I. CH. 20. ART. 4. Con. 1 Nott & A bill or note to be negotiable, must be absolutely payable in money alone, hence one in writing, by which A directs B to pay Cor bearer $400, and take up A's note of that amount, though accepted by B, is not a bill of exchange. 6 Cowen, 108--109, Cook v. Satterlee. 1 con. A note given in Massachusetts, as a premium note, on a policy of insurance, on a vessel engaged in the African slave trade, or on any such slave shipped on board of any vessel, is void by the act of the legislature of Massachusetts. So a note given for money won on a horse race, is void. So if M,Cord, 102— the note be usurious; 1 M'Cord, 350. M'Cord, 174 177. 2 Nott & 104. ART. 6. 2 Jacob & W. 16 Mass. R. 314-317.Russell, ex. v. Swan. 16 Mass. R. 451. 17 Mass. R. 94-98. Con. § 1 con. There is no difference between an endorsement of a note by a party, and one by his personal representative. 2. And where a note is handed over for a valuable consideration, the endorsement is a form the party has a right to. § 8. Assumpsit on a note by him, made to Jeffry and Russell, partners in trade. They endorsed it to Russell, one of them. On his death, his executrix sued Swan, the maker. Held, she could so far support the action; but barred by the statute of limitations, for though attested, the attestation is so confined by the act to the promisee, (See ch. 161, a. 1, s. 10,) as not to aid the indorsee, though one of the payees. If the payee endorse a negotiable note to A, he cannot maintain an action on it, in the payee's name, without his consent. 9. Assumpsit against the deft., as endorser of a note made The President, by B. Eaton, Jr., endorsed to said bank. Held, the cashier of Directors, and a bank may endorse a note, its property, for the purpose of imCompany of the Hartford powering a person to demand payment, &c., (but not to transfer Bank v. Barry. the property,) it being his business, ex officio, to take the preliminary steps to a suit: 2. Held, Eaton could not be a witness to prove usury in the sale of it; for his signing and the sale were all, in fact, at one time, made to the broker in Eaton's business, at usurious interest. The deft. contended, the usury 1 Pick. R. 401. was after Eaton signed. It is enough the agent has the note to ART. 7. make a demand, without an endorsement or written power. § 6 con. The acceptance of an order, drawn on an agent, in 1 M'Cord, 106. possession of funds out of which it is to be paid, fixes the funds irrevocably, and is a good assignment thereof, the funds do not become assets, on the death of the drawer; and if the agent himself, have a lein on the funds, when the drawer dies, the 1 M'Cord. 408. agent may sell the property and retain his own debt, and pay the order, and not be liable as executor de son tort: and if the deft. accept a bill, on condition that certain goods of the drawer shall be sold before the bill become due, and before it is due, the goods are attached by the drawer's creditor in the hands of the acceptor, and before sold; he is discharged of his acceptance, as the law prevents the sale of the goods, and prevents the condition being performed. 1 con. A bona fide holder for a valuable consideration of I. CH. 20. a check payable to bearer, addressed to a particular person, Art. .8 may recover in an action against the drawer, for money had and Con. received; and 1 Rand. R. 12. 3 Pick. R. 18, Ellis v. Wheeler. §1 con. If the demand made on the maker of a promissory ART. 9. note be such as he is bound by, the endorser cannot object that Con. it was not made according to legal forms: 2. Notice to the endorser of non payment by the maker, is sufficient, if put into the post-office at any time during the day, succeeding the day the same is payable. 17 Mass. R. 449-454, Whitwell & al. v. Johnson, Jr. 9 Wheat. 581. 9. Bank usage admitted, by which, payment of a promissory ART. 10. note is to be demanded the fourth day, at the banks in the district, Con. after the time limited for the payment of it, in order to charge 599, Renner the endorser. This usage is admitted to be proved, in order to plt. in error v. ascertain the understanding of the parties, with respect to their the Bank of contracts, made with reference to it; the declaration against the endorser, in such case, must lay the demand on the fourth day, not on the third. Colombia. U. S. Bank. Like usage of the fourth day, allowed not necessary per- 11 Wheat. 431 sonal knowledge of it be brought home to the endorser; no pre--441, Mills cise form of notice to him, is necessary; not necessary in it to plt. in error v. state who is the holder, nor that the note was demanded at the bank where payable, though this fact must be proved at the trial; nor will a mistake of the date of the note in the notice, vitiate it, if enough be stated in it to give the endorser sufficient knowledge of the particular note dishonored A rule of court, dispensing with proof of execution of the note may be valid, unless the party annex to his plea, an affidavit that the note was not executed by him. 6 Con. Action against the endorser of a promissory note. 1 Nott & Held, if the maker die, the holder still is bound to due diligence M'Cord, 438 to get payment from his representatives, and to search the proper-440. offices of the district, to find who they are, and if not to be found, then a demand is to be made at the usual residence of the maker when he died; and this is sufficient, with timely notice. of failure to the endorser. By usage, the demand must be on the last day of grace; protest may be the same day, and on this day, the maker may be sued; but 1 Nott & M'Cord; no demand is necessary where the note is void, as a gaming note, &c.; and do. 251-257; nor if the drawer of a bill of exchange inform the payee, the funds are withdrawn from the drawee same doctrine as to inland bills and checks on banks. So if the drawer forbid the payment, and inform the payee thereof. See further cases as to demand and notice, 2 Nott & M'Cord, 433, &c.; 1 Nott & M'Cord, 116-120-466; 2 Natt & M'Cord, 283 to 291; 1 M'Cord, 339; 4 Rand. 164, I. CH. 20. 2 Greenl. 207-213; Mead v. Small; supports s. 9; this tenth article as to notice. 9. If the maker, after making the note, move into another state or jurisdiction, it is sufficient to present the note at his for9 Wheat. 598 mer place of residence. The removal in this case, was from the district of Columbia into Maryland, about nine miles: the main stress was laid on the change of jurisdiction. -602. 2 N. H. Rep. Emerson. 13. The holder of a promissory note, cannot recover of 159, Dwight v. the endorser, though negotiated long after due, unless he proves some demand on the maker, and notice to the endorser. 1 Pick. R. 401 Brett. 17 con. Post-office notice. Held, if the endorser live in -413, Shed v. another town, it is sufficient to put notice into the post-office, though never received: 2. If he do not live in a post town, it is, perhaps, sufficient to send the notice to the nearest post town: 3. He may be sued the same day the note becomes due; but after notice is put into the post-office, though the writ be served before the notice can be received by the course of the mail. Numerous cases cited by the court and counsel. 180-183. $21 con. Going with a promissory note, to demand payment to the place of business of the makers, in business hours, and 1 Pick. R. 413 finding it shut, is using due diligence. The contents of written -414-3 do. notice given to an endorser of a promissory note, may be proved by parol, and without giving notice to produce the writing. In computing time, Sunday is not to be reckoned. Neither the holder or notary is bound to know where the endorser resides. If a bill be returned protested, and the drawer, on demand of payment, promises to pay it, he is held, and cannot object want of notice of the' protest; 2 East, 469; see s. 55, waiver of notice; 12 East, 28; 13 East, 417; 2 Camp. 188-474. 4 Rand. 164177. 4 Rand. 553563. 528. A bill is presented to the drawee, and not accepted or paid by him, notice need not be given to the endorser, if the bill be drawn and endorsed for the drawer's accommodation, with the endorser's knowledge; and no expectation the drawer would pay the bill. See art. 20, s. 49; s. 58, art. 10; Selw. N. P. 324; 15 East, 216; 4 Taunt. 731; 3 Greenl. 147-156; 11 Wheat. 171-184; 5 Cowen, 303-309, Mead v. Engs; what is due notice by mail, from endorser to endorser, to the maker of a bill. 23 con. Assumpsit, endorsees against the endorser of a 4 Pick. 525- promissory note. The plt., who lived in New York, observed, when he received the note to the deft., who lived elsewhere, that he had no confidence in the other parties to the note, and did not know them, and should look wholly to the deft.; and he replied, he should be in New York when the note became due, and would take it up, if not paid by any other party to it. Held, the deft. waived his right of notice of the dishonor of the note, and that an attempt on the plt's part, to give such notice, Art. 10. Con. did not affect the question; and 3 Greenl. 233, Hill v. Merrill; I. CH. 20. 1 N. H. Rep. 143-144; days by post computed. $55. con. And to consider him as waiving notice, he must know the circumstances and facts, also the legal effects, as his legal discharge, &c. 12 Wheat. 183-193; 4 Dall. 109; 4 Taunt. 93; 2 D. & E. 713; Starkie's Evid. 272. And 5 Pick. 436-447-Taunton Bank v. Richardson & Lord Assumpsit on a prom. note made by Cushing & Appleton of Salem to the defts. of Boston, dated Aug. 16, 1824, for $2000, payable in 60 days and grace, at Taunton Bank, endorsed by the defts., and discounted at said bank-declaration alleged due notice to the defts. of nonpayment of the note—and a count for money had and reeeived-Held, 1. The testimony of the cashier that a letter was received by him or a director, and that each of them had searched for it, and that it was probably lost when a fire happened at the bank, is not sufficient, without the affidavit of the director also, to let in parol evidence of the contents of the letter; for the testimony the director had searched is but hearsay. 2. But if the cashier had, also, testified the letter was kept on the files of the bank, it seems this had been sufficient. 3. Presumptive evidence of the loss of a paper is sufficient to let in parol evidence of the contents. tion against the endorser of a note; proof of a tice will support the allegation of actual notice. endorser of a note applied to a bank to have it discounted, and promised to attend to the renewal of it, and to take care of it, and directed notice to the maker be sent to his care, and such notice was sent accordingly. Held, this was a waiver of a regular demand and notice; at least, from it a jury might infer a waiver. 4. In an acwaiver of no5. Where the win and others v. Richardson $61. Due notice though several days pass, &c. As where A's traveller, a tradesman, received, in business, a prom. note, he delivered to his master, not endorsed by said agent. The note was dishonored and returued to A. He not knowing the next preceding endorser, wrote to his said agent, then absent, to 1 Barn.& Cress inquire respecting it. Held, no laches in A, though several 245-247, Balddays elapsed before he received an answer, and notice to gave the next party, as A used due diligence in ascertaining his address. and another. 62. The deft., payee of a negotiable promissory note, endorsed it thus for value received, I sell, assign, and guaranty the payment of the within note to J. A. or bearer.' Held an absolute engagement, that the maker should pay the note when due, or that the deft. would pay it himself; hence the plt. was not bound to prove a demand of payment, and notice of non-more,20 Johns. payment, as in common cases. 63. When a bill is drawn payable at sight, or so many days after sight, there is no fixed rule for its presentment, but VOL. IX. 9 Allen v. Right R. 365. 1. CH. 20 the holder must use due diligence to put the bill into circulation. Art. 10. Robinson v. Ames, 20 Johns R. 146-due notice or not, 168Con. 176-372. 18 do. 230-327-432. 64. Liability of a bank receiving notes to collect, to give notice, &c. When a note is endorsed and delivered to a bank to collect, it impliedly by promises, if it be not paid, to give due notice to all the endorsers, and if the bank fail so to do, the holder has assumpsit against it for the non-feasance; the deposit of the note, and the probable profits to arise from the money remaining Bank of Utica, in the bank after paid, being a beneficial act, and affording a 372; do. 367. good consideration to support such promise. See below. Smedes v. 20 Johns R. 2 Littell 18. Utica Bank v. 685. Same 65. The law (in Kentucky,) requires no greater diligence in giving notice of the dishonor of a bill, from the person to whom transmitted for collection at the place of payment than it requires from the endorser or holder. 66. Error from the Supreme Court to the Court of Cowen, 662- Errors-Judgment affirmed-and added, the endorsement and delivery of a prom. note to a bank, or its request, is a sufficient case as in § 64 consideration for an undertaking, on the part of the bank, to charge the endorser by a regular notice of non-payment, and if it neglect so to do, the owner or holder so promised, may have an action against it, and recover damages for the neglectthe receipt of the note and neglect, is mismanagement. 2. An objection not made in the Supreme Court cannot be made in the Court of Errors. 3. A corporation may make any contract, to do an act, at any place, if such contract be within the scope of its general powers. 4. What is a reasonable time within which a note payable on demand, should be presented for payment, in order to charge the endorser, depends on the facts of the case, to be proved at the trial-note had been due 6 months when delivered to the bank. Cited for the bank; 8 Johns. 129 474; 7 Cran. 217; Chit. on bills, 350; said there was no sufficient consideration, and cited 4 Johns. R. 84; 1 Cain. R. 347; Doug. 730; 5 Johns. 430; 1 D. & E. 151. Against the bank; 2 Cowen R. 31, as to objections-as to consideration, 1 Com. on Cont. 16-17; Cro. El. 218 and 63; 70–150; Dyer, 272; 2 Ld. Raym. 909, Coggs v. Bernard; Stra. 1011; 2 Burr. 1159: Com. D. Pleader, 87; 1 Vent. 119; Hard. 222; Bul. N. P. 321; Barn. 452; 3 Taunt. 415; Com. D. Action on Assumpsit, B. 1-2. s. 11. 5 D. and E. 143-148. ART. 14. 446-448, Fos § 1 con. A note payable to A or order, cannot be sued in the name of an endorsee, unless negotiated by the same, A meant to 2 N. H. Rep. be the payee: 2. Where no particular person of that name was terv. Shattuck. intended to be the payee, or had any interest in the note, the name of the payee is to be viewed as fictitious: 3. In such cases, where money passed between the parties to the action, a recovery may be had on the money counts: 4. And when it did & al. |