CH. 20. Art. 20. 12 Mass. R. v. Little. able at a bank named, no demand on the maker is necessary, timely notice to the endorsers of non-payment is sufficient. 13 Mass. R. 55. 39. If the holder of a bill take security of the drawer and 502, Hurd jr. give not further time &c., endorser is held. As where the holder of a foreign bill of exchange protested for non-acceptance, demanded and received collateral security of the drawer of it, then expecting the drawee to pay a large part, the holder gave up such security, but gave no further time to the drawer. Held, the endorser remained liable for the balance due on the bill. 1 Johns. Cas. § 40. Bill remitted to pay an antecedent debt, and is re107.-4 Johns. turned protested, is entitled to no damages in New York, (twenty per cent.) R. 27. 1 Johns. R. R. 285, § 41. Note made in France, not stamped according to law 64. 4 Johns. there, but payable to a person in New York, is valid. And Thompson v. where a promissory note is made at Jamaica and payable in Ketcham New York, it is governed by the law of New York, and where no place of payment is named in a note it may be proved by parol evidence at what place it was agreed it should be paid. § 42. Forged drafts. Payment of cannot be recalled, but 2 Burr. 1078. 4 Dallas 234. 8 Johns. R. 79, 82, Ar nold. Crane. v. Force, Ch. 32, a. 4, s. 21. See Wilson 7 Johns. R. 321, Jerome v. Whitney. 3 Johns. R. 484. quære. $43. If A lend B money, and he gives A his note; and then B gets the note into his hands by fraud and keeps it, A may recover the money on the money counts, being immediate parties to the loar and consideration. So A may recover in like manner if B receive such a note on his promise to convey property to A &c., and fails to do so, and refuses to return the note; for in this case too he gets the note by fraud. 44. A gives a note B to pay $60 in neat cattle, for value received, this note is not within the statute; and the consideration must be shown. But value received is primâ facie evidence of consideration; if the plt. however, states in his 10 Johns. R. declaration specially in what the value received consisted, (instead of saying generally it was made for value received,) he must prove the special consideration, as averred by special evidence. 10 East 431, 437, Knill v. Williams. 418. 12 Mass. R. 450, Thayer v. Brackett. See 2 Phil. Evid. 17. 12 Mass R. 281, Mowry v. Todd. $ 45. Note on demand, endorser discharged &c. As where a negotiable note payable on demand, was endorsed ten months after its date, the endorsee neglected four days to demand payment of the maker, and for three months to notify the endorser of non-payment. Held, He was discharged. Parties lived within three miles of each other; see s. 25; 2 Caines 369; 1 Johns. R. 319; 1 Ld. Raym. 217. $46. Where the transferree of a note not negotiable may sue the maker. June 8, 1813, at Portland, Todd gave his written promise to pay his part of a ransom of a vessel by Samuel Fisher, being $261 61 with interest, when said ransom was to be paid on the back, "For value received, I hereby transfer all my right and interest in the within promise, being myself solely enterested, to Jabez Mowry;" but not signed by Fisher, but the intent was to make the transfer. Judgment for Mowry against Todd, he having recognised the transfer and promised to pay the contents to Mowry; for the equitable interest was assigned to Mowry, and the deft. made an express promise to him. Сн. 20. Art. 20. v. Hodgkin. 500, Riggs v. Lindsay, 7 Cranch cited 2 Phil. 47. The endorser of a promissory note in Virginia, who 5 Cranch endorses it to give it credit, though counter secured, is not 333, Dulany liable on it, or for money had and received, except the plt. endorsee first shews the maker is insolvent, or that he has sued him to no purpose. It is not sufficient to show he is not within the reach of the court's process. See a. 15, s. 8. Error to the Circuit Court, Columbia &c. assumpsit. Nov. 1809, A, B, C, & D, being concerned &c. two of them wrote to E, directing him to buy some salt for A, B, C, & D, 10 to 30,000 bushels, and to draw on them for the amount; Peters R. 262. E purchased and drew on them. Held, 1. they were bound to accept and pay his bills, and if they refused, and he paid his bills, he had his action against them for their amount, and damage and costs of protest on his count for money_paid, and on it said bills were evidence. 2. If after protest E sold the salt without order, it did not prejudice his right of action, though he did not account for the sales. 379, Mellish 48. July 9, 1793, deft. in London, drew bills on Boyd 2 H. Bl. 378, & Co. in Paris, for 71,000 livres T., equal to £603 19s. 10d. & al. v. Simsterling, according to the then rate of exchange, payable to eon. the plts., who in London endorsed them to Jeyssit & Co. at Amsterdam: they endorsed them to Meryolet there, and he to Androine at Paris. When presented at Paris, were refused acceptance by Boyd & Co. though they promised to pay. In the mean time, the French convention forbid bills drawn in ' enemies' countries to be paid. The bills were not paid, of course, and sent back by Androine to Meryolet, at Amsterdam, and protested for non-acceptance and non-payment. Held, the drawers were liable for the whole re-exchange between London and Paris, though in this circuitous route. Verdict, £913 4s. 3d. and the French decree, forbidding payment, made no difference; for they engaged the bills should be paid, and it was not necessary for the holder to enquire for what reason they were not paid; and the drawer becomes liable to all the consequences of non-acceptance and non-payWhen the first bill was drawn in London the exchange was computed, and when Androine re-drew in Paris, he computed the re-exchange, which, with some small expenses, had varied from £603 19s. 10d. to £913 4s. 3d. ment. CH. 20. Art. 21. 20, a 10, s.57, seems con trary-and several cases 4 Cranch, 141 to 163. 49. This was assumpsit, by the endorsee, of a promissory note against the endorser, drawn by one Brown. The facts were, when the deft. endorsed the note, he received no 2 H. Bl. 336, consideration, and knew Brown, the maker, was insolvent, De Birdt v. and the defendant gave no value for it, but "lent his name Atkinson. Maker of a merely to give credit to the note." Deft's. first objection, note insol- want of notice; second, no due demand on the maker; third, vent.-Ch. "as the deft. received no benefit from the transaction, he ought not, in justice, to be charged with the payment of the note.' Judgment for the plt. and the court held it was not necessary to prove a demand on the maker, immediately after the note became due, or notice given to the endorser of the maker's refusal to pay. Justice Buller observed, "it has been said, the insolvency of the drawer does not take away the necessity of notice. That is true, where value has been given, but no farther. Here, it is plain that Atkinson lent his name, merely to give credit to the note, and was not an endorser in the common course of business. It is no answer to say he received no benefit, he never meant to receive any." This endorser was in the situation of three fourths of the endorsers at our banks, who have invariably been considered as entitled to notice. And see 12 Farnum v. 8 T. R. 648, Osborne v. Noad. Ld. Raym 88. 4 T. R.155. ART. 21. Select principles in pleading as to them. § 1. As to pleadings or declarations, pleas &c. on this head, generally, see American Precedents, in print, &c. Kyd on bills; Chitty on the same subject; Story's Pleadings, &c. &c. in which books there is a sufficient number of gocd forms. 2. In declaring on bills, notes or checks; bank notes or drafts; the true principle, generally, is to declare according to the facts, as they will appear in evidence; and the effect in law. 3. In these cases there often are two grounds of action: 1st the bill or note, check or draft itself; that is, the contract expressed in it. In this case the declaration is on the instrument itself. 2d the original consideration for which the instrument was given. The common or money counts, or some of them, constitute this second mode of declaring; both may be in the same action. 4. There ought always to be a count on the instrument; as in case of default, it is the measure of damages. And it is a special contract taken by the party as his security; and as a special contract, generally, excludes an implied one, it is only in special cases, the plt. can leave this special, and resort to an implied contract or promise. See Ch. 9, a. 22. 5. Though usual, it is not necessary to state, or to refer to the customs of merchants, in these declarations; for this is a public usage, of which courts, ex officio, take notice; nor CH. 20. Art. 21. to refer to the 3d & 4th of Anne for the same reason; nor to state a consideration, in declaring on these instruments, for one is implied, though usual to state a consideration, as value received, &c.; nor to make a profert, for it is no deed, or 4 T. R. 338. specialty. But any variance, between the contract and the declaration Dougl. 664, is fatal, though even stated under a videlicit; as the very Bristow v. same written contract declared on, must be produced in evi- Wright. Cowp. 600.dence, or the one produced does not support the declaration; 3 T. R. 178, they, however, are the same, when the substance and legal ef- 335.-4T. R. fect are the same; though often, if particulars are stated that, 166, 560 — might have been omitted, they must be proved. It is a mate- 281.-1Johns. rial variance, to mistake a party's name. But if a note be R. 96.-2 Atk. 32. written never to pay, it is correct to declare on it as a note to pay holder waives a doubtful acceptance. 6 East 199. 6. A bill payable to a fictitious payee or order, is in fact payable to bearer, and may be declared on accordingly, against every party aware of this circumstance when he put his name to it. 1 Bos. & P. See before. 7. Whenever a plt. declares on a contract, it is essential for him to shew it; also, to state in his declaration, how he and the defendant become each a party to it; and if a bill or note, whether as payee or endorsee, drawer, acceptor, or endorser. And when any act is done per alium, it is best so to state it. So to state an express promise, whenever made; and if not so made, then the facts that make a good ground of a promise, and a promise; as in such case the law raises one. But if the plt. do not aver this implied promise, arising from Salk. 128, the deft's. legal liability, the court and jury will understand it, Starling v. if he truly state the facts whence it arises, and the deft's. lia- Cheesman. bility. 4 T. R. 470, 481.-H. BI. § 8. The legal operation may be contrary to the words of a contract. As where one Collins made a note, payable to the Bishop v. plt. or his order; the plt. endorsed it to the deft.; he re-en- Hayward. dorsed to the plt. The court said the plt. might have proved cites 3 T. R. that he was named payee, and endorsed, as a mere matter of 569.-Bul. N. form; and then the deft. would be the only real en- P. 320. dorser, and would have no cause of action against the plt. as a prior endorser; but also, that the plt. should so have declared, if the agreement was so, as his counsel alleged it was; but as the record stood, the declaration being according to the words of the note and endorsements, the plt. could not have judgment; as it would be, evidently, against a subsequent endorser, who would sue the plt. as a prior one, and a circuity of action be the consequence, this, the law would not allow. Сн. 20 1 East, 432. 9. So a note payable to my order, may be declared on, as a note payable to myself, if I do not order it to be paid to another. 5 East 476, Smith v. McClure. § 10. So a note payable to a married woman, may be -4 T. R. 616. declared on, as payable to her husband; as this is the legal effect. 12 Mod. 345. Peacock v. 7 T. R. 596. § 11. If there be many blank endorsements, the plt. may -Dougl.632, declare on them all, and add a count, making himself first endorsee; and even an endorsement in full may be struck out at the trial. In Peacock v. Rhodes, the plt., a bonâ fide -5 East 476. purchaser of a stolen bill, and third endorsee in blank, struck out all but the first endorsement, and sued as first endorsee; and recovered. The endorsement supposes the delivery of the bill or note. 3 Johns. Ca. 259; 13 East 135. n. -Selw. N. 7 East 231, Selw. N. P. Selw. 318. 7 T. R. 241. Alves v. v. 12. Whenever the plt. sues a conditional undertaker, on a note or bill, as an endorser or drawer of a bill, or endorser of a note; he must allege a due demand on the real debtor, as the acceptor of the bill, or maker of the note, and due notice of his failure to the deft., as he engages, only on condition these things be done; or the plt. must state some sufficient reason, as above, why these things have not been done; or shew, in evidence, the deft. has waived them, by promising to pay, &c. knowing all the facts of the case: such demand and notice are matters of substance, and the want thereof is not cured by verdict. In Lindo v. Burgos, the declaration stated the demand on the acceptor, four days too late, and held bad; and in Rushton v. Aspinwall, when the bill was drawn, and held to be a nullity. § 13. Both grounds of action. When the action is brought between the immediate parties to the bill, it is usual to add such counts as will embrace the consideration for which it has been drawn; for as the bill, a simple contract, as between these parties, does not merge this consideration, or original demand; the plt., if he fail to prove his special count on the bill, may resort to evidence on his common counts. This the plt. may always do, if he fail to prove, and it does not appear any special contract was ever made. But if it appears such a one was made, but void, by some law; then, also, generally, he may resort to his common count, to recover this demand. 14. As where the plt. declared on a written contract -Selw. 318, made in Jamaica, void for want of a stamp ; and on a quantum meruit, the court held he might recover on the quantum meruit. Hodgdon. Selw. 318, Tyte v.Jones. 15. So where a promissory note had been given for mon-1 East R. ey lent, the note, not being stamped, was void. Lord Ken58.-3 T R. allowed the plt. to recover on his count for money lent, by 174.-1Taun. yon |