CH. 20. 10 Mass. R. Gorham. banking house, must be presented in banking hours. 1 Maulę & Sel. 28, 29. 15. Assumpsit, endorsee against the endorser. W. Smith made the note to the deft., payable to him or order, in four 366, Weld v. months &c., endorsed by him to C. Hatch, and by him to the plt. This note was said to be in the Union Bank, dated October 12, 1804, for $6000. The runner testified, February 12, 1805, he left on the cashier's desk a formal notice to Smith of a note for $6000, then due at the bank, endorsed by Gorham, payable in four months, but had not seen the note; gave the notice from the minute book, and this contained no other notes in which W. Smith was promiser, and which became due at that time. There was like evidence of notice left for the deft. Feb. 15, 1805. By the usage of the bank, notices to the directors were so left on the cashier's desk, and then makers of notes were notified when notes were due, exclusive of the days of grace, and endorsers at their expiration. February 1805, Smith and Gorham were both directors of the Union Bank, acting in that office. Held, from the facts the jury might infer notice to Smith and to Gorham. 1 Dallas 441. 6 East 3, 17, Darbishire & al. v. Parker. In this case too the rule adopted in Jones v. Fales, was adhered to, namely, that an endorser doing business at a bank, is presumed to submit to the usage of the bank, as to the time and manner of demand and notice. 16. One who buys a negotiable note cannot sue it, without an endorsement, in his own name against the maker. In Virginia the English statutes as to promissory notes are not adopted; and there held, an endorsee thereof cannot have an action against a remote endorser. 1 Cranch 290, 299, Mandeville & al., in error, v. Biddle & al.; see 1 Cranch 181, 193. 17. To omit two posts is not due notice. Plts. had sold goods to Parker & Co., living at Liverpool. The deft. guarantied the payment, also living there, and on his guarantee he was sued by the plts., living at Manchester. Parker and Co. sent in payment a bill accepted by one Jackson, living in London, dated June 6, 1803, payable to the plts. two months after date. August 9 it became due, and on that day was refused and noted, and notice to the plts. by post 10th, and letter delivered, but between 8 and 9, the 12th, in the morning, about four hours before the post left Manchester for Liverpool. The plts. omitted that post, also that of the 13th, but sent notice by a private hand the 13th, who delivered the notice to the drawers about two hours after the post of the 13th artown, notice rived at Liverpool, and about an hour before the post left must be per- Liverpool for London. Held, the plts. made the bill their own by their laches, and clearly because they did not write by the post of the 13th; and without deciding whether they should 10 Johns. R. 490, where parties live in the same sonal. have written by that of the 12th or not; and if the party do CH. 20. not write by the next post he must account for his omission. Art. 10. v. Birks. 18. Case against the deft. as endorser of a bill of exchange, it became due on Saturday, and was refused about 3 Bos. & P. two o'clock that day and noted; again presented about 599, Haynes nine or ten o'clock in the evening, and notice was to the plt. about noon on Monday. The plt. gave notice to the deft. on Tuesday about noon. The holder lived at Knightsbridge and the endorser in Tottenham-court road. Held, this was seasonable notice. This bill was presented last by the notary at the request of the plt's. bankers; and the court held, they could not give notice till Monday, and were not to be considered as the plt. himself. Sunday was no day. Plt. was in time if he informed the deft. on Tuesday, by the course of the post, and it did not appear he received notice before the post went out on Monday. Notice "must be given with all the despatch that can reasonably be expected." It will be observed the seven or eight hours delay to employ the the notary was not questioned or explained, nor is it settled the law allows a day for the holder's brokers to act and give him notice; but see Scott v. Lifford, s. 35; the insolvency of the drawee is not an excuse for presenting the bill, 11 East 114, Esdaile v. Sowerby. 19. When an agent drawn on must have notice. Assump- 3 Bos. & P. sit, endorsee against the drawer on a bill. Cotton the deft. of 239, Clegg & Charleston, S. C., agent of Cullen of Liverpool in England, al. v. Cotton. drew his bill on him in favour of Miller & Robertson, also of Charleston, for £500 payable ninety days after sight. They endorsed it to Booth & Co., also in America, and they endorsed it to one Jacks, also here, and he to the plts., merchants in Manchester, in England Cotton expecting Cullen would fail, and the bill be dishonored, lodged property with Miller & Robertson, and Booth & Co., to answer the bill if returned, they engaging to restore it if exonerated from the bill. This bill was refused, and no notice was given to Cotton. Held, he was discharged; for this "bill was drawn by an agent on a principal, and when acceptance was refused, the plt. should have given notice thereof to the drawer." Clearly when drawn he was entitled to notice, and was not deprived of it by his said deposit. No fraud in this case, and it is on the ground of fraud the courts dispense with notice to the drawer, having no effects in the hands of his drawee. The goods so deposited were Cullen's. The drawer of a bill must have reasonable notice of non-acceptance; if his effects in the drawee's hands be attached after the bill is drawn, and before presented. Notice must be given by the holder or by one appointed by him, or by one liable as endorser. Holder may Сн. 20. 17 Johns. R. 248.-1 Starkie 468. sue before such notice. 14 Mass. R. 116, 121, Stanton . Blossom. § 20. Where a note is payable at a certain house, a demand 2 H. Bl. 509, there is sufficient. One Sharp made his note to Wilkinson or Saunderson& order, and made a minute at the bottom of it that it was to be al. v. Judge. -See Art. paid at the house of Saunderson & Co. Wilkinson endorsed it 20, s. 38.- to Judge, he to Sanders & Co., and they to the plts., bankers, 3 Taun. 398, to cover their acceptances. Before the note became due Callaghan v. Aylett.Sharp absconded. Plts. sued Judge, second endorser. Held, not necessary to prove an actual demand on Sharp. 2d. If a note be made payable at a certain house, a demand of pay5Taun.354.— ment there is enough, and as a demand on the maker. 3d. 2 Phil. Evid. Putting a letter into the Post Office to the endorser, in proper time, informing the maker has not paid the note when due, is good evidence of notice to the endorser. 4th. And as the plts. held the note to be paid at their house, it was demand enough on Sharp for them to turn to their books and examine his accounts with them. Not necessary to present it at the place, if it be mentioned at the bottom of the note or on the back. 919. 7 East 359, §21. If the drawer has any effects in drawee's hands Orr v. when he draws, he is entitled to notice. Payees of a bill Magennes. against the drawer. Held, 1st. Must be a protest for non-acceptance, to recover against him. 2d. Noting non-acceptance, and protest for non-payment, is not sufficient. 3d. At any rate the holder must give notice to the drawer of the non-acceptance. 4th. No excuse for the omission, the drawer had no effects in the drawee's hands, when the bill was refused acceptance or afterwards. 5th. It is enough, if he had some effects (to whatever amount) in the drawee's hands when the bill was drawn. Want of such effects averred in the plt's. declaration. As to effects &c., see Bucherdike v. Bollman, Goodall v. Dolley, Rogers v. Stearns, &c. &c., 2, 3, 33, this Deft. withdrew his effects pending the bill, and before it was presented. As to such effects, see 4 Cranch 141, French's case. 7 East. 385, Parker v. Gordon.-3 Maule & Sel. 150. 1 Johns. Ca. well & al. v. art. $22. If A accept a bill to be paid at his banker's house, the holder impliedly agrees it be presented there for payment, in the usual banking hours; though he is not bound to agree to such special acceptance, and if he presents it after such hours, without effect, the bill is not dishonored so as to charge the drawer. A refusal at such particular place to pay a note need not be averred. See 2 Phil. Ev. 34. $23. Notice waived. The endorser of a note not payable, 99, Liffing told the holder the maker had absconded, and he, the endorser, being secured, would give a new note, and requested time to pay; the note fell due in the mean time. Held, the holder White. Putnam v. 4 Mass. R. 45. Сн. 20. need not demand it of the maker, or notify the endorser, for the endorser had waived notice by the course he had taken. Art. 10. 2 Phil. Evid. 17, but if not waived &c., the note must be demanded of the maker, when payable. -11 East 24. Reasonable notice is law, and fact for the jury. The 8 Johns. R. deft. endorsed a bill of exchange and was sued in Maryland, 173, 179, Taylor v. and judgment against him. In this action the plt. declared on Bryden.a protest for non-acceptance, also non-payment, and the action Quære, was tried by a jury in Maryland, and verdict for the plt.; on this 1 Cranch 260. judgment plt. brought assumpsit in New-York. Held, the 118.-9 East question of reasonable notice, or due diligence, was compound- 192.-Dougl. 1, 6.--4 Esp. ed of law and fact, and proper for the jury's consideration. Ca. 48 2d. Having been once fairly litigated and decided, though in 6 Sch. & another State, it ought to be at rest. Same is tried by a 461.-1 Daljury in Pennsylvania as a question of fact, and not of law. Johns. Ca. 337, same a fact. las 254. 2 17 Johns. R. 26. $25. Agent must send the notice to his principal of the refusal 2 Johns. Ca. of a bill, both of non-acceptance or non-payment, with the pro- 1, Tunno v. test. It is the duty of the principal, or remitter, to give im- Lague. mediate notice to the drawer &c., but the agent may notify if seasonably done. 214, 215, 216, 26. A note or check payable on demand, must be de- 2 H. Bl. 565. manded in a reasonable time after receipt of it, or the endor-Chitty 213, ser is not held, that is, usually twenty-four hours in the same 217. town, or next morning, or by the next post. v. Brown Assumpsit by Tindal & al., endorsees of a note against 1T. R. 167, Brown, the endorser. Aug. 21, 1784, one Donaldson made 171, Tindal his promissory note to Brown for £35 2s., payable Oct. 2, Chitty 134. 1784, or Oct. 5, allowing grace. He endorsed it to the plt. The parties all lived within twenty minutes' travel of each other. Oct. 5, the plt's clerk called on D., the maker, at 10 o'clock in the morning, and not finding him at home, left regular notice of the demand of payment. Oct. 6, between 10 and 11 he called again on D., who promised to pay the note before the bank was shut that day (bank was open from 9 to 4). Note not being paid, he called again Oct. 7, and not finding D. at home, he called on Brown, the endorser, and asked for payment; he refused, saying, the plts. had made it their own. Donaldson, Oct. 6, left word with Brown's wife, desiring Brown would pay the note for him. Verdict for the plts. and a new trial was granted, and another verdict for the plts., and another new trial granted. Then a special verdict, and judgment for the deft. Points settled; first, the holder himself must give reasonable notice to the drawer or endorser, that the bill is dishonoured by the acceptor,, or the note by the maker. Second, that he, the holder, looks to the drawer or endorser for pay CH. 20. ment. Third, that the maker's giving notice to the endorser Art. 10. was to no purpose. Fourth, that what is reasonable notice is partly a question of fact, and partly a question of law; that is, IT. R. 168. the jury must find the facts, as distance of place &c., and the -Chitty 214, court must decide the law, what is a legal or reasonable notice, on the facts proved, so far as that the jury ought to be directed by the court. 254.-6 East 8.-Dougl. 515. Salk. 442, Ward v. Coleman v. Fifth, that the notice ought to be as early as the distances and circumstances will admit; that the holder ought to write by the next post &c. Sixth, that reasonableness of time is a question of law, not of fact. Seventh, that in no case has it been determined, that the endorser is liable, after the holder of the note has given time to the maker. See 11 Johns. R. 187, Bryden v. Bryden. 27. But the demand of a neighbour, the next day, has been held sufficient. 2 Ld. Raym. 928. 28. So it is not negligence to keep notes in the same town from 2 o'clock one day, till 9 o'clock the next day. Ld. Raym. 743. Nor here if what is usual is done; but to keep 2 Stra. 1218, them from Saturday to Tuesday is too long. Fletcher v. 5 Mass. R. ble. 29. A citizen of the United States in India, endorsed to merchants there a bill payable in London, and returned to the United States. The endorsees sent to London, where it was Colt . No- protested for non-acceptance and non-payment, and sent back to the endorsees in India, who in a reasonable time sent notice to the endorser in the United States. The court held, the endorser was liable. It was the business of the endorser's agent in London to give notice to his principal. 4 Mass. R. 45, Putnam Evidence 30. This was an action by the endorsee against the enr. Sullivan. dorser of a promissory note. And the court held, that the plt. is not bound to prove a demand on the promisor, if it appears he has absconded before the note became payable. For "when the note in this case was due, it could not be pre2 Caines' R. sented to the promisor for payment," and so "there was no neglect in the endorsees." the maker is not to be found &c. 121, Stewart v. Eden. 4 Mass. R. 245, Jones r. Fales-Ld. Raym. 743. § 31. If payment of a promissory note made payable with be demanded of the maker before the last day of grace, grace, the endorser is not holden. 12 Johns. R. 423, Griffin v. Goff. Demand where and how made. If a note be made payable at a particular house, a demand of payment at that house is a demand on the maker, as he agrees such shall be the demand. 32. So the putting a letter into the post-office to the endorser in proper time, informing him that the maker has not BI. 509, 565. paid the note when due, is sufficient evidence of notice to the 2 H. BI. 509. -6 East 7. Chitty 177, endorser. And "where there is no post, it is sufficient to send notice 1 Johns. R. by the next ordinary mode of conveyance, though it may not 179, 244. |