CH. 20. ceding one, except as in article 6; though the bill be payable Art. 15. to B or bearer; for every endorsement makes a new bill, and also though the bill was forged, for the endorsement charges the endorser, and hence the drawer's fraud need not be proved, and the endorsement is a new contract. 2 Stra. 10 87, Collins v. Butler 43. § 2. The endorser cannot be charged with the payment of the note till there has been a demand on the maker, or an 2 Burr. 669. attempt to find him, made; (see Heylen v. Adamson, Burr. -Phil. Evid. 669,) for here the drawer or maker of the note is the real debtor, as the acceptor of a bill is. The case of Heylen v. Adamson, by the endorsee of a bill against the endorser in which it was held, a demand on the drawer of the bill was not necessary for the reason above stated; I Stra. 515, Lawrence v. Jacob 441. Stra. 1246, Imp. M. P. 409. 2 Atkyns 181, Haly v. Lane. 5 Com. D. 94. 2 Bl. Com. 469, 470.Salk. 127, 128. 3. If the endorser pay part of the note, he thereby acknowledges his liability, and no demand on the drawer is necessary on this account also. The idea formerly adopted, that if the endorsee received part of the drawer, the endorser was discharged, is not now law. 2 Stra. 1245, Kellisle v. Robinson. 4. If the drawer be sued by the endorsee, and his bail pay the money and costs, this discharges the endorser as much as if the drawer himself had paid it and 1 Wils. 46. 5. If an endorser have a note given to him by his wife or an infant, and endorse it, he is liable to pay it to the endorsee. So if only the last endorsee paid a valuable consideration for it. In an action against the endorser it is necessary to prove his hand, not the maker's of the note. 2. It is necessary to prove a demand on the drawee of the bill, or maker of the 12 Mod. 244, note, or that he was sought for and could not be found. 3. Lambert v. That this was done in convenient time after the assignment. Raym. 443. 4. It is fair to give notice. 5. The demand must be after the endorsement. 6. If one endorse blank, the endorsee may use it as an acquittance, or as an assignment to charge the endorser. Oaks.-1 Ld. 2 Stra. 1087. Chitty 223, 6. If a note be made by a minor, so voidable as to him, Woodhouse yet the endorser is held, and the minor when of age may by 24, 25. express promise make the note good, though not by bare acknowledgment or paying part, and though the endorsement of a feme covert is void, the holder may sue any after party. See Ch. 90, a. 10, as to evidence in relation to negotiable debts. 6 Cranch 221, § 7. The endorsement of a bill or note is a new substantive promise or contract. 2. And when the endorser of a foreign bill of exchange is sued by the endorsee, he is liable to damages according to the law of the place where the bill was endorsed. 3. In debt against him on the act of Virginia, the declaration must aver notice of the protest for non-payment. Slacum v. Pomery. p. 121. 4. And a defect in the declaration sufficient to arrest the judgment, may be alleged, as an error in the court in which error is brought. This action was on the act of Virginia, the deft. endorsed the bill in Alexandria, drawn abroad. CH. 20. Art. 15. v. Lenox. This act provides, "that when any bill of exchange is or 1 Cranch shall be drawn for the payment of any sum of money in which 194, Wilson the value is or shall be expressed to be received, and such bill See Ch. 139, is or shall be protested for non-acceptance or non-payment, a, 8, s. 14. the drawer or endorser shall be subject to fifteen per centum damages thereon, and the bill shall carry an interest of five per centum per annum from the date of protest, until the money therein drawn for shall be fully satisfied and paid." "And that it shall be lawful for any person or persons, having a right to demand any sum of money upon a protested bill of exchange, to commence and prosecute an action of debt for principal, damages, interest, and charges of protest, against the drawers and endorsers jointly, or against either of them separately; and judgment shall and may be given for such principal, damages, and charges, and interest upon such principal after the rate aforesaid to the time of judgment, and for interest upon the said principal money recovered after the rate of five per centum per annum, until the same shall be fully satisfied." al. v. Man case in Chan 8. This also was a case of an endorser in Virginia, in 5 Cranch error from the Circuit Court in the district of Columbia; and 322, Riddle & held, the endorsee of a promissory note may recover the deville.amount from a remote endorser, in equity, though not at law. Jameson's But second, equity will make that party immediately liable, cery. See 4 who is ultimately liable at law. Third, in equity the remote Cranch 241. endorser has the same defence against the remote endorsee, as against his immediate endorsee. Fourth, the deft. has a right to insist that the other endorsers be made parties. One Gray gave the note to M. & J., March 2, 1798, for $1500, payable to them or order; they endorsed it in blank. On the face of the note it was declared to be negotiable in the bank of Alexandria. Gray put it into a broker's hands, who passed it to one Scott for flour, he sold for £1200 in cash, and paid the money to Gray. Scott passed it, without endorsing it, to M'Clenachen in the purchase of flour, and he endorsed to Riddle & Co. in payment of a precedent debt. Gray failed to pay, and was discharged by the insolvent act of Virginia, in the complainant's suit on the note. They then sued the defts. at law on their endorsement, and got judgment below, reversed above, on the ground an endorsee cannot have an action at law against a remote endorser of a promissory note; therefore they brought this bill in equity, dismissed below, on the ground there was no equity in the bill; they appealed. The 1 Cranch 1 Cranch 290.-See a、 181, 193, 367. 20. 47. CH. 20. See a. 20, s. 29. 3 Dallas.- Chitty 86. Morris v. 4 Johns. R. 199. complainants paid a valuable consideration for the note, and the defts. put it into circulation, and in bar of this bill they pleaded the said judgment at law in their favour. To this plea the complainant demurred, and the court sustained the demurrer, and ruled the defts. to answer. Their answer stated they received no consideration for their endorsement in blank, and put it into circulation only by delivering it to Gray to be discounted at the bank. Judgment as above, for the plts. This novel case seems to have been decided on these principles 1. As the defts. endorsed the note and expressly made it negotiable, and gave it credit into whose hands soever it came, they were liable. 2. As the maker was so discharged, he was out of the case. 3. As in the action at law the remedy was mistaken, the judgment against the plts. was no bar to their bill in equity. ART. 16. The amount recovered on a protested bill. §1. This sum in Massachusetts was principal, interest, ten per cent. damages, and costs on foreign bills generally, and interest and costs on inland bills, and this rule extends to bills drawn in one State on merchants and others in another State. The same rule as to foreign bills in Rhode Island and Virginia. But by Massachusetts act, June 19, 1819, (in Maine, Ch 88) the damages on inland bills are regulated, drawn, or endorsed in Massachusetts, payable in any other of the United States or territories, and protested; three per cent. if payable in New Hampshire, Vermont, Rhode Island, Connecticut, or New York. If payable in New Jersey, Pennsylvania, Delaware, Maryland, Virginia, or the District of Columbia, five per cent. If payable in North Carolina, South Carolina, or Georgia, six per cent. If payable in any other of the United States or territories, nine per cent. If any bill of exchange or order for payment of money be drawn or endorsed in this State, for $100 or more, and payable within it, distant seventy-five miles or more from the place where drawn or endorsed, and not paid; damages one per cent. in addition to the contents, lawful interest, and costs, 1, 3, 5, 6, 9 per cent. is in addition to these in all the cases. Twenty per cent. damages in Pennsylvania, on 12 William 3, Ch. 70; besides interest and charges. A bill remitted to pay a debt, see 4 Johns. R. 27. The twenty per cent. in New York is in lieu of re-exchange &c. $2. If the course of exchange alter in case of a foreign bill, 119.-Chitty the acceptor is liable to pay according to the rate of it on the day the bill became due. And as to exchange, see Mellish & al. v. Simeon, Ch. 20, a. 20. See Pollard v. Herries, 3 Bos. & P. 335; 4 Johns. R. 119, 124, 125. CH. 20. Art. 18. 3. July 6, 1807, an English merchant living in Manchester, in England, drew his bill, payable to himself or order in London, on an American house having their domicil in Boston, accepted by one of the house then in Manchester, is a 6 Mass. R. foreign bill, and the same as if accepted in Boston, and pay- 157, 165, able in London. The damages on protest are the amount of the bill and expenses of protest and interest thereon at six per cent. from the time it becomes payable, also a tenth part of the original sum and like interest thereon. ART. 17. Circuitous actions on notes &c. Grimshaw v. 4 T. R. 470, If C make a note to A, and A endorse it to B, and B e enBishop v. dorse back to A again, A shall not have an action against B Hayward.on his endorsement of this note, for if he could, then B would 3 Com. D. 54. -Chitty 271. have an action against A on his endorsement of it, and there -Art 21would be this circuity of action to no purpose. But A may 10 Johns. R. prove his endorsement was only mere form, see post : but see 1 Wils. 46. If second endorsee of a note sue the first become endorser, he may prove the plt. gave no consideration. 12 Johns. R. 159; 14 do. 349. 224. 1 Mass. R. 1, Gold v. Eddy 5 Mass. R. . Lee, and ART. 18. Evidence against the endorsee &c. See a. 10, s. 5. 1. The deft. made a note, payable October 31, 1799, adm.-Davis and afterwards it was endorsed to the plt. who brought this v. Brown, 3 action against the deft., the maker. The deft. was admitted T. R. 81. to prove, that certain transactions took place between Gros- 334, Webster venor, the promisee and endorser, and Fuller, the maker, before the actual endorsement of the note (originally made in blank) by which the note had been completely satisfied; and this admission was on the ground, that the actual endorsement was so long after the note had become due, that when endorsed it was a discredited note. But how long a note must have been due before it is discredited, is a point not accurately settled. 546; and Peake 140. 2 Johns. R. 300.-7 D. & E. 419; see ante, a. 10. 118.-3 T. R. 2. In this case the same principle was adopted, and the 5 Johns. R. court held, that if a note be actually endorsed after over due, 81, Erown v. there is reason to suspect it; and then the maker may go into Davissuch a defence against the endorsee, as he would have against 1 Bos. & P. 399, Taylor v. the promisee; same if the note be endorsed in trust for a re- Matherlation of the endorser; secus if endorsed without recourse. 2 Chitty 105, Johns. R. 50, 52, Russel v. Ball & al. 106. R. 118. § 3. 5 Mass. R. 334, 340, the same point was decided. Webster v. And on this case endorsee suing the endorser of a promissory Lee-5 Johns. note, if the deft. set up a defence of payment to the promisee, 8 Johns. R. he must prove it was made before the note was endorsed, and 454.by such payment the promise is discharged, and the note is 12 Johns. R. absolutely void. In this case there had been a reference between the promiser and promisee, but no endorsement on the note. 1 Johns. 331. 345. CH. 20. Art. 20. 12 Mod 408, 4 Mass. R. 93, Greenwood· v. Curtis. 6 Mass. R. v. M'Gee. 4. So a note on demand, endorsed long after made, is liable in the endorsee's hands to all the equities, as between maker and payee; because the endorsee takes it with sufficient ground of suspicion to cause him to inquire into the state of it. Secus a fair endorsee, Warren v. Lynch, 5 Johns. R. 239; 2 Cain. 369, Furman v. Haskin; see art. 20, s. 17; 1 Dallas 411; 9 Johns. R. 244. ART. 19. Bills and notes received in payment, the effect. A bill or note of another taken in payment at the time of the sale of the goods &c. is valid, if the vendee do no know it to be a bad one, and the vendor cannot have an action for his goods sold. Quære, if the debt be not discharged at the time. 6 Johns. R. 110; 9 Johns. R. 310. 2. If the parties settle accounts, and he who falls in debt to the other in a certain sum, gives him a note, not negotiable, for that sum, it cannot be considered as a payment of it; for 143, Maneely one simple contract debt is, in law, no discharge of another simple contract debt. But it is otherwise, if payment be made in a negotiable note which passes current in the market; see post. Given for an existing debt by simple contract is primâ facie payment; B owes A $50, A takes C's promissory note in payment, payable to A, it is at his risk. 7 Mass. R. 286, Wiseman v. Lyman. 5 Mass. R. 299, Thatcher v. Dins more. Chitty 118, 119. Cas. 438.-3 71. § 3. In this action, it was held that a promissory note, given in consideration of a simple contract debt, due, is a discharge of a simple contract. So of an open account. Cranch, 254. 6 4. Formerly it was held. that if A sold goods to B, and -7 T. R. 65, took a check on a banker, without any objection, it was absolute 66.-2 Johns. payment, though the banker failed; but it is now settled that in such case, unless it was expressly agreed at the time of the transfer &c, that the assignee run the risk, he may, in case of default, sue for the price of the goods, not only because one simple contract does not discharge another, but because a negotiable note, while between the original parties, is like any other simple contract; but then such note must be shewn to be lost or cancelled at the trial. R. 389.-9 Johns. R. 310, 311, Johnson v. Weed. & al. So if the purchaser of goods pays in another's note, falsely repChitty 31,32. resenting it. 6 Johns. R. 110.-5 Johns. R. 68.-9 Johns. A note made French law. 1Johns. R.94. R. 310. al 1 Johns. R. 34.-8 Johns. ART. 20. Several cases. 1. Though generally one joint tenant, or person jointly interested with another, in real or personproperty, is not capable, of himself, of doing any act which may tend to prejudice the other, yet, by the custom of merchants, where there are two joint traders, and one accepts for himself and partner, a bill drawn on both, it binds both, if it |