CH. 20. complainants paid a valuable consideration for the note, and Art. 16. the defts. put it into circulation, and in bar of this bill they See a. 20, s. 29. 3 Dallas. Chitty 86. Morris v. 4 Johns. R. 199. pleaded the said judgment at law in their favour. To this plea the complainant demurred, and the court sustained the demurrer, and ruled the defts. to answer. Their answer stated they received no consideration for their endorsement in blank, and put it into circulation only by delivering it to Gray to be discounted at the bank. Judgment as above, for the plts. This novel case seems to have been decided on these principles 1. As the defts. endorsed the note and expressly made it negotiable, and gave it credit into whose hands soever it came, they were liable. 2. As the maker was so discharged, he was out of the case. 3. As in the action at law the remedy was mistaken, the judgment against the plts. was no bar to their bill in equity. ART. 16. The amount recovered on a protested bill. §1. This sum in Massachusetts was principal, interest, ten per cent. damages, and costs on foreign bills generally, and interest and costs on inland bills, and this rule extends to bills drawn in one State on merchants and others in another State. The same rule as to foreign bills in Rhode Island and Virginia. But by Massachusetts act, June 19, 1819, (in Maine, Ch. 88) the damages on inland bills are regulated, drawn, or endorsed in Massachusetts, payable in any other of the United States or territories, and protested; three per cent. if payable in New Hampshire, Vermont, Rhode Island, Connecticut, or New York. If payable in New Jersey, Pennsylvania, Delaware, Maryland, Virginia, or the District of Columbia, five per cent. If payable in North Carolina, South Carolina, or Georgia, six per cent. If payable in any other of the United States or territories, nine per cent. If any bill of exchange or order for payment of money be drawn or endorsed in this State, for $100 or more, and payable within it, distant seventy-five miles or more from the place where drawn or endorsed, and not paid; damages one per cent. in addition to the contents, lawful interest, and costs, 1, 3, 5, 6, 9 per cent. is in addition to these in all the cases. Twenty per cent. damages in Pennsylvania, on 12 William 3, Ch. 70; besides interest and charges. A bill remitted to pay a debt, see 4 Johns. R. 27. The twenty per cent. in New York is in lieu of re-exchange &c. $2. If the course of exchange alter in case of a foreign bill, 119-Chitty the acceptor is liable to pay according to the rate of it on the day the bill became due. And as to exchange, see Mellish & al. v. Simeon, Ch. 20, a. 20. See Pollard v. Herries, 3 Bos. & P. 335; 4 Johns. R. 119, 124, 125. 3. July 6, 1807, an English merchant living in Manch ster, in England, drew his bill, payable to himself or order in London, on an American house having their domicil in Boston, accepted by one of the house then in Manchester, is a foreign bill, and the same as if accepted in Boston, and payable in London. The damages on protest are the amount of the bill and expenses of protest and interest thereon at six per cent. from the time it becomes payable, also a tenth part of the original sum and like interest thereon. ART. 17. Circuitous actions on notes &c. CH. 20. Art. 18. 6 Mass. R. 157, 165, Grimshaw r. 4 T. R. 470, If C make a note to A, and A endorse it to B, and B en- Bishop v. dorse back to A again, A shall not have an action against B Hayward.on his endorsement of this note, for if he could, then B would 3 Com. D. 54. -Chitty 271. have an action against A on his endorsement of it, and there -Art. 21.would be this circuity of action to no purpose. But A prove his endorsement was only mere form, see post but see 1 Wils. 46. If second endorsee of a note sue the first become endorser, he may prove the plt. gave no consideration. 12 Johns. R. 159; 14 do. 349. may 10 Johns. R. 224. 5 Mass. R. ART. 18. Evidence against the endorsee &c. See a. 10, s. 5. 1 Mass. R. 1, Gold v. Eddy 1. The deft. made a note, payable October 31, 1799, adm-Davis and afterwards it was endorsed to the plt. who brought this . Brown, 3 action against the deft., the maker. The deft. was admitted T. R. 81.to prove, that certain transactions took place between Gros- 334, Webster venor, the promisee and endorser, and Fuller, the maker, v. Lee, and before the actual endorsement of the note (originally made in pe blank) by which the note had been completely satisfied; and 2 Johns. R. this admission was on the ground, that the actual endorsement 300.-7 D. & was so long after the note had become due, that when endorsed ante, a. 10. it was a discredited note. But how long a note must have been due before it is discredited, is a point not accurately settled. Peake 140. E. 419; see 118.-3 T. R. § 2. In this case the same principle was adopted, and the 5 Johns. R. court held, that if a note be actually endorsed after over due, 81, Frown v. there is reason to suspect it; and then the maker may go into Davis. such a defence against the endorsee, as he would have against 1 Bos. & P. 399, Taylor v. the promisee; same if the note be endorsed in trust for a re- Mather lation of the endorser; secus if endorsed without recourse. 2 Chitty 105, Johns. R. 50, 52, Russel v. Ball & al. 106. R. 118. 8 § 3. 5 Mass. R. 334, 340, the same point was decided. Webster v. And on this case endorsee suing the endorser of a promissory Lee--5 Johns. note, if the deft. set up a defence of payment to the promisee, Johns. R. he must prove it was made before the note was endorsed, and 454.— by such payment the promise is discharged, and the note is 12 Johns. R. absolutely void. In this case there had been a reference between the promiser and promisee, but no endorsement on the note. 1 Johns. 331. 345. Сн. 20. 12 Mod 408, 517, 521.Salk. 124 3 Salk. 68. Holt. 298. 4 Mass. R. 93, 4. So a note on demand, endorsed long after made, is liable in the endorsee's hands to all the equities, as between maker and payee; because the endorsee takes it with sufficient ground of suspicion to cause him to inquire into the state of it. Secus a fair endorsee, Warren v. Lynch, 5 Johns. R. 239; 2 Cain. 369, Furman v. Haskin; see art. 20, s. 17; 1 Dallas 411; 9 Johns. R. 244. ART. 19. Bills and notes received in payment, the effect. A bill or note of another taken in payment at the time of the sale of the goods &c. is valid, if the vendee do no know it to be a bad one, and the vendor cannot have an action for his goods sold. Quære, if the debt be not discharged at the time. 6 Johns. R. 110; 9 Johns. R. 310. 2. If the parties settle accounts, and he who falls in debt to the other in a certain sum, gives him a note, not negotiable, for that sum, it cannot be considered as a payment of it; for 143, Maneely one simple contract debt is, in law, no discharge of another 6 Mass. R. v. M'Gee. 5 Mass. R. 299, Thatcher v. Dins more. Chitty 118, 119. Cas. 438.-3 71. simple contract debt. But it is otherwise, if payment be made in a negotiable note which passes current in the market; see post. Given for an existing debt by simple contract is primâ facie payment; B owes A $50, A takes C's promissory note in payment, payable to A, it is at his risk. 7 Mass. R. 286, Wiseman v. Lyman. § 3. In this action, it was held that a promissory note, given in consideration of a simple contract debt, due, is a discharge of a simple contract. So of an open account. Cranch, 254. 6 4. Formerly it was held, that if A sold goods to B, and -7 T. R. 65, took a check on a banker, without any objection, it was absolute 66.-2 Johns. payment, though the banker failed; but it is now settled that in such case, unless it was expressly agreed at the time of the transfer &c, that the assignee run the risk, he may, in case of default, sue for the price of the goods, not only because one simple contract does not discharge another, but because a negotiable note, while between the original parties, is like any other simple contract; but then such note must be shewn to be lost or cancelled at the trial. 1 Johns. R. 34.-8 Johns. R. 389.-9 Johns. R. 310, 311, Johnson v. Weed. & al. So if the purchaser of goods pays in another's note, falsely representing it. 6 Johns. R. 110.-5 Johns. R. 68.-9 Johns. Chitty 31, 32. A note made R. 310. ART. 20. Several cases. § 1. Though generally one joint tenant, or person jointly interested with another, in real or personal property, is not capable, of himself, of doing any act which may tend to prejudice the other, yet, by the custom of merchants, where there are two joint traders, and one accepts for 1Johns. R.94. himself and partner, a bill drawn on both, it binds both, if it ica, is valid, though not stamped ac cording to French law. concerns the trade; otherwise, if it only concerns the accep- CH. 20. tor's distinct interest, and the holder is aware of the fact. Art. 20. 2. A note given in the partnership name, by one partner for his private debt, is void as against the partnership, in Chitty 32.the hands of the creditor, and even in the hands of a friend- 2 Caines' R. 246, Livingly endorser, who endorsed it at the request of the partner, not stone. Hastie. knowing the consideration of the note. And notes issued in -2 Johns. the partnership name, after a dissolution of the partnership, only bind the one issuing them, and so if the new notes given, be for partnership debts. 300. Ball v. Dun 3. "One partner cannot bind the other by deed, without 4 T. R.313. an express authority so to do;" but if A execute a deed for sterville. himself and his partner, in his presence, and by his authority, it is a good execution, though only sealed once, was on a bill of sale decided. § 4. When a partnership is dissolved, it is necessary to give personal notice to those who have dealt with it, or prove they in fact saw the gazette notice; but this is sufficient for persons who have had no previous dealings with the partnership. Watson's Partnership, 284. Watson 163. -4 Dall. 58. -Chitty 35. -2 Johns. R. 300, Lansing v. Gaine. Chitty 59, 60, § 5. Value received, is implied in every bill and endorse- 65. ment, as much as if expressed in totidem verbis; and if a declaration be, that the note was endorsed for value received, this value received need not be proved. A bearer taking a bill, under suspicious circumstances must state he gave a value for it, as when it has been lost. When the holder has given a full value for the bill, &c. the deft. is not allowed to shew he received none, though the plt. knew this circumstance when he took it, unless he, also, knew that he, of whom he received it, was acting fraudulently. 86, 37. Packford v. Maxwell. § 6. When a note or bill pays a prior debt. Generally one Chitty 85, contract not under seal, cannot extinguish another similar con- 12 Mod. 517. tract. "And a mere promise to give time for the payment of --6 T. R. 52, a debt already due, is not binding." But if I sell goods to A, and take a bill or note in satisfaction thereof or of a former debt, I cannot sue the original debt, till the bill, &c. is due, except A knew it was of no value; then I may immediately sue him on his original liability; as if he draw a bill on one having no effects, not accepted. Such a bill is a nullity. 7. Three men gave a covenant to A: one of them gave 3 East 251, Chitty 86.-a bill for part of the debt, and judgment was had on the bill. Drake v. No bar to covenant against the three, not being accepted in Mitchell. satisfaction of the covenant debt, nor, in fact, to have produced it. 88. See Ch. 8. A first bill is given, then a second bill in lieu of it, but Chitty 86, 87, the first remains with the holder, and the second is not paid; 24, a. 5. he may sue the first. Сн. 20. If I sell goods, and adjust the account, and take a bill, which is not accepted; this taking the bill is conclusive evidence of the sum due, in an action for payment for the goods. If one take a bill for goods sold, and finds it bad; yet, if he compute damages upon it, and demand it, this is an election to rely on the bill. 9. One agrees to accept notes in payment of goods, and Cain 117, before delivery, the notes turn out to be bad: a tender and refusal of them is no payment, unless the vendor agreed to run the risk of their being bad. Roget v. Cranch 181, 290.-2 Johns. R.455, 311-5 D. & E. 513-3 East 146. Chitty 112. § 10. A sold cattle to B, and received in payment a bank note; neither knew it was bad: A paid it to C, who discovered it was forged. Held, A might recover against B on his original contract for the cattle sold, for a forged note is a nullity-no payment at all. But if one receive a note as conditional payment, and pass it away, he cannot sue for the goods sold; he cannot have a double satisfaction. 1 Cran. 181, if a forged note of a third person, it must be had at the trial. § 11. An indorsee may strike out special, as well as gene- Dall. 193. ral endorsements, and the holder, by delivery, may consider himself as endorsee of the payee, however remote in fact he may have been. Morris v. Foreman. Chitty 119, 120. Chitty 133, 134. Chitty 245. -6 East 14. 3 B. & P. 340. 12. If I assign a bill for a sufficient consideration to A that I know to be of no value, and he be not aware of the fact, I must repay to him the money I received, in an action for money had and received this must be on the ground of deception, or of the law merchant, for at common law an assignment is no warranty. 13. If an agent do not present a bill for acceptance, with due diligence, and the drawer fails, the agent is liable for his negligence, unless he can shew the bill would not have been accepted; also 66 a neglect to make a presentment at a proper time, may be excused by illness, or by other cause, or by accident." § 14. If the holder receive notice the bill is dishonoured, he ought to send notice to the party he looks to, by the next practicable post-" at all events by the post of the next day after notice" received by him. 15. If a bill cannot be legally accepted, or paid, the Chitty 185. drawer is not liable to be sued in the country where, by some act, the illegality is created. Chitty 185. 3 Caines R. 16. And if I draw a bill in the United States, on A, in 5 East 124.- London, and am discharged by our laws, and the bill there is protested for non-acceptance, I cannot be sued there. The terms "value received," in a note, not within the act, will not of themselves imply a consideration. 286. |