delivered the opinion of the court:
This is an action of debt, founded upon a promissory note, made payable at the defendants’ counting-room, in New-Orleans. The record presents several questions, which we will decide in the order they present themselves.
First. Is it necessary, in an action against the maker of a promissory note, or the acceptor of a bill of exchange, which was made payable at a particular place, to aver and prove presentment and demand at that place?
We are not at liberty to consider this point as open for investigation. It is finally and conclusively settled by the whole course of American decisions.
It is true that, in England, there existed, since 1811 up to 1820, great diversity of opinion upon the point, between the Judges of the Courts of King’s Bench and Common Pleas. Since that time, the principle has been well settled, the case of Rowe vs. Young, 2 Brod. & Bingham, 181; and the judgment of the Court of King’s Bench, was reversed upon error, by the House of Lords, notwithstanding eight Judges out of the twelve were opposed to the decision. The doctrine now established there is in conformity to the opinion of the Court of Common Pleas, as laid down in Callaghan vs. Aylett, 2 Camp. 549. The rule in England now is, (hat in an action against the maker of a note, or acceptor of a bill, payable at a particular place, it is necessary to aver and prove a presentment and demand at that place. It is to be regretted that the rule in England and in the United States is not uniform.
We are, however, constrained to follow the decisions of our own country, which we believe are fully sustained by most if not all the early cases in the English Courts. The weight of authority in England is unquestionably against the judgment of the House of Lords, and in conformity with the principle established by all the superior or appellate Courts of the States that have passed upon the point, as well as by the Supreme Court of the United States. Ambrose vs. Hogswood, 2 Taunt., 60; Callaghan vs. Aylett, 3 Taunt., 397; Nichols vs. Bowes, 2 Camp. N. P. 498; Lyon vs. Sundius and Sheriff, 1 Camp. N. P. R. 423; Wild vs. Rennards, 1 Camp. N. P. R. 423; Trapp vs. Spearman, 3 Esp. R., 57; Fenton vs. Goundry, 13 East.; Smith vs. Delafontaine, same; Foden vs. Sharp, 4 J. R., 183; Wolcott vs. Van Santvord, 17 J. R. 248; Caldwell vs. Cassidy, 8 Cowen, 271; Carly vs. Vans, 17 Mass., 389; Ruggles vs. Patton, 8 Mass. 480; Weed vs. Van Houten, 4 Halstead, 189; Watkinson vs. Crouch & Co., 5 Leigh, 522; Bowie vs. Duvall, 2 Gill & Johnson, 175; Bank U. S. vs. Smith, 11 Wheaton, 171; Wallace vs. McConnell, 13 Peters, 136; Covington vs. Comstock, 14 Peters, 43.
The authorities here quoted unquestionably prove, that in an action against the maker of a promissory note, or the acceptor of a bill of exchange, payable at a particular place, it is not necessary to aver and prove presentment at.that place.
The principal reason assigned, is, that the maker and acceptor are principal debtors to the obligee or holder of the bill, and their liability arises upon a valuable consideration. Their undertaking is an agreement to pay generally, and not conditionally; therefore, it is not necessary to prove presentment at the place of payment. The term, payable at a particular place, is but an intimation or direction that they will have the money there, ready to pay the note or bill when it becomes due. That being the case, it does not enter into or form any part of the contract; consequently, a failure to present the note or bill, does not extinguish the debt or duty; and if the money is ready at the place, on the day it becomes due, it is matter of defence, and may be pleaded in bar of damages, by way of tender, but not in bar of the cause of action.
Although it is not necessary to aver and prove presentment and demand, to maintain the action, it is nevertheless important to state the place at which the note or bill is to be paid, by way of description. And so it has been expressly decided in the case of Covington vs. Comstock, 14 Peters, 43. For unless it be so stated, the Court, it is said, may not know what judgment to render, both as it respects the interest and other matters; the lex loci, and not the lex fori, attaching to the contract.
The principle here stated shows that the second count is defective, in not alleging, by way of description, the place in which the note was payable. The first count is well laid, for it properly sets out the place of payment. The declaration contains, then, one good and one bad count. The demurrer, being joint and several under our statute, reached both counts; and, consequently, the Court ought to have overruled it as to the first count, and to have sustained it as to the second. This they did not do, but gave an entire and final judgment against the defendant below, upon demurrer.
This suit is brought upon a note, bearing interest from date, but payable thereafter. If the party seeks to recover the interest from the date of the note, according to his contract, he must aver its nonpayment upon that day. This is a stronger case than Clary & Webb vs. Morehouse's Adm., decided at the last Term of this Court. The law does not'raise a presumption in favor of a debt or duty bearihg interest, until it falls due. The, note then bearing interest from the date, and the debt being made payable thereafter, to recover the interest accruing before the time of payment, the declaration must show, upon its face, non-payment of such interest, or the Court will only give interest from the time note becomes due.
The judgment of the Circuit Court must, for the reasons above stated, be reversed, and the cause remanded for further proceedings to be had therein, in conformity with law, and the opinion here expressed.
And the same Term, Pike, for defendants in error, filed-the following petition for a re-hearing:
The defendants in error in this case, come and most respectfully move the Court here for a re-hearing of this case, upon the following grounds:
First. That in the opinion of the Court it is decided that the second count of the declaration was bad, because it described a note payable generally; whereas, the note given on oyer was payable at a particular place. Unquestionably; if there had been no count in the declaration with which the note had agreed, it would have been fatal on demurrer. But here the plaintiff sued on two notes: oyer being craved, he produced but one; consequently, he could only recover on the first count, and abandoned his second. Suppose he bad sued on two notes, one for a thousand and the other for two hundred dollars, and, before trial, the smaller note had been arranged, or paid, or lost. If, on oyer, he gave a copy of only the larger note, and that agreed with the first count, how could there be a variance between it and the second count, founded on a different note? It is most respectfully believed that the Court has, in this respect, inadvertantly fallen into an error.
Second. The defendants submit to the Court, whether, under our practice, the statute providing that demurrers may be joint and several, a demurrer is so, unless it is so specially expressed in the demurrer; and whether, if a general demurrer be filed to a declaration containing two or more counts, it can be construed to be a joint and several demurrer, so that for one good count it should not be sustained.
Third. The Court remarks, in its opinion, that, as the note bears interest from date, and the debt is payable in futuro, “ to recover the interest accruing before the time of payment, the declaration must show upon its face non-payment of such interest, or the Court will only give interest from the time it becomes due.” The correctness of this position we do not desire to controvert; but, with great deference, we submit, whether the omission is any ground for demurrer. The Court correctly point out the- consequences of the omission. If the plaintiff does not choose to demand interest from date, it may amount to an admission that all the interest up to the time when (he principal fell due, has been paid. This is the consequence pointed out by the Court. “ The Court,” they say, “ will only give interest from the time the principal becomes due.” That is all the plaintiff has claimed in this declaration. He has waived all claim to any thing more, and demands no more. Can this be ground of demurrer? Suppose suit was brought on a note for so much, and the current rate of exchange. If the plaintiff did not demand the exchange, nor negative the payment of it, he could not recover it; but his declaration would not be demurrable.
Now in this case, if there be error in this particular, it seems to us that it consists not in overruling the demurrer, but, if such were the case, in giving judgment for the interest from the date of the note to the end of the thirty days, when the principal fell due. Does it appear that the Court below did so? It is not assigned for error; and the judgment is merely for so much debt and so much damages.
And even if this error does exist, it is important not only in this case, but in regard to the practice generally, that the decision should be placed on true and tenable ground; and therefore it is, that, for the first time in my practice, I have, after much consideration, moved the Court for a re-hcaring.
The re-hearing having been granted, and the case re-considered—
Dickinson, J.,delivered the opinion of the court:
The common law rule, that, upon general demurrer, one good count in a declaration is enough to,entitle the plaintiff to judgment, is changed by our Revised Statutes, (sec. 62, p. 628,) which provide that “ demurrers may be joint and several, and may be sustained as to part of the pleadings, and overruled as to the residue, according to the circumstances of the case, with like effect in all respects, as if a separate demurrer had been filed to each pleading demurred to.” Consequently the demurrer in this case must be considered as joint and several, and go to both counts; the first of which is good, the contract set out corresponding with the note given on oyer. The second count, however, is cleárly defective, the place of payment being wholly omitted. The defendants in.error contend that the judgment is well taken; that they may have sued on two notes, and the one described in the second count may have been paid or settled, and ought to be considered as virtually abandoned. The record, as we think, shows that the two counts were founded upon the same note, and that the oyer given was intended to apply to both, but failed to meet the second count; and the variance being fatal under the statute, which we cannot disregard, judgment ought to have been entered for the plaintiff on the good count, and for the defendant upon the other, in the same manner as if separate demurrers had been filed to each one. If the plaintiffs below had intended to abandon the second count, they should have discontinued upon it before judgment; or even after judgment upon the whole declaration, they might, upon discovering their error, beg leave of the Court to have waived their judgment upon the imperfect count, and entered it for the defendant. Union Turnpike Company vs. Jenkins, 1 Caine’s Rep., 381; Stafford vs. Green, 1 J. R., 505; Backus vs. Richardson, 5 J. R., 476.
There is, however, another objection expressly raised on the demurrer to the whole declaration, viz: the sufficiency of the breach. The first count is upon a contract for $>571.86, with interest from date. The breach is not co-extensive with, but narrower than, the contract; averring the non-payment of the several sums of money mentioned, but not the non-payment of the interest, which the party had agreed to pay from the date; and, therefore, the breach is, for this omission, defective.
It certainly does appear from the record, that interest, as damages, was given the plaintiffs from the date of the note, although there is no allegation in the breach of its non-payment; and though it is not expressly assigned as error, it is raised in argument, and therefore cannot be disregarded. We are bound to look into the whole record, and give such judgment as the Circuit Court ought to have given, or as may seem most agreeable to law. R. S., sec. 36, p. 648.
There has been no motion to remit the excess for interest, since the entry of the judgment; and the plaintiff is not entitled to any more than he claims in his declaration. No matter upon what ground the judgment is wrong, if it operates unjustly and illegally upon the rights or interests of the other party, he is entitled to the aid of this Court. The plaintiff takes judgment at his peril: he may relinquish as much as he thinks proper; the doing so is no just cause of complaint to the defendant. But he cannot be permitted to retain a judgment for a larger sum than, by his own pleading, he shows himself entitled to. Therefore, the judgment of the Circuit Court must be reversed, with costs, and this case remanded for further proceedings to be had therein, according to law, and not inconsistent with this opinion.