An action was instituted in the Circuit Court of Mississippi, on
a promissory note, dated at and payable in New York. The
declaration omitted to state the place at which the note was
payable, and that a demand of payment had been made at that place.
The court held that to maintain an action against the drawer of a
promissory note or bill of exchange, payable at a particular place,
it is not necessary to aver in the declaration that the note, when
due, was presented at the place for payment, and was not paid, but
the place of payment is a material part in the description of the
note, and must be set out in the declaration.
An action was instituted in the District Court of Mississippi by
the defendant in error, on a promissory note dated at New York,
March 2, 1836, by which Covington and McMorris promised to pay four
thousand five hundred and sixty dollars and four cents, six months
after date, to Nelson, Carleton, and Company, at New York. The note
was endorsed by the drawees to the defendant in error, David A.
Comstock.
The declaration on the note omits to state the place where the
note was payable, and on the trial, the note was offered in
evidence, and objected to by the defendant. The court allowed the
note to be given in evidence, on which the defendant tendered a
bill of exceptions, and a verdict and judgment having been rendered
for the plaintiff, this writ of error was prosecuted.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The plaintiff in the circuit court brought his action on a
promissory note, and stated in his declaration, that the
defendant,
"heretofore, to-wit, on the second day of March, 1836, at New
York, to-wit, in the district aforesaid, made a certain note in
writing, commonly
Page 39 U. S. 44
called a promissory note, bearing date the day and year last
aforesaid, and then and there delivered the said note to Nelson,
Carleton & Co., who are citizens of the State of New York; by
which said note, the said defendant promised, by the name and style
of Covington and McMorris, to pay to the said Nelson, Carleton
& Co., or order, forty-five hundred and sixty dollars and four
cents, six months after the date thereof, for value received, and
the said Nelson, Carleton & Co. then and there endorsed and
delivered said note to the said plaintiff,"
&c.
The defendant pleaded the general issue; and on the trial, the
following note was offered in evidence.
"$4,560.04 New York, March 2, 1836"
"Six months after date, we, the subscribers, of Columbus, State
of Mississippi, promise to pay to the order of Nelson, Carleton
& Co. forty-five hundred sixty dollars and four cents, at New
York, for value received."
"COVINGTON & McMORRIS."
The defendant objected to the note's being given in evidence, on
the ground that there was a material variance between it and the
note described in the declaration. But the circuit court overruled
the objection, admitted the note in evidence, and entered a
judgment for the plaintiff. The defendant excepted to this ruling
of the court, and the question now is whether there is error in the
decision of the circuit court.
The note given in evidence was payable at New York; but the
place of payment was not stated in the declaration.
To maintain an action against the drawer of a note or bill
payable at a particular place, it is not necessary to aver in the
declaration that the note, when due, was presented at the place for
payment, and was not paid, but the place of payment is a material
part in the description of the note, and must be set out in the
declaration.
The place of payment regulates the rate of interest, and in
other respects may become important. A note payable generally, is a
very different instrument from a note given by the same parties,
and for the same amount, payable at New York. We think, therefore,
that the circuit court erred in admitting the note as evidence, for
which cause the judgment is
Reversed, and the cause is remanded for further proceedings
in the circuit court, where the plaintiff may move to amend the
defect in his declaration.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Northern
District of Mississippi, and was argued by counsel, on
consideration whereof, it is now here ordered and adjudged by this
Court, that the judgment of the said circuit court in this cause
be, and the same is hereby reversed with costs, and that this cause
be, and the same is hereby, remanded to the said circuit court for
further proceedings to be had therein according to law and justice,
and in conformity to the opinion of this Court.
