pay it, because prohibited by a French law, A, the drawer, is liable for the whole amount of the re-exchange between the different countries. See post. CH. 20. Art. 10. Johnson v. con v Searles. 7. The endorsee may recover the whole bill against the 2 Wils. 262, drawer, though the endorser of the bill has paid him a part; he is no agent or servant to the drawer. This may be true; Kennion.but what right has the endorsee to receive more than the amount of the bill? And held, if the endorsee recover part of the drawer, he can only recover the residue of the acceptor; and where the drawer pays the whole, the acceptor is discharged, and the bill ceases to be negotiable. 1 Johns. R. 306; 13 do. 187. contracts. 1H.Bl. 88,BaBeck v. Robley, 1 Bos. & P. 152. ART. 10. Protests and reasonable notice. § 1. These are a very essential part of the transactions respecting negotiable Notice is very material. Protests are more matter of form. As to notice, when A makes a note to B, he thereby becomes B's debtor to the amount of the note, and so to any one holding and owning the note. When the holder endorses it, he, in fact, draws an order on this debt, directs and expects A to pay it to the endorsee; this too is his ex- Kyd 150 &c.pectation; but the endorser agrees to pay it, if A do not. Chitty But the endorser very justly makes this condition, "A owes A owes 174, 175.—1 the debt to me, if he do not pay it to you, the endorsee, I will 2 Wils. 353. pay it to you; but then I must have from you timely notice of 1 Maule & his failure to pay, that if I must pay, I may immediately at- Sel. R. 545, tach his property, to secure the debt he will owe me." So when one draws a bill. T. R. 169. 556. T. R. 405, Bicker § 2. The same, nearly, is the reasoning of the drawer of 3 Bos. & P. the bill. It is prima facie presumed he gives an order on 242cker. his property in the drawee's hands; and if the drawer must dike & al., aspay the bill, he ought to have this timely notice to secure his signees, v. effects in the drawee's hands. If none be in them, which may be proved, then the reason fails, and he is not entitled to this notice. 1 Bos. & P. 652; 23 post. Ballman. 168, 166. §3. If the drawee refuse to accept, clear it is, this notice 2 Morg. Ess. ought immediately to be given to the drawer. So if the draw- 197-Chitty ee accept the bill, and then refuse to pay it, this notice ought 164, 165, 167, to be given to the drawer, except he have no effects in the 7 East 350.drawee's hands; but future consignments expected &c., may be effects in drawee's hands; and if no effects, drawer may prove real damages sustained by him. 4 Male & Sel. 226. Fales. This was an action of the endorsee against the endorser, on 4 Mass. R. notes lodged in a bank in Boston, for collection, where the 245, Jones v. deft. did business. Notice was given to maker the first day See Sanger's of grace, but the note was not carried to him. Notice was case post. Wherever a drawer exists the demand of payment & notice is an implied condition of the contract or endorsement, if endorsed before or after due.-9 Johns. R. 121, Berry v. Robinson. CH. 20 given to the endorser the last day of grace. And held to be sufficient, this being the practice of the bank, to which the deft. submitted; and though this note for foreign bills, as above, was not negotiable, yet the endorsee recovered against the endorser; for, said the court, by our practice the plt. may declare as if the note were negotiable, that is, as between the endorsee and his immediate endorser upon his contract. And also in this action the court held, that a promissory note is not entitled to grace, by the laws of this State, unless made payable with grace. Time of grace is three days," unless the last day be not a day of business, and then it is two days." Notice is for the endorser's advantage, which he may waive or dispense with. And it was said, when the deft. agreed his notes should be lodged in the bank for collection, he agreed to the practice of it in giving notice. A protest for non-payment 12 Johns. R. must be under a notarial seal; but for non-acceptance, the fact may be established by other evidence. 13 Mass. R. 131, 1 Dallas 193. Bishop v. Dexter; 2 Connecticut R. 419; 12 East 171, 177, Legge v. Thorpe. 424.-1 Phil. Evid. 17. 12 Mod, 345. -S. C. of U. S. 3 Dallas 368, 424, Brown in er ror v. Berry. 1 T. R. 167. 4. In an action on a bill of exchange, protested for nonpayment, the plt. need not aver, nor produce a protest for nonacceptance. This is clearly correct law. For one protest is sufficient to ground the action, though if the drawee refused to accept, this was a material fact of which the drawer was lawfully entitled to notice, and if made an objection, should be proved; though authorities, that one protest, in such a case, is 270.-5 Burr. sufficient are many and clear, though the law on this point was not so in more antient times. Kyd 137, 140, 151. -2 do. 713. -3 Bac. 613. -Bul. N. P. 2671. 8 Mod. 81.— 1 Salk. 131. 4 Mass. R. Hutchin.- Edie. § 5. Endorsed after due. It is a clear principle of law, that if the endorsee of a promissory note receives it under susAyer . picious circumstances, as if after payment has been refused, or 1 Mass. Rep. Sometime after it is made payable, or if the endorser is not to 1,7, Gold . be liable on his endorsement, the endorsee takes it subject to 13 Caine's R. any legal defence to which it would have been subject, if sued 27.-1 Johns. by the promisee; for in these cases the endorsee ought to enCa. 331.- quire into the validity of the note. "A note payable on demand is due presently." In this case the endorser did not -2 Johns. R. make himself liable as endorser, and the note was endorsed eight months after it became due. And if a note be endorsed in trust, any evidence may be admitted against the trustee, which might have been admitted against the cestui que trust. The yellow fever in New York an excuse for not giving notice &c. 2 Johns. Ca. 1. 2 Caines' Ca. in E. 303. 300.- -13 East 498. 2 Bl. Com. 6. What is timely or convenient notice. When a bill is refus496-1 Salk. ed payment, it must be demanded of the drawer as soon as conDockwra. veniently may be, otherwise the law will imply that it is paid; there is a trust between the parties, and it may be prejudicial 127, Allen v. to trade, if a bill may start up at any time to charge the drawer, when, in the mean time, all accounts may be settled between him and the drawee. In this case in Salkeld, Sutor, the drawee failed, and Allen, the holder, kept the bill four years. CH. 20. Art. 10. R. 180. § 7. In this action the court decided, that if the maker of a 5 Mass. R. promissory note, assign all his property to the endorser for his 170, Bond v. Farnham, a. security against his endorsements, the endorser is considered 20, s. 7; but as waiving a demand on the maker, as well as notice to him- see 11 Johns. self as endorser, for he must know that such a demand or notice is fruitless," as he had secured all the property the maker had ;" and as "he must be considered as having waived the condition of his liability, and as having engaged with the maker, on receiving all his property, to take up his notes,” and Art. 21. the endorser offered to pay in foreign bills. 8. And the rule is the same, as to any particular note, if the endorser receive of the makers security to meet it. When the maker of the note is insolvent at the time of mak- 2 H. Bl. 336. ing it, it is said no notice is necessary, as the want of it can be no prejudice. Here the endorser gave no consideration for Art, 20. the note and received none. Coffin; see § 9. In this case Ham, of Portsmouth N. H., drew a bill 4 Mass. R. February 20, 1804, for £500 on Dickerson & Co., London, 341, May v. payable to the deft. or his order, at sixty days' sight. He en- the last part dorsed it to the plt. It was not accepted for want of effects, of this article. and protested for non-acceptance; and protested for non-payment. August 18, 1804, the plt. received notice of the protest for non-acceptance; and September 3, 1804, the plt's. agent called on the deft. for payment, and only shewed him the protest for non-payment; this was the deft's. first notice &c.; but he said, in a few days he would look round, and prepare to settle it. September 7, 1804, having consulted counsel he refused to pay it, for want of due notice of the protest for nonacceptance. Ham, the drawer, stopped payment Feb. 27, 1804, or in eight or ten days after. April 14, he left Portsmouth, and had not returned. June 10, 1804, his household furniture was attached, and afterwards sold on execution; his farm and stock were attached March 2, 1804, and execution was afterwards levied on them. Judgment for the deft. for want of due notice. And held, that Ham's failing &c., as above, was no excuse for not giving notice as between endorsee and endorser. That in every case the endorser must have notice. That it was forcibly urged that the deft. did not sustain any loss or damage for want of notice; and that he waived any objection on this score by proposing to pay, but the court said there was no considera VOL. I. 51 CH. 20. Mass. S. J. Livermore v. tion for this,* and that in every case due notice was to be given to the endorser. § 10. In this case one Emery made his note to West, payable March 6, 1797. West endorsed it to the plt. Emery Court, June neglected to pay about two months, and after this, and while 1798, at York, he was solvent, the plt. called on West to pay. The court held, West the endorser was liable. For, said the court, it is sufficient if the endorser have notice and time to secure himself, by attaching the maker's goods before he fails. This decision in this case, was given not on the examination of many authorities, and is clearly contrary to that in May v. Coffin," which was made on great deliberation. 5 Burr. 2670, Blesard v. Hirst & al. 10 Mass. R. 1, 5, Lenox admx. 11. March 8, 1769, one Topham drew his bill on one Klotz for £30, payable six weeks after date to the defts. or order. They endorsed it to the plt. March 21, 1769, he had it presented for acceptance, and Klotz refused it. April 2d, the day it became due, it was presented for payment, and protested for non-payment. April 11, 1769, the drawer, Topham, failed. The plt. gave no notice of the refusal to accept, but April 29 gave notice to the defts. of Klotz's refusal to pay. May 2d, one of the defts. promised the plt. to pay the bill. Verdict for the plt. : and a new trial was granted. 1st. Because the plt., the holder of the bill, had neglected to give the defts., the endorsers, due notice of the drawer's refusal to accept the bill, though perhaps there was no need to present it for acceptance before the day of payment; but when done, the holder should have given notice of non-acceptance. 2d. Because the promise made May 2d, to pay the bill, was made under a mistake of the case. 12. Assumpsit on two bills of exchange by the endorsee. The first endorser was the deft's. intestate. Jan. 9, 1809, Robert Fields drew the bills on Frederick Dawson, London, payable in 60 days after sight, to William Leverett, said intestate, or order, January 19, 1309, sold to the plt. in New York, through the agency of a Mr. Willard of Boston, who sent them to the plt., endorsed by the intestate. January 27, 1809, the plt. remitted them to his correspondents in London, who received them March 25, and on that and the next day diligent search was made for Dawson, and no intelligence of him could be obtained, but found no such person as Fred. Dawson had been at Mile-End-Road. April 1, 1809, were noted by a notary for non-acceptance; but no regular evidence of a protest therefor. On or before April 5, Murdock & Co. offered to pay the bills at maturity for the honour of the plt. This information the plt. received June 9, 1809, and it was given to the intestate immediately. June 3, 1809, the • But contra, Billbee v. Lumley.—See also 2 East 471.—Chitty 187. 66 CH. 20. Art. 10. bills were duly protested for non-payment, and paid by Murdock & Co. June 19, 1809, they informed the plt. of this, and forwarded the bills and protest. Of these facts the intestate was immediately informed &c. &c. The court held, 1st. Where the This payment for the plt's. honour" did not vary the duties of last day of the holder; he was still bound to cause them to be protested the 4th of Jugrace is on for non-acceptance, and at their maturity, to cause them to be ly, a note or duly protested for non-payment by the drawee." 2d. The bill must be holder was paid on the obliged to give the same notice to the antecedent third; parties to the bills, as if they had not been taken up." 2 Caines Ca. No legal evidence of a protest for non-acceptance, this need Note de not be sent at the time, but the holder must give notice of the manded of fact to such prior parties as he intends to resort to.' 4th. the maker on When he sues for non-payment, both protests must be produc- tice to endorSaturday, noed. 5th. Here was an inexcusable delay as to the protest for ser on Monnon-acceptance, (non-payment must be meant,) not accounted day for, that is from the 3d to the 19th of June. Quære as to a 2 Caines R. protest for non-acceptance. 3d. in E. 195. cient; 343. 13. Assumpsit on a note, by the endorsee against the en- 10 Mass. R. dorser, dated December 31, 1807, payable to the deft. or or- 52, Sanford v. der, in six months, with interest and grace. The note was 2 Phil. Évid. Dillaway.originally given to Gardner & Downer, in renewal of another 21-11 East note, signed by S. Dillaway jr., and endorsed by S. Williams, & Raw. 334, 114.-1 Serg. which Gardner & Downer received for goods sold by them to Barton v. BaS. D. jr. The note declared on was endorsed to the plt. af- ker. ter it become due. No evidence of any demand on S. D. jr., the maker, or notice to the deft., the endorser. Plt. relied on evidence tending to prove that when endorsed, the day of the date S. D. jr., the maker, was insolvent, and the deft. then knew it. Held, this insolvency of the maker, though so known, did not excuse the holder from a demand on him, and notice to the endorser. But see 2 H. Bl. 336; 13 Mass. R. 559. ted Phil. R. 187. 14. Assumpsit on a note, by the endorsee against the en- 10 Mass. R. dorser, made by Eben. Storer, payable June 20, 1807, to the 84, Hussey v deft., who endorsed it to the plt. He demanded it of the Freeman, cimaker on the day it became due, but neglected eight days to Evid. 17.notify the deft. of the maker's neglect. All the parties lived See 11 Johns. within four miles of each other; endorser was discharged, though afterwards he discovered great anxiety to procure the note to be paid by the maker. The maker and plt. lived in Portland, and the deft. in Cape Elizabeth, where there was no Post Office, nor any mail between that town and Portland, but persons were constantly passing from one town to the other. An endorser so discharged may waive his discharge, and make himself liable knowing all the facts, but in this case he did not do it. He by no means did this by trying to get it paid by the maker. Plt. nonsuit. How a bill payable at a |