24 U.S.

171
6 L.Ed. 443
11 Wheat. 171

THE PRESIDENT, DIRECTORS, AND COMPANY, OF THE

BANK OF
THE UNITED STATES against SMITH.
February 13, 1826

ERROR to the Circuit Court for the District of Columbia.

Feb. 7th.
This cause was argued by Mr. Lear, for the plaintiffs, a and by Mr. Taylor,
for the defendants.b
Feb. 13th.
Mr. Justice THOMPSON delivered the judgment of the Court.

This case comes before the Court on a writ of error to the Circuit Court for the
District of Columbia, and the questions presented for consideration grow out of
a demurrer to the evidence, and out of exceptions taken to the declaration.

The action is by the plaintiffs, as endorsees, against the defendant, as endorser

of a promissory note drawn by William Young. The note is made payable at
the office of discount and deposit of the Bank of the United States, in the city of
Washington. And the questions which have been raised and argued, relate, in
the first place, to the sufficiency of the averement in the declaration of a
demand of payment of the drawer of the note; and, secondly, to the sufficiency
of the evidence to sustain the plaintiffs' right of recovery. It is alleged, however,
on the part of the plaintiffs, that this Court cannot look beyond the demurrer, to
the evidence, and inquire into defects in the declaration. This position cannot be
sustained. The doctrine of the King's Bench, in England, in the case of Court v.
Birkbeck, (Dougl. Rep. 208.) that, upon a demurrer to evidence, the party
cannot take advantage of any objections of the pleadings, does not apply. By a
demurrer to the evidence, the Court in which the cause is tried is substituted in
the place of the jury. And the only question is, whether the evidence is

sufficient to maintain the issue. And the judgment of the Court upon such
evidence, will stand in the place of the verdict of the jury. And, after that, the
defendant may take advantage of defects in the declaration, by motion in arrest
of judgment, or by writ of error. But, the present case being brought here on
writ of error, the whole record is under the consideration of the Court; and the
defendant, having the judgment of the Court below in his favour, may avail
himself of all defects in the declaration, that are not deemed to be cured by the
verdict.
3

The objection to the declaration is, that it does not contain an averment, that a
demand of payment of the maker of the note, was made at the place where it
was made payable.

It is a general rule in pleading, that where any fact is necessary to be proved on

the trial, in order to sustain the plaintiffs' right of recovery, the declaration must
contain an averment substantially of such fact, in order to let in the proof. But
the declaration need not contain any averment which it is not necessary to
prove. For the purpose, therefore, of determining whether the declaration in this
case is substantially defective, for want of an express averment that demand of
payment of the maker was made at the office of discount and deposit of the
Bank of the United States, in the city of Washington, it is proper to inquire
whether proof of that fact was indispensably necessary to entitle the plaintiffs
to recover.

Whether, where the suit is against the maker of a promissory note, or the
acceptor of a bill of exchange, payable at a particular place, it is necessary to
aver a demand of payment at such place, and, upon the trial, to prove such
demand, is a question upon which conflicting opinions have been entertained in
the Courts in Westminster Hall. But, that question may, perhaps, be considered
at rest in England, by the decision in the late case of Rowe v. Young, (2 Brod. &
Bingh. 165.) in the House of Lords. It was there held, that if a bill of exchange
be accepted payable at a particular place, the declaration in an action on such
bill against the acceptor, must aver presentment at that place, and the averment
must be proved. A contrary opinion has been entertained by Courts in this
country, that a demand on the maker of a note, or the acceptor of a bill payable
at a specific place, need not be averred in the declaration, or proved on the trial.
That it is not a condition precedent to the plaintiffs' right of recovery. As matter
of practice, application will generally be made at the place appointed, if it is
believed that funds have been there placed to meet the note or bill. But, if the
maker or acceptor has sustained any loss by the omission of the holder to make
such application for payment at the place appointed, it is matter of defence to
be set up by plea, and proof. (4 Johns. Rep. 183. 17 Johns. Rep. 248.)

This question, however, does not necessarily arise in the case now before the
Court, and we do not mean to be understood as expressing any decided opinion
upon it, although we are strongly inclined to think, that, as against the maker or
acceptor of such a note or bill, no averment, or proof of demand of payment at
the place designated, would be necessary.

But, when recourse is had to the endorser of a promissory note, as in the

present case, very different considerations arise. He is not the original and real
debtor, but only surety. His undertaking is not general, like that of the maker,
but conditional, that if, upon due diligence having been used against the maker,
payment is not received, then the endorser becomes liable to pay. This due
diligence is a condition precedent, and an indispensable part of the plaintiffs'
title, and right of recovery, against the endorser. And when, in the body of the
note, a place of payment is designated, the endorser has a right to presume, that
the maker has provided funds at such place to pay the note, and has a right to
require of the holder to apply for payment at such place. And whenever a note
is made payable at a bank, and the bank itself is not the holder, an averment,
and proof of the demand at the place appointed in the note, are indispensable.
In the present case, the bank at which the note is made payable is the holder,
and the question arises, whether, in such case, an averment and proof of a
formal demand are necessary. If no such proof could be required, the averment
would be immaterial, and the want of it could not be taken advantage of upon a
writ of error.

In the case of Saunderson and Others v. Judge, (2 H. Bl. Rep. 509.) the
plaintiffs, at whose house the note was made payable, being themselves the
holders of the note, it was held to be a sufficient demand for them to turn to
their books, and see the maker's account with them, and it was deemed a
sufficient refusal, to find that the maker had no effects in their hands. So, in the
case of the Berkshire Bank v. Jone, (6 Mass. Rep. 524.) decided in the Supreme
Judicial Court of Massachusetts, Chief Justice Parsons, in delivering the
opinion of the Court, said, that, 'the plaintiffs being the holders of the note, we
must presume it was in their bank, and there it was made payable. They were
not bound to look up the maker, or to demand payment of him at any other
place. The defendant, by his endorsement, guarantied, that on the day of
payment the maker would be at the bank and pay the note, and if he did not pay
it there, he agreed he would be answerable for it without previous notice of the
default of the maker.' The rule here laid down has received the sanction of that
Court in subsequent cases, (12 Mass. Rep. 404. 14 Mass. Rep. 556.) and is
founded in good sense and practical convenience, without in any manner
prejudicing the rights of the maker, or the endorser of the note. The endorser,
knowing that the maker has bound himself to pay the note at a place appointed,

has a right to expect that he will provide funds at that place to take up the note;
and he will be more likely to be exonerated from his liability, by having the
demand made there, than upon the maker personally. But, if the bank where the
note is made payable is the holder, and the maker neglects to appear there
when the note falls due, a formal demand is impracticable by the default of the
maker. All that can in fitness be done, or ought to be required, is, that the books
of the bank should be examined, to ascertain whether the maker had any funds
in their hands; and, if not, there was a default, which gave to the holder a right
to look to the endorser for payment. And even this examination of the books
was not required in the cases cited from the Massachusetts Reports. The maker
was deemed in default by not appearing at the bank to take up his note when it
fell due. We should incline, however, to think, that the books of the bank ought
to be examined, to ascertain whether the maker had any balance standing to his
credit; for, if he had, the bank would have a right to apply it to the payment of
the note; and no default would be incurred by the maker, which would give a
right of action against the endorser.
9

The declaration in this case does contain an averment that the note was
presented to the maker, that he refused to pay it, and that notice of the nonpayment was given to the endorser. Whether this averment is broad enough to
admit all the proof necessary to sustain the action against the endorser, is the
question which arises upon the declaration. If, by reason that the bank where
the note was made payable was the holder, no personal presentment or demand
of the maker, could be required, the averment, so far as it asserts such
presentment, is surplusage, and no proof was necessary to support it. What,
then, in such case, is a presentment of the note? It would be an idle ceremony to
require the bank to take the note from its files, and lay it upon the counter, or
make any other public exhibition of it. All that could be required is, that the
note be there, ready to be delivered up if payment should be offered. When the
note is held by a third person, it is practicable, and there is a fitness in requiring
the holder to inquire at the bank for the maker, and whether he has provided
any funds there to pay the note. But when the bank itself is the holder, it would
be impracticable for it to make such inquiry in any other manner than by
ascertaining that the note was there, and examining the books to see if the
maker had any funds in the bank. If the note was there, it was a presentment,
and if the maker had no funds in the bank, it was a refusal of payment,
according to the legal acceptation of these terms under such circumstances.

10

The evidence upon the trial was introduced under this averment without
objection, and if that is sufficient to entitle the plaintiff to recover, the Court
ought not readily to yield to technical objections, where the defendant has had
the full benefit of whatever defence he had to make. Under this state of the

case, we think, the exception taken to the declaration cannot prevail. And, the
next inquiry is, whether the evidence to which the defendant demurred was
sufficient to sustain the action.
11

By this demurrer, the defendant has taken the questions of fact from the jury,
where they properly belonged, and has substituted the Court in the place of the
jury, and every thing which the jury could reasonably infer from the evidence
demurred to, is to be considered as admitted. The language of adjudged cases
on this subject is very strong, to show that the Court will be extremely liberal in
their inferences, where the party, by demurring, will take the question from the
proper tribunal. It is a course of practice, generally speaking, that is not
calculated to promote the ends of justice. If the objection to the sufficiency of
the evidence is made by way of motion for a nonsuit, it might be removed by
testimony within the immediate command of the plaintiff. The deficiency very
often arises from mere inadvertence, and omission to make inquiries, which the
witnesses examined could probably answer.

12

In order to determine whether the evidence was sufficient to support the action,
it is proper to state what proof was necessary.

13

The plaintiffs, to entitle them to recover, were bound to show that they were the
endorsees and holders of the note; that the note was at the bank, where it was
made payable at the time it fell due; that the maker had no funds there to pay
the note; and that due notice of the default of the maker was given to the
defendant.

14

The endorsement of the note to the plaintiffs, and that it was discounted in the
office of discount and deposit of the Bank of the United States at Washington,
where it was made payable, was fully proved. And the jury would have had a
right to presume, that the note was then at the bank, where it was discounted;
and the bank being the holder and owner of the note, the presumption, at least
prima facie, is, that it remained in the bank, to be delivered up when paid. This
establishes the two first points; and, to show that the maker had no funds in the
bank, the book-keeper was examined as a witness, who swore, that on the 19th
day of July, 1817, when the note fell due, there was no balance to the credit of
the drawer, or either of the endorsers, on the books of the bank. And the
remaining question is, whether due notice of the default of the maker was given
to the defendant. The only objection to the sufficiency of the evidence on this
point is, that the notice of non-payment was left at the post office in the city of
Washington, addressed to the defendant at Alexandria, without any evidence
that that was his place of residence. The testimony on this point is that of
Michael Nourse, a notary public, who swore, that on the day the note fell due,

he presented it at the store of the defendant, and demanded payment of his

clerk, who replied, that Mr. Young was not within, and he would not pay it.
And that, on the same day, he put in the post office notice of non-payment,
addressed to the defendant at Alexandria. If the defendant's place of residence
was Alexandria, it is not denied but that due and regular notice was given him.
The notary was a sworn officer, officially employed to demand payment of this
note, and it is no more than reasonable to presume that he was instructed to take
all necessary steps to charge the endorsers. This must have been the object in
view in demanding payment of the maker. And it is fair, also, to presume, that
he made inquiry for the residence of the defendant before he addressed a letter
to him; for it is absurd to suppose he would direct to him at that place, without
some knowledge or information that he lived there, this being the usual and
ordinary course of such transactions, and with which the notary was, no doubt,
acquainted. The jury would, undoubtedly, have been warranted to infer, from
this evidence, that the defendant's residence was in Alexandria. If that was not
the fact, this case is a striking example of the abuse which may grow out of
demurrers to evidence. For, a single question to the witness would have put at
rest that point, one way or the other, if the least intimation had been given of
the objection. It was, manifestly, taken for granted by all parties, that the
defendant lived at Alexandria. And if a party will, upon the trial, remain silent,
and not suggest an inquiry, which was obviously a mere omission on the part of
the plaintiff, a jury would be authorized to draw all inferences from the
testimony given, that would not be against reason and probability; and the
Court, upon a demurrer to the evidence, will draw the same conclusions that
the jury might have drawn.
15

We are, accordingly, of opinion, that the evidence was sufficient to entitle the
plaintiffs to recover. That the judgment of the Court below must be reversed,
and the cause sent back, with directions to enter judgment for the plaintiffs,
upon the demurrer to evidence, for the amount of the note, and interest.

16

JUDGMENT. This cause came on, &c. On consideration whereof, it is

ORDERED and ADJUDGED, that the judgment of the said Circuit Court, on
the demurrer to evidence in the said cause, be reversed. And it is further
ORDERED and ADJUDGED, that the said cause be remanded to the said
Circuit Court, with instructions that judgment be entered there on said
demurrer, for the plaintiffs in the cause; and, further, that the Court there do
render judgment on the contingent verdict found for the plaintiffs, according to
the tenor thereof, with costs, &c.c

He cited 2 H. Bl. 509. 3 Mass. Rep. 403. 3 Mass. Rep. 524. 12 Mass. Rep. 403.

He cited 2 H. Bl. 509. 3 Mass. Rep. 403. 3 Mass. Rep. 524. 12 Mass. Rep. 403.
8 Mass. Rep. 480. 1 Wheat. Rep. 373. Dougl. Rep. 132. 218. 1 Johns. Rep. 241.
5 Johns. Rep. 1. 2 Wash. Rep. 253.

He cited 2 Brod. & Bingh. 165. 17 Johns. Rep. 248. Chitty on Bills, 321.

The demurrer to evidence is an unusual and antiquated practice, which this

Court, and other Courts, have recently endeavoured to discourage, as
inconvenient, and calculated to suppress the truth and justice of the cause. It is
allowed or denied by the Court, where the cause is tried, in the exercise of
sound discretion, under all the circumstances of the case; and, it seems, that the
exercise of this discretion cannot be made the foundation of a writ of error. The
party demurring is bound to admit as true, not only all the facts proved by the
evidence introduced by the other party, but, also, all the facts which that
evidence legally may conduce to prove. It follows, that it ought never to be
admitted, where the party demurring refuses to admit the facts which the other
side attempts to prove; nor where he offers contradictory evidence, or attempts
to establish inconsistent propositions. (Young v. Black, 7 Cranch's Rep. 565.
See also, Powling and Others v. The United States, 4 Cranch's Rep. 219. Phill.
Evid. 216, 217. Bull. N. P. c. 4 p. 313.