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for acceptance; and upon a bill or note payable within a limited time after the date, where it has no date, from (60) the day it issued.

The calculation of the time depends upon the different modes of computing time.

All places with which we are in the habit of negotiating bills compute their time, as we do, (except that Russia adheres to the old style) by years reckoned in a series from the birth of our Saviour, and divided each into twelve months, and 365 (or in every fourth year 366) days.

Upon a bill drawn at a place using one style, and payable at a place using the other, if the time is to be reckoned from the date, it shall be computed according to the style of the place at which it was drawn; otherwise according to (61) the style of the place where it is payable; and in the former case the date (62) must be reduced or carried forward to the style of the place where the bill is payable, and the time reckoned from thence.

Thus on a bill dated the 1st of March, old style, and payable here one month after date, the time must be computed from the corresponding day of February, new style; and on a bill dated the 19th of February new style, and payable at Petersburgh one month after date, from the corresponding day of March, old style.

Where the time after the expiration of which a bill or note imports to be payable is limited by months, it is to be computed by (63) calendar, not lunar months.

Thus on a bill or note payable one month after date, and dated the 1st of January, the (64) month will not expire till the 1st of February.

(60) Armitt v. Breame, Lord Raym. 1076. An award which directed the removal of some scaffolds within fifty-eight days from the date of the award, had no date; and an objection being taken upon this ground, the court said that the time was to be computed from the delivery. (61) Vide Mar. 2d ed. p. 25. Beawes, 251. 1st ed. p. 447. (62) Mar. 2d ed. p. 22.

(63) Mar. 2d ed. p. 19.

[Leffingwell v. White, 1 Johns. Cas. 99.]

(64) Vide Mar. 2d ed. p. 24. Beawes, § 253. 1st ed. p. 447.

Where the time is computed by days, the day on which the event happens is to be (65) excluded.

Thus on a bill or note payable ten days after date, dated the 1st of January, the time does not expire until the 11th. Instead of an express limitation by years, months, or days, we continually find the time on bills drawn or payable at Amsterdam, Rotterdam, Hamburg, Altona, Paris, or any place in France, Cadiz, Madrid, Bilboa, Leghorn, Genoa, or Venice, limited by the usance, that is, the usage between those places and this country; because, in the infancy of bills, all bills between this country and any of those places respectively were usually made payable after the same interval.

An usance between this kingdom and Amsterdam, Rotterdam, Hamburg, Altona, Paris, or any place in France, is one calendar month from the date of the bill; an usance between us and Cadiz, Madrid, or Bilboa, two; an usance between us and Leghorn, Genoa, or Venice, three.

A double usance is double the accustomed time; an half usance, half.

Where it is necessary to divide a month upon an half usance, which is the case where the usance is either one month or three, the division, (66) notwithstanding the difference in the length of months, contains fifteen days.

The bankruptcy or known insolvency of the drawee or maker is no (67) excuse for a neglect to make a presentment, or to give notice; (a)

(65) Bellasis v. Hester, Lord Raym. 280. Lutw. 1591. Upon a bill payable ten days after sight, Treby C. J. was of opinion, that the day on which the bill was seen by the drawee was not to be reckoned one of the ten, because then a bill payable one day after sight would be payable the day it was seen; but Powell and Neville Js. held the contrary, and judgment was given according to their opinion. However, in May v. Cooper, Fort. 376., the court seemed to consider a note payable ten days after date, and dated the 21st July, as payable the 31st (not allowing, however, any days of grace); and in Coleman v. Sayer, 1 Barnard B. R. 303., in an action upon a bill payable six days after sight, one question was, whether the day of sight was to be reckoned one of the six? and Raymond C. J. said it was not; and the modern practice is conformable to his opinion. [Sec also Avery v. Stewart, 2 Conn. R. 69., and Mitchell v. Degrand, ante, p. 153.]

(66) Mar. 2d ed. p. 23.

(67) In Russell v. Langstaffe, Dougl. 497. 515., Lee said, arguendo, that it had frequently been ruled by Lord Mansfield at Guildhall, that

Nor is a general ceasing to pay. (68)

[But where an endorser of a note receives sufficient security for the purpose of indemnifying himself against his endorsement, he is liable to the holder of the note, though there has been no demand or notice. (a)

And it has been held in an action against the endorser of a note who had received a general assignment of all the maker's property, that the endorser was liable without any demand or notice, although the assigned property was not sufficient to secure the endorser against his other responsibilities for the maker, exclusive of the note in suit. (a)

it is not an excuse for not making a demand on a note or bill, or for not giving notice of non-payment, that the drawer or acceptor has become a bankrupt, as many means may remain of obtaining payment by the assistance of friends or otherwise; and Lord Mansfield, who was in court, did not deny the assertion: this dictum was also referred to, arguendo, in Bickerdike v. Bollman, 1 Term. Rep. 408.

Esdaile & al. v. Sowerby & al. 11 East. Rep. 114. In an action by the endorsees of a bill drawn by Cheetham on Hill in favor of the defendants, and by them endorsed to the plaintiffs, a verdict was found for the plaintiffs, and a case reserved. The bill, which was payable in London, became due on Saturday the 20th of February, when it was presented for payment, and dishonored. By mistake, notice of nonpayment was not given to the defendants, who resided at Liverpool, until the 27th of February, whereas it ought to have been given on the 24th, and they refused payment on the ground of this laches. Before the bill became due, the drawer had stopped payment and become bankrupt, and the acceptor was insolvent. The drawer had himself apprized the defendants of his situation at the time of his stopping payment, and that this bill would not be paid; and they knew that the acceptor had no funds but such as the drawer furnished him with: and on the 25th of February they admitted to the plaintiff's agent that they knew of the insolvency of the drawer and acceptor. It was contended that notice of the dishonor was unnecessary; but the court was clear that the insolvency of the drawer and acceptor, and the knowledge of it, did not dispense with the necessity of giving notice of the dishonor of the bill to the defendants. Postea to the defendants. See also Smith v. Beckett, and Brown v. Massey, post.

[(a) The doctrine stated in the text is fully recognized in the United States. And it makes no difference whether the drawer or maker was insolvent and known to be so at the time of drawing the bill or note, or became so subsequently.. Crossen v. Hutchinson, 9 Mass. R. 205; Garland v. Salem Bank, 9 Mass. R. 408; Jackson v. Richards, 2 Cain. R. 343; Barton v. Baker, 1 Serg. & Raw. 334; Sandford v. Dillaway, 10 Mass. R. 52: Farnum v. Fowle, 12 Mass. R. 89; Buck v. Cotton, 2 Conn. R. 126; Edwards v. Thayer, 2 Bay, 217.

But a contrary doctrine has been held in Tennessee. Overton, 260.] (68) See Howe v. Bowes, ante, p. 130.

Be

[(a) Farnham was sued as endorser of a note made by Barker. fore the note became due Barker became insolvent, aud stopped pay

The right to insist upon a demand and notice may be waived or modified by custom, or the agreement of the parties. (a)

Thus where it is the custom of banks to notify the maker of a note without presenting the note itself, or to notify him before the note falls due, if the maker of the note is ac

ment, and assigned all his property to Farnham, to secure him against this and other endorsements. The whole property assigned was not sufficient to secure him against the other notes, exclusive of the one in suit. No sufficient demand was made upon the maker. Farnham after notice to him offered to pay the note in foreign bills, but the plaintiffs refused to receive them. It was held that Farnham was liable as en dorser. Parsons C. J. delivered the opinion of the Court. "The defendant had no right to insist upon a demand upon the maker. He must be considered as having waived the condition of his liability, and as having engaged with the maker, on receiving all his property, to take up his notes. And the nature of this engagement cannot be varied by an eventual deficiency in the property; because he has received all there was. This intent of the parties is further supported by the offer of the defendant to take up this note if the plaintiffs would receive foreign bank notes in payment." Bond v. Farnham, 5 Mass. R. 170.

In an action against Sinall as endorser of a note made by Allen, no sufficient demand or notice being proved, it appeared that Small held a mortgage of Allen's real estate, as collateral and sufficient security for the amount of the note. Mellen C. J. delivered the opinion of the Court. "These facts present a stronger case in favor of the plaintiff than those in the case of Bond v. Farnham, (supra). There the property pledged was not a sufficient indemnity to the endorser, but it was all that the maker had. Here it is proved to be sufficient. If the endorser has protected himself from eventual loss by his own act in taking security from the maker, such conduct must be considered as a waiver of the legal right to require proof of demand and notice. And the facts before us clearly show such a waiver in the present case." Mead v. Small, 2 Greenleaf, 207.

So in a case in Pennsylvania, where the maker of a note had made a general assignment of all his property, to an endorser, to indemnify him for his advances and endorsements, it was held that the holder was excused from proving a regular demand and notice in order to charge the endorser. Barton v. Baker, 1 Serg. and Raw. 334. See also Corney v. Da Costa, post.

A different doctrine seems to have been held in New-York. To excuse a want of regular notice to an endorser, the plaintiff offered to prove, that the maker had failed before the note became due, and that he had conveyed his property in trust to secure and indemnify the defendant against his endorsement, and that the trust fund was sufficient for this purpose. The plaintiff was nonsuited; and the court refused to set aside the nonsuit, without saying anything as to the effect of the evidence above stated. Ireland v. Kip, 11 Johns. R. 231.]

(a) See Renner v. Bank of Columbia, ante, p. 152; and the cases in the next note. See also Hartford Bank v. Stedman, 3 Conn. R. 489.]

quainted with this custom, such a notice will be a sufficient presentment to charge the endorser. (a)

[(a) It is the usage of the banks in Boston, where a note is payable with grace, to notify the promiser on the first day of grace, that the note will become due on the last day of grace, and request him to make payment, by sending a printed notice to this effect by the messenger, who does not take the note with him; and on the last day of grace to notify the endorser that the note is not then paid. In an action against an endorser, where the maker and endorser had been notified in conformity with this usage, and it was proved that the defendant was cognizant of this usage, and had in other cases conformed to it, the court held that this evidence was proper to go to the jury, to infer from it an agreement of the defendant to waive a legal demand on the maker, and to be bound by the demand and notice in conformity with the usage of the banks. Jones v. Fales, 4 Mass. R. 245.

In Widgery v. Munroe, 6 Mass. R. 449, a similar case to the foregoing, the court held that notice to the maker of a note in conformity with the usage of a bank, of which the endorser was cognizant, was sufficient to bind him.

The Lincoln and Kennebec Bank v. Page is to the same effect. Sewall J., who delivered the opinion of the Court, said, “It is incumbent upon the holder of a note, to prove, in maintaining an action against an endorser, a demand upon the promiser, as soon as the note became due, and notice to the endorser." But, he said, that the endorser might waive or modify his right to require such demand and notice. "When this is done by an express stipulation, there can be no doubt: and where he continues to endorse notes, and to deal with a bank, where by the known usage, or by the by-laws of the bank, these privileges have been taken to be waived or modified; his dealings and contracts are to be understood and enforced with the constructive effect of such usage." Lincoln and Kennebec Bank v Page. 9 Mass. R. 155.

See also Blanchard v. Hilliard, 11 Mass. R. 85; and Weld v. Gorham, 10 Mass. R. 366.

In a subsequent case the same court held that the endorser of a note who was not acquainted with the usage of the bank at which the note was payable, as to demand and notice, was not bound by a demand and notice in conformity to such usage. Peirce v. Butler, 14 Mass. R. 303.

But in a later case the same court held that a demand upon the maker of a note in conformity with the usage of a bank of which he was cognizant, was sufficient to charge an endorser.

Johnson was sued as endorser of a note made by E. and M. Toppan. The note being lodged in one of the Boston banks, the makers were notified according to the custom of the Boston banks, of which the makers were cognizant. But Johnson resided at Newburyport, and there was no evidence that he had any knowledge of the usage of the Boston banks. Verdict for plaintiffs, and motion for new trial. Parker C. J. delivered the opinion of the Court. "If the endorser has seasonable notice of the fact of non-payment, when the note is due, it must be immaterial to him, in what form the demand upon the maker was made. If there has been such a demand as the maker was bound by, so that he had no right to refuse payment; it is not easy to see how it concerns the endorser, whether the legal forms had been complied with, or waived by the promiser." Judgment on the verdict, Whitwell v. Johnson, 17 Mass. R. 449. See also State Bank v. Hurd, ante, p. 133.]

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