Dupuy v. Gray

Judge Crenshaw delivered the opinion of the Court. It appears that the bond was assigned after the two first, but before the last instalment was due. Some of the old authorities hold out the idea that the penalty of such a bond is not recoverable before the last instalment becomes due; but the modern doctrine seems to be, that the action may be maintained on failure to pay the first or any of the in-stalments. The penalty of this bond was then forfeited, and [359] the debt was due when the bond was assigned. The days of grace are not allowable on a note of bill endorsed after it is due, or payable at sight or on demand ; but the holder or assignee may immediately demand payment, and give notice and resort to the endorser. But I apprehend that he may wait until the last instalment becomes due, and then demand payment and give notice. Wm. B. Martin, for plaintiff in Error, cited — 4 Term R. 148,170. 6 Term R. 123. 1 Esp. R. 231,261. 13 John. 470. 2 Cain, 343. Ld. Raym. 743. 12 John. 423. 2 Henry Bl. 336. Chitty on Bills, 339. Law's Ala. 67, 68,70. And as to the evidence offered by defendant — 2 Mass. R. 430. Ch. Bills, 183,4. 8 Term R. 319. Peake's Ev, 112 note, 113. 1 Anthon’s N. P. cases, 4. McKinley for defendant in Error. The blank in the declaration here as to the time of demand and notice would have been cause of special demurrer ; but after issue and verdict the objection comes too late, for it is then to be presumed from the Record the demand was made and the notice given within the proper time. The evidence objected to by the defendant to the action went to prove a demand as soon as the last instalment became due, and reasonable diligence in giving notice to the assignor, and was properly permitted to go to the Jury. The Court did right in rejecting the evidence offered by defendant to prove a verbal agreement that he was not to be liable until it should be ascertained by suit that the money could not be collected of the obligor. Such evidence went to vary and control the terms and legal effect of the defendant’s contract in writing as expressed in the endorsement. It is the unanimous opinion of the Court that the judgment be affirmed. Judge Ellis having presided in the Court below, did not sit.