William Widgery versus Tilly M. Munroe and Another.
Where a note is payable at a day certain, with grace, notice to the endorser, ot the non-payment by the maker, given on the last day of grace, is sufficient.
A party to a usurious negotiable security cannot be a witness to defeat the security on the ground of usury.
Assumpsit by the plaintiff, as endorsee of a promissory note made by one Stephen Cummings to the defendants June 30th, 1807, by which he promised to pay them or their order 700 dollars in sixty days with grace, and which was endorsed by them to the plaintiff.
The cause came before the Court upon a case stated by the parties, in which it is agreed, that Cummings, before the note became due, stopped payment, and went out of the country; — that, on the first day of grace, the messenger of the Maine Bank, in which the note had been deposited for collection, left the usual bank notification at the house or counting-room of Cummings, requesting payment; and on the last day of grace a like notice and request were left and made at the defendants’ store; — that this was agreeable to the usage adopted by that bank ; — and that the defendants had been accustomed to have notes at that bank for collection, in the receipt or payment of the contents of which they had conformed to that usage.
*368It was further agreed that the maker of the note has been released by the defendants, and that, if he is a competent witness for the purpose, he would testify that the note was an accommodation note between the maker and endorsers, to enable [ * 450 ] the maker to raise money on it as a security; * that he delivered it to a broker, with a request that he would dispose of it to meet a note of the same amount, which he then owed the plaintiff; that the broker, on the same day, informed the maker that he had offered it to the plaintiff, who refused.,to take it, on account of the insufficiency of the security ; at Cummings’s request, the broker made another attempt, and informed Cummings that he could dispose of it at a discount of two and a quarter per cent, per month, and it was accordingly sold to the plaintiff, as Cummings understood. The plaintiff and Cummings never had any conversation on the subject of the note, nor did the latter know that the plaintiff knew for what purpose the note was made, or of whom the broker received it.
It was also agreed that the broker would testify that he has no recollection of the transaction, but should believe Cummings’s testimony respecting it, and that the plaintiff never knew from him, the broker, of whom the note was received, nor for what purpose it was made.
If the Court should be of opinion that the notice aforesaid was sufficient to make the defendants liable as endorsers ; and that the maker of the note is an incompetent witness to prove the foregoing facts, he having been released by the endorsers; or that the facts he would testify to do not constitute such a usurious consideration as to make the note void, —the defendants agreed to be defaulted ; otherwise the plaintiff agreed to become nonsuit.
Mellen and Whitman contended that here was not due notice given to the defendants, and that the facts stated avoided the promise on the ground of usury.
Curia.
The first question arising in the case is, whether such notice has, or has not, been given to the defendants, as will charge them as endorsers. In the case of Jones vs. Fales,
it was decided that notice to the endorsers was a privilege which they might waive, or which they might agree should be given in any particular way different from that to which they would be entitled by law, and that they should be bound by such agreement; and, furthei, [*451 ] *that this agreement might be inferred by a jury from the endorser’s cognizance of, and conformity to, a general usage as to notice. Upon this ground, therefore, we cannot decide *369that there was not sufficient notice to charge the defendants. But in this case there is no occasion to resort to the usage, to support the notice ; for as the note was payable, with grace, on the day when it became due, the maker being then out of the country, the plaintiff was excused from demanding payment of him ; and on the same day the defendants had notice that the note was unpaid, and were requested to pay it; they cannot, therefore, prevail upon this objection for the want of notice.
Emery for the plaintiff.
As to the other point made in the defence, it has been settled that a party to a usurious negotiable security cannot be a witness t.o defeat the security on the ground of usury. Cummings’s testimony cannot, therefore, be received. If it were, it would not support the allegations stated; for he relates them only on the information of the broker, who declares that he has no recollection of the transaction whatever; although he believes Cummings to be an honest man. The evidence is, therefore, hearsay, and could not be admitted.
According to the agreement of the parties, the defendants must be called.
Defendants defaulted.