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hits against defendant in a lottery insurance ; Kenyon, C. J. was of opinion, that the plaintiff was entitled to recover, observing, that the innocent indorsee of a gaming note, or note given on an usurious contract, could not recover, but that in no other case could the innocent indorsee be deprived of his remedy on the note; and that a contrary determination would shake paper credit to the foundation. A person who, at the request of the holder of a note, has put his name upon it, and in consequence thereof has been obliged to pay the contents to a bona fide holder, may recover the money paid from any person whose name is on the note, although he knew that the note was originally given for an illegal consideration, viz. for premiums for the insurance of tickets in the lotterya
Stamp.-Every promissory note must be duly stamped, that is, with a stamp of the proper value and proper denomination. A promissory noteb, given at the time when the 31 G. 3. c. 25, was the only statute regulating the stamp-duty on promissory notes, was holden not available in law, because it was stamped with a receipt stamp, although it was of equal value with that required for a promissory note. For the amount of the stamp duties on promissory notes, see stat. 55 Geo. 3, c. 184, ante, p. 310. For the statutes regulating notes given for a less sum than five pounds, see Chitty on Bills, Appendix, sect. 8, ed. 2nd. A bill was, in fact, drawn on the 21st day of December, for 21l., payable two months after date, but on the face of it purported to bear date on the 31st; it was holdend to require only a stamp of 2s. which is imposed by 55 G. 3. c. 184, on bills for that sum, not exceeding two months after date. The word “date," as there used, means the period of payment expressed on the face of the bill. A promissory notee of 401., payable to bearer generally, and therefore, in law, payable on demand, is within the first class of promissory notes in schedule, part 1, to the 55 G. 3. c. 184, and requires a 68. stamp. A promissory note', payable to A. B. generally, is not one payable to bearer on demand, and re-issuable within this first class; but a note payable otherwise than to bearer on demand, (not re-issuable,) within class 2. So a promissory note made for payment of 201. to B. on demande. An action cannot be supported upon the common money counts against one of the makers of a promissory note, who signed it as surety only for the other maker.
2 Winstanley v. Bowden, Middx. Sit- c 15 G. 3.c.51 ; 17 G. 3. c. 30; 37 G,
tings after M. T. 41 G. 3. B. R. 3. c. 32. MSS.
d Upstone v. Marchant, 2 B. and C. 10, a Seddons v. Stratford, London Sit- e Wells v. Girling, 8 Taunt. 737.
tings after T. T. 34 G. 3. Kenyon, f Cheetham v. Butler, 5 B. and Ad. C. J. Peake's N. P. C. 215.
837. b Chamberlain v. Porter, 1 Bos. and
Pul. N. R. 30.
Of the pleadings under the new rules, see ante, p. 370.
X. Of the Time when a Note ought to be presented for
PAYMENT must be demanded within a reasonable time after the note becomes due. Whether a note has been presented for payment within a reasonable time is a question of law, but dependent on facts, viz. the situation of the parties, their places of abode, and the facility of communication between themh. On promissory notes payable at a certain time after date, or after sight, three days grace are allowed: consequently, payment of such notes ought not to be demanded until the last of the three days, unless it happen to be a Sunday, or a great holiday, in which case payment ought to be demanded on the next preceding day. The three days of grace are computed exclusively of the day on which the payment is by the terms of the note to be made. It has not been determined solemnly, whether days of grace are to be allowed on notes payable at sighti. They are not allowed on notes payable on demand. Where a note is made payable at a month or months after date, the computation must be contrary to the general rule of law) by calendar and not by lunar months. Where a note is in the hands of an indorser, and he demands payment thereof from the maker, who refuses or omits to pay the same, notice of such refusal or default ought to be given by the indorsee himselfk to the prior indorser or indorsers (if more than one) within a reasonable time; otherwise the indorsers will be discharged. Action against defendant, as indorser of this note!, “one month after date, I promise to pay Wm. George, or order, the sum of 161. for value received." John Hopley. Indorsed, Wm. George. This note George had given in payment to the plaintiff; it became due 2nd May, and on the 5th May the plaintiff's banker (after three days' grace) demanded it of Hopley. Hopley desired two or three days' time to pay it in, and so from time to time which were given him, till 13th May, when he told the banker he could not pay it. On the 14th, Hopley failed, and became a bankrupt. On plaintiff's applying to George for payment, George told him he should have applied before on Hopley's first refusal, and that he now did not think himself liable to pay it, whereupon this action was brought. Lord Mansfield, C. J. “The question is, who is to bear the loss, as Hopley, the drawer, has failed? Now it is so necessary for trade, that where a bill of exchange is drawn on one man, and made payable to another, that if the person to whom it is payable, either wilfully or through neglect, omits to call at the time it becomes due, it is the constant course of mercantile custom in the city of London, that he shall bear the loss and not the other. This likewise is the rule on indorsed notes, which are in nature of inland bills of exchange; nothing is so certain as this rule, and great inconvenience would follow from a different mode of proceeding. It has been truly said, that the law has not fixed any precise time when the neglect of the indorser shall be said to make him liable; but I remember a case determined, where a bill became due at two o'clock on Saturday afternoon, the person who gave the note became a bankrupt at five o'clock on Monday afternoon; the question was, whether the indorsee had not neglected to call for his money, and it was holden, that he had. The present case is not that of neglect; the note is dated on 2nd April, consequently becomes due on 2nd May, but by the custom of the city there are three days of grace; the banker who has the note in his hands, and who in this case, being the plaintiff's agent, is to be considered as one and the same person with the plaintiff, comes on 5th and demands payment; the indorser and all the parties live in town; the banker gives Hopley indulgence to pay it from 5th to 13th without giving any notice to the indorser, which if he had done, it would have urged the indorser to get his money. Now here is no neglect of application. The case is still stronger : here is an actual credit giver for eight days, and the question is, who gave the credit. We cannot go into any consideration of Hopley's circumstances at the time; they might be very bad; and yet if he had been arrested on 5th May, we cannot say he would have paid the money. I am
g Dixon v. Chambers, 1 C. M. and R. i See this question discussed in Chit
815 ; 5 Tyr. 502; 1 Gale, 14 ; over- ty's Treatise on Bills, p. 195, ed. 2nd. ruling Keates v. Whieldon, 8 B. and k But see ante, p. 332. C. 7.
1 Anderson v. George, London Sittings h Durbishire v. Parker, 6 East, 3. after Trin. T. 1757, coram Lord
Mansfield, C. J. MSS.
therefore of opinion, that the loss, (though this is a hard case,) ought to be borne by the person who gave the credit.” Verdict for the defendant.
Action against the defendant as indorser of a promissory notek, due May 5th, 1805. The plaintiff proved the defendant's indorsement; and also, that in the year 1807, the defendant being requested to pay the note, he promised that he would but prayed for further time. There was no evidence of the presentment of the note to the maker, or of any notice of its non-payment being given to the defendant, nor did it appear that when the defendant so promised to pay, he knew of any application for payment having been made to the maker. For the defendant it was contended that the subsequent promise did not dispense with proof of the presentment and notice, unless made with full knowledge of the laches of the holder. In the cases hitherto decided upon this subject, something appeared which might be considered as a waver of any irregularity, with regard to the bill or note, which could not be inferred from a mere promise to pay, at a time when the party, without being aware of it, was discharged from his liability. But Bayley, J. held, that where a party to a bill or note, knowing it to be due, and knowing that he was entitled to have it presented when due, to the acceptor or maker, and to receive notice of its dishonour, promises to pay it; this is presumptive evidence of the presentment and notice, and he is bound by the promise so made. Verdict for the plaintiff. But if the drawer or indorser after being arrested, without acknowledging his liability, merely offers to give a bill by way of compromise for the sum demanded, which offer is rejected, this does not supersede the necessity of notice!
XI. Of the Declaration—Pleadings—Evidence-Con
The usual remedy on a promissory note is an action of assumpsit. Under the new rules, concise forms are given, adapted to the different parties, to which the reader is referred.
k Taylor v. Jones, 2 Campb. 105.
I Cumming v. French, 2 Campb. 106. n.
To action of assumpsit by A., B., and C., against D.m, as one of the indorsers of a promissory note drawn by E., in favour of C., D., (and himself) E., then in partnership, and by them indorsed to A., B., and C: defendant pleaded in bar, that C., one of the plaintiffs, was liable as an indorser, together with D. On special demurrer, the plea was holden to be good; Lord Eldon, C. J. observing, that the subject of this plea could not have been pleaded in abatement; because a plea in abatement ought to give a better writ, not to shew that the plaintiff could
have no action at all. The effect, however, of a judgment for the defendant would be, that if a man made a note to himself and others carrying on business under a particular firm, and the partnership was dissolved, the promissory note could neither be put in suit as such, nor enforced as an equitable agreement, because on a promissorynote stamp. Considering, therefore, the quantity of circulating paper in this country, standing under the same circumstances with the note in question, the consequence of such a decision might be highly injurious. However, the case of Moffat v. Van Millengen i was unanswerable.
Evidence.—It is a general rule, that to prove the contract the original note must be produced in evidence. This rule is dispensed with in special cases only as where it can be proved, that the note has been lost or destroyed by the defendanto, or that it is in the hands of the defendant and that he has had notice to produce itp.
In these cases a copy of the note, or parol evidence of its contents, may be received.
The remaining evidence necessary to support the action will vary according to the character in which the parties bring the action. In an action by payee against the maker, the hand-writing of the maker must be proved by the subscribing witness, if any; if not, by some person who is competent to prove such hand-writing. In an action by first indorsee against the maker, the same evidence as in the preceding case, together with proof of the indorsement to the plaintiff, will be necessary. In an action against an indorser, proof of the hand-writing of the maker, or of any indorser prior to the defendant (except the first,) unless specially alleged in the declaration, is not necessary; but in this case it
o Lord Raym. 731.
m Mainwaring v. Newman, 2 Bos. and
Pul. 120. n 27 G. 3. B. R. 2 Bos, and Pul. 124.
n. (e), cited in Rose v. Poulton, 2 B. and Ad. 826.