Griffin v. Goff

12 Johns. 423 | N.Y. Sup. Ct. | 1815

Spencer, J.,

delivered the opinion of the c'ourt. - It is perfectly settled,, that to fix an endorser,' the holder must demand,- or use due diligence, to obtain payment of the note, when it ‘becomes due;, and that when the maker makes, default, he must give notice thereof, with due diligence, to the endorser, , It iS-equally well settled, that -when a negotiable, note is endorsed, it is not tfernsndatile until the third day- of grape, unless the» third day be Sunday, in which case it is due on the sepond day; and that where notice is given to the endorser, prior to the demand .on the mak.er, it is null, as. thp drawer was not in default When the notice was given. These principles were recognised rind enforced in the case of Jackson v. Richards. (2 Caines, 343.) In the present case, the demand of payment being made, at the house of the drawer, before the note was payable, is as no-demañd; it was a perfectly nugatory act; payment might have been demanded, with as much proprietj7, on.the day the note was given. There was'then no default on the part of. the drawer, for the. want of demanding payment on the last day of grace, and? consequently, the notice to the endorser was a nullity.

‘ Ip Duryee v. Dennison, (8 Johns. Rep. 248.,) it was decided, that if; an endorser has not had regular notice of non-payment bv the drawer, yet if, with a knowledge of that fact, he makes a subsequent promise to pay, it is a waiver of the want of due notice. The same principle was also recognised in Miller v. Hackley, (5 Johns. Rep. 385.,) and in that case it was proved, that the defendant said that he would take care of the bills, or see them paid. The court held that this was not enough, that-the promise ought to be (Jearly and unequivocally made. out.

Here there is no promise. The defendant knew of no defence, This is extremely slight; and by no means waives any objection which the law puts into his hands.

Judgment for the defendant,.