Hoadley v. Bliss

By the Court. Nisbet, J. delivering the opinion. [1.] The letters were rightfully rejected. They could prove nothing of themselves, bearing date anterior to the six years preceding’the suit. If they contain evidence of a new promise to pay the note, that promise is barred. There is no evidence to connect them with the payments made within six years, and cannot be, therefore, any part of the res gestee of those payments. [2.] We also think that this note is within the proviso to the Act of 1826. It excepts from the operation of the Act, which declares demand and notice to be unnecessary to charge indorsers, “notes which shall be given for the purpose of negotiation, or intended to be negotiated at any chartered bank, or which may be deposited in any chartered bank for collection.” Prince, 462. This note is made payable at either of the hanks in Macon. The undertaking of the holder is, that he will have the note at one of those banks at maturity, and of the maker, that he will there pay it. The presentation of a note at bank for payment, and the payment of it there, would be a collection of it at bank. If the note be presented at bank by the holder, or any other person for him for payment at maturity, it is a deposit there for collection. When, therefore, the parties agree in the face of the note, that it shall be payable at bank, such agreement affords conclusive evidence that they intend it to be deposited there for collection; [306] and we are obliged to infer that it was so agreed for the very purpose of bringing it within the proviso of the Statute; that is, that it was the purpose and intent of the parties to this paper, that the indorser should have notice. Again, it is fairly to be presumed, from the fact that this note is made payable at bank, that the parties intended it to be negotiated at bank. This is the form in which notes are usually written when money is to be raised upon them at bank. It is not an indispensable form, but it is the usage to make them payable at the bank where they are to be discounted. It is convenient to have them so payable. The understanding of mercantile men and of the law merchant would he, I think, that where a note is thus drawn, the intention of the parties is, not that it necessarily must be, but that it may be negotiated — that is, sold — transferred to the bank. I know not that anything more need be said on this assignment. [3.] The presiding Judge held, that the indorser could waive demand and notice before the note fell due, and it is excepted that this was an error. He could waive demand and notice at no other time. It is true that he may, after it is'due, waive his right to except to his liability, that is, waive proof of demand and notice, and the presiding Judge held nothing to the contrary of this. Let the judgment be affirmed.