2 Cai. Cas. 343 | N.Y. Sup. Ct. | 1805
delivered the opinion of the court. This case presents two questions: First, whether the usual and due means have been taken to fix the defendants as endorser of the note ? Secondly, if not, then, whether the circumstances of the case rendered those means unnecessary ? Generally, to fix an endorser, the holder must demand, or use due diligence to get, payment of the maker when the note becomes payable; and, on his default, he must use due diligence in giving notice thereof to the endorser. The demand of payment from the drawer must be made on the third day of grace, and within a reasonable time before the expiratioir of the day. Bayley, 59, 67; Chitty, 148; 2 H. Black. 336, 337. If the third day be Sunday, demand must be made on the second day. This was the established usage as early as the time of Lord Holt,
Judgment for tbe defendant.
On the authority of this ease Lord Ellenborough ruled, that notice to a payee of a bill, endorsing with a knowledge that the drawer had no funds in the drawee’s bands, was unnecessary. Sisson v. Tomlinson, Selwyn’s N. P. 29, (n.)
Perhaps the two cases may ho reconciled by considering that in thd first the endorsement was on mere accommodation paper to raise money, that in the latter the endorsement was by way of security.