President of Merchant's Bank v. Birch — 17 Johns. 25

Majority

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The President, Directors, & Co. of the Merchant’s Bank, against Birch and De Witt, Executors of Birch.

Headnote

an widorsor a«»l at the ⅛1»' >t H-conies ex<>™^ u,r' ad'mnh---trators known to the holder, notice of (he non-payment must be gpvon to them, for they represent the testator or intestate. Hut where a note fell due the 2‘2<J of i)pcprnbn>\ and the endorser, beimy absent on a vovatye for the recovery of his heahh, dm I at sea. on íh<* 1 .Mi of /t rog/irr. but his dead» «.a not known lo dm holder- until J/<> W, f<-j-lowin<r, and the will was not proveri, nor letters testameniarv granted tintü Ajrri! follmvuiir, it was held, that notice of the non-pavmen* having; been left, at. the time, at the dwelling-house of the endorsor, his last place of residence, in Xrm- York, and also sen* by poM to his fare !v. who had -hortlv befóte removed into the country, it was sudieient to support an action against the executors oí the endorser, without showing any notice to them of the non-payment.

THIS was an action of ayeumpeii. brought by the plaintiffs, as endorsers oí a promissory note*, against tne udcivmijis, ••⅝ executors of the endorser; and was tried the 1th of I ffrmtfr, Hbd. at the jVuc- Y< I: sittings, before the late Chief Justice,

The note was dated the 22d of S'plemher. Id 5, made by IV/iitina; ⅜ W,U<jn for 1,000 dollars, payable to J. H. JÍ. 1

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Birch, or order, eighty-eight days after date. Payment was July demanded of the makers on the 22d of December, and notice of the non-payment, directed J. E. R. Birch, was, on the next day, delivered at the late dwelling house of the en-dorsor in the city oí Neto-York, his family having .a short time before removed to Newburgh. At the time the notice was so delivered, there was affixed, on the door of the house, a notice, directing all persons having any business with J. E. R. Birch, to call on Dr. Smith, No. 338 Pearl street. Another notice of the non-payment, directed in the same manner, was, on the same day, delivered to a student at the house of Dr. Smith; and a similar notice of non-payment, directed to J. E. R. Birch, at Newburgh, was, on the same day, put into the post-office in the city of New- York. The notary who protested the note, in a conversation with De Witt, one of the defendants, and the brother-in-law of the endorsor, inquired of him to whom he should deliver notice of the non-payment of the note, and De Witt replied, “ To Doctor Smith ; he has the care of all Dr. Birch’s notes; ” and De Witt, at the same time, informed the notary, that the family of the endorsor had removed to Newburgh.

It was admitted that Birch, the endorsor, sailed from New-York on the 17th day of November, 1815, on a voyage to Teneriffe, for the recovery of his health ; and that he died at sea, on the 12th of December, 1815. The will of the deceased was proved, and letters testamentary granted to the defendants, on the 22d of April, 1816 ; but no notice of non-paymenl of the note was ever delivered to the defendants, after the letters testamentary were so granted to them. The family of B. removed to Newburgh a short time after he sailed from New-York, and continued to reside there until May, 1817. The death of B. was not known in New-York when the notices of non-payment were given, and not until his wile returned from Teneriffe, about the last of March, 1816.

*Upon the evidence of these facts, the defendants requested the judge to charge the jury, that, as the note fell due after the death of the endorsor, the holders ought to have given notice of the non-payment to the defendants, as executors, within a reasonable time after the probate of the will of the testator, and, not having done so, the defendants were not liable; but the chief justice being of opinion that the plaintiffs had given sufficient notice of the non-payment, the jury, under his direction, found a verdict for the plaintiffs, for 1590 dollars and 29 cents.

A motion was made to set aside the verdict, and -for a new trial, which was submitted to the court, on the above case, without argument,

delivered the opinion of the court. The only question in this case is, whether due notice was given oí

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the non-payment of the note by the maker, so as to charge the defendants, who are the executors of the endorsor.

It is not denied, that the plaintiffs, the holders of the note, gave all the notice in their power to give, when the note fell due ; notice was left at the last residence of the endorser, another notice was left with his reported agent, and another was sent to the residence of his f.uudy in the country, through the pqst-olliee. But it is insisted, that the endorsor being, in fact, dead when the note fell due, although the fact was unknown until some months afterwards, notice should have been given to his executors. It appears, that the note became due on the 22d of Dtcnnber, 1815, that Birch sailed from New-York on the 17th of Nnwinber, 1H 3, on a voyage to Tnu-riffc, and died at sea, on the 12th of December following; that his will was proved, and letters testamentary granted thereon, on the 22d of April, 1816, and that his death was not known at JNew- York until the last oí March, 1816. No notice was given to the executors of the non-payment of the note.

The case of Stewarts v. The Executors of Eden, (2 Caines’s Rep. 121.) governs and decides this case. In that case, the note fell due on the 8th of November, 1798, the endorsor, Medcef Eden, died on the 13th of September, 1798; and it *was held by the court, that notice directed to the endorsor himself, and left at his dwelling house, which was shut up, was good notice. Mr. Justice Livingston, in delivering the opinion of the court, observed, “ nor was it fatal to direct the notice to the endorsor himself, for as it was not known, whether he had made a will, nor who his executors were, until long after, it was full as probable, that it would reach the parties interested by this address, as by any other; some one of the deceased’s family would open it, or see it safely delivered to an executor ; the notice, therefore, was well served, and its address proper.”

It an endorsor be dead, at the maturity of a note, and there be executors, or administrators, at that time, known to the holder, notice must be given to them, for they represent the testator, or intestate, and are as fully entitled to notice as he would be, if alive. But it is a novel principle, unsupported either by precedent or authority, that notice is to be given to the representatives of the endorsor, and who become such long after the note has fallen due. The rights of the holder of a note or bill, are to be determined by his acts, when the note or bill becomes due : and if he then gives such notice, as under the existing state of facts the law requires of him, his rights are fixed, and he cannot be required to superadd any other notice, at a future period. In the case cited, no notice had been given to the executors, and we perceive, that the notice delivered at the dwelling house of the deceased endorsor, was pronounced to be well delivered.

We have not been furnished with the pleadings, and, there

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fore, cannot notice any suggestions, that the proof did not correspond with the averments in the declaration ; nothing is referred to us, but the single point, whether due notice was given to the endorsor.

Judgment for the plaintiffs.