French's Executrix v. Bank of Columbia,
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8 U.S. 141 (1807)
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U.S. Supreme Court
French's Executrix v. Bank of Columbia, 8 U.S. 4 Cranch 141 141 (1807)
French's Executrix v. Bank of Columbia
8 U.S. (4 Cranch) 141
The endorser of a promissory note given for the accommodation of the maker is entitled to strict notice of its nonpayment.
If the drawer of a bill of exchange, at the time of drawing, has a right to expect that his bill will be honored, although he has no funds in the hands of the drawer, he is entitled to strict notice.
In reason, it would seem that the necessity of notice of nonacceptance or nonpayment of a bill of exchange ought to be dispensed with only in those cases where notice must be unnecessary or immaterial.
Where the money raised upon the note is received by the endorser, so that the note is discounted in truth for his accommodation, not for that of the maker, he is unquestionably without funds in the hands of the acceptor, must expect to pay the note himself, and "cannot require notice of its nonpayment by the drawer."
This was an action of assumpsit upon the promissory note of W. M. Duncanson, payable to George French or order and by him endorsed to the plaintiffs for $1,400 at 60 days, date October 10, 1798, and due December 9-12.
On the trial at law in the court below, the plaintiff in error took a bill of exceptions which stated the following
facts: that the banking house of the plaintiffs was situated in Georgetown, in the District of Columbia, at the time the note became payable, in which town the defendant's testator also resided. That Duncanson, the maker of the note, lived in the City of Washington, four miles distant from the Bank of Columbia. That the last day of grace upon the note expired on 12 December, 1798. That the defendant's testator was very ill and confined to his bed, from 9 to 14 December, 1798, on which last mentioned day he died; that the defendant proved his will and took out letters testamentary on the 28th of the same month. That on 15 December, a notary public called at the house of Duncanson, the maker of the note, to demand payment, but was informed that he had gone into Georgetown, whereupon the note was protested; that one Weems, an agent of the defendant, had notice of the dishonor of the note in January, 1799, and conversed with and endeavored to make arrangements with the plaintiffs for the same.
That the note was endorsed by the defendant's testator without any valuable consideration passing from him to any person for the same, merely to accommodate Duncanson, the maker of the note and to give him a credit with the plaintiffs for the amount thereof, and that the plaintiffs received the same with a knowledge of its being so drawn and endorsed; that the defendant's testator in his lifetime, and the defendant since his death, have suffered no loss or injury from the circumstance of the note's not having been demanded of the maker before 15 December, 1798, or of the want of notice to the defendant's testator, or to the defendant, other than as aforesaid, and that the court at the plaintiffs' request thereupon instructed the jury that such laches and neglect of the plaintiffs as to a demand on the maker and in not giving other notice than as above stated to the endorser does not debar and take away the plaintiff's right to recover upon that note in this action against the defendant.
The defendant below took another bill of exceptions to the refusal of the court to instruct the jury that the neglect of the plaintiffs to demand payment and to give
notice, as before stated, discharged the defendant's testator from all liability upon the note if the jury should be satisfied by the evidence that Duncanson received the money from the plaintiffs with the assent of the defendant's testator after his endorsement, and that at the time of the drawing and endorsing of the note, it was the understanding of all parties that the money should be so paid, and that such payment and assent were a sufficient consideration passing from French to Duncanson.
The judgment below being for the plaintiffs, the defendant brought her writ of error.