If an action is brought on a joint note, and some of the persons making the note are not made defendants, advantage can be taken of the omission by plea in abatement only (72). An action was brought against defendant only on a joint and several note made by defendant and one Stoddart. Plea non assumpsit. Defendant gave in evidence an agreement in writing entered into by plaintiff with the assignees of Stoddart, then a bankrupt, to receive from them 6007. in lieu of 8837. actually due from the bankrupt on this note (which was for 1007.) and on other transactions; and that defendant was only surety for Stoddart. Defendant obtained a verdict. On motion to set it aside, it was resisted on the part of the defendant, on the ground that the agreement put an end to the plaintiff'srecovery on the note, that the principal could not be discharged without discharging the surety also. On the part of the plaintiff it was urged, that it was not the meaning of the agreement that defendant should be discharged. But per Lord Mansfield C. J. the plaintiff' was party to the agreement, and we cannot receive parol evidence to explain it. Whatever might be the intention of the parties, the principal cannot be released without its operating for the benefit of the surety. Rule discharged. Consideration. It will be presumed, that the note has been given for a good and valuable consideration until the contrary appear. As between the immediate parties, want or illegality of consideration may be insisted on as a defence. In an action by the payee against the maker of a promissory note for 107, which had been given by the defendant as an apprentice fee with his son to the plaintiff, to whom the son was bound; it appeared at the trial, that in the indentures of apprenticeship no mention had been made of this premium having been given with the apprentice, nor was there any stamp thereon in proportion to the value, as required by stat. 8 Ann. c. 9. in default of which, by the 39th section of the stat. the indentures are declared to be void. The apprentice remained some part of his time with a Per Buller J. in Rees v. Abbott, o Garrett v. Jull, B. R. M. 22 G. 3. Cowp. 832. MS. p Jackson v. Warwick, 7 T. R. 121. See Rice v. Shute, 5 Burr. 2611. (72) This is a general rule. and other cases cited in note (64), ante, p. 110. his master, and then absconded. It was objected on the part of the defendant, that the indentures being void, the consideration of the note had failed. To this it was answered, that the avoiding of the indentures could not collaterally affect this note; but that at all events it was sufficient, if there were any consideration to sustain it; and here the master had provided board and lodging for some time for the apprentice. But Lawrence J. was of opinion, that the consideration was entire, and that it had wholly failed. The Court of King's Bench concurred in opinion with the learned judge. Where the action is brought not as between immediate parties, and the plaintiff is a bona fide holder for a valuable consideration, without notice, such illegal consideration only as makes the note void ab initio, viz. gaming and usury' can be alleged in bar of the action. In an action by the endorsee against the maker of a promissory note, the defence insisted on was, that the note had been given for hits against defendant in a lottery insurance: Kenyon C. J. was of opinion, that the plaintiff was entitled to recover, observing that the innocent endorsee of a gaming note, or note given on an usurious contract, could not recover, but that in no other case could the innocent endorsee be deprived of his remedy on the note; and that a contrary determination would shake paper credit to the foundation'. A person, who at the request of the holder of a note, has put his name upon it, and in consequence thereof has been obliged to pay the contents to a bonâ fide holder, may recover the money paid from any person whose name is on the note, although he knew that the note was originally given for an illegal consideration, viz. for premiums for the insufance of tickets in the lottery. Stamp. Every promissory note must be duly stamped, that is, with a stamp of the proper value and proper deno mination. A promissory note", given at the time when the 31 Geo. 3. c. 25. was the only statute regulating the stamp-duty on promissory notes, was holden not available in law, because q Stat. 9 Ann, c. 14. s... ante, p. 288. and Bowyer v. Bampton, Str. 1155. r 12 Aun, st. 2. c. 16. s. 1. aute, p. 289. Lowe v. Waller, Doug. 735. s Winstanley v. Bowden, Middx. sittings after M. T. 41 G. 3. B. R. MSS. t Seddons v. Stratford, London sit- it was stamped with a receipt stamp, although it was of equal value with that required for a promissory note. For the amount of the stamp duties on promissory notes, see ante, p. 279. For the statutes regulating notes given for a less sum than five pounds, see Chitty on Bills, Appendix, sect. 8. ed. 2nd. X. Of the Time when a Note ought to be presented for Payment. PAYMENT must be demanded within a reasonable time after the note becomes due. Whether a note has been presented for payment within a reasonable time is a question of law, but dependent on facts, viz. the situation of the parties, their places of abode, and the facility of communication between them". On promissory notes, payable at a certain time after date, or after sight, three days grace are allowed; consequently, payment of such notes ought not to be demanded until the last of the three days, unless it happen to be a Sunday, or a great holiday, in which case payment ought to be demanded on the next preceding day. The three days of grace are computed exclusively of the day on which the payment is by the terms of the note to be made. It has not been determined solemnly, whether days of grace are to be allowed. on notes payable at sight. They are not allowed on notes payable on demand. Where a note is made payable at a month or months after date, the computation must be (contrary to the general rule of law) by calendar and not by lunar months. Where a note is in the hands of an endorsee, and he demands payment thereof from the maker, who refuses or omits to pay the same, notice of such refusal or default ought to be given by the endorsee himself to the prior endorser or endorsers (if more than one) within a reasonable time; otherwise the endorser will be discharged. x 15 G. 3. c. 51. 17 G. 3. c. 30. 37 G. 3. c. 32. a Darbishire v. Parker, 6 East, 3. b See this question discussed in Chitty's Treatise ou Bills, p. 195, ed. 2d, c See Tindal v. Brown, i T. R. 167. Action against defendant, as endorser of this note“, “oné month after date, I promise to pay to Wm. George, or order, the sum of 161. for value received." John Hopley. Endorsed, Wm. George. This note George had given in payment 'to the plaintiff; it became due 2d May, and on 5th May the plaintiff's banker (after three days grace) demanded it of Hopley. Hopley desired two or three days time to pay it in, and so from time to time, which were given him, till 13th May, when he told the banker he could not pay it. On the 14th, Hopley failed, and became a bankrupt. On plaintiff's applying to George for payment, George told him he should have applied before, on Hopley's first refu sal, and that he now did not think himself liable to pay it, whereupon this action was brought. Lord Mansfield Č. J. "The question is, who is to bear the loss, as Hopley, the drawer, has failed? Now it is so necessary for trade, that where a bill of exchange is drawn on one man, and made payable to another, that, if the person to whom it is payable, either wilfully or through neglect, omits to call at the time it becomes due, it is the constant course of mercantile custom in the city of London, that he shail bear the loss and not the other. This likewise is the rule on endorsed notes, which are in nature of inland bills of exchange; nothing is so certain as this rule, and great inconvenience would follow from a different mode of proceeding. It has been truly said, that the law has not fixed any precise time when the neglect of the endorsee shall be said to make him liable; but I remember a case determined, where a bill became due at two o'clock on Saturday afternoon, the person who gave the note became a bankrupt at five o'clock on Monday afternoon; the question was, whether the endorsee had not neglected to call for his money, and it was holden, that be had. The present case is not that of neglect; the note is dated on 24 April, consequently becomes due on 2d May, but by the custom of the city there are three days of grace; the banker, who has the note in his hands, and who in this case, being the plaintiff's agent, is to be considered as one and the same person with the plaintiff, comes on 5th and demands payment; the endorser and all the parties live in town; the banker gives Hopley indulgence to pay it from 5th to 13th, without giving any notice to the endorser, which, if he had done, it would have urged the endorser to get his money. Now here is no neglect of application. The case is still stronger; here is an actual credit given for d Anderson v. George, London sittings after Trin. T. 1757. coram Lord Mansfield, C. J. MSS. eight days, and the question is, who gave the credit. We cannot go into any consideration of Hopley's circumstances' at the time; they might be very bad; and yet if he had been arrested on 5th May, we cannot say he would not have paid the money. I am therefore of opinion, that the loss, (though this is a hard case,) ought to be borne by the person who gave the credit." Verdict for the defendant. Action against the defendant as endorser of a promissory note, due May 5th, 1805. The plaintiff proved the defendant's endorsement; and also, that in the year 1807, the defendant being requested to pay the note, he promised that he would, but prayed for further time. There was no evidence of the presentment of the note to the maker, or of any notice of its non-payment being given to the defendant, nor did it appear that when the defendant so promised to pay, he knew of any application for payment having been made to the maker. For the defendant it was contended, that the subsequent promise did not dispense with proof of the presentment and notice, unless made with full knowledge of the laches of the holder. In the cases hitherto decided upon this subject, something appeared which might be considered a waver of any irregularity, with regard to the bill or note, which could not be inferred from a mere promise to pay, at a time when the party, without being aware of it, was discharged from his liability. But Bayley J. held, that where a party to a bill or note, knowing it to be due, and knowing that he was entitled to have it presented, when due, to the acceptor or maker, and to receive notice of its dishonour, promises to pay it; this is presump tive evidence of the presentment and notice, and he is bound by the promise so made. Verdict for the plaintiff. But if the drawer or endorser, after being arrested without acknowledging his liability, merely offers to give a bill by way of compromise for the sum demanded, which offer is rejected, this does not supersede the necessity of notice. XI. Of the Declaration-Pleadings-Evidence-Con clusion. THE usual remedy on a promissory note is an action of assumpsit. In the first count of the declaration, the note e Taylor v. Jones, 2 Camp. N. P. C. f Cumming v. French, 2 Camp. N. P. C, 106. 105. A A |