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. Chitty 163 to 170. § 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. 336. DeBerdt v. Atkinson. -2 H. Bl. 609, 612, Nicholson v. Gouthit. Chitty 162, $57. Notice to endorsers in actions by endorsees against 163. See May endorsers, on notes where there has been laches. Evidence v. Coffin, Ch. 20, a. 10, s. 9. in such cases has often been admitted in Massachusetts, to also 2 H. Bl. 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. 4 Cranch 141, 164, v. The Bank in error. 2 Bos. & P. 277, Whitfield v. Sav age.-13 East 187. 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. s. 26. 2 Phil. Evid. 20. 13 Johns. R. § 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 payment-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 by parol evidence, and this without notice to the deft. to produce the original letter at the trial. 7. Haight. § 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. Cн. 20. Art. 11. ART. 11. Protests. § 1. Protests have been already partly considered in the articles respecting reasonable notice. Some See orders, few matters, however, will be added in this article, respecting Ch. 50-4T R.175,Leftley protests. v. Mills. 171.-2 T.R. P. 271.-7 East 259. § 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 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. 2 Stra. 910.Beawes 460. 469.-Bul. N. 3. It is said in Beawes, that where a bill is protested for non-acceptance, and notice is given, there must, also, be at the Kyd 87.pay day, a demand, protest, and notice for non-payment, and 2 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-T. 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. Dougl. 54. 5 T. R. 239, Gale v. Walsh. 1 Salk 136. -3 do. 69, Perkins.-5 64. But as it is settled, that a bill not accepted may be de- Art. 9. Ante, 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. § 5. In an action on a foreign bill of exchange against the drawer, a protest for non-acceptance must be proved; and according to Holt C. J. a protest is a part of its constitution. 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. 52 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. § 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 Johns. Ca. 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. Marius Lex 7. If the acceptor be in bad circumstances, before the bill fall due, the holder may demand better security, and if not Mere. 21, 27, 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. 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. Mod. 37, Johns. R. 202. 10. If a bill be accepted and then endorsed to the drawStavely-3 er, 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. 5 Mass. R. 286, Bai ley v. Tabor. & al-See 2 Phil. Evid. 15, 18. Sup. Court U. S.-3 Dal las 365, Brown v. § 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. 12. In the United States, on a bill payable abroad, and 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 3 other cases. 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. --Chitty 169, 4. T. R. 110. -2 T. R. 59. 13. On an inland bill, no protest for non-payment can be -B. & P.602, 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 according to the 3d and 4th of Ann, before stated. 4 D. & E. 151, Brown v. Haraden, and 170, Leftley v. Mills. Cн. 20. Art. 13. 2. If the last day of grace be Sunday, the note &c. must be demanded &c. Saturday. 12 Mass. Rep. 89. But in Massachusetts the court has said that a promissory note here is not entitled to grace, unless expressly made payable with 4 Mass. R. grace, and except notes to banks. No grace on bills payable 246 on demand. 245. 203, 213. 4 T. R. 148, 150, Broom v. Harriden. --Chitty, 206, 207. Imp.390, 407. 4T. R. 170. Liftley v. § 3. Assumpsit on a promissory note against an endorser, and three days of grace were allowed him, as on a bill to an acceptor; the note was payable Nov. 2, 1789, and sued Nov. 4, 1789. Grace varies in different countries from three to thirty days or more. And judgment for the deft. And it was said the debtor has to the last hour of the third day; but Buller J. said he must pay on demand on any part of the third day of grace, provided the demand be made within reasonable hours. This point was not settled till A. D. 1778. Kyd 78. the last of the three days of grace be a Sunday, the bill must Kyd 7, & 78. be paid on Saturday; but there are no days of grace in bills L. Raym. payable at sight; and the same is the rule as to any other day, not a business day. And if Mills. Dougl. 63. 743.-Stra. 829. 6 T. R. 123, 4. Three days of grace were allowed on a note in these Smith v. Kenwords, "Three months after date, I promise to pay Mr. dal. Smith, Currier, £40 value received, in trust for Mrs. E. Thompson." Signed and dated. So not to order or bearer. The court held on the authority of Lord Raym. 1545, that a note payable to B, without adding to his order or to bearer, was a legal note within the statute. 3 Wils. 211. 8.-Marius, 5. But a note is not negotiable, if it want the words, or to -1 Esp. 25. order. 6. The three days of grace are computed exclusive of 5 Com. D. the day on which the note or bill becomes due and payable. 18, 23, 24. A bill dated May 1, payable at usance, shall be paid three days 1 Salk. 131. after the 1st of June. The import of foreign usances, must-11Mod. 92. be stated in the declaration-not so of inland usances. -12 Mod.16. ticut has 7. When the court gave the opinion above, in Jones v. ConnecFales, as to grace, it was new. Gentlemen, old in practice, adopted the understood that we had adopted the English law, as to this, as English rule we had the other parts of that law, in regard to negotiable of decision, A. D. 1818. 8. Grace is allowed on bills payable at usance, or at a Chitty, 203, certain time after date, or sight, or after demand. So in N. 217-4 Dall. York, and the note is payable on demand, on the third day. 127. The same in Pennsylvania-same in France. ART. 13. Where the party may have several actions. 1. See Election The last endorsee may sue the drawer, and all the endorsers at 4T. R. 691, Imp. 391.the same time, and if the drawer pay, he must pay the costs of Smith v. all the actions; but if any one of the endorsers pay, he is held Woodcock. only to pay the debt, and the costs of the suit against himself, 272, 273.— 2 Dallas, 115.. VOL. I 53 -Chitty, CH. 20. 2 Mass. R. 171, Gilmore 7. Carr. 2 Dallas 144, 150. 4 Dallas 275. 230, 273. 1 Stra. 515. 2 W. Bl. 1235, Hayling r. Mullhall. and the plt. may go on, against the drawer and other endors ers for costs, and the acceptor of the bill must pay, as the drawer must. 2. But in the Supreme Judicial Court of Massachusetts, it has been decided, there can in such a case be but one bill of costs and therefore, that when the endorsee of a promissory note had recovered judgment and actual satisfaction in an action against the endorser, he could not have costs in an action previously commenced against the promiser; for there can be but one satisfaction. But if there had been only judgment against the endorser, and no actual payment of it, the case might have been different. There might have been a judgment against the drawer, for debt and costs; though there could have been but one satisfaction of the debt. The English rule seems to be the natural effect of the admitting the several actions. §3. If an endorser sue a bill of exchange, he must prove payment to the last endorsee by his receipt, or otherwise. Possession of the bill by the endorser is not enough, where the endorsement was filled up, for such an endorsement transfers the property, and payment generally is intended to be made by the acceptor. § 4. Taking in execution any party on a bill is only a dis-Chitty 121, charge of him, not of any other on it, nor does it operate in favour of any other; but if the drawer so taken, in fact pays, the endorser cannot be sued, or is discharged out of custody. The body in execution is only security, but discharged voluntarily by the plt. is payment in law, and payment discharges. the bill, as to the same person, but not as to any other on it. As where one Bushby drew a bill, payable to one Sheridan or order; he endorsed it, also one Boon endorsed it, and it came to the plt. ; he sued Boon and took him in execution, and afterwards let him out on a letter of license, without paying the debt; the plt. then sued Sheridan and held him to bail, and the deft., Mullhall, was one of them. Sheridan not paying the debt, plt. sued the deft., who insisted the debt was paid by the imprisonment and discharge of Boon. Held, it was a discharge only as to Boon; for each endorser was independent of the rest, but said Blackstone J. it was not a discharge even as to Boon's goods after his death, by the statute 1 Jam. 1. 1 Ld. Raym. 742. Endorsee sues the endorser, he sues the acceptor of a bill; to recover, he must prove he has paid it to such endorsee. A bill of exchange cannot be protested for non-payment before it is payable, but it may because the drawee has absconded. Assumpsit on a promissory note by endorsee against the 88, Porter v. endorser, makers, James M. Ingraham, and John Goold, Ingraham 10 Mass. R. |