Butterfield v. Kinzie

2 Ill. 445

• Court: Illinois Supreme Court
• Decided: June 15, 1838
• Status: Published

Opinion

Wilson, Chief Justice,

delivered the opinion of the Court:

The only question presented for adjudication by the record in this cause, is whether or not in an action against the maker of a promissory note, or the acceptor of a bill, payable at a specified place, the plaintiff is bound to aver and prove a demand of payment at the time and place specified, to maintain the action. The negative of this proposition is maintained by the plaintiff in error, and the affirmative by the defendant. Without going into an examination-of the numerous decisions bearing upon the question, or the reasons advanced in support of those decisions, this Court has no hesitation in saying, that the weight and current of authorities fully sustain the position assumed by the plaintiff.

(1) It is not a question of first impression, but one which has been so repeatedly decided, that this Court does not feel itself called upon to examine the reasons upon which former decisions have been maintained. The Circuit Court having decided in favor of the defendant, the decision must be reversed, and the cause remanded, with directions to that Court, to overrule the demurrer, and proceed to a trial of the cause upon its merits.

Judgment reversed.

In actions on promissory notes, against the maker, or on bills of exchange, where the suit is against the maker in the one case, and the acceptor in the other, and the note or bill is made payable at a specified time and place, it is not necessary to aver in the declaration, or prove on the trial, that a demand was made in order to maintain the action. But if the maker or acceptor was at the place at the time designated, and was ready and offered to pay the money, it was matter of defence to be pleaded and proved on his part. Wallace v. McConnell, 13 Peters 136.

17 Johns. 348; 4 Johns. 183; 11 Wheat 171; 6 Peters’ Cond. R. 257; 1 Campbell N. P. 423; 2 do. 498: 8 Cowen 271; 3 Wendell 1; Bailey on bills 203; 4 Littell 225.