CH. 20. evidence he then had obtained any correct information of the Art. 10. neglect to notify &c., but before the 8th of March he got it, and then demanded back his money. March 16, the cashier paid the sum to the owner of the note; cashier had no compensation for colleeting notes, and the bank had voted in 1803, not to be responsible in such cases. Plt. after he sued the bank relinquished his attachments, of no value, on Low's estate. Judgment for Garland to recover back what he paid, and interest from the date of the writ, on the ground the plt. was under no legal obligation to pay the note, " as there had been no regular demand on the maker," "he paid the money under a misapprehension of the facts, as well as a mistake of the law;" passing the money to Cross' credit was not paying it over, so the defts. were liable, though they acted as his agents. Notice to Low, the maker, was too late. 9 Mass. Rep. 314, White v. Howland. 9 Mass. R. 334. Durill-2 21. § 47. A note was written thus: "New Bedford, April 19, 1806. For value received, I promise to pay William White or order, the sum of $250 on demand, with interest till paid, as witness my hand, Nathan Taber." On the back of the note was the following endorsement, viz: "April 19, 1806. For value received, we jointly and severally undertake to pay the money within mentioned, to the said William White, signed John Coggswell jr, John N. Howland " Held, these endorsers were holden as original promisors, and so not entitled to notice. "The effect of the deft's. signature is the same as if he had subscribed the note on the face of it as a surety." And so like the case of Hunt v. Adams. One of two executors cannot endorse a note made to them as executors, not being copartners. Smith v. Whiting. 9 Mass. Rep. 48. Assumpsit, endorsee v. endorser, on a note, evi332, Tower. dence the deft. said, the maker told him payment had been Phil. Evid. duly demanded of him, is no proof such demand had been made; and if the endorser, believing a demand has been duly made on the maker and due notice given the endorser, and believing himself liable, takes measures for indemnity; this does not excuse the holder from proving a regular demand and notice. And if the maker, before the note becomes due, assigns all his property to the endorser, he is considered as waiving notice, &c. 9 Mass. R. 423, Little v. O'Brien. § 49. Endorsee v. the maker of a note of $500, dated Dec. 1, 1808, payable in sixty days to Jos. O'Brien, and endorsed by him to the plt. An Insurance Company was incorporat ed, and held to vest their stock in certain specified funds; but instead of this, received their private notes, from the several stockholders, in payment of their respective shares. Held, they were bound to pay their notes at the time. Edward Little sued this note, the property of it was in the corporation, but as endorsed blank, the court held he could sue and discharge it. The plt. came fairly by the note, though he did not prove a legal transfer to himself. Second endorser paying a note, must give notice to the first. 3 The holder of a promissory note got payment of the second endorser, on the maker's default. Held, the second endorser was bound to pay, and immediately to give notice to the first endorser, and if he fail to do this as soon as he receives the note from the holder, the first is discharged. CH. 20. Art. 10. Johns. Ca. 89, Morgan v. Woodworth. 7 Taun. 159, Muilman v. $50. Bills at sight, what is acceptance, or protest for non- 397.—6 T. R. acceptance. There is no time fixed when a bill drawn payable 213, 250.at sight, or a certain time after, shall be presented to the 2 H. Bl. 565. drawee, but it must be in a reasonable time, of which the jury D'Eguinowill judge, and need not be by the earliest opportunity. The 4 T. R. 170, 9 & 10 Wm. III. does not apply to bills to be paid after sight. Leftley v. 1 W. Bl. 1. Mills. 51. No protest for the non payment of a bill, can be be- 6 T. R. 212. fore the day the bill is payable, and to demand payment before —Chitty,208. is a nullity. 193.-2 D. & 52. Possession of a bill of exchange is evidence of a power 1 Dallas to receive payment in common cases; noting for non-accept E. 713. ance of such a bill is not sufficient, there must be a protest Chitty 205. for it. 453. § 53. Manner of computing time. On bills, the day of the 8 Mass. R. date is not computed, but the day of payment is; and the length of time is as in the common cases, and it is immaterial whether you reckon the day of the date or the day of payment; both ways come to the same thing: for instance, a note dated June 1st, payable in 30 days, is payable July the 1st, if we reckon the day of the date as one, then thirty days must be complete before the note can be demanded or sued, and it is demandable or suable, the first moment of the thirty-first day, that is of the 1st day of July; but if we do not reckon the day of the date as one of the thirty, but begin to reckon the 2d day of June, then the note is demandable or suable the thirtieth day: that is still the first moment of the first day of July. The court now decides, not the jury, when a bill is payable. S. 24. § 54. In common cases, says Chitty," when computation is Chitty 203, to be made from an act done, the day in which an act is done, but art. 10, must be included," but by the law merchant is excluded; so a bill, at 10 days sight, presented June 1st is payable 11th, or Chitty 205, including grace, 14th day. In this law, a month is a calendar month. § 55. Waiver of notice. The party entitled to notice may waive it, by paying part, or by a promise to pay all, or to see it paid, or by acknowledging it must be paid; hereby he admits 211. Chitty 186, 198-7 East 236, Lundie v. Robertson. -2 Stra. Chitty CH. 20. the right of action: but he must know all the circumstances. Art. 10. 13 East, 213. 12 East, 433, Bateman v. Joseph, a. 20, s. 13. 56. Further notice to drawer or endorser. If either abscond or is absent, demand on him, and notice is dispensed with. 6 East 15 So, the sudden illness or death of the holder or his agent, Chitty 182, or other accident excuses, if afterwards given as soon as the impediment is removed; but in case of absence &c. it is prudent to give notice to his wife or servant, and demand payment, and if dead, of his executor or administrator, if none at his house. 202. Chitty 162, 163. See May v. Coffin, Ch. 20, a. 10, s. 9. also 2 H. Bl. 336. DeBerdt ". Atkinson. -2 H. BI. 609, 612, Nicholson v. Gouthit. 4 Cranch 141, 164, v. The Bank in error. 2 Bos. & P. 277, Whit field v. Sav age.-13 East 187. $57. Notice to endorsers in actions by endorsees against endorsers, on notes where there has been laches. Evidence in such cases has often been admitted in Massachusetts, to show the endorsers had sustained no injury, and that the circumstances of the maker of the note were not altered, after it became due; but Nicholson v. Gouthit is cited as law, in which case A was insolvent and indebted to C, and B knowing this endorsed a note made by A to B, as security to C, who also knew A was insolvent. Held, C was bound, in order to sue B on the note, to use due diligence in calling on A, and in giving notice to B. In this case the endorser's delay was three days, and the parties all lived near each other. See a. 20, s. 49 contra, and 1 Bos. & P. 652, a. 10, s. 3. § 58. Accommodation endorser of a promissory note of the maker is entitled to strict notice. Also, held 2dly, that if the French's ex'r. drawer of a bill of exchange, at the time of drawing has a right of Columbia, to expect that his bill will be honoured, he is entitled to strict notice. In this case Gouthit and Nicholson was relied on, also Whitfield v. Savage, in which held the insolvency of the acceptor will not dispense with notice to the drawer. As to s. 3, Bucherdike v. Bollman, a debtor drew on his creditor, and had not the least right to expect his bill would be acceptedthis was, in law, timely notice it would not be accepted. See also 21 Goodall v. Dolley, Rogers v. Stevens s. 33, and a 11. s. 3, was like Goodall v. Dolley. On the whole, the true principle is seen in French v. the Bank of Columbia. Demand on the maker of a note, and notice to the endorser according to the rules or usage of the bank at which they do their business &c. insufficient. 2 Phil. Evid. 19. 15 East 216. Ch. 20, a. 10. $. 26. 2 Phil. Evid. 20. $59. When post notice is given, the contents of the letter must be proved. These must not only give notice of the proper fact, but that he to whom it is sent, is looked to for pay13 Johns. R. ment-the same if left at his house &c. This proof may be 470, Johnson by a duplicate original, or by a copy preserved and proved, or v. Haight. by parol evidence, and this without notice to the deft. to produce the original letter at the trial. 60. What is sufficient evidence of sending, and contents; sundry cases in England and the United States. 2 Phil. Evid. 20, 21, &c. See Ch. 20 a 10, 31. ART. 11. Protests. § 1. Protests have been already partly considered in the articles respecting reasonable notice. Some few matters, however, will be added in this article, respecting protests. CH. 20. See orders, 171.-2 T. R. P. 271.-7 2. A protest is the usual form by which the fact of non- 1Salk. 131.acceptance or of non-payment is ascertained and notified; and Chitty 170, is usually made by a notary public. In making a protest, three 713-5 T. R. things are to be done, "the noting, demanding, and drawing 239-Bul. N. up the protest." The noting is merely a preliminary step of East 259. modern date, and "is unknown in the law." The material part is the making of the demand. The party making it "must have authority to receive the money." At common law, no protest was required on inland bills of exchange. It is only made under the said statute of William: no interest on an inland bill without protest. Beawes 460. 2 469.--Bul. N. § 3. It is said in Beawes, that where a bill is protested for 2 Stra. 910non-acceptance, and notice is given, there must, also, be at the Kyd 87.— pay day, a demand, protest, and notice for non-payment, and Bl. Com. that a protest must be sent by the very next post after accep- P. 271, Goostance refused, with a letter of advice, or no action will lie try v. Mead. against the drawer or any other party entitled to notice. No- 4T. R. ting alone is not sufficient; but the holder must retain the 713, Rogers original bill, in order to demand payment of the drawee, when v. Stevens. it becomes due. 175.-2 T. R. Art. 9. Ante, § 4. But as it is settled, that a bill not accepted may be de- Dougl. 54.manded of the drawer, and sued before the day of payment, 1 Day's Ca. it cannot be material to support an action against him, to state in E. 11. or prove non-acceptance and notice, except only as this fact may be necessary to hasten the action; and it may be essential in an action against the endorser. See Art. 20, s. 29. Gale v. Walsh. Perkins.-5 § 5. In an action on a foreign bill of exchange against the 5 T. R. 239, drawer, a protest for non-acceptance must be proved; and ac-1 Salk 136. cording to Holt C. J. a protest is a part of its constitution. 3 do. 69, A protest on inland bills, being required only by the statute Borough v. of William, the want of it only deprives the party of his dam- Com. D. 82. ages, costs, and interest. But he recovers his principal at Chitty 174, common law, without a protest; but there must be notice. 5-2 Stra.90 And this is now the case of common orders. Where one of 107. three sets of bills is protested, how another may be sued. Johns. Ca. § 6. If a bill be payable twenty days after sight, and be 5 Com. D. 82. accepted for a longer time, there must be a protest for non-acceptance and notice; and so for non-payment, at the day appointed by the drawer: the same if accepted in part, or paid in part. And if the holder take a part of the acceptor, it does not weaken his remedy against the drawer &c. So if a third CH. 20. person accept a bill, for the honour of the drawer, there must Art. 11. be a protest for non-acceptance, and notice given. 7. If the acceptor be in bad circumstances, before the bill Marius Lex fall due, the holder may demand better security, and if not given, he may make a protest for want thereof, and give notice, so if the drawee be not found at the place, or at his house. Merc. 21, 27, 29, 30. 5 T. R. 239, Gale v. Walsh. 8. A protest for non-payment, is sufficient to recover against the drawer; but in an action against the acceptor, the original bill must be in court accepted by him, unless it be lost. 9. Omitting to allege in the declaration a protest of a bill, -Dougl.684. is only form, not to be taken advantage of on a general demurrer. What is a sufficient protest as to place, 3 Johns. R. 202, Mason's case. note. 4 Johns. R. 144.-10 Mod. 37, Solomons v. Stavely.-3 Johns. R. 202. 5 Mass. R. 286, Bailey v. Tabor. & al-See 2 Phil. Evid. 15, 16. las 365, Brown v. 10. If a bill be accepted and then endorsed to the drawer, he, as endorsee, may have an action, if he had effects in the acceptor's hands, sufficient to answer the bill. But it is otherwise, where the acceptance is only for the honour of the drawer. Protest for non-acceptance and non-payment, to declare on the first alone, is good; Mason v. Franklin. § 11. Certain notes were by statute made void; on this act it was held that promissory notes void thereby, made or issued, after April, 1, 1805, when the act took effect, might be shewn to be, in fact, of a different date from that expressed; therefore, that the maker, when sued, might shew against the endorsees, that the notes sued issued after, though bearing date before that time, and thereby avoid his own notes, in an action against him by an endorsee; for the notes were made void by statute, and whenever so, they are void in whosesoever hands they come. Sup. Court 12. In the United States, on a bill payable abroad, and U.S.-3 Dal- sued on a protest for non-payment, a protest for non-acceptance is not necessary to be produced, though it has been refused Barry, and acceptance. But this point in England does not seem to be -Chitty 169, so well settled. In both countries the protest attested by a 170, 172 173, notary public, is complete evidence of the dishonour of a for174--Selwyn eign bill, and the protest may be drawn up any time before N. P. 312. the trial, if the bill be noted in due time. 3 other cases. 4. T. R. 110. -B. & P.602. § 13. On an inland bill, no protest for non-payment can be 2 T. R. 59. made, until the day after it is due. The party has the whole day to pay. A bill protested for non-acceptance may be sued immediately. 4 Johns. R. 144, 150. Willes 395, ART. 12. Days of Grace. 1. Three days of grace have ever been allowed on bills; and it is now clearly settled in England, that the same is to be allowed on notes made accord ing to the 3d and 4th of Ann, before stated. 4. D. & E. 151, Brown v. Haraden, and 170, Leftley v. Mills. |