CH. 20. Art. 13. 2. If the last day of grace be Sunday, the note &c. must be demanded &c. Saturday. 12 Mass. Rep. 89. But in Massachusetts the court has said that a promissory note here is not entitled to grace, unless expressly made payable with 4 Mass. R. grace, and except notes to banks. No grace on bills payable 245. on demand. Jonesr.Fales. 4 T. R. 148, 207. Imp.390, 407. -4T R. 170. Liftley v. Dougl. 63.- $3. Assumpsit on a promissory note against an endorser, and three days of grace were allowed him, as on a bill to an acceptor; the note was payable Nov. 2, 1789, and sued Nov. 4, 1789. Grace varies in different countries from three to thirty days or more. And judgment for the deft. And it was said the debtor has to the last hour of the third day; but Buller J. said he must pay on demand on any part of the third day of grace, provided the demand be made within reasonable hours. This point was not settled till A. D. 1778. And if the last of the three days of grace be a Sunday, the bill must be paid on Saturday; but there are no days of grace in bills payable at sight; and the same is the rule as to any other day, not a business day. 4. Three days of grace were allowed on a note in these 6T. R. 123, words, "Three months after date, I promise to pay Mr. dal. Smith, Currier, £40 value received, in trust for Mrs. E. Thompson." Signed and dated. So not to order or bearer. The court held on the authority of Lord Raym. 1545, that a note payable to B, without adding to his order or to bearer, was a legal note within the statute. 5. But a note is not negotiable, if it want the words, or to order. 743.-Stra. 829. Smith v. Ken 3 Wils. 211. -1 Esp. 25. 6. The three days of grace are computed exclusive of 5 Com. D. 8.-Marius, the day on which the note or bill becomes due and payable. 18, 23, 24. A bill dated May 1, payable at usance, shall be paid three days 1 Salk. 131. after the 1st of June. The import of foreign usances, must-11 Mod. 92. be stated in the declaration-not so of inland usances. -12 Mod.16. ticut has 7. When the court gave the opinion above, in Jones v. ConnecFales, as to grace, it was new. Gentlemen, old in practice, adopted the understood that we had adopted the English law, as to this, as English rule we had the other parts of that law, in regard to negotiable of decision, contracts. A. D. 1818. 8. Grace is allowed on bills payable at usance, or at a Chitty, 203, certain time after date, or sight, or after demand. So in N. 217-4 Dall. York, and the note is payable on demand, on the third day. The same in Pennsylvania-same in France. 127. ART. 13. Where the party may have several actions. ◊ 1. See Election. The last endorsee may sue the drawer, and all the endorsers at 4T. R. 691, Imp. 391.the same time, and if the drawer pay, he must pay the costs of Smith v. all the actions; but if any one of the endorsers pay, he is held -Chitty, only to pay the debt, and the costs of the suit against himself, 272, 273. Woodcock. 2 Dallas, 115. CH. 20. 2 Mass. R. v. Carr. and the plt. may go on, against the drawer and other endorsers for costs, and the acceptor of the bill must pay, as the drawer must. § 2. But in the Supreme Judicial Court of Massachusetts, 171, Gilmore it has been decided, there can in such a case be but one bill of costs and therefore, that when the endorsee of a promissory note had recovered judgment and actual satisfaction in an action against the endorser, he could not have costs in an action previously commenced against the promiser; for there can be but one satisfaction. But if there had been only judgment against the endorser, and no actual payment of it, the case might have been different. There might have been a judgment against the drawer, for debt and costs; though there could have been but one satisfaction of the debt. The English rule seems to be the natural effect of the admitting the several actions. 2 Dallas 144, 150. 4 Dallas 275. -Chitty 121, 230, 273.1 Stra. 515. 2 W. Bl. 1235, Hayling r. Mullhall. 1 Ld. Raym. 742. 10 Mass. R. 88, Porter v. Ingraham. 3. If an endorser sue a bill of exchange, he must prove payment to the last endorsee by his receipt, or otherwise. Possession of the bill by the endorser is not enough, where the endorsement was filled up, for such an endorsement transfers the property, and payment generally is intended to be made by the acceptor. § 4. Taking in execution any party on a bill is only a discharge of him, not of any other on it, nor does it operate in favour of any other; but if the drawer so taken, in fact pays, the endorser cannot be sued, or is discharged out of custody. The body in execution is only security, but discharged voluntarily by the plt. is payment in law, and payment discharges the bill, as to the same person, but not as to any other on it. As where one Bushby drew a bill, payable to one Sheridan or order; he endorsed it, also one Boon endorsed it, and it came to the plt. ; he sued Boon and took him in execution, and afterwards let him out on a letter of license, without paying the debt; the plt. then sued Sheridan and held him to bail, and the deft., Mullhall, was one of them. Sheridan not paying the debt, plt. sued the deft., who insisted the debt was paid by the imprisonment and discharge of Boon. Held, it was a discharge only as to Boon; for each endorser was independent of the rest, but said Blackstone J. it was not a discharge even as to Boon's goods after his death, by the statute 1 Jam. 1. Endorsee sues the endorser, he sues the acceptor of a bill; to recover, he must prove he has paid it to such endorsee. A bill of exchange cannot be protested for non-payment before it is payable, but it may because the drawee has absconded. Assumpsit on a promissory note by endorsee against the endorser, makers, James M. Ingraham, and John Goold, November 18, 1809. June Term 1811, the plt. recovered CH. 20. judgment against the makers, sued out execution and com- Art. 14. mitted one of them to prison; execution was returned without any satisfaction but this commitment. Alias and pluries issued against the other maker and estates of both, these not satisfied. September 19, 1812, one Brooks engaged to pay the execution, thereon the goaler released the one committed, and afterwards offered the money he had received to one Richardson, assignee of the judgment, who refused to accept it. Judgment for the plt., and held the judgment against the makers had not been satisfied; that is, no valuable satisfaction accepted by the plt. or any one authorized to receive payment, and to discharge the plt's. demand, so the case of Gilmore v. Carr was not applicable. Here was evidently a fair leaning in the court to get round a very exceptionable decision given in that case, contrary to all the English decisions in like cases; for when the law itself authorizes one to bring several actions at once, as against principal and sureties in a bond, or against the maker and the endorsers of a note, and to incur costs in three several actions, what good reason can be given if he accepts his debt of one and his costs, he should not only lose his costs against the others, but even have to pay them costs, when this very acceptance may be fairly construed to prevent further costs and to settle the debt, and not to oblige the plt., not only to lose costs legally incurred or created, but to pay costs in actions legally commenced, and carried on at the costs of the several defts., and on the very terms of their several contracts. Here the debtor committed, though discharged by the officer, was not discharged by the consent of the creditor; so no bar to pursuing another debtor for the same debt. Costs in all, in New York, 8 Johns. R. 356. So in Pennsylvania. 2 Dallas 115. Blank endorsement. One Violett wrote his name on a 5 Cranch 142, Violett blank paper, meaning one Brookes should make his note on in error v. the other side to Patton; this was done, and held Violett was Patton. liable as endorser, even on the laws of Virginia, which generally put promissory notes on the ground of bonds rather than inland bills. ART. 14. Blank endorsements, forged bills, and fictitious 1 W. Bl. 390, payees. 1. If the drawee of a forged bill accept and pay it Price v. Neal. -Chitty 235. to, or pay it only to a bona fide purchaser, he cannot recover back the money paid to such purchaser. As explained Ch. 9, a. 14; Ch. 20, a. 8, bearer. 182, Tatlock 2. A bill drawn in favour of a fictitious payee is a forgery. 3T. R. 174, In this case the deft. and others drew a bill on the deft. alone, v. Harris. in favour of fictitious persons, which was known to all parties, and the deft. drew the bill payable to Gregson & Co., ficti CH. 20. tious payees, at the request of Potter, and endorsed the bill, Art. 14. by writing Gregson & Co., to Lewis & Potter, who endorsed 3 T. R. 481, Minet v. Gib son & al.Imp. 414, 192, 400. Dougl. 514, 1 H. Bl. 313, Emett. it to the plts., and the deft. received the value from the second endorser. Adjudged that a bona fide holder may recover on this bill against the deft. on the ground, that "giving such a bill is, as it were, an assignment of so much property, which becomes money had and received to the use of the holder of the bill." Judgment for the plt. This could be the case only among those privy to the facts. 3. The court held, that if a bill be drawn in favour of a fictitious payee, and the acceptor and drawer do know it, and the name of such payee is endorsed on the bill, an innocent endorsee may recover on it, giving a valuable consideration, against the acceptor of the bill payable to bearer. 4. A blank endorsement on a blank note or paper, binds the endorser. It is as a letter of credit for any indefinite sum. And for money lent a bill or note is good evidence, and the 3 & 4 of Anne only gives an additional remedy; an endorser is liable for money lent. Endorsees against the drawer of a bill of exchange; six Coles & al. v. counts. A signed his name to a blank paper duly stamped, and delivered it to B, for the purpose of drawing a bill of exchange on it in such manner as B might think best. B drew a bill payable to George Chapman, a fictitious payee, or order, and endorsed it over to C for a valuable consideration, who was ignorant of the transaction. Held, C, the innocent endorsee, could maintain an action against A, as the drawer of a bill payable to bearer, on a count to that effect; or that C might recover on a count stating the special circumstances of the case, if that count do not vary from the verdict; and when all parties know a bill cannot be legally endorsed, it may be used by an innocent holder for a valuable consideration, as a bill to bearer. See also 2 H. Bl. 187, 211, 288, 298; 3 D. & East 281; 1 H. Bl. 569, 625; 2 Show. 235; Sayer 223; 1 Burr. 452. The bearer must prove the maker's signature, and that of each endorser he claims under, 2 Phil. Evid. 15, 16, and recognises Grant v. Vaughan as to lost notes &c. 2 Wash. 164. Sumner v. Parsons, 5. In this case Timothy Parsons wrote his name on a piece of paper, and gave it to John Brown; but there was no S J. Court, evidence of the intent, or of any connexion in business between Lincoln, July them. John Brown made a note on the other side of the paper, in these words: 1801. See Dougl. 51. H. Bl. 313. pay "Boston, April 18, 1796, for value received I promise to Jesse Sumner or order 1843 dollars, on demand with Amer. Prec. interest. JOHN BROWN." 113.-Chitty May 16, 1796, Jesse Sumner received $450 10 of John Brown, in part of the note, and endorsed this sum on it. 104. Jesse Sumner then got a writing in these words, over the name of Timothy Parsons, to wit: "In consideration of the subsisting connexion between me and my son-in-law, John Brown, I promise and engage to guaranty the payment of the contents of the within note on demand," and then sued Timothy Parsons, declared on the promise, specially stating it and the note; but did not aver any demand on John Brown or notice to Parsons. In two trials in the Supreme Judicial Court of Massachusetts it was held, that Parsons was liable, and that Sumner had a right to fill the endorsement, so as to make Parsons a common endorser of the note, with the rights and obligations of such, or a guarantor, warrantor, or surety, liable in the first instance, and in all events as a joint and several promiser would be. It must be admitted, that this. case was carried as far as any case had gone, and on the review the court was not unanimous, and it has since been questioned. Blank endorsement on a blank piece of paper &c. 5 Cranch, Violett v. Patton 142, 154, similar case. CH. 20. Young. 6. One Christian at Dunkirk drew a bill on the deft. in 4 T. R. 28, London for £90, payable to Henry Davis or order. Another 33, Mead v. Henry Davis got the bill and endorsed it to the plt. The 2 Phil. Evid, court held, that this endorsement was a forgery, and that the 31. plt. could not recover against the acceptor; for the plt. must prove, according to his declaration, that Henry Davis, the true payee, endorsed the bill; whereas he did not endorse it, but a stranger did endorse it, and his being of the same name makes no difference. Lord Kenyon contra. -5 D. & E. § 7. See the case of a blank endorsement &c., Josselyn v. 4D. & E. 320. Ames, ante, article 7, this chapter. Altering the date of a bill, 367. see Masters v. Miller. Tuttle. 8. A gave a note to B to pay $100 in sixty days; B, the 4 Mass. R. promisee, contracted not to demand it under ninety days; B 414, Dow r, may sue it in sixty days; his promise not to demand it under ninety days was a collateral promise, for the breach of which A might have a separate action if there was a sufficient consideration, but it varied not the note. Bennet v. 9. If a bill be payable to a fictitious person or his order, Chitty 1, it is not payable to the order of the drawer or bearer, unless the acceptor know the payee is a fictitious person. 10. If the endorsee of a bill sue the acceptor, and he can- 1 H. Bl. 569. 109. not prove an endorsement by the payee, he may prove the Chitty 84, payee a fictitious person, so could not endorse. Held, as drawer and acceptor knew this, the bill should operate against them as a bill to bearer, and the holder sue as bearer, ART. 15. Endorsers, how liable, and amount &c. § 1. An Skin. 343. endorser is liable to every subsequent endorsee, not to any pre- 410-4 T. R. 470.-Salk. 125, 133, 127-5 Com. D. 88.-3 Salk. 68. |