Str. 1000. Str. 629. 2 Raym. 1396. Baldwin's Cafe, E. 14 3151. Andrews . a Str. 1271. brought against A. by G. on this cafe he was non-fuited, for by not feading the proteft for non-acceptance, he made himself liabic. The ufe of noting is, that it should be done the very day of refufal, and the proteft may be drawn any day after by the notary, and be dated of the day the noting was made. It was doubtful whether inland bills of exchange were within this custom of merchants, but by 9 & 10 W. 3. c. 17. and 3 4 An. c.9. they are put upon the fame foot with foreign bills; and though they require the acceptance to be in writing, in order to charge the drawer with damages and cofts, yet there is a provifo that it fhall not extend to difcharge any remedy against the acceptor, so that an action will still lie on a parol acceptance. By the 34 An. c. 9. All notes in writing, that shall be made and figned by any person, whereby tuch person promises to pay to another or his order, or unto bearer, any fum of money mentioned in fuch note, fhall be taken and conftrued to be, by virtue thereof, due and payable to fuch person to whom the fame is made payable; and every note made pay able to any person or his order, fhall be affignable or indorfable over, and the perfon to whom fuch fum of money is by fuch note made payable, may maintain an action for the fame; and any person to whom fuch note is indorfed may maintain his action for the fame, either against the perfon who figned fuch note, or againft him that indorfed it; and in every fuch action the plaintiff thall recover his damages and cofts. There are no prescribed forms of thefe promiffory notes, and therefore whatever imports an abfolute promife to pay will be fufficient; as a promise to be accountable to 7. S. or order. But a promife to pay on an incertain contingency, depending perhaps on the will of the drawer, is not within the act, because it will not anfwer the intent; nor within the words which import an abfolute promife to pay; and therefore a promife to pay upon his marriage is not good; but a promise to pay on a return of a ship has been holden good, because it refpects trade. So a promife to pay, or do another act, has been holden not to be within the act; as a promise to pay, or deliver the body of 7. S. So a promife to pay, if his brother did not, is not within the act, for the fame reafon of incertainty. So a promife to pay money and do fome other thing, Ex. gr. deliver a horfe, is not within the Atatute. So a promise to pay three hundred pounds to B. or order, order, in three good Eaft-India Bonds, is not a note within the ftatute. But a promise to pay on the death of another, as that is a contingency which must happen, will be good. A note payable to an infant, when he fhould come of age, viz. June 12, 1750, was holden to be within ftatute. Coke and Coleham. Mic. 18 G. 2. Gofs v. Nelfon Burr. 226, A bill payable to a man's order is payable to himself, and Salk. 130. he may bring an action, averring he made no order, A note payable to a feme fole or order, who marries, can Str. 516. only be indorfed by the husband. So likewife fuch note may be indorfed by an executor or Str. 1260. adminiftrator. In an action by the indorfee against the drawer, upon non affumpfit the plaintiff proved the drawer's hand, and that when the note with the indorsement was fhewn to the indorfor, he acknowledged it was his hand-writing, but this was holden not fufficient to charge a third perfon. There is a diftinction between a note payable to B. or order, and to B. or bearer; in the firft cafe, in an action against the indorfor the plaintiff muft prove a demand on the drawer, but not in the last, for there the indorfor is in nature of an original drawer. In the firft cafe, if the indorfee give credit to the drawer, without notice to the indorfor, it will difcharge him: So receiving part of the money from the drawer will for ever discharge the indorfor; for by fuch receipt the indorfee has made his election to have his money from the drawer. A cash note on a banker, payable to the fhip, Fortune, ar bearer, is a good and negotiable bill of exchange, and the bearer may maintain an action on it in his own name: Or he may recover on it in an action for money had and received to his ufe. But in either cafe he must prove that he got the bill fairly, and bona fide. Hemming and Robinson, Wilmore and M. 1 G. 2. Robinson, H. 745. Vaughan, B. Grant. v. If the indorfor have paid part of the money, that will dif- St. 1246. pense with the neceffity of proving a demand on the drawer. In an action against the indorfor the plaintiff need not prove the drawer's hand, for if it be a forged bill, yet the indorfor is liable. The indorfee must give a reasonable notice to the indorfor in convenient time, upon default of payment by the drawer; but proof of making enquiry after defendant, who could not be found, will be fufficient to excufe the giving fuch notice, unless the defendant can prove he was to be found. Salk. 127. Truby and M. 2 G. 2. per Rym. at 2 Str. 1087. S. P. Dextaux and Hood, 7 Feb. 1753, at G. Hall, ta men quære. Collet and Grifith, H. 2. Str. 674. Snelling and Str, 1155. Robirfon and 34 G. 2. In an action against the indorsor of a note of hand, where the note was due the fifth, and there was no demand on the drawer till the eighth, and no notice to the indorfor till the the nineteenth Mr Justice Denijon thought the plaintiff had not made ufe of due diligence either in demanding the money, or in giving notice to the indorfor, and faid there were no days of grace on a note as there are on a bill of exchange; but the jury faid it was commonly understood that there were three days of grace, and therefore thought the demand was made in time; but the judge said the law was otherwise, and directed them to find for the defendant. In an action against the indorfor, lord Raymond would not allow the defendant to give in evidence, that the plaintiff defired him to indorfe the note to enable him to bring an action against the drawer, but declared he would not fue the defendant. But where the action was brought by the drawee against the drawer, the defendant was let in to shew it was delivered as an escrow, viz. as a reward in cafe he procured the defendant to be reftored to an office, which it being proved he did not effect, there was a verdict for the defendant. And it feems a reasonable diftinction which has been taken between an action between the parties themselves, in which cafe evidence may be given to impeach the promise and an action by or against a third perfon, viz. an indorfee or an acceptor. Where the defendant borrowed money of 7. S. who lent it knowingly to game with, and affigned the note for a valuable confideration to the plaintiff, who had no notice, yet it was hoiden void by 9 Ann. c. 14. Sir John Bland gave a bill of exchange to Robinson for 672 1. viz. 300 1. lent at the time and place of play, and 372 7. loft. The play was very fair, and there was not any imputation on Robinjon's behaviour. He brought an action of affumpfit against Sir John's reprefentative on the bill of exchange, and also for money lent. Upon a cafe referved, the court held that he should not recover on the first count, the bill of exchange being void by 9 inn. But they held as to the fecond count, though no action could be maint-ined for money won at gaming, the ftatute prohibiting any recovery upon a gaming confideration, yet as to the money lent the flatute only avoids the fecurity, and not the contract, which when fair is good, and therefore gave judgment for for the plaintiff for 300 l-In the fame cafe it was made a question, whether the plaintiff fhould recover any, and what intereft. As to the firft, the Court faid, that though the fecurity were void, yet he had agreed to pay interest. As to the fecond, though the practice had been to stop interest at the bringing of the action, yet they held the plaintiff entitled to intereft to the time of the judgment, and faid, the Court ought always to give intereft to the verdict at leaft. Though it be fufficient for the plaintiff in an action on a note of hand to prove the note to have been given by the defendant, yet the defendant will be at liberty to fhew it was given on an illegal confideration, and fo avoid the lien of it. Guichard . 4 G. 3. K. B. Where in the declaration the indorfement was fet out to be E. 6 G. 2. for value received, but being produced, had it not: Lord Chief Juftice Eyre allowed the indorfement to be filled up in court, notwithstanding the cafe of Clements and Jenkins, P. 3 was cited, where Lord Raymond refufed to let it be done. G. 2. But a bare indorsement of a name transfers no property, and Str. 1103. therefore where the plaintiff produced the note with his own. name indorfed, Lee Chief Justice, fuffered him to strike it out. A note payable to B. or order, was indorfed thus, "Pray Cited by Mr. Faz. in Rx pay the contents to C." In the declaration the indorfement v. Morris, was fet out as payable to C. or order; at the trial it was ob- H. 4 G. 2. jected there was a variance; but the Court held that, as the note was in its original creation indorfable, it would be fo in the hands of the indorfee, though not fo exprefled in the indorsement, and therefore in fubftance it was agreeable to the count, and therefore no variance. I have already said, that if the indorfee give credit to the drawer, without notice to the indorfor, it will difcharge him; it is therefore to be feen what fhall be conftrued a giving of credit; and not demanding the money of the drawer in a reasonable time, is giving credit. What fhall be deemed a reafonable time muft depend upon the circumftances of the cafe; and is a queftion of law arifing out of the fact. However it may not be improper to fhew what in general has been deem ed a reafonable time. Sir J. Hankey v. Trotman, Metcalf. Tr. 22 G. 3. In Mainwaring and Harrifon the cafe was, upon the 17th of 1 Str. 508. September, being a Saturday, about two in the afternoon, the ` defendant gave the plaintiff a goldfmith's note, who paid it away the fame day to 7. S. The goldfmith paid all that day and Str. 1175 Metcalfe. Salk. 132. Anfon and Bailey, Mich. 1748, G. H. and all Monday. 7. S. came on Tuesday, but then payment was ftopped; upon which the plaintiff paid back the money to J. S. and afked it of the defendant, who refufed, upon which the action was brought; the Chief Juftice left it to the jury, who would have found it fpecially, but he would not let them, faying it was a matter proper for their determination; upon which they gave a verdict for the defendant, and held there was laches in J. S. faying they were all agreed that two days was too long. So where Chitty had given the East India Company a note on Cafivell at eleven in the morning, they did not fend it for payment till two o'clock the next day; and it was holden that they had made it their own by their laches. But it has been fince determined that the next day after a banker's draught is given is the time allowed by law for demanding payment of it. In Hill and Lewis, the defendant indorfed to Z. who the fame day indorfed to the plaintiff, who afterward the fame day received money upon other bills of the fame banker, and might have received the money upon the bill in queftion, if he had demanded it. The night following the banker broke, and the jury upon confideration (it being left to them by the Lord Chief Justice) found for the plaintiff. The defendant having a promiffory note, payable to him or order two months after date, indorfed it to the plaintiff, who fent his fervant to the drawer for the money, who faid the defendant had promised not to indorfe the note over without acquainting him; that he had not fo done, and therefore he was not prepared to pay it, but promifed payment in three or four days; and in like manner put him off from time to time. After three weeks the plaintiff wrote to the defendant (not having fooner learned his direction, though it was proved he fooner enquired after it, and was told where he might learn it) that Smith's note was not paid; that he had often promised payment, but had alledged, that the defendant promised not to make use of it without acquainting him firft: Smith became a bankrupt; the plaintiff writes a fecond letter; the defendant answers, that when he comes to town he will fet that matter to rights; upon this evidence the jury gave a verdict for the plaintiff, notwithstanding it appeared Smith continued folvent three weeks, and paid above a hundred pounds in the time. |