The (111) drawer of a bill, and every endorser of a bill or note, is, primâ facie, to be presumed entitled to bring an action on paying it, and therefore entitled to insist on a want of notice, or on a neglect to make a proper presentment, but the (112) contrary may be proved.

[If the endorser of a note be dead at the time it becomes due, and there be executors or administrators, at that time, known to the holder, notice must be given to them; but if there be no personal representatives at the time, a notice sent to the residence of his family is sufficient; and it is not necessary to give notice afterwards to executors or administrators subsequently becoming such. (a)]

A surety, though not a party to a bill or note, may be discharged by want of notice and neglect to present, if it is probable he would otherwise have been safe. (113)

application was made to defendant for near two months: action, and Wood B. being of opinion that plaintiff should have given a second notice at the end of the week, and the jury thinking that certain circumstances proved, did not amount to a waiver of the want of such notice, verdict for defendant: but on rule nisi for a new trial, and cause shewn, the court thought plaintiffs had done all the law merchant required by giving one notice, that they then, at the highest, made themselves agents for defendants, to endeavor to get payment, and if any damage resulted to defendant for want of notice, it might perhaps entitle him to call on defendant as his agent by action, but that it was no defence to the action. Rule absolute.

(111) Vide Bickerdike v. Bolman, post, p. 192. note (119); and Rogers v. Stephens, post, p. 187. note (117).

(112) Bickerdike v. Bolman, post, p. 192. note (119); Rogers v. Stephens, post, p. 187. note (117); and Goodall v. Dolley, post, p. 189. note 118).

[(a) Action against the executors of an endorser. The endorser died at sea before the note fell due; but neither was his death known to the holders of the note, nor his will proved, until some time after. A notice of non-payment directed to the endorser, was left at his last residence, another sent to his family in the country by the post-office, and a third left with his reputed agent. Verdict for plaintiffs; and motion for new trial, on the ground that notice ought to have been given to the executors within a reasonable time after probate of the will. Spencer C. J. delivered the opinion of the Court. "The holders of the note gave all the notice in their power to give, when the note fell due. The rights of the holder of a note or bill, are to be determined by his acts, when the note or bill becomes due; and if he then gives such notice, as under the existing state of facts the law requires of him, his rights are fixed, and he cannot be required to superadd any other notice at a future period." Merchants Bank v. Birch, 17 Johns. R. 25.

In a previous case, where the endorser died before the note became due, and his will was not proved until some time after, it was held that

As if the parties who ought to have paid were solvent when the bill or note became due, and have failed since. (113)

But a person not party to a bill or note, cannot complain of laches or want of notice, unless he can shew it has done him prejudice. (114)

Therefore he cannot complain if the person who ought to have paid the bill or note were insolvent when it should have been paid. (114)

a notice left at his former residence, was sufficient. Stewart v. Eden, 2 Cain. R. 121.]

(113) Philips v. Astling, 2 Taunt. 206. The declaration stated, that in consideration that the plaintiff would sell and deliver to Davenport and Finney certain goods, to be paid for by a bill to be drawn by Davenport and Finney on Houghton at six months, the defendants undertook to guaranty the payment of such bill. It then averred delivery of the goods, acceptance of the bill, its presentment for payment, and dishonor. At the trial, it appeared that Houghton was at sea when the bill became due, which was on the 14th of July, 1808; but that he had an agent residing in London, authorized to accept bills, and who had accepted this. That no presentment for payment was made to this agent when the bill became due. That on the 16th of July, the plaintiff gave Davenport and Finney notice that the bill remained unpaid, but no notice was given to the defendants. In February, 1809, Davenport and Finney became insolvent, and Houghton was declared a bankrupt in July, 1809, after which payment was demanded of the defendants. A verdict was found for the plaintiff, but the court, upon a rule nisi for a nonsuit, after referring to Warrington v. Furbor, (infra,) said, that here the insolvency of the drawers and the bankruptcy of the acceptor, did not happen until long after the bill became due, and that for any thing that appeared, if the money had been demanded either of the drawer or acceptor, the bill might have been paid; but that the necessary steps not having been taken to obtain paymant from the parties who were liable upon the bill, and solvent, the gnarantee must be discharged, and therefore they made the rule absolute.

(114) Warrington and another v. Furbor and another, & East. Rep. 242. The plaintiffs guarantied the payment of the price, to the extent of £1000, of goods to be sold by one Martin to the defendants, at six months' credit. The goods were furnished, and the defendants accepted a bill at six months, for the value. This bill became due on the 3d of December, 1801; but on the preceding 21st of November the defendants became bankrupts. The plaintiffs were therefore obliged to pay the £1000, and now brought this action to recover the same. It was objected that the plaintiffs had not proved a presentment of the bill to the defendants for payment, without which, it was urged, that Martin could not have recovered against the plaintiffs, and therefore that the latter had paid the money in their own wrong. Lord Ellenborough held the proof unnecessary; this not being an action on the bill, and the defendants having been recently stripped of all their property; and the plaintiffs had a verdict; and on rule nisi to set it aside, and cause shewn, the court held the verdict right: and Lawrence J. said,

And in an action on a bond from the drawer or endorser of a bill, conditioned to pay it in a limited time after it becomes due, if the acceptor does not, it is no defence that the bill was not duly presented for payment. (115)

Or that due notice of its dishonor was not given to the defendant. (115) (a)

the guarantees were not prevented from showing that they ought not to have been called upon at all, for that the principal debtors could have paid the bill if demanded of them. Rule discharged.

Swinyard v. Bowes, 5 Maule, 62. Action for goods sold. Defence, that plaintiff had drawn on Chesner, a debtor of defendant, for the amount, and had given defendant no notice of the dishonor of that bill; Chesner was bankrupt the week after the bill became due, and was not in a condition in the interim to pay it. Bayley J. thought the defendant not within the custom of merchants, because he was not party to the bill; and as he did not appear to have been prejudiced by the want of notice, the not giving it him furnished no ground of defence; and on motion for new trial, the court thought him right, and rule refused.

[See also Holborow v. Wilkins, 2 Dow. & Ryl. 59, 1 Brod. & Bing. 10.]

(115) Murray v. King, 5 Barnew. 165. In an action against the payee of a bill, on a bond from him and the drawer to pay the bill in a inonth after it became due, if the acceptor did not, defendant pleaded that the bill was not duly presented for payment, and secondly, that defendant had not due notice of its dishonor. Plaintiff replied, that the acceptance was a forgery; and defendant rejoined, that he did not know it when the bill became due. Plaintiff demurred, and on argument, the court held the pleas bad, for the condition was silent as to the presentment and notice; and had it been intended that a neglect as to presentment or notice should have avoided the bond, the obligors should have taken care to have had words to express that intention.

[(a) It has been held in several of the United States that a guarantor of a note is in all cases liable, whether there has been a presentment and notice to him or not.

Rightmere, the payee of a note, endorsed on it "For value received, I sell, assign, and guaranty the payment of the within note to John Allen or bearer." In an action by Allen against Rightmere, it was held that it was not necessary for the plaintiff to prove a demand and notice. Spencer C. J. delivered the opinion of the Court. "The defendant insists that he stands in the situation of an endorser merely; but such is not the fact. The undertaking here is not conditional; it is absolute that the maker shall pay the note when due, or that the defendant will himself pay it." Allen v. Rightmere, 20 Johns. R. 365.

Little, the payee of a note, by a written endorsement guarantied its payment in six months, and passed it to Kinsman & Cobb before it fell due. In an action against the guarantor by them, no demand was proved on the maker, but about eighteen months after the note fell due, Cobb sued the maker in his own name, but had been able to collect nothing. The defendant proved that the maker of the note had sufficient visible property to pay all his debts for a long time after the note fell due. It was held that the defendant was liable on his guaranty. Mellen C. J. delivered the opinion of the Court. "The guaranty in its

Payment of (116) part, or (117) a promise to pay after full notice of the default, sufficiently evinces that the party

terms, is absolute, that the note should be paid in six months. It was the duty of the defendant upon such an engagement to see that the maker paid the money within the time specified; and if he did not, to take notice of his neglect, and pay the amount himself." Cobb v. Little, 2 Greenleaf, 261.

On a note made by Phelps, payable to Williams, Oct. 1st, 1806, Granger endorsed and signed a guaranty, "for value received," that the maker" was and would continue to be until the day of payment, of sufficient responsibility to pay the note;" and a promise to the payee, if the note was not paid, "by the 5th day of September, 1807, that he [Granger] would on that day pay the same to Williams." To an action on this contract, brought after Sept. 5th, 1807, Granger pleaded that Phelps was always able to pay the note until the date of the writ, that the defendant was a surety without funds, and that no notice was ever given to the defendant, or demand made on him previously to the date of the writ; and that no suit had ever been brought against Phelps. In the Court of Errors of Connecticut this plea was adjudged bad. Trumbull J. said, "This is not the case of a mere endorsement. No act was required on the part of Williams for obtaining the money of Phelps. He was merely bound to receive it, if offered. No special notice was necessary on that day in order to render Granger liable; for his engagement became immediately absolute on the failure of Phelps to pay. No special demand previous to the commencement of a suit was necessary." Williams v. Granger, 4 Day, 444.]

(116) Vaughan v. Fuller, Str. 1246., was an action against the endorser of a note, and it being proved that the defendant had paid part, Lee C. J. held, that that made the proof of a demand upon the maker unnecessary. See Lundie v. Robertson, Horford v. Wilson, Gibbon v. Coggon, and Potter v. Rayworth, post.

(117) Rogers v. Stephens, 2 Term Rep. 713. In an action against the drawer of a foreign bill, an objection was taken that there was no protest; but it appearing that the defendant had no effects in the hands of the drawees when the bill was drawn, or afterwards, and that on being pressed for payment by the plaintiff's agent after the bill was dishonored, he had said, it must be paid; Lord Kenyon thought a protest or notice unnecessary, and directed the jury to find for the plaintiff, which they did: a rule was afterwards granted, to show cause why there should not be a new trial, and it was stated then, and upon the shewing cause, that the defendant had really been prejudiced by the want of notice to the amount of the bill, that he had advanced money to one Calvert to the amount before the bill was drawn, that Calvert desired him to draw on the drawees as Calvert's agents, that he did so on a supposition that Calvert had effects in their hands; that he afterwards settled with Calvert, and upon a reliance that the bill was paid, delivered him up effects to more than the value of the bill, and that Calvert was since insolvent; that the defendant was prepared with evidence to this effect, but that Lord Kenyon delivered it as his opinion, that it did not make a protest or notice necessary; Lord Kenyon did not recollect that this evidence was offered, but he and all the court thought it answered by the defendant's admission that the bill must be paid, because that was an admission that the plaintiff had a right to resort to him upon the bill, and that he had received no damage by the want of notice, and was a promise to pay. The rule was discharged.

could not have sued on paying the bill or note, and consequently that he cannot insist on want of notice, or of a

Anson v. Bailey, Bull. Nisi Prius, 276. The endorsee of a note presented it for payment, but the maker pretended that the payee had promised not to endorse it over without acquainting him, and so put off the endorsee from time to time for three weeks; at the end of that period the endorsee wrote twice to the payee, stating what he had done, and the maker's excuse; the payee answered, that when he came to town he would set the matter right; and upon an action by the endorsee against the payee, the jury found for the plaintiff, though the maker became bankrupt before the second letter was written, and though he continued solvent for three weeks after the note was due.

Wilkes v. Jacks, Peake, 202. In an action against Jacks as endorser of a bill drawn by Vaughan on Eustace and Holland, it appeared that notice had not been given to the defendant, upon which the plaintiff offered to shew that Vaughan had no effects in the hands of Eustace and Holland; sed per Lord Kenyon, "That circumstance will not avail plaintiff; the rule extends only to actions brought against the drawer; the endorser is in all cases entitled to notice, for he has no concern with the accounts between the drawer and the drawee." The plaintiff then proved a letter from the defendant acknowledging the debt, and promising to pay, and upon that he had a verdict.

[In a suit against the endorser of a note, no demand on the maker was shown, but a promise to pay by the endorser after he was notified and called on for payment, and circumstances which tended to prove his knowledge of the neglect to make a presentment, were proved at the trial. Parker C. J. instructed the jury "that if the defendant when he made the promise to pay knew that no demand had been made on the maker," they should find for the plaintiff; which they did. Motion for a new trial. "Per Curiam. A promise of this sort to be binding must be made with a knowledge of the circumstances which operate to discharge the party; and the jury in this case have decided that there was such knowledge." Judgment on the verdict. Hopkins v. Liswell, 12 Mass. R. 52.

In an action against an endorser of a note who had not been duly notified of non-payment, it was proved that after the note became due, he had admitted his liability upon the note, and offered to pay it. At the trial the defendant's counsel moved that the plaintiff should be nonsuited unless he further proved that "when the defendant made his promise he knew that he was discharged in law by the insufficiency of the notice." The judge overruled the objection, and verdict for the plaintiff subject to the opinion of the Court. Spencer C. J. delivered the opinion of the Court. "It must be shown by the plaintiff affirmatively and clearly, that the defendant knew, when he made the subsequent promise, that he had not received regular notice. An endorser may believe that due notice has been given, inasmuch as notices need not be personally served, and under an ignorance of the facts consider himself liable when he is not." Nonsuit. Trimble v. Thorne, 16 Johns. R. 152.

In a similar case, Story J. said, "A promise to pay with a full knowledge of all the facts, is binding upon the endorser, although he might otherwise be discharged. But if he promise in ignorance of material facts affecting his rights, it is not a waiver of those rights." Martin v. Winslow, 2 Mason, 241.

See also Pierson v. Hooker, 3 Johns. R. 68; Duryee v. Dennison,