Otis v. Hussey

Superior Court of New Hampshire

Otis v. Hussey

3 N.H. 346

CourtSuperior Court of New Hampshire

DecidedFebruary 15, 1826

StatusPublished

Cited by1 cases

This text of 3 N.H. 346 (Otis v. Hussey) is published on Counsel Stack Legal Research, covering Superior Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Otis v. Hussey, 3 N.H. 346 (N.H. Super. Ct. 1826).

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Opinion

Richardson, C. J.

delivered the opinion of the court.

It is extremely well settled, that, in general, no action can be maintained by an endorsee, against the endorser of a promissory note, without a demand of the maker. But in same cases the law receives evidence of a diligent inquiry for the maker, without success, as an excuse for the want of a demand. 12 East 433, Bateman vs. Joseph.

In this case there was no direct evidence shewing any diligence on the part of the plaintiff to find the maker, except the inquiries he made, when he received the note ; and those inquiries are clearly insufficient evidence of themselves to shew such diligence, as will excuse the want of a demand. 1 Pick. 413, Shed vs. Prett.

It is also well settled, that a promise to pay, made by the endorser, with a full knowledge, that no demand has been made of the maker, is a waiver of the consequences of the want of demand. Chitt. on bills 172.—12 Mass. Rep. 52, Hopkins vs. Leswell.—5 Johns. 248, Duryee vs. Dennison.

But, to give this effect to a promise, it must appear and be shown affirmatively and clearly, that the promise was made with a full knowledge, that no demand had been made. 1 Cowen 397, Sice vs. Cunningham.—16 Johns. 152, Trimble vs. Thorn.—12 Johns. 423, Griffin vs. Goff.—8 Johns. 384, Craine vs. Colwell.

We are aware, that it has been held in England, that a promise to pay is, in these cases, to be left to a jury, as evidence of a demand. 7 East 231, Lundie vs. Robertson. In an old commercial country, like England, where a great portion of the business has long been transacted by means of negotiable paper, and where most of those, who deal in such paper, must be presumed to be acquainted with the law in re--[348]*348lationto it, it may be proper to leave it to a jury is infer a demand of the maker from a promise of the endorser to pay. But in this state, where negotiable paper has a very limited circulation, there is no ground, on which such ail inference from that fact can rest ; and we are of opinion, that the rule adopted in New-York is the true one. It must be shown affirmatively, that the defendant had notice, when he made the promise, that no demand had been made, and that there had been no attempt to make one. As this was not done in this case, there must be

Judgment on the verdict,

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Richardson, C. J.

delivered the opinion of the court.

It is extremely well settled, that, in general, no action can be maintained by an endorsee, against the endorser of a promissory note, without a demand of the maker. But in same cases the law receives evidence of a diligent inquiry for the maker, without success, as an excuse for the want of a demand. 12 East 433, Bateman vs. Joseph.

In this case there was no direct evidence shewing any diligence on the part of the plaintiff to find the maker, except the inquiries he made, when he received the note ; and those inquiries are clearly insufficient evidence of themselves to shew such diligence, as will excuse the want of a demand. 1 Pick. 413, Shed vs. Prett.

It is also well settled, that a promise to pay, made by the endorser, with a full knowledge, that no demand has been made of the maker, is a waiver of the consequences of the want of demand. Chitt. on bills 172.—12 Mass. Rep. 52, Hopkins vs. Leswell.—5 Johns. 248, Duryee vs. Dennison.

But, to give this effect to a promise, it must appear and be shown affirmatively and clearly, that the promise was made with a full knowledge, that no demand had been made. 1 Cowen 397, Sice vs. Cunningham.—16 Johns. 152, Trimble vs. Thorn.—12 Johns. 423, Griffin vs. Goff.—8 Johns. 384, Craine vs. Colwell.

We are aware, that it has been held in England, that a promise to pay is, in these cases, to be left to a jury, as evidence of a demand. 7 East 231, Lundie vs. Robertson. In an old commercial country, like England, where a great portion of the business has long been transacted by means of negotiable paper, and where most of those, who deal in such paper, must be presumed to be acquainted with the law in re--[348]*348lationto it, it may be proper to leave it to a jury is infer a demand of the maker from a promise of the endorser to pay. But in this state, where negotiable paper has a very limited circulation, there is no ground, on which such ail inference from that fact can rest ; and we are of opinion, that the rule adopted in New-York is the true one. It must be shown affirmatively, that the defendant had notice, when he made the promise, that no demand had been made, and that there had been no attempt to make one. As this was not done in this case, there must be

Judgment on the verdict,

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