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And they stand, with respect to other parties to the bill or note, in the situation of the party for whom they made the payment, and consequently unless he could have sued upon the bill or note, they (5) cannot.

[A first endorser or his agent cannot maintain an action upon a bill or note against the second endorser. (b)]

by the bail discharged the endorser, and that the action could not be maintained.

[(a) The payee of a note who endorses it for the accommodation of the maker, by paying the note to the holder, acquires a right to sue the maker upon it. Havens v. Huntingdon, 1 Cowen, 387.

So an accommodation endorser paying a note may bring an action against the maker upon it; and this notwithstanding a prior endorser at whose request the plaintiff endorsed the note, raised money upon it for his own use in fraud of the maker. Robertson v. Williams, 5 Munf. 381.]

(5) Ex parte Lambert, 13 Ves. 179. Adams and Co. drew two bills on Lane and Co., which the latter accepted. Lambert took up both these bills for the honor of the drawers. A commission of bankruptcy afterwards issued against the acceptors, and the drawers also failed: Lambert received a dividend upon the bills from the estate of the drawers, and claimed the balance from the estate of the acceptors. But it being proved that the drawers had no effects in the hands of the acceptors, and that the acceptances were for the accommodation of the drawers, the claim was rejected; and upon petition, the Lord Chancellor said that Lambert could not make a title stronger than that of the drawers, nor oust the assignees of the defence which they would have had against them. Petition dismissed.

[(b) In an action against the second endorser of a bill drawn by the plaintiffs, payable to their own order, and by them endorsed, the count alleged that by an agreement between the plaintiffs and defendants, the latter endorsed the bill as security for its payment by the acceptor, and for that purpose only, and that the endorsement from the plaintiffs to the defendant was without consideration, and for the purpose of procuring the defendant's endorsement, and making the bill negotiable. On demurrer, judgment was given for the defendant. Bayley J. said, “This count is contradictory; it alleges in the first instance that the plaintiffs by their endorsement appointed the money to be paid to the defendant, and then that they did not appoint the money to be paid to the defendant, for that the endorsement was ineffectual. As to the special agreement there was no consideration for it. Besides, the plaintiffs are not at liberty to set up a parol contract inconsistent with a written contract, and that would be the effect of enabling them to recover on this declaration against the defendant." Britten v. Webb, 2 Barn. & Cres. 483; 3 Dow. & Ryl. 650.

In an action against Herrick, the second endorser of a note, it was held that the defendant might prove that the plaintiff was the mere agent of the payees, the first endorsers, and that this was a complete defence to the action. Herrick v. Carman, 10 Johns. R. 224.

On another trial of this case it was proved that the maker of the note had given it to Carman & Co., the payees, with Herrick's name endorsed upon it, in payment for goods sold by them to him, which they

An action (6) may be brought for non-acceptance before the expiration of the time limited by a bill for its payment. (a)

had refused to let him have without security; and that the plaintiff, knowing these circumstances, bought the note of Carman & Co. But it was held that the action could not be maintained. Spencer J. delivered the opinion of the court, "The plaintiff purchased the note, with a full knowledge of all the facts in the case; his right therefore cannot be superior to that of Carman & Co. It does not appear that Herrick endorsed the note for the purpose of giving the maker credit with Carman & Co., or that he was informed of the use to which the maker meant to apply the note. In the absence of any proof to the contrary we must intend that Herrick meant only to become the second endorser, with all the rights incident to the situation. He must have known that though the first to endorse, his endorsement would be nugatory, unless prece led by that of the payees of the note." Herrick v. Carman, 12 Johns. . 159.]

(6) Bright v. Purrier, Bull, Ni. Prius, 269. A foreign bill payable one hundred and twenty days after sight was presented for acceptance, but acceptance being refused, the holder brought an action immediately against the drawer; the defendant objected that he was not liable till the expiration of the one hundred and twenty days, and offered to call witnesses to prove that such was the custom of merchants; but Lord Mansfield said the law was clearly otherwise, and refused to hear the evidence; so the plaintiff recovered,

Milford v. Mayor, Dougl. 55. The defendant drew a bill of exchange, which the drawee refused to accept, upon which the plaintiff arrested him before the bill became due; these facts appearing upon the affidavit to hold to bail, a rule was obtained to shew cause why the defendant should not be discharged; but upon shewing cause, Buller J. said, "It is settled that if a bill is not accepted, an action will lie immediately against the drawer, because his undertaking that the drawee should give him credit is not performed; there have been many actions of this sort;" and Willes and Ashhurst, Js. concurring, the rule was discharged. [(a) The law as stated in the text is fully recognised in the United States. The right of action of the holder of a bill is complete upon giving notice of the non-acceptance, he is under no obligation to present for payment; and this right is not lost by a neglect to present for payment, or to give notice of the non-payment. Mason v. Franklin, 3 Johns. R. 202; Robinson v. Ames, 20 Johns. R. 146; Winthrop v. Pepoon, 1 Bay, 468; Watson v. Loring, 3 Mass. R. 557; Weldon v. Buck, 4 Johns. R. 114; Miller v. Hackley, 5 Johns. R. 375; Sterry v. Robinson, 1 Day, 11; Taan v. Le Gaux, 1 Yeates, 204.

In an action against the endorser of a bill protested for non-acceptance, and non-payment, it appeared that he had been notified of the non-acceptance, but not of the non-payment. The defendant's counsel contended that although a right of action accrued on the non-acceptance, yet that it was merged in the new right of action arising on the protest for non-payment, and that this new right was lost by the neglect of notice. By the court. "When acceptance is refused by the drawee, a right of action accrues to the holder after due notice. He is not bound to demand payment at the time the bill falls due, nor to protest for non-payment, nor to retain the bill for that purpose; but he may bring an action against all parties liable, immediately on the refusal of the drawee to accept." Lenox v. Cook, 3 Mass. R. 460.1

And such an action may be brought against an (7) endorser, as well as against the drawer.

[Where a note is payable by instalments at different times, an action may be maintained for each instalment as soon as it falls due. (a)

So where interest on a note is payable annually, an action lies for each year's interest immediately upon its falling due, and before the principal becomes due. (b)

An action brought against an endorser before notice is sent him, cannot be maintained, although notice is afterwards seasonably given him. (c) But an action may be brought against an endorser as soon as notice to him is put

(7) Ballingalls v. Gloster, 3 East. Rep. 481. John Gloster drew a bill on Jackson, payable to Anthony Gloster's order, and the latter endorsed it to the plaintiffs. Jackson refused acceptance, on which the plaintiffs immediately sued Anthony Gloster, without waiting until the bill, which was drawn at ninety days' sight, would have been due. The plaintiffs had a verdict, with liberty to the defendant to move for a nonsuit. On rule nisi accordingly, it was urged that an endorser stood in a situation different from that of a drawer; and that although a drawer might be sued immediately on non-acceptance, an endorser could not until the expiration of the time limited for the payment of the bill; but the court was clear that the case of an endorser was not distinguishable from that of a drawer, and that every endorser was a new drawer. Rule discharged.

[(a) Tucker v. Randall, 2 Mass. R. 283.]

[(b) Greenleaf v. Kellogg, 2 Mass. R. 568; Cooley v. Rose, 3 Mass. R. 221.]

[(c) N. Eng. Bank v. Lewis, 2 Pick. 125. In an action against the endorsers of a note, it appeared that a notary made a seasonable demand on the maker, and afterwards on the same day, but after this suit was brought, notified the endorsers. All the parties lived in Boston. After a verdict for the defendants, Parker C. J. in giving the opinion of the court, said, "that the notice was not sufficient for the purposes of this action, because it was not given until after the action was commenced. Where the endorser lives in a different town from the holder, the law considers putting the notice seasonably into the post-office as using due diligence, or as a constructive notice. Here all the parties lived in the same town, and proper notice might have been given by a minute's walk, and to commence the action before giving such notice was not using due diligence." Afterwards the plaintiff's counsel said, "If it will make any difference, we can show that the notice was in the hands of the notary before the writ was in the hands of the officer." C. J. "That question was put in our discussions, and it was thought that it would make no difference."

In a previous case the court seem to have been of opinion, that an action brought before the notice was put into the post-office, might be maintained. Stanton v. Blossom, 14 Mass. R. 116.]

into the post-office, before he can have received it by the regular course of the mail. (a)]

All the antecedent parties are liable to the holder on account of a non-acceptance or non-payment; and if the bill or note was transferred to him for a precedent consideration by delivery, the person who delivered it is also liable to be sued for such consideration. (b)

[Where the acceptor of a bill resided in a different place from that in which it was payable; it was held that the person for whom it was drawn was not liable to the acceptor, for any loss accruing to him by the bankruptcy of parties to bills remitted by him to meet his acceptance. (c)

"Another ob

[(a) Parker C. J. delivered the opinion of the Court. jection is that the action was commenced too soon. By course of mail the notice could not have reached the defendant until after the writ was served. The putting the letter into the post-office is notice in itself. The receipt of notice, or time for it to be received is not necessary." Shed v. Brett, 1 Pick. 401.

But in a case in Pennsylvania, it was held that an action brought against an endorser, after notice to him was sent to the post-office, but before it could have reached him by the regular course of the mail, could not be maintained; the Court being of opinion that a letter put into the post-office could be considered notice only from the time at which it ought to be received by the regular course of mail. Smith v. The Bank of Washington, 5 Serg. & Raw. 318.]

[(b) In Virginia the holder of a note cannot sue his endorser, unless he has previously brought a suit against the maker if solvent. But if the maker is insolvent, so that a suit against him would be fruitless, an action may be brought against the endorser without first suing the maker. Clark v. Young, 1 Cranch, 181; Yeaton v. The Bank of Alexandria, 5 Cranch, 49; Violett v. Patton, 5 Cranch, 142; Saunders v. Marshall, 4 Hen. & Mun. 455.

If the maker is not insolvent, and no suit has been brought against him, the endorser is not liable, though the maker is out of the reach of the process of the court, and the endorser has been secured by the maker for his endorsement. Dulany v. Hodgkin, 5 Cranch, 333.

In the same State no action at law can be maintained, by an endorsee against a remote endorser. Mandeville v. Riddle, 1 Cranch, 290; Harris v. Johnston, 3 Cranch, 311. The case of Dunlop v. Silver 1, Cranch, 367, Appendix, is contra.

But the holder may recover against a remote endorser, by a suit in equity. Harris v. Johnston, 3 Cranch, 311; Riddle v. Mandeville, 5 Cranch, 322.]

[(c) Forbes v. Eldridge, 9 Mass. R. 497. The defendant having consigned a vessel to the plaintiffs in Dublin, his agents by his authority drew a bill on the plaintiffs, payable at sixty days' sight in London; the plaintiffs accepted the bill payable at Johnson and Co.'s, in London, and remitted bills to Johnson and Co. to reimburse them. These bills did not fall due until after the maturity of the first bill; and the parties to

Where A. authorizes B. to draw upon certain persons in partnership to a certain amount, and the partnership being dissolved, B. draws a bill upon one of the partners, which is accepted and paid, B. is liable to the acceptor for the amount of the bill. (a)]

If the holder sues all the persons liable at the same time, it was at one time (8) supposed that the court or a judge would not stay proceedings in any one action but upon payment of the money recoverable in that, and the costs in such of the rest in which judgment had not been obtained; but it is now settled that in the (9) case of a regular bill, where the acceptor is the proper person to provide for payment, he is the only person against whom the plaintiff is entitled to

The plaintiffs sued But it was held that

them became bankrupt before they became due. the defendant to recover the loss upon these bills. the action would not lie. The Court said, "The acceptor does not act as agent of the drawer of a bill. He accepts on his own terms and for his own convenience. Whether funds were placed in London to meet the acceptance at a profit or a loss to the plaintiffs, was no concern of the defendant's, and he cannot be liable for the result.”]

[(a) Jennings and Roddy gave Watson a letter of credit on Penoyer and Co. saying in it, "Mr. Watson is authorized to value on you on our account, for ten thousand dollars." Penoyer and Co. having dissolved their partnership, Watson drew a bill on Penoyer alone, which Penoyer accepted and paid. It was held that Penoyer might maintain an action against Watson for the amount of the bill; as Jennings and Roddy were not liable, they only being liable on account of bills drawn on the partnership. Penoyer v. Watson, 16 Johns. R. 100.]

(8) Golding v. Grace, Blackst. 749. The endorser of a bill obtained a rule nisi to stay proceedings on payment of the debt and the costs of the writ; the plaintiff insisted that he was entitled to be paid for drawing declarations against the defendant and the drawer; and it was agreed, that if any was to be paid for, the plaintiff was entitled to be paid for both; but the court held that the application to pay debt and costs was made so early, that the plaintiff was only entitled to the costs of the writ.

(9) Smith v. Woodcock, Same v. Dudley, 4 Term Rep. 691. The holder of a bill brought actions against the acceptor, the drawer, and two endorsers; the drawer and one of the endorsers obtained a rule nisi to stay proceedings against them on payment of the bill and costs of the actions against them: the plaintiff insisted that the costs of the other actions should be also paid: sed per cur. " that is only necessary where the application comes from the acceptor, who is the original defaulter, and against whom all the costs occasioned by his default may be recovered." Rule absolute.

[It has been held in Connecticut, that the acceptor of a bill was not liable to the costs of a suit against the drawer on account of the nonpayment, notwithstanding the acceptor had in his hands funds of the drawer sufficient to pay the bill. Barnwell v. Mitchell, 3 Conn. R. 101.]

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