mise to pay Wm. George, or order, the sum of 167. 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, Č. 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 given 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 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 notice1. XI. Of the Declaration-Pleadings-Evidence-Con clusion. 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. 1 Cumming v. French, 2 Campb. 106. n. To action of assumpsit by A., B., and C., against D.", 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 was unanswerable. n 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 defendant, 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 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. o Lord Raym. 731. must be proved that payment was duly demanded of the maker, and that the maker refused to pay, or made default therein, and that notice of such refusal or default was given to the defendant within a reasonable time. In action against the maker of a note, although the promise be to pay the money at a particular place, it is not necessary to prove a presentment at that place; if the place of payment be mentioned in the margin or at the foot of the note". If a bill be payable or indorsed specially to a firm, evidence must be given that the firm consists of the persons who sue as plaintiffs; secus, if the indorsement be in blank. Ord v. Portal, 3 Campb. 239. A. being in insolvent circumstances, B. undertook to be a security for a debt owing from A. to C. by indorsing a promissory note made by A. payable to B. at the house of D. The note was accordingly so made and indorsed, with the knowledge of all parties. Just before it became due, B. having been informed that D. had no effects of A. in his hands, desired D. to send the note to him, B., and said he would pay it, B. having then a fund in his hands for that purpose; the note was not presented at D.'s house till three days after it was due. It was holden, that C. could not maintain an action against B. on the note, not having used due diligence in presenting the note as soon as it was due, to D. for payment, and in giving immediate notice to B. of the nonpayment by D.; for B. had a right to insist on the strict rule of law respecting the indorser of a note, notwithstanding the particular circumstances of the case. In an action by a second, third, or any subsequent indorsee, against the maker, where the first indorsement is in blank; as the plaintiff is not bound to set forth any indorsement, except the first, but may strike out the others, if he adopts this course, the proof will be the same as in the preceding case; but if all or any of the indorsements, subsequent to the first, are set forth, they must be proved. Indorsements of interest are to be presumedt to have been written at the time they bear date, until contradicted. The defendant cannot give in evidence a parol agreement, entered into when the note was made, that it should be renewed when it became due"; nor a parol agreement that payment shall not be demanded until after such a time; for q Nicholls v. Bowes, 2 Campb. 498. r Price v. Mitchell, 4 Campb. 200. u Hoare v. Graham, 3 Campb. 57. this would be incorporating with a written contract an incongruous parol condition, which is contrary to first principles. Where a promissory note, on the face of it, purported to be payable on demand, parol evidence is not admissible to shewy that, at the time of making it, it was agreed that it should not be payable until after the decease of the maker. Where in an action by the indorsee against the maker of a promissory note, payable with interest on demand, the plaintiff having proved that he gave value for it, the defendant tendered evidence of declarations made by the payee, when the note was in his possession, that he (the payee) had not given any consideration for it to the maker; it was holden2, that the evidence was inadmissible, as the payee could not be identified with the plaintiff, and the note could not be treated as over due at the time of the indorsement. An indorser on a notea, who has received money from the payee to take it up, is a competent witness for the maker in an action against him by the indorsee, to prove that he had satisfied the note, being either liable to the plaintiff on the note, if the action is defeated, or to the defendant for money had and received, if the action succeeds; and his being also liable in the latter case, to compensate the defendant for the costs incurred in the action, by such non-payment, makes no difference. In an action by the indorsee against the maker of a promissory noteb without original consideration, if the payee has become bankrupt, and obtained his certificate subsequently to the date of the note, he is not a competent witness for the defendant, for he is no longer liable to the plaintiff; but would be liable to the defendant, if the latter were obliged by this action to pay the promissory note drawn for his accommodation. One joint maker of a promissory note is a witness to prove the signature of the other. Where a promissory note, beginning, "I promise to pay," was signed by one member of a firm for himself and partners, it was holden, that he was liable to be sued severally upon the note. Conclusion. The limits prescribed to this Abridgment will not permit the insertion of any more cases under this head, nor indeed is it necessary; for although a promissory note, y Woodbridge v. Spooner, 3 B. and A. 233. z Barough v. White, 4 B. and C. 325. a Birt v. Kershaw, 2 East, 458, recognized by Sir W. Grant, M. R. in Paul v., administrator of Hamilton. Privy Council, 29 June, 1805. b Maundrell v. Kennett, London Sit- c York v. Blott, 5 M. and S. 71. |