartered banks in this state, to- the amount of the note sued for, which were refused by the bank to which the tender was made on the ground that the note sued on was notin their possession ; the plea on demurrer was held bad, because it did not aver a continued state of readiness to pay.
    The statute (H. & H. 615, §8,) provides that when a demurrer to a plea is sustained, the judgment shall be respondeat ouster, and the party shall plead to the merits ; on sustaining a demurrer to a plea the court below, instead of the statutory judgment, gave leave to amend : Held, that the judgment of the court was sufficient to meet the requirements of the statute, and was perhaps more comprehensive.
    Does the statute, which requires a judgment of respondeat ouster and a plea to the merits when a demurrer to a plea is sustained, apply to a case where the defendant has filed one good plea, to which there is-an issue, Qutere ?
    In a declaration on a promissory note for a sum certain payable in notes of the banks of the state of Mississippi, payable and negotiable in.any bank in the state of Mississippi, the averment of a presentation for payment at the office of any particular bank in the state will be a sufficient averment.of demand.
    Where a promissory note was payable in any bank in the state of Mississippi, it was held, that a demand of payment at a branch bank was a sufficient demand.
    Where the defendants to an action on a promissory note made a motion for security for costs in strict accordance with the statute,,and.the court below overruled the motion and at a subsequent day of the term, on a trial on an issue in the case rendered judgment on a verdict in favor of the plaintiffs in the action; Held, as the statute was inoperative, that the suit should be dismissed on failure to give security, the circuit judge ought to have granted the motion ; and for not doing so, the court would reverse the judgment with instructions that security for costs be required in the court below according to law.
    In ERROR from the circuit court of Adams county; Hon. C. C. Cage, judge.
    James Shirley sued the makers and indorsers jointly in assumpsit in the circuit court of Adams county on the following instrument in writing, to wit:
    “ 10,000. Vicksburg, May 24, 1837.
    Twelve months after date we promise to pay to the order of A. G. McNutt the sum of ten thousand dollars in notes of the banks of Mississippi, value received, payable and negotiable in any bank in the state of Mississippi.
    Indorsed, L. A. Besancon,
    “ A. G. McNutt, T. J. Halliday.”
    F. B. Emmerson,
    F. L. Claiborne.”
    The declaration was in the ordinary form as against the makers and indorsers of a promissory note and contains two counts. The first count describes the instrument as a “promissory note ” for the payment of ten thousand dollars in notes of the bank of the state of Mississippi, and avers that the note when it become due and payable, to wit, on the 26th of May, 1838, was presented for payment at the office of the Commercial and Railroad Bank at their office and banking house in Clinton and payment refused, of which the indorsers had notice. The second count describes the instrument as “ an agreement or undertaking in writing ” to pay the sum of ten thousand dollars in notes of the banks of the state of Mississippi, avers presentment as in the first count, a refusal to pay and notice to the indorsers.
    
      The defendants pleaded, 1st. Non assumpsit; 2d. Tender of bank-notes at the time of the demand and refusal of them by the plaintiff; 3. A want of notice to the maker of the bank at which the note would be presented, and a readiness to pay at the banking-house of the Mississippi and Alabama Railroad and Banking Company. 4th. A tender of bank notes, since the institution of the suit. It is not deemed necessary to set out the pleas at greater length. To all of which pleas, except the first, the plaintiff demurred. The demurrer was, in general terms, sustained, and leave given to amend; no amendment was made by either party. The defendants moved an affidavit filed, according to the statute, for security for costs ; the motion was overruled.
    It appears- from the evidence set out in the bill of exceptions, that the instrument sued on was protested for non payment, on the day of its maturity, at the office, of deposit and discount of the branch of the Commercial and Railroad Bank of Vicksburg, at Clinton, and the protest and notarial certificate were admitted in evidence, on behalf of the plaintiff. It is not deemed necessary to set out more of the proof, embodied in the record, as the court did not pass upon it.
    The defendants requested the court to instruct the jury,
    1st. That if the jury believe that the note sued on was presented at maturity at an office or branch of a bank, and was not presented at any bank in said state, then the presentment was not sufficient in law, and notice to the indorsers of the note of non payment on such presentment, was not such a notice as will bind the indorsers in this case.
    2d. That if the jury believe that the note sued on was payable at any bank in the state, and was presented at the branch or office of a bank, at a different place from where the bank itself was located, it was not a sufficient presentment in law.
    3d. If a note is payable at any bank of the state of Mississippi, the holder must use due diligence to notify the maker at what bank the note will be presented at its maturity for payment.
    All of which instructions were refused, the refusal excepted to, the jury found a verdict for the plaintiff below, and the defendants prosecuted this writ of error.
    
      
      McNutt and Paxton, for plaintiffs in error.
    1. The judgment upon the demurrer is erroneous for its generality. It does not show whether the demurrer was sustained to the declaration, or to the pleas, or to which party leave was given to amend, or what amendment was allowed to be made, or that either party asked leave to amend, and the action proceeded without amendment. If sustained to the pleas the judgment should have been “ respondeat ouster.” How. & Hutch. Dig. 615. If sustained to the declaration the suit should have been dismissed, and judgment rendered for the defendants.
    2. The demurrer to the pleas should have been extended back, and sustained to the declaration. The instrument sued upon was a mere property contract, and not in any legal sense a negotiable or promissory note, and not, within the meaning of the act of 1837, (How. & Hutch. Dig. 595) a promissory note or bill of exchange, upon which the makers and indorsers might be sued in a joint action.
    A promissory note is defined to be “a written engagement by one person, to pay another person, therein named, absolutely and unconditionally, a certain sum of money at a time specified therein.” 1 Story on Prom. Notes, 1.
    The instrument sued on was executed at a time when the banks in Mississippi were in a state of suspension, and was made payable twelve months after date, in the notes of any bank, whether incorporated or not, solvent or insolvent, at the option of the debtor. 7 How. 322. The plaintiff was entitled to recover (if anything) not the nominal amount, but the value of the notes at the maturity of the contract. 7 How. 322; 2 S. & M. 495. Bank notes are not money. 2 S. & M. 514; 3 lb. 592; 5 lb. 361. To constitute a promissory note the engagement must not only be to pay money, strictly so called, but a certain sum of money. See Story on Prom. Notes, 19-25, and notes ; Bailey on Bills, 9 -13, and notes; 5 Cowen, 186;. 20 Pick. 131; 10 Serg. & R. 94; 1 Nott <fc McCord, 255; 2 Ham. Ohio R. 51; 2 Yerg. 444; Peck’s R. 130; 1 Litt. R. 30. The act of 1837 should be strictly construed. 2 S. & M. 478.
    3. Taking the instrument sued on to be a negotiable promissory note, the declaration does not aver such a presentment for payment as would bind the indorsers. 1st. Because the note not being payable at any certain bank or place, the demand should have been personal; or the holder should have given the maker reasonable previous notice of the place at which he would require the payment to be made. Any other construction of the contract would make it amount to a waiver of presentment. It was practically impossible that the makers should have been prepared at every bank and branch bank in the state, to meet the notes. See 13 Pick. R. 465. 2d. Because the note should have been presented for payment at a principal bank, and not at a branch bank, as the declaration avers. Walker’s R. 265. The demurrer should therefore have been sustained to the declaration, on this ground, and the suit dismissed as to the indorsers.
    4. The second plea of the defendants was good, and as to that at least the demurrer should have been overruled. The contract not being for the payment of money, but for the delivery of specific articles, or articles of a certain class, the obligation of the defendants was discharged by a tender of the articles according to the contract, and the suit being for money it was not necessary to bring the articles into court. See Chitty on Contracts, 5th Am. ed. 805, note (1.)
    5. The affidavit and motion for security for costs, appear to be in strict conformity with the statute, and to have been entered in due time. The statute is imperative. See How. & Hutch. Dig. 580, § 40, and the order overruling the motion is erroneous.
    6. The instrument sued on not being a promissory note, was not a proper subject of protest, and the action of the notary upon it was not official, his protest and certificate were therefore incompetent evidence, and should have been excluded. Besides, the proof of presentment, as made in the certificate, is variant from the averment in the declaration.
    7. The note being for bank notes, and not for money, the consideration should have been averred in the declaration. Walker’s R. 25.
    
      8. Days of grace only prevail by the law merchant, and are not allowed on notes payable in specific articles. Story on Prom. Notes, 215-225.
    
    9. Demand of payment should have been made on the 24th May, 1838, and notice then given to the indorsers, &c. The 24th of May was too late. Walker’s R. 249.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action was brought by Shirley against the makers and indorsers of an instrument in the following words, to wit:

Vicksburg, May 24th, 1837.

“ Twelve months after date we promise to pay to the order of A. G. McNutt the sum of ten thousand dollars, in notes of the banks of the state of Mississippi, value received, payable and negotiable in any bank in the state of Mississippi.

L. A. Besancon,

Th. J. Haliday.”

Much of the argument is based upon the position that this is not a promissory note; but' this position we conceive to be untenable. The statute seems to have been designed to place all written promises to pay money, or other specific thing, on the same footing ; they are all made negotiable by assignment, (How. & Hutch. Dig. 373, § 12,) and alike evidence of an indebtedness. Ib. 594, § 25. In Rankin v. Sanders, 6 How. 52, a note for §495, payable in cotton, at twelve cents per pound, was decided to be a promissory note. See also Bonnell v. Covington, 7 How. 322; Gordon v. Parker, 2 S. & M. 485; Keith v. Jones, 9 Johns. R. 120. The action then was properly brought, as on a promissory note, against the makers and indorsers, jointly, according to the statute, How. & Hutch. Dig. 595, § 33.

The defendants first pleaded the general issue, on which issue was taken, and afterwards three pleas of tender, to which the plaintiff demurred. The first question raised is as to the judgment on demurrer ; it is said to be too general; that it does not appear whether it was sustained to the declaration, or to the pleas, or to which party leave was given to amend. The judgment on the demurrer seems to be sufficiently certain; it sustains the demurrer, and as the demurrer was to the pleas, it was a judgment that the pleas were bad. A general judgment sustaining a demurrer extends and applies only to the pleadings demurred to. The pleas were defective, and the declaration was not. The pleas did not aver a continual state of readiness to pay, and, without looking to other objections, this was sufficient. Lannier v. Trigg, 6 S. & M. 641.

But the further question arises, whether the judgment goes far enough to meet the requirements of the statute. When a demurrer to a plea is sustained, the judgment must be respondeat ouster, and the defendant shall be compelled to plead the merits. How. & Hutch. Dig. 615, § 8. Instead of rendering the judgment formally in that way, the court gave judgment sustaining the demurrer, and gave leave to amend. This was giving the party all the benefit which he could have claimed under a technical judgment of respondeat ouster ; perhaps it was giving him more, for general leave to amend is more comprehensive than respondeat ouster. But queers, does the statute apply where the party has filed one good plea, to which there is an issue ? It would seem to have been designed to moderate the rigor of the common law, which, in such cases, entitled the plaintiff to judgment.

It is insisted in the next place that, even supposing the instrument to be a promissory note, still the declaration does not aver such a presentment as would bind the indorser. The declaration avers a presentment at the office of the Commercial and Railroad Bank in Clinton. The note was made payable and negotiable at any bank in Mississippi. We cannot limit or modify the contracts of parties. We know of no rule which required the holder to notify the makers in what particular bank he would place the note, and if payment was demanded at any bank in the state it would seem to be sufficient. Mason and Smedes v. Franklin, 3 Johns. 202; Chitty on Bills, 333. It would be much more reasonable to require the maker of such a note to give notice to the holder that he would make payment at a particular bank. The only question in such a case is, was it presented at a bank, and we think the court correctly refused to charge that a demand of payment at a branch bank was insufficient.

Another objection is, that the court erred in overruling the motion for security for costs. In making the motion the statute seems to have been strictly complied with, and the motion was passed, not abandoned, or withdrawn. The statute is imperative, that on failure to give security, the suit shall be dismissed. There is no other way of enforcing this law, if the circuit courts will disregard it, but by reversing the judgment. But a sixty day note is granted in such cases, and the case cannot be dismissed without allowing the benefit of that rule. Judgment reversed, and cause remanded, with directions that security for costs be given according to law.

Mr. Justice Thacher, having been of counsel below, gave no opinion.  