
    ROBINSON vs. COADY.
    
      Twelfth Judicial District Court,
    
    
      August, 1857.
    Consideration—Demand.
    What constitutes a promise to pay, in a written obligation. When a promissory notará payable at a particular place in this State, -payment mnét be demanded there.
    This is an' action on two obligations, one of which is in the words and figures following, to wit:
    " Due Wm. H. Robinson k Co. two hundred and two dollars, value received. $202. Stockton Jan’y 28,1850. (Signed,) R. Coast,"
    The other was a promissory note in the usual form, and was payable at the store of Mackintosh k Co,, but the complaint fails to aver that it was presented at the store of Mackintosh & Co, for payment at the time when it became due and payable, but there is a general averment as to both,- that payment was duly demanded.
    Défendant demurred to the complaint on the grounds,—
    1st. That the first obligation set forth Was not a promissory note in the purview of the law, and .the complaint should therefore aver a valid consideration.
    2d. That as to the second obligation the complaint should have averred a demand at the place where the note was payable,
    J£ F. Furman? for plaintiff.
    J?. Gasserly? for defendant.
   Norton, J.

held that he should have to consider the first obEg&tiom sued on as a promissory note, although he was surprised'!® find so little authority upon the question, where such instruments as this sre so common. The case of Russel vs. Whipple, 2 Cowen 135, approved in the case of Luquee vs. Prosser, 1 Hill 256, is the only ease efetóti ly in point, and it was there held that a due-bill in this item substantially, was a promissory note within the statute.

As to the obligation to the second note, it is error nof» 'to aver-den ramd of payment at the place where the note was made payable, as decided by our Supreme Court in Wild vs. Van Valkenburgh, January Term, 1857. A general averment of a due demand is not sufficient where a special demand is necessary.

The demurrer- is overruled as to the first cause ot action, and sustained as to the second, with. leave to amend upon payment of costs.  