Warren v. Briscoe

Carleton, J., delivered the opinion of the court. This action is instituted by the payee of a promissory note executed by the defendant at Rodney, negotiable and payable at the Planters’ Bank of Mississippi, at Natchez. The petitioner alleges, that he demanded payment of the note at the place therein indicated, to prove which he exhibits the protest of the notary, who declares that he “went to the Planters’ Bank, Natchez, and was informed by the teller there were no funds in bank for ¿he payment of the- above mentioned note. The defendant excepted to the plaintiff’s petition, averring that it did not contain any allegation of legal presentment, and demand of payment of the note sued on. The exception was overruled by the court, and thereafter judgment taken by default; which being confirmed, the defendant appealed. It does not appear from the statement of facts coming up with the record, or from the protest of the notary public., which is made a part of that statement, or.any other evidence on file, that any actual presentment of the note or demand was 1 ' ever made at the bank. The law upon this subject has been long and well settled, that a demand of payment and presentment of the note at the place indicated by the instrument itself, are indispensable to the recovery. Chitty on Bills, page 385, 392, 401. Under this view of the subject, we think the plaintiff has altogether failed to make out his case; wherefore it becomes unnecessary to notice any other point discussed at the trial. It is, therefore, ordered, adjudged, and decreed, that the judgment of the district court be avoided and reversed ; that there be judgment against the plaintiff as in case of non-suit, he paying the costs in both courts.