Foster v. Barney , 3 Vt. 60 ( 1830 )

The opinion of the Court was pronounced by * ^ »

Paddock, J.

The general principles of law which govern negotiable notes and bills of exchange will not apply in this case. It's well understood that upon the presentment and refusal to pay a negotiated promissory note, where recourse may be had back, the endorsee has an immediate right of action against the endorser, upon giving notice of the non-payment: but it cannot be contended in this case that Barney was liable to Foster at the time he commenced the suit against Lawrence. It is apparent from the wording of the endorsement that Barney intended to guard himself against such liability; otherwise,he would have endorsed the note in the usual and ordinary words to effect atransfer. Instead of which we find him saying, “ I hereby warrant the within note due and collectableleaving it implied with as much certainty as though expressed in terms, that he was not to be liable but in the event that the money could not be collected of Lawrence. What else can be understood from the word “ collectable,” but that Lawrence should be able to respond the judgement that might be recovered upon the note ? The term presupposes that a suit might be necessary ; and in order to determine whether collectable or not, it became the duty of Foster to pray out a writ, and, if the same was not returned non est inventus, to pursue the suit to final judgement and execution ; and nothing short of Lawrence remaining in jail, or taking the poor debtor’s oath, would be a sufficient test. This being done, Foster had performed all that he was bound to do by the terms of the contract to entitle him to recover of Barney the amount of the note, interest and costs which had necessarily accrued in the suit and commitment, unless he had committed some laches.

It is contended by the defendant, there was an unreasonable delay on the part of Foster after receiving the note, before he commenced a suit upon it. The argument would have carried more weight with it, if there had been a time of payment appointed in the note, and that time had expired immediately after its transfer. Barney might then have said, and with more plausibility, that had the note been in his possession, he should not have waited five or six days without suing it. Yet the note being on demand,it seems, Barney had waited from the third to the 26th of January, when it was transferred ; and as it does not appear from the case that there was any time stipulated in which it should be sued, the court are of opinion there was no unreasonable delay. Nor does the circumstance that Lawrence had executed a deed of the land he occupied to Meigs, on the 8th day of February, alter the case $ for Foster was not bound to take real estate in satisfaction of the execution ; therefore, it was not his duty to baye attached it on m esne process.

Aldis & Davis, for plaintiff. Brown & Whitiemore, for defendant.

The Court are of opinion that the judgement of the county court ought to be affirmed.

Judgement affirmed.