| Superior Court of New Hampshire | Feb 15, 1830
The notes, the contents of which the defendant has in his hands, were the property of the plaintiff at the time when the defendant received them, and had been deposited by the plaintiff with Pratt merely for collection. They were payable to order, and endorsed by the payee. It does not appear that the defendant had notice, or any reason to suspect, that the notes were not the property of Pratt. And the question is, whether the defendant, admitting him to have been a creditor of Pratt and to have received the notes, bona fide, and without actual notice of the interest of the plaintiff, in payment of his demand against Pratt, could, under the circumstances, legally retain the contents of the notes against the plaintiff? If he could, the evidence offered by him was improperly rejected and there must be a new trial, otherwise the plaintiff must retain the verdict.
The general rule undoubtedly is, that an agent or attorney shall not be permitted to pay his own debt with a note deposited with him merely for collection.
But a negotiable note, endorsed in blank, and thus delivered to an agent for collection, stands on its own peculiar grounds. Such a note, if the owner lose it or be robbed of it, and it get into the hands of a person, who was not aware of the loss, for a sufficient consideration, previously to its being due, may be recovered by the person into whose hands it thus comes, and the original holder, who lost it,will forfeit all right of action. Chitty on Bills, 112; 3 B. & C. 466, Gill v. Cubitt; Doug. 611, Peacock v. Rhodes; 1 Burr. 452, Miller v. Race; 4 Esp. N. P. C. 56, Lawson v. Weston.
A fortiori, if the owner of a note endorsed in blank deposit it thus with an agent to collect, and the agent, before the note is due, dispose of it, for a sufficient consideration, to a person, who has no notice of the right of the person who deposited, it, such holder will be entitled to retain the note against the owner. 1 B. & P. 648, Collins v. Martin; 8 Taunton, 100, Treuttel v. Barandon.
It is said in this ease, that if a note be negotiated after it is overdue, notice of its infirmities is to be presumed from that circumstance, only in cases where the suit is against the maker. But the rule is a rule of evidence, and although it has been applied most frequently in suits against the maker of a note, still it is evident, from the •nature of the rule, that it may be applied with equal propriety in other cases. In Goggerly v. Cuthbert, Chamber, J., states the rule to be applicable in trover; and in Down v. Halling, 4 B. & C. 330, it was applied in an action for money had and received. We have found no adjudged case, in which it has been decided, that the application of the rule is to be thus restricted, nor do we see any sound reason, why it should be.
It is also said, that a note, payable on demand, does not stand on the same ground as a note made payable at a future day and overdue,
This is undoubtedly true. 4 B. &. C. 325. It seems to be well settled that a note, payable on demand, is not to be deemed a dishonored note, merely because it is so payable, and we shall proceed to enquire when such a note is to be deemed a dishonored note, so that whoever takes it, must take it subject to all its infirmities.
There is no precise time fiiced by law, at winch a note
In the case of Sice v. Cunningham, 1 Cowen, 397, it was held, that, where the endorsee of such a note neglected for five months to make a demand of the maker, the demand was not made in due time, and the endorser was not liable.
In the case of Field v. Nickerson, 13 Mass. 131" court="Mass." date_filed="1816-03-15" href="https://app.midpage.ai/document/field-v-nickerson-6404429?utm_source=webapp" opinion_id="6404429">13 Mass. Rep. 131, it was held that where all the parties lived in the same town, the endorser of such a note was discharged, no demand having been made of the maker within eight months.
In the case of Martin v. Winslow, 2 Mason, 241, it was decided, that where the endorsee of a note, payable on demand, had neglected for seven months to make a demand of the maker, the delay, unexplained, discharged the endorser.
Where a bill of exchange, payable a certain number of days after sight, was presented for acceptance twenty-nine days after the date, this was held to be sufficent, under the circumstances, to charge the drawer. 7 Cowen, 705, Aymer v. Beers.
And it seems, if a note, payable on demand, is suffered to lie beyond what is to be considered a reasonable time within which a demand must be made of the maker in order to charge the endorser of such a note, it is to be deemed a dishonored note. 1 Cowen, 407; 7 Cowen, 713; 13 Mass. Rep. 137—138; 6 ditto, 430.
A note, payable on demand, which was negotiated six months after the date, was, under the circumstances, held to be a dishonored note. 6 Pick. 259, Thompson v. Hale.
And such a note, negotiated two and a half months after the date, was held to stand on the ground of a discredited note, 7 Johns. 70" court="N.Y. Sup. Ct." date_filed="1810-11-15" href="https://app.midpage.ai/document/losee-v-dunkin-5472672?utm_source=webapp" opinion_id="5472672">7 Johns. 70, Losce v. Dunkin.
But such a note, endorsed seven days after its date,
in the case now before us, the notes had remained unpaid more than ten months, when the defendant received them. And we are of opinion, that in general, such notes must be considered as dishonored notes after the lapse of that time.
Perhaps, under particular circumstances, they might be permitted to remain unpaid that time and still not be considered as dishonored. But there is nothing disclosed in this case which shows that these notes ought not to have been considered as dishonored, and there must be
Judgment on the verdict.