London v. Howard, 3 N.C. 302, 2 Hayw. 302 (1804)

May 1804 · North Carolina Superior Court

3 N.C. 302, 2 Hayw. 302

London vs. Howard.

’O ARC?» AT made a note payable oo demand, the 10th of Be- - cetnber, 1801, to Howard ; be endorsed immediately to. I.ondon ; JWclary faded, the 2*th of January, 1802, and had not in that time been applied to by Lomba; ier payment of ibis note, ubpugh in the interim ho had received rouaukvahle sums of B ‘"cloy on oih'T demands, an.d had viven him credit on oth-5 u.voants to a .•onnid'Tdble amount. iTth lived in V/iimhjgtoi:..

The tlefcncUnt’s counsel said that the plaintiS sbc-tsld iw o shorter time heve made application, end on non payment, should. t*ave given «arce thereof, and that iie locked to the endorser.

Wright, fw the plain4 •£ rdmivcii,

that by the rule oí the English law be should have made application for payment in a shorter time perhaps, but these rules are not applicable here, nor bavy been adopted Ly the decisions of our courts ; and he cited Hay-woods’s Reports, o, where Judge V/illiar.is decided, that the holder shall be allowed a year’s time to make demand of payment pod to give notice,. This proves that a longer time is allowed jo this country th¿n in England. A year has been fixed upon i:s lying about the {.roper cime ; London obtained judgment on >bb t.o'.i;:;! ■■"í:ñ month after, its date, and the execution was returned ; hovo, ft is the custom jn this country thy. the. wld-'i- •d.ouM Jiv't ::i<i this maker, and after that and not before, to sun the ciidr.r'v '.‘he time elapsing during the suit, is not ce¡. be reckocfi-i 4;ike holder.

Gaston

One >'•-(' two itmocrixt stress must sustain a loss. — Is fbouid id- o- Lrt’sdoti. He said he would take Barclay’s az, tv planee ío? the debido?, from Howard. On the 26th January, 7:802, .London got, a Judgment confessed by Barclay, and thereupon, h-\ Id o ciar, v. ¿a declared a bjukrapt. When Howard en-js.Tjed the note-I: btViune a ble, oí exchange» and subject to ail the same rulas : If ic'd, 117, ITi, i T.T. Formerly it was the prev 4 ioce of the jure to deterr.j uk4 in each rase on the sufficiency of' notice; now it :n a question of law to bo decided by the csu.wt Niild, 127. There notice should have been given upon the same day : all part». r being in Bristol, within iwen*}’ minutes walk of «eh othf■ oirit decided whA w.s icasonable time j the note Was doe iba 5ch, ar,l c¡;i that day an application íM payment'vas '¡not made, and tkcn, s.úú the comí, the bill tvro dishonored, Haywood’s Reports, page 3, is incorrect, and besides itAvn nor, say a year is the time, for of that the judge doubts. Casa -b.-li and Craig — there the bonds were not esidoi sed, and unnegotiabl,1, so not subject to the rules attaching on bills of exchange : WiR.-c the judge said, there, proves that the British rules are adopted here, in case of negotiable papers. There is the same reason for their obtaining here as ia England. Merchants are liable «0 fail here as suddenly as in England. And shall the holder keep possession and demand payment when he pleases, when ist two or three days, perhaps, the maker may become insolvent? Mo endorser would be safe, no one would under such mies be-'notae an endorser» If Howard was absent a part of tin: time, Iiie clerk was here, and notice to him would have been suiíicintí t obtaining a judgment will not excuse the holder. Tone!on received in the interim different sums of money on other accounts, lie held Barclay in credit, and thei cloro held up his note ; bad ho demanded and given notice to Howard, he would have obtained payment, as London did, for his other demando. Should Howard sustain a loss it will be in consequence oí the credit Loudon gave to Barclay. In the interim Howard received monies to a, great amount from Barclay.

Jocelyn tor defendant.

Every day ibis country is becoming more and more commercial. The rules relative to cosana-.-rciri iranaetions should be defined. The bolder should be compelled to use reasonable diligence: Mr. Wright* s are casesefuanego-. iiable papers. The assignee ia these casts tvas agent of the awn- or of the papers. If he did not receive payment be tvas to return them. As to Slay wood’s Reports, 3, that is not now tbs law; the courts are governed by more euVtghtened policy. The present is a transaction between two merchants, and ¿halle a «.-ir-«■umstance which ought to distinguish it from íra'.cucduüs aiongstplanters. This note was received as payment for a precedent debt, and is a discharge of the debt; this lo a maten,1?, consideration. Howard received large sums o the irn-risE.; Ltd London told Howard he looked to him, LarcLy would have •been called on by .rlowarc, ana would have g. id re. If a lost) ..¡•y.,' ens, it in by the negligence oí London.

J¥r:gkt, lor die jTiudif.

One or the other will lose i.:a a-mown of this note 5 who '.hall Ase it is the Cj<.,...>iioi:. The case Iron» Kidd is good law in the English conns ; sot so beie. Tie tide eg to be taken from our becM;--¡s ; win; L rearo;..'ble ñne ¿kíísrs in dlíFereut countries end Oix el:. ,u..st..r.-:.cf do not require the same eclerry, nor is it required by our oecick. q so which’ E presume we are to look tor what is r-asonabls dm-, li Haywood’s Reports, 3, be iucorrva <*s to ¡ho effect of Site er-edition in that case, that does not prove that the other part of the case is not so. The subsequent decisions in the same .book cosfirai this as to what is reasonable time. London is within the rule laid down by our courts; it would be the highest injustice to deprive him of the benefit of them. — He has relied upon them. The case from Kidd has not been in use here he knew it. "When London received money of Barclay, he had a right to apply-it to his other demands; why make him apply it to this ? Howard’s assignment made him safe as to this debt. It was prudent to appiv the payment to his other demand. Howard received monies it is said ; what then ? The witness says Barclay owes to Howard a large sum yet; he could not have received the money due upon this note probably, for he could not obtain pay» merit of the whole of bis other demands.

Locke, Judge.

This is a very unsettled question. What length of time shall be allowed, has been variously decided, No decision has fixed it. A shorter time is required when all Jive in the same placeí where at a distance, more. -The rule in this instance should not be the same as if they lived at a greater distance. If the same rigorous rule ought riot to be adopted here as in England, Mr. London could not recover. From 10th December to the 26th of January, is too long delay. Barclay paid debts in the mean time; he might have received payment longer time is allowed here than in England; demands are not so pressing hi-.ie as in England; there, all possible diligence must be used. In the mean time, however, London did sue thc defendant, and used considerable diligence. Perhaps the time allowed by Mr. London to Barclay before the commencement of this action, is not, in general, unusual here. The cliEbrciicr made here is an usage that London acted under, and he should now be allowed the longer time given by it. I will, if doubts a; e entertained, cany this case to the Court of Conference. Howard sustained no loss for want of the notice, for he could &o-collect all that Barclay owed him.

The jury did not agree, and a juror was withdraws* -