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Bank of the United States v. Smith, 24 U.S. 11 Wheat. 171 171 (1826)

Bank of the United States v. Smith

24 U.S. (11 Wheat.) 171


On a demurrer to evidence, the judgment of the court stands in the place of the verdict of the jury, and the defendant may take advantage of any defects in the declaration by motion in arrest of judgment or by writ of error.

It seems that as against the maker of a promissory note or against the acceptor of a bill of exchange payable at a particular place, no averment in the declaration or proof at the trial of a demand of payment at the place designated is necessary.

But as against the endorser of a bill or note, such an averment and proof is in general necessary.

Where the bill or note is made payable at a particular bank and the bank itself is the holder, such averment and proof may be dispensed with, and all that is necessary is for the bank to examine the account of the maker with them in order to ascertain whether he has any funds in their hands.

On a demurrer to evidence, the court is substituted in the place of the jury as judges of the facts, and everything which the jury might reasonably infer from the evidence is to be considered as admitted.

The practice of demurring to evidence is to be discouraged, and courts will be extremely liberal in their inferences where the party takes the question of fact from the appropriate tribunal.

Proof necessary to support an action against the endorser of a bill or note.

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