*1 1870.] Hebeick Woolvebtok. of case.
Stаtement George A. Woolver Herrick, Respondent, Delaus W.
ton, Appellant. nearly three months transferred on
A
parties
places of business in
date,
subject,
their
after
where
transferee,
city,
of the
in the hands
same street of the same
previous
of
makers
existing in behalf
to the transfer.
upon.
(
Merritt Todd N. September, 1869; 1869; April, re-argument ordered in (Cause argued in March, 23d, 1870.) January 10th, 1870, decided
re-argued
Appeal third district, the General Term, an order of at the a verdict rendered circuit anew trial on
granting of the defendant.
favor note made on a
The action brought of 1861, $1,500 the 9th on
defendant, day February, of H. D. order Hawkins, him, indorsed delivered the same day
immediately was the Jonathan E. who or Herrick, original it until the 28th of continued hold who
indorsee; April, it to he transferred his brother, 1st of May, Herrick,
Delaus W. plaintiff. and delivered to E. Her- executed Jonathan
The note was him to shares the defendant fifty transfer by
rick upon the Bank of The Albany. plaintiff, stock capital and Jonathan E. were at Hawkins,
defendant, Herrick,
time business merchants, doing city Broadway, and before the commencement of the action,
Albany;
defendant tendered the and demanded the duly stock, was refused. of fact at the trial, litigated question regard Herrick,
execution and Jonathan E. note to delivery whether as him and the or was
was, was, maker,
not, whether consideration; rather, was given
as the defendant as a mere claimed, memorandum, way return of shares of stock
security fifty capital HeBBICK V. WOOLYEBTOX.
Statement of case. *2 the bank of borrowed' the Albany, defendant from Jona-
than B. as claimed Herrick; the or, to plaintiff, given
secure the for said shares of stock fifty purchased
said Hеrrick the defendant. The claimed, that plaintiff sale was and that note stock, the was for the given The defendant claimed the
purchase transaction price. was
a mere loan of the to secure the return of stock, which the
note was made. this issue the evidence was Hpon conflicting.
Ho evidence was either to show whether or given by party
not, the he took the transfer before, or when plaintiff had actual the claim of the notice of defendant;
that it was executed to secure the return of the stock, to
show whether or the transfer of it him not, to Jonathan
B.' Herrick was for valuable consideration.
The court other charged jury, among things, been three months
note before it nearly having given was and all
transferred plaintiff, parties living each other,
same business with' was street, notice doing to as to the and if he failed inquire note; purchaser the note was
make stich defence exist- inquiry, open To which the original parties. plaintiff’s
ing
counsel excepted. for the asked the court
The counsel charge it was a being payable and did not become until actual security,
continuing The court refused so and the made. charge, excepted. counsel
plaintiff’s was a mere loan of that the transaction found
The jury made as memorandum the note was by way and that
stock, for no other stock, return of pur- security defendant. verdict rendered
pose, and served bill exceptions,
The plaintiff at the General instance the first heard in to be ordered to abide with costs trial was a new granted, where
Term, court, to this pursu- appealed defendant and the event, 11 of 2 of section subdivision clause
ant to the last
Code.
1870.] v. Woolvertoet. Foster, cited Haxton for the H. Reynolds, appellant,
John Cow., v. Cunningham (1 Sice Wend., 13, 21); (13
Bishop 190); Johns., Gaylord v. Ketchum (8 Thompson 407); 156; Bills, Edwards Wend., Loan (15 308);
v. Van (1 v. Judah John. Hendrick R., Durkin
Losee (7 70); v. Haskins Caines. R., 369.) Furman (2
John. R., 319); cited James v. Chalmers for the Smith,
Henry respondent, Nelson 616); Pratt v. Adams Seld., 214); (7 Paige,
(2 & Ry., v. White Dow. Hill, Barough (6 339);
Cowing *3 Todd Hill., (23 Merritt v. v. Andrews (3
379); Wethey 582); Barb., Payne 517, 523, Scovil v. Scovil 524);
N. Y., (45 28); Slate (39 172, Payne Y., 146,
v. Gardiner N. (29 173); Barb., 80, Prior Weeksv. 81).
Barb., 640-2); the found transaction J. The jury having
Foster, the maker of the defendant, note, the who was
between real who the first Herrick, B. was holder,
Jonathan payee the latter the loan to for- a mere bank stock that the note was made as memorandum
mer, by way for the return of the and for stock, no other
of security pur- found that in form a though they virtually paper,
pose, never intended note, as such them ; between
promissory to be used for the it issued above
that was only purpose speci- them nevеr intended to be used or and was
fied, issued, between doubtless, as
circulated it could not be claimed to be at such; least,
them unless default defendant return stock,
should
and it cannot be claimed the evidence ease, had default been made.
An therefore, whether the time inquiry, important transferred from the
note was it had payee plaintiff, due, sense as to be if it dishonored,
become was,
then the took to all between subject equities and maker and he could it, recover though even
he took without actual notice of the and for a
valuable for in consideration; such case the law notice implies
584 HebRTCK V. WoOLVEBTOX. Court, per J. Foster,
to him all or defences maker existing equities
had it as and such con- payee, presumption
clusive.
If, the note thefefore, was dishonored when the plaintiff it,
received and his refusal to charge judge charge were requested counsel, correct. plaintiff’s This of law is not and is well estab-
proposition disputed,
lished.
The uniform consent of this State that a was, authority demand, must be within presented reasonable or it would be deemed due and so that dishonored, neg transferee would take all
ligent subject equities existing
between the original parties; rule applied,
whether the note was with interest or not. (Furman
v. Haskins,
Sice v. Cunningham, Cowen, the same 391), (where rule holder and subsequent
was held And indorser). Wethey
v. Andrews
the same rule as
(
notes on that a note on demand holding, t is a the rule lasting security, it, applying
that the demand must be made within a reasonable time;
diately.
The as to reasonable rule, time, which has been applied has been different notes, from the rule, quite as between drawer checks, and
respect, applicable holder; as
and to drafts or bills between drawer or indor exchange, them
ser, holder, which to be requires presented without rule The as to such them to be
delаy. notes, requiring pre within such as under all time, the
sented circumstances of the of the and the situation the
case, court shall parties, adjudge to be reasonable between them. In Furman law, matter held the dishonored, the was where transfer
Haskins, after its months execution. In Losee
was eighteen no circumstances the court where
Durkin, special appeared, and a transferred two half the note was months
held, where in an thereon executed, action was brought
after
1870.] HeBBICK V. WOOLVEBTOIT. of the Foster,
the the maker a transferee, made while might prove payment,
it remained in the hands in that the case, payees,
note was with interest. payable
In Sice &v. where the action was Cunningham,
indorsee a was that note indorsers, held, against
on was must demanded within demand, presently,
a and that a reasonable five months time, delay making maker,
demand of the indorser; the court discharged of a the time of held,
also proof parol agreement vary fixed not be could received.
payment note,
In for the first Andrews, Wethey Supreme Court, notes, with, noticed distinction between demand interest. That was action subsequent the maker of a note on demand with interest. against from the a Grimshaw,
It was transferred one pur after it within week thereof, executed;
chaser about month after its he transferred execution,
within it to who him for it. The defend paid money plaintiff, and the first all lived in transferee, the same
ant, payee, and a and the lived within two half miles plaintiff
village, and the that the note was, defence offered was exe them; without consideration. recovered, plaintiff
cuted that the furnish cases
court principle holding fixing exactness, time negotiable so dishonored, shall be deemed as to let one to whom it has been payee, against nego the note with interest and came to the
tiated; after it some four or five was exe
hands of weeks to be dishonored and that no law such note
cuted, adjudges J., after its date. In soon delivering opinion,
so Coweit, had if the note not been substance, that,
says, it had been presume
he should thought right time even refused, perhaps
demanded *5 the he contrary obtained it; Grimshaw thought interest, bore to one which with to be regard presumed course it would be general contrary thought time of some to demand short proper
business
Haxd—Von. II. 74 HeERICK V. WOOLVERTOX. Foster, interest. lie also cited the case
computing v. Barough as
White, in & Dowl. and in 4 Barn. & reported Ryland, that
Cress., such note in showing is considered England
as a and is not dishonored until continuing security payment is
demanded and refused; but we are not informed that the
court rule, the adopted whole case shows it was
meant to decide, and such a note is not due or dishon
ored immediately.
How, before court in question precise Wethey
Andrews in was, whether, action holder by subsequent a note oh demand, interest, transferred by within a
payee after its the maker week could set inception, the defence
up him and between existing that the
note was without the sole consideration, that it ground
was dishonored of a week delay without demand for The court was
payment. doubtless correct in its decision, in
and correct no there was case such a saying holding
note to be and in dishonored; I think there is respect,
no in the distinction, cases to which court alluded, notes and those on demand, without for I am not able to find
interest; case which declares demand,
note on dishonored being after it is ;
demanded within week executed and paid in the treats the case opinion, though
although, judge transfer took four five after weeks place material it is certain that actually ques-
making it is clear,
tion was involved; perfectly upon principle that if transfer to before the Grimshaw was
authority, succeed to would dishonored, subsequent
note was him and the as between maker, irrespective
all his rights to or of valuable considerations paid of notice
all questions seem that holder. It would judge such subsequent held in rule, White, that the the case Barough
supposed notes on he was different cited, regard England to demand it was what regard think mistaken. he was and if I interest; so,
notes not Wethey
But whether the judge opinion expressed by
18Í0.] HeBBICK V. WOOLVEBTOS". ITosteb, J.
Opinion of that the law be conceded correct or must not,
Andrews was decided. that case was correctly followed what was bar, the case Court,
The Supreme in the this court adopted to be principle
supposed true doubtless It is
case Merritt v. Todd
N.
(
ble demand until an actual pay remains liable indorser and the indorser, him and that as between
ment; holder, to make such chargeable neglect omitting
within and time; reasoning whether any particular or not,
which the be correct decision was based what the It decides
decision of this court. however only and the chief
law is indorser; judge, between that case such as
his discriminates between opinion, “ to one It be well observe us, before says: may is not identical with one which question present the maker
arises after the transfer of such when, to the first holder.
seeks introduce defence existing against after the or the of interest of time, lapse non-payment for such period, passed, may
regular period sufficient to purchaser justify put inquiry that the instrument dishonored was actually
presumption
before the transfer. It well be true, case, might a demand had ~been made and notice given actually at the same him, so as to while time imdorser, charge
the first let in maker would he he had defend, amy defence. if Questions indorser, therefore, charging questions the maker allowing depend original may that, other as to words, different considerations.” In
very dishonored, while, the note be considered maker, might the holder indorser,
at the same as between laches. has of no
former been guilty intend to did not mind,
It is clear to that this court my holder, maker
decide what the rule should be and there- indorser, holder and as between only Court seemed
fore, claimed, cannot be as the Supreme v. Woolvebtok. per Foster, Court, *7 us in the casebefore was that their decision required,
suppose, the case of Merritt Todd. Nor does
and controlled by us from determining questions here, presented prevent in decisions other cases. In to the analogous fine,
according in as to such between maker notes, decides regard nothing amI not aware of case in
and holder. And this any court, the decision Court,
or the case of the except Supreme in terms which dissents from the below,
court ruling to overrule Durkin, it;
Losee v. or and that case attempts held that was decided such note as this
which it had held been
dishonored for two and a as to let in the half,
months so defence against holder, first
subsequent while he by payment holder, note.
owned the
It be, as indorser of that, may he paper, the maker holden, should have
may though him and a first holder of it, for the
arising reason, he the note, submits his by indorsing without liability certain, fixed limits as to
any and to some extent have his
consents to affected the action of rights both
maker even as between it is holder, them, due at though that the maker so it at
once, may pay time; any demand or sue the maker payment, may time; at
demand indorsed such having he paper
has no to neither of them have complain right taken retire the fix or his
such steps at an liability
earlier day.
It must be that under the rule conceded, which has obtained
in this there has been some State, doubt always and uncer- when such note this would become dishonored
tainty
want of or but such non-payment; need uncertainty where due any risk, caution is subject parties exercised.
I think it is not correct to that such say notes are intended for from hand to hand as
circulation commercial It is true paper. do socirculate to some but, they extent; the notes generally, are issued used for
which circulation are at a day and in all
certain, which regard know when parties
18Í0.] v. Woolvertox. Court, Foster, per . fixed dis- indorsers are
and how liabilities of
charged. *8 else, of who
due, selling may demand. The that the holder
moment make such very fact, it offers for sale seems to
of circulation, imply such paper there is some reason he does not
that apparent, why And its can maker. one surely
demand payment such is after it paper legally payable immediately
doubt if holder demands it. the issued,
is the of of the rule which authority, application
Independent holder and indorser Merritt
is held between to Todd, and maker of holder would leave the time when the
the case as be uncertain it would quite
note would as be when under the dishonored rule as claimed
it the becomes appel all the actual maker’s intentions in while the
lant, issuing paper and he frustrated; must have no it until be to
might right pay it. to demand it holder choose For that such be, cannot
the the holder is as until he to chooses against
note and that the it it; at same the maker
demand pay may he The rule Merritt as Todd,
when pleases. adopted is to the indorser the on actual is, only
applied note as the and if it is it must be applied against maker, all its and of course, legal consequences;
accompanied can he the sooner or as payment
while holder require later, on the the of the maker
chooses; is, only certainty part to the it is must be certain have
he whenever money ready continue for, liable to interest without yet
called pay the to holder to receive he until compel
right HePvRICK V. WoOLVEBTOU. Fosteb, to do And while rule will enable the holder
chooses so. loan out intention that he his had,
to carry may for such time as usual
money security
of commercial affords no paper, safe-guard change
of such intention leaves intention his.part, any such maker without note any protection whatever;
is due when demanded. The holder as may vigilant maker as he are and indorser pleases.
negligent bound wait his of the case time; law is his will. only If it in this we should
we the well case, established adopt change a note, of limitations com statute
principle, to run from its so should date,
mences commence only the time add thus farther to made, still holder, of the maker. security prejudice
I of Merritt think has case extended prin- such case to the security
ciple continuing ; very verge that to between holder and maker would be apply maker in the an extent
putting power If it
which is is the intention of entirely unnecessary. executed between them shall abe paper continu-
parties that and as a term security of time
ing it is better that annually computed,
which interest much made in such form should shall evidence such
paper *9 and more to the
intention clearly, give parties benefit of as the law so than the holder benefit
it, change only. is, the law that a
In country this payable demanded demand,
on within a reasonable time, unless and as overdue dishonored.
considered v. (Ranger Cary,
1 Croswell’s Metc., 369; Executors v. Arrot 1 & ; Sergt. R.,
180; v. 9 J. Pulver, Loomis R., Van 244; Hoesen v. Van 3 Wend., And
Alstyne, 75, rule is 79). the same even if to be
expressed
payable
interest.
v.
(Thompson v. Hale,
t 13 13 elle, Pick., Foster, v. 418; Wight Pick., 419; Nevins v. 6 Conn., 5; Losee v.
Townsend, Durkin, and Sice v. Cun in this And, no
ningham, state, absolute infra) measure fixed. time has been A reasonable day two. (Field
1870.] 591 v. Woolvebtok. Foster,
Opinion of the
J.
v. And even a month v. 6 Mass, (Ranger McKenn, 428.)
v. While months too Metc., eight 1 long. 369),
Cary, Hutch Jenness v. Metc., Ayers Bank v.
American (2 288); a half. v. Brice, three months and (4 Mass., (Stevens
ins 370), a half. v. And even two months (Losee
, a note. deemed sufficient to discredit have been 404), run from the date of limitations commences to
The statute interest. on whether demand, payable .without v. 13 Larson Kettelle, 418; Lambert, v. 7 Pick.,
(Newman Butler, v. Verm.
Halst., 247; Rep., Kingsbury 468), Ins. v. Mohawk
whether be with interest. (Mason Co.,
Wend., 267.) in v. and the chief Wethey Andrews, J., judge, Cowen, that in regard
Merrit appeared suppose there was a due, demand notes became
time difference between those those on England And I think it will found that yet
demand merely. there. distinctiоn prevails immediately. held demand, were *10 And Viner’s 103, note,
note. to the Abr., same point. that
It is assumed the rule in a is, now that note England demand with on is a and is interest,
payable lasting security, v. Woolvertoit. Postee, until dishonored is demanded. In Barough
White in 4 & Barn. (as Cres., which reported a 325), contains of what was said
report each of judges, question
was in an whether action a holder aof brought by subsequent
note, on demand, with for which he had interest, value, paid
the maker should be allowed declarations of the prove
first holder while he that he no it, owned consideration for gave
it to the maker. It was held that such declarations could not “ And in his In given. opinion, says : Bailey, J.,
case demand was and the note made proved, being paya
ble with it that interest, order, Arnott makes probable that the note should be parties contemplated negotiated
for some time.” And he that the said, also defendant did the first that holder with for identify plaintiff,
these reasons the evidence three was properly rejected.
other their decision on that the judges placed ground, a
declarations of aof cannot prior given
evidence one, subsequent against alleged And is the
facts must be established other proof. It is true,
well settled law this State. Littledale, and that it due, also he the note not over
J., said thought it however, him that was security. He,
seemed to lasting the fact that is with interest;
does not allude to not over “for note due, J., payable
Holroyd, says as a note is not same over suspicion, demand, open
on at a time.” In Brooks particular payable & it was decided that Wels., Mees. Mitchell 15), prom was not to be note
issory effect an indorsee with any so as to equities as over due,
treated indorsed several because the endorser, merely is made member an allusion date. Hot after its
years the note was on the court, Parke, B., assertion,
reiterаtes “ “ and is current any length demcund, years,” circulates takes no notice that o'" the case And the syllabus
of time.” interest.
the note was is no difference, there England
But I have said, *11 593 V, HBBBICK WOOLVEBTOK.
1870.] Foster,
Opinion, interest, notes on demand with respect,
notes on And I think the which demand, manner merely. are two treated
these cases shows judges, they the rule
understood to and that be, were they only applying
the same rule to these notes, which considered they applica
ble all to other notes on demand. In payable Haywood the maker Watson action was (4 Bingham, 496), against “
aon note as follows: On I to promise pay value
Cyrus Morrell, £1,000, order, received,”
passed after was plaintiff subsequent long and the
executed, defendant to set attempted up
it as the first holder. But the ruled against court was entitled to recover on the
plaintiff that, ground took not note, was And dishonored. J., “For said: was though
Paeke, , and therefore could not be esteemed payable demand till demand had
over due been made.” And the note was I with interest. do not know how the decisions English are to be
on this for reconciled, these subject cases con hold, with
flict that all previous decisions, demand notes
are securities, are not over due or continuing dishonored
until actual demand and yet continue to decide they statute limitations commences to run their date.
them from (Norton 2 & Ellam, Mees. Wesb., The action was on note which the maker
461.) promised on demand with £400 simple and the pay only to the court was, whether
question presented the statute ran
from the date of note or from the time of counsel draw the attempted distinction that the note therefore could payable not be due the Court of
immediately, Exchequer unanimously repu the idea,
diated “Then is there say: difference
when it is ? interest It is clear that a quite demand,
promissory note, payable debt, present and the any demand, statute begins
run the date of it. Then the stipulation compensa
tion interest makes shape difference, except
Hast)—Yol. II. 75 HeBBICK W V. DIVERT OS". Cоurt, per Barb, Oh. J. the debt is de in diemP die
thereby continually increasing
And to notes do on demand that *12 stipulate the in decisions uniform are English declaring
the run statute from their date. commences
I and the in think, note upon principle authority, question at it dishonored the time was transferred to the plaintiff.
And that neither the call wants convenience business of the rule. any change and
The of the his refusal to therefore, charge charge judge
as The Term were correct. order General requested,
should reversed and be rendered for the defend- judgment
ant on the verdict. Ch. J. If this action had been at time any brought
Earl,
before the case of Merritt v. Y., law, Todd N. 28),
it understood to be settled this State, would a for the defendant. That is under
required case judgment a
stood to this be case State departure previ every a decided the same to have laid down
ously point, much differ
new rule. However we lеarned may wrote the as to the case, who opinion propriety
judge laid it it than him,
of the rule is better adhere to down by
to unsettle decision law question. bringing understood com shall come be however, among
"When, an means indorser, men decision that,
mercial as against never become however due,
that a demand will long until has been demanded time, actually payment
lapse found to indorse will be few maker, willing very persons out of use. will notes, substantially go they did not undertake lay the case of Merritt v. Todd
But a demand rule to actions
down any govern distinction a maker, recognized
note against indorser. an action action against after demand be made liable only indorser can in the demand specified no time for
maker; time, at be made any decision, to that may note, according maker, But as against
at holder. the option Woolvertok.
1870.] Court, per Earl, Oh. J.
Opinion of the it is due, to him, As suit. beforе necessary
demand demand. Such at time without previous be sued any
may understand the common shifts,
notes are usually temporary at the holder may
ing being, are at time. They
and the maker given, may pay they but with understanding paid immediately, for the convenience of
are to run brief parties. period notes are not dishon
Hence the courts have held that such run a few
ored but that few weeks once, may days, they of each the circumstances few months, depending in a as to let dishonored, shall deemed so
case, before they not set he could up of the maker which part the note it was took before bona holder who fide *13 better, a It have been would dishonored. might a held these notes due and
been more certain rule to have that not be transferred at
dishonored at so could once, they any off of the maker. But
time so as to cut defence rule
has settled otherwise and acted in this been State from upon
thе foundation of our and it is better to adhere government,
to the rule than to unsettle the law a new one. by making
I have thus far alluded to the law as settled before the
case of Merritt v. and I have noticed the fact that
that case did not the rule profess change
maker of such note. I will now call brief attention to the
cases this decided in bearing upon point, State since that
case.
In the case of
Payne
Gardiner (
29 N. Y., the action was 146), upon instrument,
follows:
“ [$1,000.] 9th New 1848. May, York, of
“ Received from William H. Captain one Payne, thousand which is
dollars, to his credit on our at books six cent interest. per &
SLATE, GARDNER HOWELL.”
It was held that was evidence receipt deposit and that
money, thus like other money deposited, HeBBICK V. WoOLVEETON. Court, per Ease, Ch. until after demand of could not be recovered
mere deposit, the action was Barb., In v. Scovil (45 Scovil 634),
payment. annual on with note, promissory
upon limitations. was, the statute
interest. The and the Bacon wrote opinions,
Judges Mullin Mok&an, commenced to run statute former,
two assuming barred;
the date of held it was the'note, Judge run until the that the did not
Bacon held begin statute demanded. He of the note had been pro
payment actually -in the district
fessed to decision third follow judicial are to be which we now called the.ease supposed upon that that note was He laid stress the fact pay.,
decide. upon and inferred demand with annual
able on at least one that the note should run year. intended
parties concurred
But it two does other appear judges it was Y., him. In Howland v. 307), Edmonds N. that a demand,
held might prosecuted statute demand, hence,
immediately In date. run a note at its limitations on such began two
Hirst v. Brooks
action was
(
one Ho demand
menced 1866. May, until the commence had been just *14 had the notes of the action. Interest been
ment paid upon than the action was. com before 1844,
in more twenty years of limitations, The defence was the statute
menced. run court held that the statute to
the notes begins upon the the sustained the defence. These date of notes of all the in this the case Mer
are cases decided State since called, attention has to which оur been
ritt v. them, the seen none of far sustain go enough-to will the Term in of General this case.
decision the note
I do not the fact, how payable perceive the can with we make difference question
are now note on demand will not A considering. simply
draw 1 155 v ; interest. Daly, Purdy (Bishop Truffin, 597 Woolvebton.
I8Y0.] per Grover, Court, on Bills, Edwards Kernan, 406; 712; Smith’s
Phillips, Notes and 526; Bills, Parsons on As L.,
Merc. 393.) are the run to for a *15 in street business same
that the were engaged parties Woolyebtoh. Hebei ck v.
598 G-koyee, of the that the note must be therefore, regarded
in Albany, three months if it after the would dishonored lapse
as nine. of six or part plaintiff, after the Upon
so lapse that the note, is insisted being intended that should be pre that
shows parties an invest rather held as but immediately,
sented payment the holder having parties,
ment pleasure during time he chose, at any payment require right dishonored not to be considered note was
that therefore the coun It is conceded by demand of
until an actual payment. arе conflict in this the earlier cases State that
sel its cor are relied establishing
view, following 582; 3 Andrews, v. Hill, authority. (Wethey
rectness by Merritt v. 6 ;379 White, Ryland, v. Dowling
Barough Barb., 517; 45 28; Scovil, Payne 23 Scovil v. Y.,N. Y., 146; case, Barb., 29 N. same Gardiner, In Barb., Andrews, Prior, Wethey 80.)
Weeks a a defence of the maker of such note held
was the holder when not be could interposed against
the payee from its date. I transferred within week say note was the note the reason that the case shows week,
within to one Grimshaw within so transferred it to the in about four weeks transferred who plaintiff It is clear that the his acquired
thereafter. plaintiff pur all his the note from Grimshaw recovery upon right
chase time the note was his while lapse
unaffected by in the it is assumed court, true that, It is opinion
hands. transferred or five after four weeks date, contended for pretty doctrine said, asserted. It is somewhat cautiously
broadly though course of business
it would be contrary general short of some proper point (of note) &e. half such as year, quarter, year,
for computing of inter for the
What would proper point computation but I think that found to be determined; would be is not
est from one This case does not day upward.
any period nor Sice v. to overrule Cowen, Cunningham (1 397),
profess
18Y0.] v. Woolvertoh. Grover, per Court, J.
Opinion of the that nor was decided; cases which of the class of upon
any from the On the
is inferable con opinion. such any design decided cases, and other same upon that several
trary, are criticism expression any quoted
principle, as White, by Dowling
dissent. Barough reported in the sustains position fully
Ryland, in their sustain case, opinions
present judges respectively B. & as Littledale C., places but it; only,
ing reported 325), this There was another ground upon ground. judgment been might clearly given: which judgment
upon was offered
That that is, competent proof any this In Merritt v. Todd was held by the payee. demand а note
court as an indorser of payable upon that and that continuing security,
with such to the holder could not be imputed
laches delaying to the notice indorser any
demand payment giving the indorser liable until and that continued such
particular time, made. This case overrules Sice demand clearly Cunnin
mgha in the in the of the court latter for although opinion with the note inter is said about
case being nothing the sum the amount of the verdict
est, compared yet was the fact. in note and its date shows
specified in Mer who prevailing opinion
The learned gave judge, there as to the uncertainty admits great
ritt his usual to the case,
rule of ability law applicable other cases numerous England
reviews and shows that there the point, only
States involving in the also soundness cases, want of harmony them decided. of' were He upon many
principles it must upon
shows clearly principle held, is a the note security either
indorser, continuing holder for
laches imputable delaying or that the indorser particular length as would exonerate the drawer delay discharged by draft.
or indorser sight the former which five of the other view,
He adopted This the ease concurred, deciding ground.
judges [Marct HeBBICK V. WOOLVEBTON. G-bover, a commercial of much question practical importance
must he in this State. But regarded settling question
the learned in the that it well judge; opinion, says may
observe that is not identical present question with the
one which arises after when, the transfer of a note, the
maker seeks to a introduce defence the first existing against
holder. The of or the time, lapse of non-payment
after the for such regular period periods payment be sufficient to
passed, may purchaser put upon inquiry, a that the instrument justify was presumption actually
dishonored bеfore the and he further remarks that transfer; of the indorser and of question allow charging question an defence to
ing maker, on original depend very may
different considerations. This shows it was intended not
to determine the latter class of anything affecting questions. v. Scovil,
In Scovil was not question necessarily involved,
and is alluded to and only discussed in one of the three- This delivered. case can be said to hardly
opinions The in upon question Payne Gardi
authority point.
ner the action was, whether was barred the statute of limi by
tations. action was an instrument as follows: “ Received from William H. one thousand dol Oapt. Payne,
lars is to Ms on credit our books six cent interest.” per in the was
This, Supreme construed as Court, a evidencing of
loan or be determined deposit money an by actual demand of thereafter. It is true paymеnt that, Merritt, it is stated that the case v. Todd had
opinion, a what had theretofore been change deemed
wrought great as the *18 was an answer to the but with the statute,
est argued, proved no of demand payment necessary.
dissenting judges, were for affirmance,
Four of remaining judges upon I think it clear does not that this case is appear.
what ground for that a note on demand with authority holding payable
no an actual demand is not due until made.
interest, Barb.,
In v. Crandall was held that a Clarke 77), a sum the or specified
note pay bearer promising and transferred within three from date use, was, in days
with and not to demand, be deemed due at
effect, upon a its transfer so as to it. to
the time of subject set-off against I think there is in the
the maker. nothing cases, foregoing a us to hold that note
others, requiring demand payable upon without presently any previous amI unable to
demand. see valid any for ground making
distinction so respect as to indorser whom it except Merritt v. he
well cannot said of complain the reason that he for
delay was notified making itself; was intended that the note should рaper the holder retained thereon, interest to accrue that it assent should be so retained was im his thereby But no such reason the holder offers applies
plied. H.
Hand—Yol. v. Woolvertox Court, per Grover,
transfer the note. Then it is certain that he does not wish to
retain it hut to realize the any purpose, longer
amount thereof. Then not demand at once why of payment
the maker anis to the mind of inquiry naturally suggested any to whom it is It due, offered. and the
person money may had once be thereon some unless obstacle exist that would,
if known, be destructive of its character in negotiable
course of business. The note is due without any demand,
or it is never due until demand and the maker has made, no to make in its for no tender
right can be absence; a demand until it is due. The statute of limita
tions commences at its date, or never commences until and a had made, can be such a note recovery of a maker after the representatives lapse unless are able to that an
length actual they prove
demand was made more than six before the years commence
ment of the action. The of interest furnishes non-payment in favor of the for that is presumption defence, not due
until more than demanded, Such note principal.
does not come within the statute creating presumption for that
payment, only sealed obli applies judgments and to after these,
gations, only years lapse twenty
from the time when the has become due thereon. In money the doctrine
short, contended for plaintiff, making *19 ever
creditor, liable to instant at his like pleasure,
and which no statute of limitations will ever bar. Ho such
doctrine has ever as been held this court, the yet entire of in
current decisions this State, from the earliest is reports, it. In Howland v. Edmonds N. the
against Y., 307), was reiterated
doctrine this court that a note, payable by terms
its be no upon might prosecuted immediately, demand it is as in True, said,
previous being necessary. the suit a cases,
some other itself sufficient demand. being is demand;
This the note is due without only saying rule at
for no is bеtter settled than that a debt must be due v. Woolvertok.
18Í0.] Grover, of or the action, time of commencement in this case that the likewise held It is
will nonsuited. a such note upon limitations commences of running
statute that the statute does com clear entirely
its is date, said in is due. is some until
mence running Something a demand been about of having the cases
of presumption time of of period
made, lapse proper arising intimated, but period
for the computation be too would rule founded such presumption upon rule transactions. to business Such for application
vague and certain when be definite possible.
should of defence as to attain result admissibility
To a trans- or other against
the maker after that the note is matured held either it must be
feree, the holder to make a time enable of sufficient
the lapse and the of due the exercise diligence,
demand by that when admissible,
therefore made. has fact been Either until rule
mature in its But for some certain authori- found application.
bewill I a rule would accord- prefer
ties to contrary, holding from the commencement analogies arising
ance with limitations, and of the of the statute
the running right a suit, that the commence
immediately and the defence admissible without to the time regard
given, In the the transfer by case the payee. present result the first or third the same whether is the specified correct General The order of the Term can
rule. be sustained only I am the second. aware either the first or third
upon of this class of destroy negotiability
will practically has effect been of all the practical cases
paper; brief for very period,
in this State Merritt except except and this case is only of laches applicable questions The other indorsers. questions presented charging counsel his were not brief, raised or
respondent’s passed cannot, at the here. trial; therefore, considered they conclusion is both
My principle authority against The order of
defence was admissible plaintiff. *20 y. People. Blend The
' Statement of case. Term trial General new granting should, therefore, and reversed, for defendant on the ver- judgment given costs
dict with of the to this court. appeal e For reversal of' the General and Term, for th judgment Ch. and J.,
defendant—Earl, Hunt, Foster Grover, Smith,
JJ. and
For affirmance—Lott JJ. Sutherland, J., vote. did
Ingalls,
Order of Term and General reversed judgment
defendant.
George People in Error Plaintiff, W. Blend, The of the Defendants in Error. York,
State New
On error, trial of an at a Sessions, indictment Court of it is if one of sessions, justices during impanneling has who sat of the portion jury, trial, bench, justice abandons and a peace, by the the county judge, direction of place, takes and the Ms trial proceeds; upon a place,
A Mai irregu- conviction has where substitution taken will reversed. lar. 1870, January 5th, 17th,
(Argued deсided March 1870. to the General Term of the Court Supreme
Error the affirmance of a
sixth review conviction district, judicial at the Delaware Sessions. error, at the
Blend indicted Sessions for false Delaware pre- ¡November and tried June, 1866. 30th,
tences, defendant the trial appeared person, proceeded
before Jr., county Esq., judge, William Murray, Grit-
man Elwood and William associate Mallory, Esqs., justices said Delaware until the court Sessions, adjourned
dinner, December 1st.
On was discovered Elwood, Gritman reassembling,
one of the had left aforesaid, court, of sessions justices notes are says, imme
Notes
notes circulate as There is no reason should why good at a more than that commercial paper, paper payable time^ should certain, due, office; past perform it. alike ‘both must bе whenever holder requires paid And should either kind be circulated. obligation why either matures maker of has matured, farthest, at once; cases be made demand, which both may if the holder wants raise them, why apply money it from and receive from whom is payment, party next instead it to some one
notes Formerly, Doncaster Eliz., Where Cro. was opp 548.) (C demand said was parcel contract, contended was not due until demand, that the that a so money the action would bringing demand but do, “ was a said, duty the court duty maintained, these need no therefore, other demand, cases.” and, 10 Modern Where in an Rep., 38.) (Remhall Boyle, a notе action was moved in arrest that no in the declaration; alleged of judgment held it to court be debt that it presentí, demand. Collinsv. precedent a debt plainly Demming decides the same Salk., also holds that 227) point, limitation commenced statute of from the date of running
notes previous
notes always expected parties them inter the sole making payable brief object “ hold that the words with is to the interest. To est save which without interest” makes continuing security an unnatural mean would not is to these words them be, give the In and an effect the beyond purpose parties. ing in decided (41 Vermont, 24), Morey Wakefield demand with note was held value, to an fоr two interest and innocent holder negotiated and sub its date, months after past negotiated available if the suit have to all defences that would been ject had the been payee. original the the order of the Gene- therefore, I opinion am, and that the defendant should ral Term reversed should be the his favor. verdict, have judgment the to the J. The exception testimony given by Grover, was not well taken. It his recalled defendant being material to have been issue between does áppear for which Herrick said he was offered stock parties. cents, defendant told ninety-five ninety-six him he does not been the sell, had better stock appear defendant, respect, issue which, transferred it had was, whether been borrowed parties note as a suit Herrick, defendant given security of a like amount of whether it had the return stock, the former of latter been purchased by purchase price. testimony Although given not have could been incompetent, prejudiced by a note whether is, it. The question principal three after interest transferred months demand with nearly exist- in the hands of the holder to defence date, subject, maker behalf previous ing case, In the be remarked, transfer. present may
law notes profession interest; but have sеen that demand with we the only point that case that the was, determined holder of such a note laches an was as to indorser chargeable delay for the reason that demanding payment, presumption was that the indorsement made with the was paper that such demand would not be made. understanding presently a If the instrument as evidence of regarded deposit it is clear that no could be main- action money upon v. Woolvertox: 1870.] tlie Opinion, of Grover, an demand of and that until actual payment, thereon tamed until such demand not commence would running statute N. Y., this court (29 When the case came before 146), made. examines affirmance, in his opinion ably Judge Mullin, between loan money, arriving the distinction deposit and not a was loan, at the deposit conclusion until an actual that the money therefore at this conclusion, made. After he proceeds arriving a note held Merritt that such to state that until after and was not dishonored security was continuing He then that if demand demand. correctly actual argues fix time of statute payment, only was necessary from the demand. chief running judge, commenced Denio, for affirmance inter voted ground
notes securities, creates class of continuing obligations that the debtor can at the only discharge pleasure