William E. Armstrong, plaintiff in error v. William Caldwell, defendant in error.
Error to La Salle.
In an action by an endorsee or payee against the maker, upon a promissory note, payable at a" specified time and place, it is not necessary to aver in the declaration, or prove on the trial, a presentment of the note for payment.
This was an action of assumpsit on the following note:
“Phila. Nov. 15, 1834.
Four months after date, I promise to pay to the order of William Cook, one hundred and eighty dollars, at the Bank of Northumberland, for value received.
$180,00 William Caldwell.”
Assignment on the back—“ Pay William E. Armstrong, or order.”
This cause was tried at the April term, 1838, of the La Salle Circuit Court, before the Hon. John Pearson. The judge non-suited the plaintiff, who excepted to the opinion of the Court, and took the following bill of exceptions:
“ Be it remembered that on the 25th day of April, A. D. 1838, this cause was called for trial, when the said plaintiff called Edward Cook, as a witness, who satisfactorily proved the endorsement of the said note in the declaration described, and rested his cause; upon which the defendant, by his counsel, moved the Court for a non-suit, for that the said plaintiff had not proved that the said note had ever been presented at the place mentioned in said note for payment; which said motion was resisted.by plaintiff’s attorney. But the Court sustained the said motion, and ordered the said plaintiff to be nonsuited, which was accordingly done; to the sustaining of which said motion by the Court, and order for said nonsuit, the said plaintiff, by his attorney, excepts, and prays this, his bill of exceptions, may be signed and sealed by the Court, and made a part of the record herein, which is accordingly done.
John Pearson, [l.s.]”
The declaration contained no averment of the presentment of the note for payment.
J. Y. Scammon, for the plaintiff in error.
G. Spring, for the defendant in error.
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Per Curiam:
The principles decided in the case of Butterfield v. Kinzie, in this Court at the June term, 1838, are applicable to this case. There is no doubt that in an action against the maker by the payee or endorsee of a promissory note payable at a time and place specified in the note, it is not necessary either to aver in the declaration, or prove on the trial, that a demand was made in order to maintain the action.
The judgment of the Court below is reversed, and judgment rendered in this Court for the amount of the no'te and interest.
The clerk will compute the damages.
Judgment reversed, and judgment rendered in this Court.