1 Vt. 136 | Vt. | 1828
delivered the opinion of the court. — The question upon which this cause must turn is, whether the plaintiffs used such diligence in their demanding payment of the maker of the note, and giving notice back to the endorser, the defendant, as to keep good their right of action against him ? As the dates are given in the declaration and case, the court must consider that the note was endorsed blank by the defendant to the plaintiffs a short time before it fell due, which was January 3,1824; that it was sued on the fifth of the same January, the writ served on the seventh, by attaching the land of Ryan, the maker, and pursued to judgment and execution; — that Ryan was committed to prison on the execution, and there remained until after this suit was commenced upon the endorsement; — that, two or three days after said commitment, and nearly four months after the note was payable, the plaintiffs gave notice to the defendant of the nonpayment of the note and demanded pay of him. It is contended on the part of tire plaintiffs that as this note was not negotiable, and as the plaintiffs sued and prosecuted the same to judgment and
This court having heretofore in the case of Nash vs. Harrington, 2 Aikens’’ Reports, 1, adopted the law merchant with regard to notes that are negotiable, we are now urged to treat those not negotiable as an exception to the rules of the law merchant, and adopt those rules upon the subject which are peculiar to the state of Connecticut. The courts there consider the endorser of a note not negotiable, as conveying the property in the note ; authorizing the use of his name to collect by suit if necessary, and as warranting the same to be collectable by a due course of law with due diligence; and that all this course may be pursued before notice back to the endorser. — 1 Sw. Rig. 435. We consider this not to be the law of this state, and are not disposed to make any distinction between those different instruments with regard to the ' rights of endorsees. We deem it most expedient to treat the en- . ’ dorser of such note, with blank endorsement, as the drawer of a * bill of exchange, the endorsee as payee, and the maker as drawee. • The endorser then, by his endorsement, requests the maker to pay lire note to the endorsee, who alone can controul it, while he holds it, and who makes it his own and ■ holds it at his own risk after neglect to demand payment and give notice back, to his endorser. If the endorsement be made before the note is payable, demand must be made as soon as payment is due, where the parties reside in the same town, as in this case. If the endorsement he made after' the note falls due, the demand of payment must be made as if the note fell due the day of the endorsement; and, in all cases the notice back must immediately succeed the demand and failure of payment; that is, by the first mail, if the endorser resides at a distance, and the same day if he resides in the neigh-bourhood. There is no reason for any such distinction as’ the plaintiffs claim as to the import of blank endorsements. And it is very important that some rule, well understood in society, should be productive of uniformity in transactions of tins nature, and in decisions upon disputesgrowingoutof the same. And those who wish to be governed by a different rule can make their own rule by
The plaintiffs, not having used this kind of diligence in making demand of payment and giving notice back, are not entitled to recover.
The fifth point urged in the plaintiffs’ brief would be of weight and importance if supported by the facts in the case. But, by recurring to the original files, which are refered to as a part of the case, we discover that Swift and Smith were the attornies of the present plaintiffs in procuring the judgment and execution in favor oí Johnson against Ryan. When, therefore, the case states that Johnson, immediately after the escape of Ryan, applied to Swift and Smith,axid requested them to prosecute the jail bond, it must not be understood that he endeavored to controul the bond, but that he gave them notice of the escape and right of action on the bond,1 and requested them to pursue the collection for the benefit of the plaintiffs, or whom it might eventually concern.— Moreover, the case shows that Johnson had not collected the money, but it was only in a train of collection when this action was tried in the county court; and if the attornies, Swift and Smith, have since collected the money,it is their duty,to pay it to the plaintiffs and not to Johnson. The judgment of the county court is affirmed with cost.
