Henderson v. Howard, Copeland & Co.

COLLIER, C. J. 1. The objection to the declaration is not well taken. Where a note is payable on demand, to entitle the holder to an action, no personal demand of the maker is necessary, but the institution of the suit is perfectly regular without it. But in the present case, a right of action accrued immediately upon the protest of the bill for non-acceptance; and the averment of a subsequent promise to 'pay “ on request,” is an inference from the legal liability of the defendant, and cannot, though no request is made, prejudice the right of recovery. This averment, in another point of view, is entirely harmless, for it may be stricken out, and the declaration would be substantially good. 2. In respect to the second assignment, it is enough to say, that the bill and protest need not appear of record, in order to sustain the judgment; and could only have been placed there by bill of exceptions. 3. In Malone & Co. vs. Hathaway, 3 Stewart’s Rep. 29, it was held, that in an action against the endorser of a promissory note, under the statute of 1812, which imposed upon the holder the necessity of proving a demand and notice, judgment by default final might be rendered, without the intervention of a jury. And in Randolph vs. Parish, 9 Porter 76, it was decided, that where the drawer of a bill of exchange suffers judgment by default, .there is no necessity for submitting the case to a jury to assess damages. The default admits that the steps necessary to fix his liability had all been taken, and that he was chargeable for the amount of the bill and damages recoverable upon it. These cases are decisive of the last error assigned; and the consequence is, that the judgment must be affirmed.