Henry v. Donnaghy

1 Add. 39

• Court: Pennsylvania Court of Common Pleas, Washington County
• Decided: June 15, 1792
• Status: Published

Opinion

President.

This difficulty is not likely to occur often, where the drawee is in good circumstances and has not refused payment; for then there is no inducement to apply to any other. But, since giving an order is held to be a giving credit to the drawee, and therefore a payment, I see no reason why it should not be, so in all cases ; so that such holder should never be allowed to have recourse to the drawer, who had effects in the hands of the drawee. The holder, who gives credit, takes all risk of recovering from the drawee ; for the drawer undertakes that the drawee will accept and pay at the time; but if the holder gives further time, he makes a new contract, and discharges the drawer. The holder undertakes to demand ; and, before he can recover from the drawer, or any indorser, (for every indorser is as a drawer) he must shew a demand on the drawee, and a refusal. The circumstances of the drawer and drawee ought to make no alteration. If they be good, so much the better for the holder, the plaintiff, unless he has precluded himself, by his own negligence. If they are otherwise, the defendants ought not now to run the risk. I lay no stress on the want of an indorsement. The receipt and the delivery of the order shew the meaning of the parties. John Donnaghy undertook to lend his name to Abraham Usher and company, for the recovery of this money from Milligan ; and Abraham Usher and company, undertook to demand this money. This demand has never been made. There ought to be credit given on the bond for 27l. as paid forty days after sight, allowing a reasonable time for that.

Note.—See the case of Stedman v. Gooch.—Espinasse's Reports of Cases at Nisi Prius, 3.

The jury found a verdict accordingly.