3 N.C. 45 | Sup. Ct. N.C. | 1798
If an endorsee keeps the paper so long in his (47) hands as to make it his own, ex necessitate it must be a discharge of the precedent debt, though not so originally. It would be absurd to *62 say he could keep the note and also recover for the precedent debt; the case cited admits it may become so ex post facto. It means that a note endorsed is not a discharge of a precedent debt unless agreed to be so, except in the case where the holder keeps it an unreasonable time in his possession, and then it may; and that this is fit to be left to the jury. In order, therefore, to determine whether the note in question be a discharge or not, we must resort to the endorsement and to the law upon it, and draw conclusions from them. The endorsee of a bill of exchange undertakes in reasonable time to present the bill for acceptance, and then for payment, and in case of nonacceptance or nonpayment, to give notice thereof in reasonable time to the endorser. The endorser can never support an action unless he performs all parts of this undertaking; he must prove the giving of notice, or, in case of the nonacceptance of a bill, prove that there were no effects of the drawer's in the drawee's hands; that is to say, if he or the payee means to resort to the drawer. (48) But this proof in excuse of not giving notice only can apply to the case of a bill of exchange not accepted, for if it be accepted, that is full proof that the drawer has effects in the hands of the drawee, or that he has credit upon him. But such proof in excuse of want of notice can never be given in case of a note endorsed, for there the maker has accepted at the time of drawing or making the note, and the endorsee cannot say he had no effects of the drawer in his hands. As to the point whether notice is necessary in case of a promissory note, every reason which requires it in the case of a bill holds equally strong in the case of a note. Tindall v. Brown is a case upon a note, so was that of Russell v.Langstaff, reported by Douglass in the case cited from Kidd., 79. It is expressly stated that notice in case of a note is necessary to entitle the holder to his action. These cases which state the law to be otherwise are old cases decided before the law respecting bills and notes had advanced to its present degree of perfection. As to what shall be deemed notice sufficient, the endorser must have notice thereby from the endorsee that he cannot obtain payment, and that he (the endorsee) looks to the endorser for payment. The argument that the insolvency of the maker of the note would be an excuse to the endorsee for not giving notice seemed to be of same weight when first offered, but upon consideration it has none. The endorsee ought to give notice, for perhaps the endorser may procure payment by the help of friends, or by some means unknown to the endorsee, and not within his power. Kidd., 79, abridging the cases in the books, says if the maker of the note be insolvent, the endorsee must give notice to the endorser; the same as laid down in Bl. Rep., 747. And Lee, in arguing the case of Russell andLangstaff, said that Lord Mansfield *63 had nonsuited many plaintiffs at nisi prius for want of notice, although it were proved that the maker of the note or drawee of the bill was insolvent; and in the case of Goodall et al. v. Dolley, 1 Term, 712, where the drawee and drawer were both insolvent, and the counsel to excuse the want of notice insisted upon that circumstance, it was answered to be perfectly clear that the law was otherwise; and that answer prevailed so far both with the counsel and the bench that the point was instantly abandoned and no more notice taken of it. With respect to what shall be reasonable, it must be laid down in general that the party shall be reasonable, it must be laid down in general that the party shall give notice as soon as he conveniently may, all circumstances considered, but the court will say what time is reasonable; and if the jury allow beyond that time, the court will set aside their verdict; otherwise, one jury might think one time reasonable, another another, and so on ad infinitum, so that there would be not the least certainty.
Verdict set aside and new trial ordered.
(49)