ROBINSON vs. COADY

ROBINSON vs. COADY. Twelfth Judicial District Court, August, 1857. Consideration—Demand. What constitutes a promise to pay, in a written obligation. When a promissory notará payable at a particular place in this State, -payment mnét be demanded there. This is an' action on two obligations, one of which is in the words and figures following, to wit: " Due Wm. H. Robinson k Co. two hundred and two dollars, value received. $202. Stockton Jan’y 28,1850. (Signed,) R. Coast," The other was a promissory note in the usual form, and was payable at the store of Mackintosh k Co,, but the complaint fails to aver that it was presented at the store of Mackintosh & Co, for payment at the time when it became due and payable, but there is a general averment as to both,- that payment was duly demanded. Défendant demurred to the complaint on the grounds,— 1st. That the first obligation set forth Was not a promissory note in the purview of the law, and .the complaint should therefore aver a valid consideration. 2d. That as to the second obligation the complaint should have averred a demand at the place where the note was payable, J£ F. Furman? for plaintiff. J?. Gasserly? for defendant. [MAJORITY — Norton, J.] Norton, J. held that he should have to consider the first obEg&tiom sued on as a promissory note, although he was surprised'!® find so little authority upon the question, where such instruments as this sre so common. The case of Russel vs. Whipple, 2 Cowen 135, approved in the case of Luquee vs. Prosser, 1 Hill 256, is the only ease efetóti ly in point, and it was there held that a due-bill in this item substantially, was a promissory note within the statute. As to the obligation to the second note, it is error nof» 'to aver-den ramd of payment at the place where the note was made payable, as decided by our Supreme Court in Wild vs. Van Valkenburgh, January Term, 1857. A general averment of a due demand is not sufficient where a special demand is necessary. The demurrer- is overruled as to the first cause ot action, and sustained as to the second, with. leave to amend upon payment of costs.