16 F. Cas. 918 | U.S. Circuit Court for the District of Rhode Island | 1821
(charging jury). I have no hesitation in saying, that a note payable on demand must be demanded within a reasonable time, otherwise the indorser is discharged. What shall constitute a reasonable time is not a matter of absolute certainty, as to which a definite rule can be laid down. It must depend on circumstances. But unless there be circumstances in the case, which account for the delay, a neglect to demand payment of such a note for more than seven months is an unreasonable delay, and discharges the indorser. If the fact of such delay for such a length of time appear naked of all circumstances, it is a discharge of the indorser.' And the onus to establish any justification or excuse for such delay lies on the plaintiff. It makes no difference in the case, that the indorsement was in lieu of a former security between the same parties, or was for the accommodation of the maker, unless the indorser assented to the delay. It will be for the jury to decide, whether there are any circumstances in this case, from which an assent to this delay can be inferred.
Then, as to the second point, a promise to pay with a full knowledge of all the facts, is binding upon the indorser, although he might otherwise be discharged. But if he promise in ignorance of material facts affecting his rights, it is not a waiver of those rights. The question then is, whether the indorser in this case had such knowledge. It may be inferred from the connexion between the parties, their near relationship, and the deep interest, which the defendant had in this particular case to ascertain, after the death of the maker, his own responsibility as in-dorser. It may also be inferred from the language used by him on this occasion. He did not object to the delay, though he knew the length of time, which had elapsed since the note was given. As no objection of this sort was made, it leads to the presumption, either that the indorser understood originally, that the note was to lie unpaid for a period at least as long, or that under all the circumstances he did not deem it an unreasonable delay. He had no ground to presume, that any demand of payment was made of the maker in his life time, and the fact, that the first known demand was on the administrators, and the first notice given to him after that demand, would strongly lead him to the conclusion, that there had been no pri- or demand. And in fact no prior demand was made. But as these are mere presumptions of fact arising from circumstances, the jury will give them what weight they think them entitled to.
The jury gave no verdict, having disagreed; and a new trial was had at June term. 1S22, upon additional evidence, and a verdict returned for the defendant.