Smith Thompson

“ But, if the bank where the note is made payable is the holder, and the maker neglects to appear there when the note falls due, a formal demand is impracticable by the default of the maker. All that can in fitness be done, or ought to be required, is, that the books of the bank should be examined, to ascertain whether the maker had any funds in their hands; and, if not, there was a default, which gave to the holder a right to look to the endorser for payment. ”

“ It was there held, that if a bill of exchange be accepted payable at a particular place, the declaration in an action on such bill against the acceptor, must aver presentment at that place, and the averment must be proved. A contrary opinion has been entertained by Courts in this country, that a demand on the maker of a note, or the acceptor of a bill payable at a specific place, need not be averred in the declaration, or proved on the trial. ”

“ And the judgment of the Court upon such evidence, will stand in the place of the verdict of the jury. And, after that, the defendant may take advantage of defects in the declaration, by motion in arrest of judgment, or by writ of error. But, the present case being brought here on writ of error, the whole record is under the consideration of the Court; and the defendant, having the judgment of the Court below in his favour, may avail himself of all defects in the declaration, that are not deemed to be cured by the verdict. ”