Mudd v. Harper

The opinion of the court was pronounced by Le Grand, C. J. This is an action of assumpsit, instituted on the 15th day of September 1846, against the defendant as the endorser of ¹¹² a promissory note. The plaintiff proved that the defendant was indebted to her intestate, as administrator of John. A. Turton, and in part payment of a debt due by defendant, passed by endorsement to him, a note of William and Washington Hilleary, payable on demand to Samuel Sprigg, or order, and which the defendant held by the endorsement of Sprigg. The plaintiff’s intestate, at the first term, brought suit against the Messrs.

Hilleary, obtained judgment and sued out a fi. fa,, which was returned nulla bona. The plaintiff then brought this action against the defendant. The precise time when the note was endorsed to plaintiff’s intestate, does not appear, but it was before the 25th day of March 1843, and in part payment of a precedent debt. The declaration, in addition to special counts on the note, contains the usual money counts.

The defendant pleaded non assumpsit and limitations. On this state of facts, the court below instructed the jury, “that if they found from the evidence that the note referred to in the plaintiff’s declaration was endorsed to the plaintiff’s intestate, as executor of John A. Turton, more than three years before the institution of this action, then the action is barred, and the plaintiff is not entitled to recover.” Before proceeding to dispose of the other questions involved in the case, it may be remarked, that it does not appear from the evidence, what was the character of the debt for which the note in question was given in part payment. To have been recovered on under the declaration, in this case, it must have been a simple contract debt, and therefore, in the absence of all proof of a new promise, so much of it as was not covered by the note, was clearly barred by the statute of limitations. It is urged on behalf of the defendant, that the plaintiff had no right of action against him, on the original debt, or on the note endorsed to her intestate, until the return of the nulla bona in the case against the makers, and to sustain this view several cases in Virginia have been relied on.

These cases undoubtedly put promissory notes on the same footing with ¹¹³ assigned bonds, and deny to an endorser all right of action against the payee, until the remedy against the maker is completely exhausted. It does not appear from the report of these cases, whether they were decided in pursuance of some local statute or not, but it is fair to presume they were, because if they were not, they are in opposition to the decisions in England and our sister States, in which (as has been uniformly the case in Maryland,) the right of action of an endorsee is perfect against all the parties on the maturity of the note; that is when demand has been made and notice of nonpayment given as required by the Law Merchant. The note in this case was payable on demand, and was some four months old when endorsed to the plaintiff’s intestate. According to our apprehension, the principles governing it, are very simple and well defined.

The endorsement of a bill after it becomes due is equivalent to the act of drawing a bill at sight. Chitty on Bills, 242. A promissory note is negotiable as well after as before it becomes due. 4 Gill, 331 . And where a note or bill is payable on demand, they must be presented, or at least put in circulation for that purpose within a reasonable time after they have been received.

Chitty on Bills, 402. Except in very particular cases, when it is a mixed question of law and fact, what is reasonable time is a question of law. Now this action was not brought until more than three years and five months after the endorsement, under which plaintiff claims, and the bringing of this suit is the only evidence affecting defendant so far as this court is informed of notice to the endorser, that a demand had ever been made of the makers. There is no evidence in the record of the residence of the ma - kers, but it is admitted by counsel, that all the parties to the note, live in Prince George’s county.

Under such circumstances it cannot be contended, that a demand was made and notice given within a reasonable time. But it is said the suit brought against the makers, is adequate evidence of a sufficient demand, and of notice within a proper time to the endorser. ¹¹⁴ We do not concur in this view. It is true, that there are cases in which it