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to secure him against certain liabilities, and brings suit for the benefit of the last assignee, such circumstances form no defence to the acceptor of the bill; nor will the case be varied whether the deed be fraudulent or not.
Ellis v. Taylor, Ad'mr. 1 P. 289. 31. It is not necessary in order to fix the liability of a drawer or indorser of a bill of exchange, that it should be presented for acceptance; but when it has been presented and refused, and notice given to the parties, it is not essential to present the bill for payment at maturity.
Evans v. Briggs, 4 P. 348. 32. The statutes 1828 and 1829, requiring the indorser of paper to sue the maker to the first court after due, do not embrace a case where the maker removes beyond the jurisdiction of the State, and so remains during the
period when he might be legally sued.
Woodcock v. Campbell, 2 P. 456. 33. The law requiring a suit against the maker to first court after due, and return of nulla bona to an execution thereon, in order to charge the indorser, does not contemplate cases, where from absence from the State, his absconding or other cause, it is impossible or impracticable to bring suit.
Roberts v. Kirkpatrick, 5 S. & P. 96. 34. But mere absence from the county will not excuse a suit, and a return of nulla bona to an execution thereon against the latter, if he has a known residence in any part of the State.
Ibid. 35. The statute, 1828, respecting the liability of indorsers, &c., repeals by implication the statute, 1812. It requires a suit to be prosecuted against the maker as soon as may be after its maturity, (except in cases of bills of exchange and notes payable in bank;) and if the suit prove unproductive, then the indorser may be proceeded against.
Ivey v. Sanderson, 6 P. 420. 36. The statutes 1828, 1829, defining the liabilities of endorsers, act upon the nature of the contract, and not merely upon the remedy; and therefore, do not embrace the case of a note assigned prior to their passage.
Bloodgood v. Cammack, 5 S. & P. 276.
III. Demand, Notice and Protest, and how their Omission may be Cured.
37. What is reasonable notice to charge the indorser, is a question for the jury, and not for the court. Brahan & Atwood v. Ragland, A. R. 85.
38. As between indorser and indorsee, a promissory note is a bill of exchange, and a demand of payment and notice of the last day of grace, is good.
Crenshaw v. M'Kurnan, A. R. 295. 39. Note payable at a bank, demand of cashier is sufficient. Ibid.
40. To charge indorser, demand must be made of acceptor within three first days after maturity, and this is not a question as to diligence for the jury.
Exr. Eldridge v. Rogers, A. R. 392. 41. Note for a certain sum, which
be discharged in cotton, holder not bound to demand the cotton,
Lane v. Kirkman, A. R. 411. 42. Party drawing a bill for his own accommodation, is liable, though the demand and notice be not in a reasonable time, if he had not a right to expect that the drawer would pay, although it might have been paid if regularly presented.
Armstrong v. Gay, 1 S. 175. 43. P & Co. draw on H., their clerk, a change ticket, who accepts the
same, payable at his office, when $5 worth are presented.-H having left the State, a demand was not necessary.
Dellahunty v. Parry & Co. 1 S. 251.
vf' 44. To a note for the payment of specific articles, it is a good defence that defendant was ready to deliver them, but that no demand was made.
Thaxton v. Edwards, 1 S. 524.
Cobb v. Reid, 2 S. 444. 45. On a note payable at a particular place, as against the maker, a demand at that place not necessary. Semble.
Irvine, ad'mr. v. Withers, 1 S. 234. 46. An effort on the part of indorsee to find the maker, in order to make the demand, need not be by personal application at his last place of residence, if it be notorious that such last residence has been abandoned.
Goading v. Britain, 1 S. & P. 282. 47. The drawer of a bill of exchange is entitled to notice of non-payment whenever it appears that he has any funds whatever in the hands of the acceptor.
Norris, 2 S. & P. 114. 48. So if there be a remaining account between drawer and drawee, and the former has a bona fide reason to believe that his draft will be honored, he has a right to notice.
Ibid. 49. When the drawer of a bill has resided within sixteen or eighteen miles of the seat of justice of the county in which he lived, and where he had been in the habit of receiving his letters—but during the period of three months he received his letters from another office within 14 miles of his residence-held that the notice, sent in due time to the first post office, was sufficient.
M'Grew v. Toulmin, 2 S. & P. 428. 50. If the residence of the drawer cannot be ascertained by the use of reasonable diligence, notice of protest for non-payment will be excused.
Robinson & Davenport v. Hamilton, 4 S. & P.91. 51. Notice put in the post office, directed to the place where the drawer dated it, is sufficient diligence to charge the drawer in the absence of proof of the holder's knowledge that there was a post office at the place where it was dated, or one near the drawer's residence.
Ibid. 52. The return of non est inventus by a constable on a warrant issued the same day, on a promissory note against the maker, not sufficient dilligence to charge the indorser under the provisions of the statutes of 1827 and 1828.
Cavanaugh v. Tatem, 4 S. & P. 204. 53. Where a note is received as collateral, to be applied to the payment of a debt, the insolvency of the maker of such note will not dispense with the use of due diligence to collect it, and a demand and notice must be regularly given.
Strickling v. Conway, 1 P. 260. 54. The indorser, where the consideration has failed, is not entitled to demand and notice, being in this respect like the drawer of a bill who has no funds in the hands of the drawee.
Gee v. Williamson & Nicholson, 1 P. 315. 55. Proof of the insolvency of maker at the time of the indorsement will not excuse the use of diligence.
Hightower v. Ivey, 2 P. 308. 56. When it is necessary to resort to the post office as a medium of notice to the indorser, it should be shown that it was directed to the nearest office to the party's residence; or that, in ignorance of the same after diligent enquiry, notice was sent to the supposed place of residence, or to where the party was in the habit of receiving his letters.
Worsham v. Goar, 4 P. 441 57. That a note was dishonored when negotiated, does not dispense with a demand and notice. In respect to notice to indorsers, there is no difference between indorsements before or past due.
Kennon v. M’Rae 7 P. 175. 58. A promise by indorser, to whom due notice has not been given, in order to bind him, must be given with full knowledge of the luches—but if under no mistake as to his legal rights he will be chargeable.
Ibid. Harrison v. Braggs, Cochran & Co., A. R. 173.} 59. Where from the date of a bill and the evidence offered, it appeared to be protested twelve months after maturity-held that the indorser was discharged.
Hudson v. State Bank, 3 P. 340. 60. Action on foreign bill, protest described the name as Pyron, when the bill showed it to be by Byron-held that this was sufficient to charge a prior indorser.
Monmon v. Bank State Ala., 3 P. 356. 61. The protest of a bill of exchange is evidence of demand and notice, unless the fact be put in issue by other testimony.
Moore v. Clements, 4 P. 227.
IV. Negotiability of Bills and Notes; How their Assignment is Controlled
by Statute; Of the Consideration, and when it may be Inquired into. 62. Under the statute, a note made payable in “notes," is as negotiable as if it were for the payment money.
Goading v. Britain, 1 S. & P. 282. 63. A promissory note assigned by indorsement is not negotiable under the statute 1812, so as to deprive the maker thereof of the benefit of payments, discounts and set-off against the assignee. Semble.
Robinson v. Crenshaw, 2 S. & P. 276. See also Winston v. Moseley, 2 S. 137.
64. But a note payable to bearer is not included in the statute, and in the hands of an innocent holder or indorsee, such a defence could not be set up, nor a defence that it was given in compromise of a proceeding in bastardy.
Ibid. 65. An order for money, the payment of which was to depend upon a contingency which may never happen, is not a bill of exchange, nor is it such an instrument as comes within the statute relating to the assignment of bills, bonds, &c.
Waters v. Carleton, 4 P. 205. 66. One who takes a note or bill past due, takes it subject to all objection in respect of want of consideration or illegality, and to all the equities existing between the original parties. But this rule applies only to equities arising out of the bill or note itself, and the holder is not subject in respect of
debt due from the indorser to the maker, arising out of a collateral contract.
Robertson v. Breedlove, 7 P. 541. 67. When a note was made negotiable and payable at bank, and the bank becomes a purchaser, the maker cannot plead off-sets, as against payee, and when maker executed an instrument at the same time in which he bound himself to give a satisfactory indorser, to enable the holder to negotiate the same to his satisfaction—this was held as an incident to the note, and would preclude the maker from setting up his defence in an action by an indorsee, other than the bank.
Emanuel v. Atwood, 6 P. 384. 68. Action on note, consideration is implied, and need not be proved; and
the onus probandi is on the defendant, although he plead failure of consideration.
McMahon v. Cockrill, A. R. 362.
Allen v. Dickson, A. R. 119.
See also Hunloy v. Willis & Lang, S. P. 154. 69. The consideration of a note cannot be inquired into when given for the amount of a judgment with a knowledge of all the facts, as a compromise of a doubtful claim, though it afterwards appear that the judgment was erro
Standefer v. M'Whorten, 1 S. 532. 70. In an action by indorsee against his immediate indorser, the defendant may prove that the consideration given for the indorsement was less than the amount of the note, and the true consideration will be the proper measure of damages.
Cook v. Cockrill, 1 Š. 475. 71. Failure of consideration, good plea to a note given for ferry, the ferry having been afterwards granted by county court to another.
Evans v. Murphy, et al. 1 S. & P. 226. 72. A note payable in cotton, under the statute, imports of itself a consideration.
Watkins v. Canterberry, 4 P. 415.
V. Days of Grace; Interest and Damages.
73. On a check, bill, or note, payable on demand, or when no time is fixed for payment, no days of grace are allowed.
Sommerville v. Williams, 1 S. 484. 74. Action on a note payable in another State, the foreign interest must be proved, and the record must show it.
Peacock v. Banks, A. R. 387. 75. The statute 21st December, 1832, reducing the damages on bills of exchange, applies only to bills owned by the bank of the State and its branches.
Moore v. Clements, 4 P. 227. 76. The proper measure of damages in an action by indorsee v. indorser, the maker having failed to pay, is the sum with interest which constituted the consideration of the assignment. There is no difference between an accommodation indorser, and one for value received, so far as the rights of the indorsee or holder are concerned in this action.
Hutchins v. M'Carne, 7 P. 94.
VI. Of Cancelling or Altering; the Admissibility of Parties to a Bill or
Note to Impeach its Validity, and of the Evidence of Parties in General,
77. An alteration in a promissory note without maker's consent, by the addition “ with interest from the date," avoids it, and constitutes a good plea.
Brown v. Jones, 3 P. 429. 78. When lines have been drawn over the face of a bill or note, it is to be regarded as presumptive evidence of its being cancelled or satisfied.
Pitcher & Remsen v. Patrick, Ad'mr., 1S. & P.478. 79. One of the makers of a note is not a competent witness to invalidate it.
Ross & Wife v. Wells, 1 S. 139. 80. As a general rule an indorser of a note or bill, is incompetent in res
pect to his interest, to give evidence in favor of a subsequent indorser, to charge any party to the instrument whose liability is anterior to his own.
Kennon v. M'Rue, 2 P. 389. 31. Evidence of the handwriting of a subscribing witness to a promissory note, or of the signature of a maker, and of his admission of its execution, is not admissible in an action against the maker, when such subscribing witness, after the attestation becomes the assignee thereof and sues as plaintiff
. An exception to this rule is where the subscribing witness sues as executor or administrator.
Bennett v. Robinson, ad'mr. 3 S. & P. 227. 82. In an action against the maker by bearer, the payee
is not competent the execution of the note under the plea of non.est factum.
Carroll v. Meeks, 3 P. 226. 83. But an intermediate indorsee who returns the note to payee before the latter delivers it to the bearer, is a competent witness for the plaintiff in such action.
Ibid. 84. Plaintiff producing a note payable to him, is presumed to be the owner of the same, though it appears to be indorsed by him to another.
Petts v. Keyser, 1 S. 154. : 85. In an action by payee against maker, where the note was endorsed by payee in blank, and an order to credit the maker written thereon, without further evidence, the court instructed the jury to find for defendant.
Allen's ex’ors. v. Matthews, 1 S. 273. 86. The indorsement of a promissory note is the highest evidence of the nature of the agreement between the parties; and parol evidence is inadmissible to vary it.
Hightower v. Ivey, 2 P. 308.
VII. Of the Admissibility of Note or Bill under Common Counts ;
87. As between the original parties, a bill or note is prima facie evidence of money lent by the payee to the drawer, and may be given in evidence in support of these counts. An indorsement is likewise prima facie evidence of money lent by the indorsee to the indorser.
Hightower v. Ivey, 2 P. 308. 88. Under these a promissory note imports its own consideration.
Hunley v. Willis Lang fi Co., 5 P. 154. 89. Writ on assumpsit, declaration for money had and received, a note is admissible in evidence.
Gellespie, et al. v. Wepon. 90. Under the statute 1811, it is not necessary to aver or prove the consideration of a promissory note.
Allen v. Dickson, A. R. 119. 91. It is not necessary to aver specially the circumstances of the presentment, " that the instrument was duly presented to the maker thereof,” is sufficient to admit evidence, that the party was diligently sought for and could not be found.
Taylor v. Branch, 1 S. & P. 249. 92. In an action on note payable to defendant eo nominee, his capability to contract and sue is admitted under the plea of the general issue.
Herbert 8. Kyle v. Nashville Bk. 1 S. & P. 286. 93. A count in a declaration by the indorsee v. indorser, omitting an averment of demand and notice is bad.
Kennon v. M'Rae. 3 S. & P.249. 94. An averment by indorsee of a note assigned prior to the statute 1828, 1829, (requiring maker to be first sued) in an action against indorser, of demand and notice, held sufficient.
Bloodgood v. Cammack, 5 S. & P. 276.