habit of holding otherwise. The question at last came before the house of lords, in the noted case of Rowe v. Young, 2 Brod. & B. 180. The opinions of the twelve judges were taken and laid before the house. Eight judges out of the twelve sustained the doctrine of the king's bench. The judgment, however, was reversed. That the decision of the lords did not satisfy the public mind may be inferred from the fact of the passage soon thereafter of the act 1 and 2 Geo. IV., c. 78, in which it was recited that the rule which it sanctioned was inconvenient in practice: See Ch. Bills, 396. The history of the English law on this point is stated at length in the elaborate opinion of the supreme court of the United States, in Wallace v. McConnell, 13 Pet. 136.

In the United States also, the question has been the subject of much discussion; but there is a vast preponderance of authority in favor of the doctrine maintained by the majority of the twelve judges. Mr. Story, who disapproves it, admits that in America, that doctrine prevails, if not universally, at least to a great extent.

"The received doctrine in America," says he, "seems to be this, that as to the acceptor of a bill of exchange, and the maker of a promissory note, payable at a bank or other specified place, the same rule applies; that is, that no presentment or demand of payment need be made at the specified place on the day when the bill or note becomes due, or afterwards, in order to maintain a suit against the acceptor or maker; and, of course, that there need be no averment in the declarations in any suit brought thereon, or any proof at the trial of any such presentment or demand. But that the omission or neglect is a matter of defense on the part of the acceptor or maker. If the acceptor or maker had funds at the appointed place, at the time, to pay the bill or note, and it was not duly presented, he will in the suit be exonerated; not indeed from the payment of the principal sum, but from the payment of all damages and costs in that suit. If, by such omission or neglect of presentment and demand, he has sustained any loss or injury, as if the bill or note were payable at a bank, and the acceptor or maker had funds there at the time, which have been lost by the failure of the bank, then and in such case, the acceptor or maker will be exonerated from liability to the extent of the loss or injury so sustained:" Story on Promissory Notes, sec. 228.

The state of the law in this country, upon this point, down to the year 1839, was elaborately considered in the case in 13

Peters, by Mr. Justice Thompson. He there showed, that in New York, the most highly commercial state in the Union, what may fairly be termed the American doctrine, had been considered settled for thirty years. He cited also the opinions of the courts of appeal in Virginia, Maryland, New Jersey, and Tennessee, to the same effect; and added (which, however, shows that the Louisiana cases had not been brought to his notice), that the court was not aware of any American case where a contrary doctrine had been asserted and maintained.

Looking to the state of the law since 1839, in the various appellate tribunals of the other members of this Union, so far as we have been able to ascertain them, we find a continued general adherence to the doctrine: See Payson v. Whitcomb, 15 Pick. 216; Otis v. Barton, 10 N. H. 433; Bond v. Storrs, 13 Conn. 412; Silver v. Henderson, 3 McLean, 165; Filler v. Beckley, 2 Watts & S. 458; Montgomery v. Elliott, 6 Ala. 701; Armistead v. Armistead, 10 Leigh, 512; Evans v. Gordon, 8 Port. 346; Washington v. Planters' Bank, 1 How. (Miss.) 230 [28 Am. Dec. 333]; Cook v. Martin, 5 Smed. & M. 379; Sumner v. Ford, 3 Ark. 389; Butterfield v. Kinzie, 1 Scam. 445 [30 Am. Dec. 657]; Armstrong v. Caldwell, Id. 546; 2 United States Digest, Supplement, verbo Promissory Note.

The arguments which have been adduced by the advocates and opponents of this doctrine, it is not necessary now to recapitulate. They are familiar to the profession, and may be found in the opinions of the twelve judges, in Rowe v. Young, 2 Brod. & B. 180, in Lord Eldon's opinion in the same case, of Mr. Justice Thompson, 13 Peters, and of Justice Story in his Treatise on Promissory Notes, etc.

Without presuming to suggest on which side the weight of reasoning advanced by so many able minds preponderates, we may at least, without impropriety, say that the arguments in favor of the American rule have been almost universally successful in producing conviction; and that the doctrine so uniformly maintained, after so long a probation, may be fairly considered as well adapted to the practical purposes of commerce and the ends of justice.

Under such circumstances, what is the duty of this court in deciding a question which does not rest upon legislation, but upon commercial jurisprudence? See Civil Code, 1908. It is true, that we have, upon the one hand, the opinions of our predecessors, which are entitled to very great respect; but, on the other, we are met by a vast array of authorities which are also

American, and could not have been announced and persisted in during so many years without a due consideration of those great interests of commerce which may be said to be common to the entire Union. He who properly appreciates this community of commercial interests must be gravely impressed with the practical importance of uniformity, throughout the United States, in the rules which relate to so prominent a branch of the commercial law as that which regulates bills of exchange and promissory notes. That importance becomes additionally impressive when we contemplate the vast advances which our country is making in territory and population.

Moved by these considerations, we believe that we are not unduly innovating upon the course of our predecessors in now adopting a doctrine which has obtained the sanction of an overwhelming majority of the appellate tribunals of the United States.

We therefore are of opinion that the plaintiff was not bound to aver in his petition, nor prove at the trial, that a demand of payment was made at the Philadelphia Bank; and that it was matter of defense for the maker to show that he was in attendance by himself or his agent, and ready at the place designated to pay the money.

There is an averment in the petition, "that, according to the laws of the state of Pennsylvania, the rate of legal interest is fixed at six per cent.; and that, in case of promissory notes, where a day certain is fixed for payment, interest is allowed from the day of payment." No proof of the laws of Pennsylvania has been offered, and under our laws regulating the subject of interest we can not allow the plaintiff more than five per cent., and that only from judicial demand, no earlier demand having been proved.

It is therefore decreed, that the judgment of the district court be so amended as that the plaintiff recover from the said Daniel N. Pope the further sum of four hundred and eighty-eight dollars and ninety-three cents, and the further sum of four hundred and thirty-two dollars and forty-five cents, with interest on said sums respectively from the fourth of December, 1848, until paid, at the rate of five per cent. per annum, and costs in both courts.

PLACE OF PAYMENT.-It is not necessary to allege or prove that a demand of payment of a bond made in favor of a bank, secured by mortgage and pay. able at the bank, was made at the place specified: Posey v. Bank of Louisiana, 5 La. Ann. 187.

RULE INTIMATED IN THE PRINCIPAL CASE THAT LAWS OF OTHER STATES, when not offered in evidence, are presumed to be like our own, was affirmed In the cases of Clampitt v. Newport, 8 Id. 124; Anderson & Conn v. Folger, 11 (d. 273; Kuenze & Co. v. Elvers, Boje & Co. et al., 14 Id. 391; Anderson v. Anderson, 15 Id. 491; Syme v. Stewart, 17 Id. 73; Hebert v. Winn, 24 Id. 387. DEMAND ON NOTE OR Bill Payable AT A PARTICULAR BANK is held unnecessary to charge the maker or acceptor: Brittain v. Doylestown Bank, 39 Am. Dec. 110, and note 114. But also see the cases of Allain v. Lazarus, 33 Id. 583, and note 585; Wallace v. Gwin, 35 Id. 202, and note 203; Glasgow v. Pratte, 40 Id. 142, and note 145.

SQUIER v. STOCKTON.

[5 LOUISIANA ANNUAL, 120.]

INDORSER OF PROMISSORY NOTE having possession thereof is considered as being the true owner.

INDORSER IS NOT BOUND TO SHOW HOW HE ACQUIRED POSSESSION of a note when it is secured to him by mortgage, but may proceed on it by executory process.

MORTGAGOR IS ESTOPPED from setting up the defense that the mortgagee's agent was not authorized to accept the mortgage, when the mortgagee sues to recover the amount due on the mortgage.

SWORN PUBLIC OFFICIALS are presumed to have properly discharged their duties in the absence of evidence to the contrary.

APPEAL from an order of seizure and sale.

stated in the opinion.

T. A. Clarke, for the plaintiff.

Steele, for the defendant.

The facts are

By Court, SLIDELL, J. This is an appeal from an order of seizure and sale. The documents upon which the order was granted were a promissory note made by Stockton, and a notarial protest of it; an act of mortgage granted by Stockton to Squier, to secure its payment, in which the making and indorse ment of the note by Stockton, and its delivery to Squier's agent, are recited; a notarial declaration and acknowledgment made by J. M. Denman, that he was a member of the firm of J. Marsh Denman & Co., and that the note had been sent to that firm by Squier, as his mere agent, for collection. The note is made by Stockton, is payable to his own order, and bears the following indorsements:

"Pay to the order of Wm. C. Squier, Esq.

"RICH'D C. STOCKTON."

"Pay to the order of J. M. Denman & Co.

"W. C. SQUIER.

"J. MARSH DENMAN & Co.

It is said, on the part of the appellant, that upon the face of the instrument it appears that the title had passed out of the plaintiff; that he should have established, by authentic and unexceptionable evidence, a retransfer to himself, and that the declaration of Denman is not legal evidence of the facts asserted by him. It is unnecessary to determine whether the evidence of retransfer was sufficient and unexceptionable, if no evidence of retransfer was requisite.

In Dugan v. United States, 3 Wheat. 183, the court said, after an examination of the cases on this subject (which can not all of them be reconciled), the court is of opinion, that if any person who indorses a bill of exchange to another, whether for value or for the purpose of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more indorsements in full, subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsers, whose names he may strike from the bill, or not, as he may think proper: See also United States v. Jacob Barker, 1 Paine, 162.

Mr. Story, in his treatise on Notes, observes, there is much reason to contend, that the possession of a note by the maker or payee, or by any subsequent indorser, is prima facie evidence, notwithstanding there are subsequent indorsements thereon, that he is the true and lawful owner thereof, and that he has reacquired the full title thereto; and, accordingly, this seems now to be the better opinion maintained in America, notwithstanding some early doctrine the other way: Sec. 452; see also sec. 246; Norris v. Badger, 6 Cow. 450.

We therefore think the case is with the appellee on this point. It is said, there is no evidence of the acceptance of the mortgage by Squier. The case is thus: J. D. Marsh, purporting to act as the agent of Squier, under a power of attorney which is recited in the deed, sells to Stockton certain lots of ground; Stockton acknowledges delivery and possession; gives his notes for the price, and grants in the same instrument a mortgage to secure them. He is clearly estopped from contesting Denman's right to represent Squier, and accept the mortgage in his behalf, which Squier now seeks to enforce.

In the act, William Christy, notary, before whom it was exe cuted, recites that he is acting instead of Joseph B. Marks, notary, then absent from the state, by consent of the governor; and