
    *Armistead v. Armisteads.
    December, 1839,
    Richmond.
    (Absent Parker and Careij,, J.)
    English Case Disapproved. -The decision of the house of lords in Rowe v. Young-, 2 Broil. & Ding-. 165, (i Eng. Com. Law Rep. 53, 2 Bligh 391, examined and disapproved.
    Promissory Note -Action against Makers -Neither Averment Nor Proof of Presentment and Demand Necessary.— in debt against the makers of a promissory note (made in Virginia) negotiable and payable at the United States branch bank at washington City, the first count of the declaration, after describing the note, averred that the same was duly presented at the bank, and payment there required. At the trial, there being no proof of a demand of payment at the bank, the circuit court Instructed the jury that the plaintiff could not recover on this count. The second count of the same declaration merely set forth the note, without any averment of presentment at the place ; and the defendants having demurred thereto, the circuit court sustained the demurrer. Held, the circuit court erred in sustaining the demurrer, and also in its instruction to the jury.
    Same — Payable on Demand — No Default of Maker until Demand Hade. — This decision does not embrace the case of a note of obligation payable, in terms, on demand at a particular place, without specification of time, or payable, in terms, on demand at a particular place after the lapse of a specified time. In such cases, it would probably be held that there is no default of the maker or acceptor until such demand be made, and consequently that no action would accrue to the payee until such demand should be made. Per Stanard, J.
    John B. Armistead declared against John C. Armistead and Robert U. Armistead, in debt. After a demurrer by the defendants, the plaintiff filed an amended declara-. tion, containing five counts. The first count set forth, that the defendants, on the 24th of October 1823, at the county of Fauquier, made and signed their certain note in writing, by which they jointly and severally promised to pay to the plaintiff or order, on the 25th day of December 1824, the sum of 250 dollars, negotiable and payable at the United States branch bank at *Washington City, for value received ; and averred that afterwards, to wit, on the 25th day of December 1824, at the United States branch bank at Washington City, to wit, at the county aforesaid, the said note was duly presented at the said bank for payment, and payment of the said sum of money therein specified was then and there duly required of the cashier thereof, but that neither the cashier of the said bank, nor the defendants, nor any other person or persons on behalf of the said defendants, did or would, at the said time when the said note-was so presented and shewn for payment thereof as aforesaid, or at any time before or afterwards, pay the said sum of money therein specified, or any part thereof, but wholly neglected and refused so „to do: by reason whereof an action accrued to the plaintiff to demand and have of and from the defendants the said sum of 250 dollars, parcel of the sum demanded.
    The second count merely set forth the note, and then concluded that by reason thereof, action accrued to the plaintiff to demand and have of and from the defendants the further sum of 250 dollars, parcel of the sum demanded.
    The third count was for money lent; the fourth, for money had and received ; and the fifth, on an insimul computassent.
    To the second count of this amended declaration the defendants demurred generally, and the plaintiff joined in the demurrer.
    The superior court of Fauquier, on the 9th of March 1830, sustained the demurrer to the second count. The defendant then pleaded nil debet, and a jury was impannelled to try the issue joined on the plea. '
    A bill of exceptions was filed, stating, that
    at the trial of the cause, which was brought (as appeared by an indorsement on the writ) for the benefit of Enos Wildman, the said Wildman’s counsel proved that the defendants had executed the note set forth in the first and ^second counts, but failing to prove any demand for payment at the United States branch bank at Washington City, the court instructed the jury that he could not recover on the first count. The plaintiff’s counsel thereupon insisted that he was entitled to recover on that evidence, under the count for money had and received to his the nominal plaintiff’s use ; but the court was of a different opinion, and so instructed the jury. The beneficiary plaintiff then proved by a witness, that when the note in the first and second counts mentioned was executed by the defendants to John B. Armistead their father, he the witness was present, and the parties said it was for the prospective rent of the farm they were living on ; and the paid plaintiff insisted that under this evidence he was entitled to recover on the insimul computassent count: but the court, on the motion of the defendants, instructed the jury that the evidence aforesaid did not entitle the plaintiff to recover on that count. To all which instructions and opinions the beneficiary plaintiff by his counsel, in the name of the plaintiff on the record, excepted.
    A verdict being found for the defendants, and judgment rendered thereupon, a super-sedeas was awarded.
    The cause was argued in this court by Robertson for the plaintiff, and Carter and Harrison for the defendants.
    Robertson insisted, that the law of Virginia, lex loci'contractus, was to be regarded by the court as that which governed the contract. Such was the general rule, and this case formed no exception. There was nothing in the pleadings to shew that there was indeed any difference between the law of Virginia and that of the district of Columbia ; and the court could not judicially take notice what the law of the district was, unless pleaded, or proved at the trial below. Assuming the law of Virginia as that which governed the case, there could be no doubt that the demurrer to the second *count was improperly sustained. The statute 3 and 4 Anne, putting promissory, notes on the footing of bills of exchange, was never in force in Virginia : and our own statutes placed no other notes on that footing, than such as were payable and negotiable at one or other of our state banks. The promissory note in this case was therefore a common law paper, not governed by the law merchant. On such a paper an action might be maintained without averring or proving a demand at the time or place, however particularly designated in the body of the instrument. For this he referred the court to the cases cited and commented upon by Richardson, J., in delivering his opinion in Rowe v. Young, 2 Bligh 426-9. These cases, and the authority of 1 Wms. Saund. 33a, and note 2, proved, he said, that in actions on such papers at common law, no special demand was required to be averred or proved, where there was an antecedent debt or duty; the licet saepius requisitus, and the institution of the suit, being' a sufficient averment and demand, unless in cases where there was a collateral undertaking, or where the demand or request was specially required as a precedent condition. The case of Sander-son v. Bowes, 14 East 500, was itself an authority on these points. In all such cases at common law, the objection, if it could be taken at all, was matter of defence by plea, and that plea must aver that the defendant was ready at the place &c. and still is ready &c. But admitting the law of the district of Columbia to govern the case, and that law to place the note on the footing' of bills of exchange, still no special demand need be averred or proved. The case of Rowe v. Young is supposed to decide otherwise. The manifest injustice of that decision, the character of the tribunal which made it, and the decided reprobation of the ablest judges both in England and the United States, as well as that of the *whole commercial world, are sufficient to overturn its authority. The house of lords cou!d not be considered here as a body likely to be well versed in intricate questions of law. The weight of authority was manifestly against them in that particular case. They had referred the question to the twelve judges, and the result was that eight out of the twelve, possessing the most decided superiority in point of judicial ability, gave their opinions that as against the acceptor of a bill of exchange, on an acceptance payable at a particular place, ’there was no necessity to aver or prove a demand prior to the action. The acceptor was regarded prima facie as the debtor : it was upon this ground they proceeded: and it applies a fortiori to cases where the payee sues the maker, — in other words, where the creditor sues his debtor. Conceding, for the sake of argument, that the note was brought withirl the influence of the decision in Rowe v. Young, yet the action, he insisted, was maintainable on the money counts. The note itself was prima facie evidence of money lent or advanced, and a recovery might on that ground be had on the count for money had and received. This doctrine was familiar to the court. Meredith v. Chute, 2 Ed. Raym. 760 ; Grant v. Vaughan, 3 Burr. 1516; Tatlock v. Harris, 3 T. R. 174; Vere v. Lewis, Id. 182; Minet v. Gibson, Id. 481. But the court below instructed the jury that such recovery could not be had on that count, or on the count for money lent. The plaintiff was moreover entitled to recover on the insimul computassent count, on evidence proving the note to have been given on a valuable consideration. It is true, there was only a single item of account, but it had been settled that an accounting or settlement between parties, though relating to but one item, might be given in evidence on the insimul computassent count. Knowles and others v. Michel &c., 13 East 249 ; 1 Chit. Pl. 345.
    *Carter, for the defendants,
    after remarking that the note appeared not to be payable in Virginia, but “negotiable and payable at the United States branch bank at Washington City,” referred to the rule that where a contract is to be performed in any other place than that in which it is made, it is governed, as to its validity, nature, obligation and interpretation, by the law of the place of performance. Story’s Conflict of Laws, § 232, 3, 4, 5, and § 248, 252, 272 ; Robinson v. Bland, 2 Burr. 1077 ; Chitty on Bills 191, 193; Bank of Washington v. Triplett &c., 1 Peters 34. He said that by the act of congress of February 1801 in relation to the district of Columbia, that part of the district ceded to the federal government by Virginia was put under the laws of Virginia as they then existed, and that part ceded by Maryland was put under the then laws of Maryland. 3 Story’s Laws U. S. 2089. The enquiry then is, what were the laws of Maryland upon this subject ? In Lindo v. Gardner, 1 Cranch 343, 4, (decided in February 1803) it is distinctly stated that the statute of 3 and 4 Anne, ch. 9, is in Maryland the law of the land, “and that the courts of Maryland, in the construction of that statute, have always respected the adjudications of the english courts. ” It being ascertained that this instrument would be held in the district to be negotiable, this court, in passing upon it here, will also treat it as negotiable ; and it being ascertained that the courts of Maryland would apply to this paper the decisions of the english courts under the statute of Anne, this court will be governed by the same decisions, even if they were opposed (which they are not) by any decisions in Virginia. What then are the english decisions under the statute of Anne, applicable to the question here ? They will be found stated in a note of the reporter to Head &c. v. Sewell, 1 Holt 363 ; 3 Eng. Com. Law Rep. 130, 31. It is true that in Rowe v. Young, 2 Bligh391, some of the english ^judges doubted whether the rule of that case should be applied to acceptors of bills of a particular kind. But there was very little if any doubt as to makers of notes payable, in the body of them, at a particular place. Opinion of lord Eldon, p. 400, and of Dallas, J., p. 501. Certain it is, that since the decision of the house of lords, it is considered as settled in England, that where a promissory note is made payable, or bill of exchange is accepted payable, at a particular place, it is necessary, in an action against the maker or acceptor, to aver and prove a presentment at the place. So it is stated by judge Carr, in Barrett v. Wills, 4 Leigh 116 If, then, there were any decisions the other way in Virginia, the court should nevertheless, in this case, follow the decision of the house of lords in Rowe v. Young. But there are no such decisions in Virginia. In Barrett v. Wills the point is merely adverted to, without any opinion being given upon it. And in Watkins v. Crouch & t o., 5 Leigh 522, though some of the judges gave opinions upon the question, it was very properly left open. All then that the court has to do here, is to decide according to the law of the district of Columbia ; the law of Virginia not having been settled otherwise. If, he said, the note was not sufficient by itself to sustain the first count, it was equally insufficient to sustain any other count. The instruction that the note, being- given for prospective rent, was not sufficient under the insimul computassent count, was clearly right. For as that count can only be sustained upon a settlement of mutual accounts, and an acknowledgment on such settlement of a subsisting balance, the balance must be due at the time of the settlement, which could not be if the rent was prospective.
    Harrison, on the same side, strenuously insisted that even though the court should not consider the law of the district of Columbia as governing the case, still it ^should follow the decision of the house of lords in Rowe v. Young, sustained as it was by the two lord chancellors, and by the opinions of other able judges.
    Robertson, in reply,
    argued very fully the question whether the law of Virginia, or that of the district, should govern the case. He insisted that the law of Virginia should govern, but regarded the question as not important, unless it appeared 'that the law of the district differed from that of Virginia, which he said had not been shewn. The case of Lindo v. Gardner, 1 Crauch 343, he considered too vague to authorize 'the conclusion which it was cited to sustain. He went into a full examination of the case of Rowe v. Young, the reasons on which it was founded, and the comparative weight of conflicting authority. It was the usage, he said, both here and in England, to institute such comparisons. Information is looked for from men in proportion to their capacity to give it. Cuilibet in arte sua credendum est. Viewed in this aspect, the opinions of the lords on questions of law were absolutely entitled to no consideration. They themselves, sensible of this, had usually acknowledged their ignorance by appealing to the judges learned in the laws. They had done so in this case, and afterwards rashly overruled the opinions of the great majority of the ablest of those judges — eight out of the twelve — the minority being almost exclusively judges of the common pleas, of inferior ability. It was said, much weight was to be attached to the opinions of the two chancellors, Eldon and Redesdale. This would perhaps be true if it were a question of equity. But on a question at common law, we habitually resort to the king’s bench as the ablest expounder of its principles. Chancellors are qften more rigorous in their exposition of all laws than common law judges. If an interpretation be wanted according to the equity of the case, apply to a common law judge; if stricti juris, to a chancellor. The counsel for the ap-pellees, ^founding themselves on lord Eldon’s observations, had endeavoured to discriminate between bills of exchange and promissory notes, holding it as a settled rule that whatever might be thought of Rowe v. Young, relating as it did to an action against the acceptor of a bill of exchange, demand &c. must be proved in an action on a promissory note payable at a particular place. In answer to this, he referred to the remarks of Richardson, J., in Rowe v. Young, 2 Bligh 429, and still more particularly to the masterly judgment pronounced by Bay-ley, J., (p. 472,) whose authority on questions of mercantile law he considered superior to that of all the judges of the common pleas and all the lords put together. There was no distinction in England, he said, between bills of exchange and promissory notes, as regarded this question. But he especially asked the attention of the court to the cases themselves in which the doctrine relative to promissory notes is thought to be settled— Sanderson v. Bowes, 14 East 500 ; Dickinson v. Bowes, 16 East 110 ; Howe v. Bowes, Id. 112, and the cases in the common pleas. They were all on a banker’s cash notes payable on demand at his banking house. The demand, therefore, was essential to fix responsibility or give action. They were cases where the demand was expressly made a precedent condition : and lord Ellenborough, in Sanderson v. Bowes, distinguishes such cases from cases where the note was payable at a certain time, and he and Bayley and the other judges put their judgments expressly on that ground. So that these cases are by no means similar to that at bar; and the principal is one that no court will ever be disposed to extend to a new class of cases. Dickinson v. Bowes was decided without argument, and followed by Howe v. Bowes, in which the rigorous doctrine was qualified by holding demand excused where the plaintiff averred that the door of the banking house was closed. This question had undergone a full examination in our own *country, and the principle established by the case of Rowe v. Young had been discountenanced by our courts. In New York, the most commercial state in the union, it had been repeatedly overruled. Wolcott v. Van Santvoord, 17 Johns. 248 ; Caldwell v. Cassidy, 8 Cow. 271. These were decisions on promissory notes. They established that no demand was necessary prior to action. The same doctrine was held in Massachusetts. And in Watkins v. Crouch & Co. in this court, the president and judge Cabell expressed decided disapprobation of the judgment in Rowe v. Young.
    The day after the argument, Robertson mentioned, that he had been informed the court of appeals of Maryland had disapproved the decision in Rowe v. Young, and decided in the manner now contended for by him. Their decision was in the case of Bowie v. Duvall, 1 Gill & Johnson 175.
    
      
      He decided the cause in the court below.
    
    
      
      Promissory Note — Action against Makers — Neither Averment Nor Proof of Presentment and Demand Nec=. essary.— In Hall v. Bank of Virginia, 11 W. Va. 633, it is said: “It has been decided in Virginia, that if a note be payable al a branch of a bank al a particular specified time, it is not necessary to aver and prove due presentation of the note and demand of payment at the bank, in order to entitle the plaintiff to recover of the maker of the note. See Watkins v. Crouch, 5 Leigh 522; Armstead v. Armisteads, 10 Leigh 512. From these decisions it appears to have been doubtful, whether if the note was payable at a branch bank on demand instead of at a specified time, it would or would not be necessary to aver and prove presentment and demand at such branch bank before suit. To settle this question, and to put bills of exchange accepted or notes payable at a specified place on demand on the same footing as bills accepted or notes payable at a specified place and time, was. It seems to me, one of the objects of the passage of the 1st section of chapter 144 pi the Code of I860, page 628.”
      In Peabody Ins. Co. v. Wilson, 29 W. Va. 543, 2 S. E. Rep. 896, a promissory note was payable at a specified time and at a specified place. On the authority of the principal case and Watkins v. Crouch, 5 Leigh 522. the court said that the makers of the note were liable for the amount of it without presentment, demand, protest, or notice thereof.
      See further on this subject, monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
   STANARD, J.

The counsel of the defendants'in error have, to support the judgment of the circuit court in this case, endeavoured to maintain three propositions : 1st, That the note on which the suit is brought being made payable in Washington, the laws of that part of the district of Columbia govern the construction and effect of the contract. 2dly, That the laws of Maryland are those of that part of the district; that the statute of 3 and 4 Anne forms a part of those laws ; and consequently the note in question is a commercial negotiable security, the obligation and effect of which are to be ascertained by the lex mercatoria. 3dly, That such being the nature of the note, no action can be maintained on it, unless it be alleged and proved that it was presented by the payee or holder, for payment, at the time and place specified on the face of the note.

Conceding-, for the purposes of this case, that the first and second of the foregoing propositions are correct, *the defendants in error would perhaps find an insuperable difficulty in availing themselves in this case of the second ; because the laws of Maryland are not found as matters of fact, and non constat what those laws are, unless the court can take judicial notice of them : and if it could, then, according to the decision of the supreme court of that state, the third proposition is not sustainable, but on the contrary that decision ascertains, that to the maintenance of an action on the note in question, it is not necessary to allege or prove the presentment of the note by the payee or holder, at the time and place specified on the face of it.

The question, however, involved in the third proposition is one of general importance in relation to commercial securities that are undeniably such according to our laws, and I deem it fit that the public should not be left in uncertainty as to the judgment of this court on that question : and as it has been very fully and ably discussed, and I have formed a distinct and decided opinion on it, I think it proper to express it on this occasion.

My opinion is, that it is not necessary, to sustain an action against the acceptor of a bilí of exchange or maker of a promissory note payable at a time and place specified in the acceptance or note, to aver or prove a presentment and demand at the time and place so specified. This opinion is sustained by eight of the twelve common law judges of England, in the case of Rowe v. Young, 2 Brod. & Bing. 165 ; 6 Eng. Com. Law Rep. 53, — by the decision of the supreme courts of all the states in which it has been (as far as I am informed) adjudicated, as is shewn by the cases of Foden & Slater v. Sharp, 8 Johns. 183 ; Wolcott v. Van Santvoord, 17 Johns. 248 ; Caldwell v. Cassidy, 8 Cowen 271 ; Weed v. Houten, 4 Halst. 189; Bowie v. Duvall, 1 Gill & Johns. 175 ; Ruggles v. Patten, 8 Mass. Rep. 480 ; M’Nairy v. Bell, 1 Yerger 502 ; Mulhovin v. Hannum, *2 Yerger 81, and by the unanimous decision of the supreme court in the case of Wallace v. M’Connell, 13 Peters 136.

The full discussion that the question received in some of those cases supersedes the necessity of entering upon that discussion here. The cases furnish a firm foundation of authority for the opinion I have expressed; and the arguments of the judges in some of them furnish a full exposition of the principles of law, reason and justice by which it is sustained. It is perhaps a needless caution to say that this opinion does not embrace the case of a note or acceptance payable, in terms, on demand at a particular place, without specification of time, or payable, in terms, on demand ata particular place, after the lapse of a specified time. In such cases it would probably be held that there is no default of the maker or acceptor until such demand be made : and consequently that no action would accrue to the payee until such demand should be made.

BROOKE, J.

I was surprised, not at the ability (for of that we have had other examples) but by the earnestness with which this case was argued by the counsel of the apel-lees. Relying on the decision in the house of lords in the case of Rowe v. Young, 2 Brod. & Bing. 165, they overlooked the cases decided in this country. In the case in the supreme court of Wallace v. M’Connell, 13 Peters 136, they would have seen in the opinion of justice Thompson, who delivered the judgment of the court, the whole doctrine on the point before that court thoroughly examined, and all the cases in England and this country cited. The difference between the king’s bench and common pleas on this point is very remarkable ; the first holding that it was unnecessary to aver presentment of a bill of exchange at the time and place specified in the acceptance of the bill, to sustain the action by the holder ; and the other,'x-that without such averment and proof, the plaintiff could not maintain the action. So also on a note in which the time and place are specified on its face. In the case before cited of Wallace v. M’Connell, a very proper notice is taken of the able discussion by the president of this court in the case of Watkins v. Crouch & Co., 5 Eeigh 540. Though I differed with the court in that case, it was not on the question now before us, or the principle which ought to govern its decision. I differed with the president in thinking that question as regarded the indorser (for there was no question as to the drawer of the note) was not the question of indemnity by the deed of trust, but a question of notice to the indorser that the note would be dishonoured when due, and that he would be looked to for payment. I thought (as will be seen by reference to my opinion) that the circumstances therein enumerated were full proof of notice, nor could I see that full indemnity by the deed of trust was material. I could not see that to the indorser, having full notice that the note would not be paid, the presentment of it at the time and place specified in it was of the smallest importance. I thought it of no more importance to him than the drawer, and that substance was sacrificed to technicality in holding a different opinion.

I concur entirely in the opinion delivered by judge Stanard in this case, and in the entry agreed upon.

TUCKER, P.

The principal question which has been discussed in this case is, whether it is necessary, in a declaration on a promissory note against the maker, to aver a presentment and demand at the time and place specified on the face of the note for its payment? This question was so fully examined by me in the case of Watkins v. Crouch & Co., 5 Leigh 522, that I have only found it necessary to look again very narrowly into the grounds of the opinion there given, and to weigh the ^additional considerations which have been presented to the court in the able argument of this case. I have done so, and still adhere to my former opinion, that in an action against the maker of a promissory note, the plaintiff is under no obligation to aver in his declaration a presentment and demand at the place and on the day specified in the note for payment. The Only consequence of his neglect to present is that the maker, if he was ready at the time and place to make the payment, may plead that matter in bar of damages and costs ; but he must at the same time bring the money into court, which the plaintiff will be entitled to receive. A further consequence indeed might follow, if any loss had been sustained by occasion of his failure to present; but this must be set up as matter of defence. These principles are so ably sustained by a majority of the judges in the case of Rowe v. Young, 2 Brod. & Bingham 165, as to render unnecessary any farther attempt to fortify and support them. That case was indeed against the acceptor of a bill of exchange; but the decision as to him was founded upon the theory of bills of exchange, that he is the real debtor: which is undeniably the case with the make'r of the note. In that case too, as in this, the declaration omitted the averment of demand at the time and place, and upon a demurrer for that cause,‘a majority of the judges wefe of opinion 'that the declaration was good.

Much a'rgument was used to prove that by the law of Maryland this note1 would stand upon the fdoting of bills 'of exchange, and that, as' it was payable in that part of the' district which is governed by the laws of Maryland, it must be so considered here. Besides, however, the defect in the case in not finding what' the law of Maryland is (which we apprehend to be necessary if this cause is to be decided under ’it), it turns out upon examination, unpropitiously' for the argument, that the court' of appeals have solemnly decided the question in *that state against the necessity of averring a presentment of the note at the time and place appointed for the payment, although it is conceded that promissory-notes are there considered as standing upon the footing of bills of exchange. Bowie v. Duvall, 1 Gill & John. 175. If then the law of the place of payment governs the case, it must be decided against the defendant ; and if the lex loci contractus prevails, the note is not commercial paper, and must be governed by those common law rules which regard the presentment at the time and place of payment not as a condition precedent to be performed by the creditor, but as a mere matter of arrangement, which, if not complied with by him, will enable the defendant to save the damages and costs, if he is punctual to the engagement on his part: but he must bring the money inte court; for that is necessary in the yet stronger case of a tender of the money by the debtor, and a refusal to receive it by the creditor. 6 Bac. Abr. 464, 465.

According to my view of this case, then, the instruction given was erroneous ; the demurrer to the second count should have been overruled, and judgment entered for the plaintiff on that count. I should therefore be of opinion to reversé the judgment, set aside the verdict, and (entering such judgment as the court below ought to have rendered) to overrule the demurrer, and enter judgment for the plaintiff on the second count, with an award of a writ of enquiry of damages, granting leave to the defendants to plead any other plea to the said count if they please. The cause should then go back for a new trial upon the other issues and the writ of enquiry on the second count. My brethren, however, prefer a somewhat different entry, which will accordingly be made.

The entry in the court of appeals was in the following terms :

**.‘ The court is of opinion that the superior court erred in sustaining the demurrer to the second' count of the declaration, and also in its instruction to the jury, that the plaintiff was not entitled to recover on the first count, because he had not proved presentment and demand of the note, at' its maturity, at the office of discount and deposit of the bank of the United States in Washington ; and that the said judgment 'is erroneous Therefore judgment reversed, demurrer to second count overruled, verdict on the issue to the'eountry set aside, and cause remanded to circuit court for a new trial of thb issue to be had in conformity with the foregoing judgment.'  