Whittlesey & Stone v. Dean , 2 Aik. 263 ( 1827 )

Skinner, Ch. J.

pronounced the opinion of the Court.

Whether the plaintiff is to be regarded as the endorsee of the notes against Smith, and subjected to the ordinary duties of making seasonable demand and giving notice, or as the agent of Dean in obtaining payment and satisfaction of- the maker, is not a question to which our attehííon has been particularly called, as in either point of view, we consider he has made the notes his own, and of course his claim upon the note here in suit against the defendant is extinguished.

As endorsee of the notes, it was his duty to have presented them for payment at the time they- fell due, and to have given notice to the endorser of non-payment, within a reasonable time, which, according to the general rule, if he resides in the same place, must be on the same, or at farthest, by the next day, or if in a different place, by the next post. — 1 T. Rep. 167. — 2 Wheat. 363. — 1 Bur. 676 — 7. — 2 Str. 1087. — Doug. 515. — 3 East. 245. — 12 Mass. 403.

Though these general rules may be rendered inapplicable in particular cases by circumstances, yet in this case there is nothing from which the jury could infer that the holder would be excused for not complying with them. The defendant, therefore, from the facts presented, would be discharged, if this suit was against him as endorser of the notes.

There is in the case that from which the jury might probably infer, that a credit was given by the plaintiffs to the maker of the notes.. If the endorsee has given time, he makes the notes his own, and the endorser is of coarse discharged. — Selwyn, 274. — 2 Bos. & Pul. 61. — 8 East. 576. — 8 John. Rep. 384.

If the plaintiff is to be considered as holding the notes in trust for, and as the agent of the defendant, 'by reason of the undertaking and contract evidenced by the receipt he gave therefor, he was bound to exercise ordinary diligence at least. We consider his duty is to be measured by the rule applicable to the endorsee of a note not negotiable, and in which the holder has undertaken to pursue the maker in the first instance, having recourse to the endorser only in case of the ultimate failure of the maker to pay.

Heretofore, there has been much diversity of opinion in this state, in relation to the duty of the endorsee and holder of a note, and the liability of the endorser, whether the same was negotiable under the English statute of Anne, or not, our statute not having made any notes negotiable, or rather not having placed them on the footing of bills of exchange. Much difficulty has arisen in attempting to adopt any definite rules on the subject, more especially as applicable to notes not made payable to order or bearer, and notes endorsed after falling due. In looking at the reported cases, if there are to be found no contradictory decisions upon the material grounds upon, which they severally rest, it is apparent a difference of opinion has been entertained upon some points, and in a late case of Nash vs. Harrington, decided in Chittenden county on the present circuit, the court, on full consideration, determined there could be no better rules applied to the subject than those which have been established in other governments, where the law merchant is adopted in reference to notes made payable to order or bearer, and certainly none so well calculated to prevent litigation.

As to the duty of an assignee who takes upon himself to pursue the maker, in the first place, having made demand of payment in time, according to the law as applied to endorsees generally, it is his duty, if the note is not paid, forthwith to attach the estate of the debtor, if to be found, and if not, to attach the body; nothing short can be considered the exercise of that faithfulness, care and diligence which his assigner or endorser may reasonably expect of him, and without which he must be considered as making the note his own. Should the maker abscond, leaving no effects behind, or become bankrupt, the case would be varied.

There are no facts in the case from which it can be presumed the plaintiffs made demand of Smith, till one month at least had elapsed after the notes fell due. They were sent to his agent, Bryant, within one month, and by him afterwards presented for payment. The burden of proof resting upon the plaintiff, he can insist on nothing short of the extreme period of time.

Tbe case shows the debts might have been secured afterdue by attachment of property. We consider, therefore, from the whole case, the plaintiff has no claim, and that judgment must por flje defendant, and for the sum agreed by the parties, according to the rule.