And an order from the principal to prohibit payment of such new bill, will be a bar to any action at the suit of the person to whom the first bill was passed. (46)

[Where a promissory note payable on demand, is endorsed within a reasonable time after the date, it has been held in the United States, that the endorsee has all the rights of an endorsee receiving a negotiable instrument before it becomes due. (a) But if it be not endorsed within a reasonable time, it will be considered as overdue and dishonored; and the endorsee will be subject to any defence which would have been available against his endorsers. (a)

What is such a reasonable time, is not precisely settled ; though it is clear that a note is to be considered as overdue and dishonored a year or even eight or nine months from the date; but not overdue a few days after the date. (a)

to plaintiffs as his agents. Sebag gave defendant notice not to pay this bill, and an action being brought thereon, the defence was, that plaintiffs were mere agents for Vidal, and that as Vidal took the first bill after it was due, he stood in the place of White; and as White would have been accountable to Sebag for whatever he received in respect of the first bill, Vidal was equally so accountable; and then the second bill was, as against Vidal, the property of Sebag, and Sebag's prohibition to defendant not to pay the second bill, was an answer to the action upon it. Gibbs C. J. was of this opinion, and left it to the jury whether plaintiffs were not mere agents to Vidal, and whether the second bill was not the property of Sebag. The jury found for defendants; and on rule nisi to enter verdict for plaintiffs, the other judges agreed with Gibbs C. J. and rule discharged.

"A note pay

[(a) Ayer brought an action against the defendants as makers of a note payable on demand to Page or order, and by him endorsed, without recourse to himself, to Ayer the plaintiff. The defendants at the trial offered to prove that the note was endorsed eight months after it was given, and without the knowledge of Ayer, and for the benefit of Page himself, and that the note was fraudulently obtained by Page. But the evidence was rejected; and verdict for plaintiff. On motion for a new trial,-Parsons C. J. delivered the opinion of the Court. able on demand is due presently." He considered the length of time of itself sufficient" to let the defendants into any defence which could be made by them if Page were plaintiff. The restricted endorsement also made eight months after the note is due is enough to charge the endorsee with such negligence in making further inquiries, as will subject him to the same defence, that might be made against the endorser." He considered besides, that if Ayer was only trustee of Page, the same defence was admissible, as if Page were the plaintiff of record, whether the note was endorsed before or after becoming due. New trial. Ayer v. Hutchins, 4 Mass. R. 370.

So where a note payable on demand was endorsed eighteen months

So a person receiving a note under circumstances which ought to excite suspicion, or if he be the mere agent or

after the date, it was held that the maker might make the same defence against the endorsee, which he could have done against his endorser, the payee. Kent C. J. delivered the opinion of the Court. "This lapse of time must clearly be considered as placing the note in the situation of one due and dishonored, and as imposing on the endorsee the same risk. He takes it on the credit of the person from whom he receives it." Freeman v. Haskins, 2 Cain. R. 368.

See also Loomis v. Pulver, 9 Johns. R. 244.

Dunkin made a note payable on demand to Newton or bearer, dated Jan. 16th, 1805. Newton endorsed it to Losee April 3d, 1805. In a suit on this note by Losee against Dunkin, the Common Pleas allowed the defendant to prove a payment upon it to Newton shortly after the date of the note. On Error-Per Curiam. "There is no precise time at which such a note is to be deemed dishonored. The demand must be made in a reasonable time, and that will depend upon the circumstances of the case, and the situation of the parties. There are no particulars peculiar to this case disclosed; and the court cannot say that it was erroneous to let in the defence; for the circumstances of this case might have been such as to justify the conclusion, that the note was dishonored when it was assigned." Losee v. Dunkin, 7 Johns. R. 70.

In a subsequent case, in an action by the endorsee against the makers of a note payable on demand, which had been endorsed to him five months after the date,-Yates J., who delivered the opinion of the Court, said, “Each case ought, perhaps, to be governed by its own circumstances. In the one before us, a number of payments have been endorsed, and the last but a few days prior to the assignment, and about five months after its date. From the last endorsement it may be presumed, that all antecedent payments had been noticed and entered in the same manner; the plaintiff had a right to consider the amount due at the time of the transfer, after deducting the payments, to be the true balance; the defendant was, therefore, properly prevented from impeaching the note as given for too large a sum." Sanford v. Mickles, 4 Johns. R. 224.

A note made at Portland, Maine, was, seven days after the date, endorsed by the payee to Thurston in Boston. Thurston sued the maker of the note, and the question was, whether the latter might be permitted to prove in defence, a want of consideration between him and the payee. Parsons C. J delivered the opinion of the Court. "It is certainly a correct principle of law that if the endorsee purchase a note, when from the length of time in which it has been payable, there is reasonable cause to suspect that it has been dishonored, he shall not deprive the maker of any defence, which would avail him against the promisee. But this note cannot be considered as overdue, within the true intent of this principle; as there were no circumstances existing, which ought to have induced in the mind of the purchaser, a suspicion that the note had been dishonored." Thurston v. M'Kown, 6 Mass. R. 76. See also Hendricks v. Judah, 1 Johns. R. 319.

If the maker of a note who has paid it to the payee, neglect to make the defence to an action by an endorsee to whom it was endorsed after the day of payment, he cannot recover the money back in an action

trustee of his endorser, is subject to any defence which his endorser would have been liable to. (a)

But the presumption is that the note was transferred within a reasonable time, unless the contrary is proved. (b)

What is a reasonable time is a question of law when the facts are settled. (c)]

It has been held, that a man who takes a bill after it is due, will stand in the same situation as if he had taken it before, if he held it for value before it was due, and it is re-delivered to him for the same value afterwards ; (46)

As if a banker's customer deposits a bill with him for value before it is due, gets it from him again before it is due, and again deposits it with him for value after it is dishonored. (46)

So if a bill or note is returned to an endorser after it becomes due, and he pays the amount, he will be entitled to recover the full amount from the antecedent parties, though some of these parties had lodged securities with the person who held the bill when it became due, and part of the amount had been paid on the securities; (47)

againt the promissee. Loomis v. Pulver, 9 Johns. R. 244. Battey v. Button, 13 Johns. R. 187. But the maker may recover the money back, where the note was endorsed before becoming due, so that the payment was no defence to the action by the endorsee; and the declaration in such a case is bad if it do not state the endorsement to have been made before the note became due. Battey v. Button, 13 Johns. R. 187.] [(a) See Ayer v. Hutchins, supra; and Towne v. Hutchins, 6 Mass. R. 46.]

(b) Hendricks v. Judah, 1 Johns. R. 319. 5 Mass. R. 334.]

And see Webster v. Lee,

Clarkson and Co. banked

[(c) Furman v. Haskin, 2 Cain. R. 368.] (46) Bosanquet v. Dudman, 1 Stark. 1. with plaintiffs, and deposited a bill with them as a security for their engagements on behalf of Clarkson and Co., but before it became due Clarkson and Co. got it back from plaintiffs. After it was dishonored Clarkson and Co. re-delivered it to plaintiffs, but in the interim Clarkson and Co. bought a ship from the drawer, for whose accommodation defendants had accepted, and agreed to give up this bill in part payment, so that Clarkson and Co. could not have sued upon the bill; but Lord Ellenborough held, that when the bill was returned to plaintiffs they returned to their former right, and were not affected by what Clarkson and Co. had done; and verdict for plaintiffs.

At least if such endorser did not know when he took up the bill, that such securities had been so lodged. (47)

And though a man who takes a bill after it is due, takes it subject to the objections to which it was liable in the hands of the person from whom he took it, he is not subjected to every description of evidence to which that person would be liable; (48) therefore, though the entries in that person's books, if made at the time of passing the bill and accompanying that act, might be evidence against him, yet entries which cannot be proved to have been so made, and might have been made afterwards, are not. (48)

And though a bill be endorsed over before the time appointed for its payment, yet if acceptance has been previously refused, the endorsee (49) will be liable to the same

(47) Buzzard v. Flecknoe, 1 Stark. 333. Plaintiffs endorsed two bills to Lord; Lord held them three months after they fell due, and then called on plaintiffs, who took them up. In the interim Lord had received another bill from the drawer as a collateral security, but plaintiffs did not appear to have known that fact; that bill was afterwards satisfied, and plaintiffs having brought this action against the acceptor, he insisted that the amount of that bill ought to be deducted, on the ground that plaintiffs stood in the situation of Lord; but Lord Ellenborough thought otherwise, because plaintiffs' title did not first commence after the bill became due, but was referable to their prior holding; had they been discharged from the bills, they might have stood in the situation of new holders. Verdict for the whole amount.

(48) Collenridge v. Farquharson, 1 Stark. 259. In an action by endorsee against endorser, it appeared that one Powell was holder when the bill became due, and that he had afterwards endorsed the bill to plaintiff there being accounts between defendant and Powell, which would have regulated the extent to which Powell could have recovered. Defendant offered in evidence Powell's books, to shew how those accounts stood, and insisted that whatever would have been evidence against Powell would be evidence against plaintiff; but Lord Ellenborough held, that though an entry by Powell at the time and accompanying the act would have been evidence, an entry not accompanying the act and which might have been made afterwards for the very purpose of being used in evidence was not, and the plaintiff had a verdict.

(49) Crossley v. Ham. 13 East. Rep. 498. The defendant for the accommodation of Clark, endorsed two bills drawn by Clark in America, upon Dickinson and Co. in London, for £450 each, in favor of the defendant, dated 10th of February, 1804, and payable 60 days after sight. These bills were paid over by Clark to Parry, in February, 1804. The defendant, Parry and Clark, then, and until after the 14th of April, 1808, resided in America. On the 1st of March, Parry endorsed and remitted the bills to his agents in London, with directions to make a payment to the plaintiff, to whom he then, and still, was indebted. On

objections as might have been taken against his endorser, if he take the bill with a knowledge of its having been dishonored ;

And if the bill be noted for non-acceptance, he must be taken to have this knowledge.

But if he take the bill without this knowledge, and be a bona fide holder for a valuable consideration, he will not be liable to the objection. (50)

And if the holder's immediate endorser might have recovered upon a bill or note, it is no defence to an action by the holder that an (51) antecedent party would have been precluded from recovering upon it.

the 26th of April, the bills were presented for acceptance, dishonored, and protested for non-acceptance; and notice thereof was given to the defendant. The plaintiff having been advised of the remittance by a letter from Parry, dated on the 12th of April, applied to Parry's agents for £450; and on the 6th of June they delivered one of the bills to the plaintiff, apprising him of its dishonor, and that therefore he took the bill, subject to all its infirmities. The bill became due on the 29th of June, and payment being refused, this action was brought. The defendant, however, produced at the trial an instrument signed by Parry, dated 14th of April, 1804, by which he agreed that the defendant, on paying one of the bills in London, should be exonerated from paying the other; and the defendant proved his having, on the 2d of July, paid one of the bills, which then remained in the hands of Parry's agents, who delivered it upon payment. This agreement was, until the 2nd of July, unknown to the plaintiff and Parry's agents. A verdict was found for the plaintiff, and a case reserved for the opinion of the court. The court (Le Blanc J. absente) held that the plaintiff, having taken this bill after its dishonor, had taken it with all its infirmities, and subject therefore to the agreement between Parry and the defendant. Postea to the defendant.

(50) Dunn v. O'Keefe, 6 Taunt. 305. 5 Maule. 282. Action on bill drawn by defendants on Ricketts and Co. payable to Sinclair or order, and by him endorsed to plaintiff; breach for non-acceptance; plea, that before endorsement to plaintiff, Sinclair presented it for acceptance, that acceptance was refused, and notice thereof not given to defendants; replication, that it was not so presented, and verdict inde that it was, but non obstante veredicto, judgment for plaintiff. On error it was urged that the presentment by Sinclair, and want of notice inde, discharged defendants entirely from the bill; but the court held, it did not discharge him against an innocent endorsee, who took the bill for a valuable consideration before the time appointed for its payment; and as it was not alleged in the plea that plaintiff knew of the prior dishonor, or that it was endorsed to him after it was due, or that he did not give value for it, judgment affirmed.

(51) Chalmers v. Lanion, 1 Campb. N. P. C. 383. To an action by the endorsees against the acceptor of a bill, one ground of defence was,