Page:United States Reports, Volume 1.djvu/265

254 

1788.

the city of Philadelphia, cannot be maintained ; the ufage is every where the fame ; and the conftruction of the ftatute will not be different, merely from a difference in the place.

It is fettled, by the common law, as well as under the ftatute, that he who gives a new credit is bound; this is not contradicted by the doctrine laid down in Marius ; and the cafe in Lord Raym, is corroborative. In Marius the money is prefumed to be received at the time the note becomes due, the proteft is made at the fame inftant, and notice of the difhonoring is given as foon as poffible−fo that there, undoubtedly, the indorfor is benefited by the indorfee's taking a part of the money, and runs no rifque for the ant of information refpecting the late of the bill, or note ; but in the prefent cafe, the money was received, at leaft, three months before any attempt to give notice, and in the meantime the drawer became infolvent. The Court argue in Wilʃon as from a fixed principle that the indeorfees receipt of a part from the drawer is a difcharge of the indorfee for the whole; and Strange, though a niʃe prius report is in point in all its circumftance.

He contended, that the cafe cited in ''Bull. L.N.P. was in favor of the Defendant on the ʃecond'' point; for he had fhewn that he might eafily have been found; and where the parties resfide in the fame town, not a moment fhould elapfe between the proteft and the notice. T. Rep. 107. The Supreme Court, in Strimmetz verʃus Currie faid, that in all univerfal queftions of a mercantile nature, the Term Reports  were to be received as authority ; this was refolved, in oppofition to cafes for 100 years back, fhewing a different practice with refpect to notice ; and in Donaldʃon v. Cooper, the Judges refufed to hear the evidence of merchants as to ufage, becaufe the point had already been determined. As, therefore, it has been fettled, that reafonable notice is a queftion of law, and not of fact, the Plaintiff cannot now bring it into doubt and controverfy.

SHIPPEN, Preʃident, delivered the opinion of the Court to the following effect.

This is a motion for a nonfuit upon two grounds ; firʃt that the Plaintiff by an acceptance of part of the money from the drawer of the note in queftion, has difcharged the indorfor ; and ʃecondly, that he is alfo difcharged, becaufe due notice of the non-payment of the note was not given to him.−It is to be obferved, that with regard to difcharging the parties to bills of exchange, the law makes a material difference ; for, fome of them can only be difcharged by an exprefs, but others may be difcharged by an implied exoneration. Thus, the acceptor of the bill cannot be difcharged by any conftruction in law ; and though the holder proceeds againft the indorfor, and receives part of the money from him, this will not prevent his afterwards reforting to the acceptor for payment of the balance. Dougl. 235. In the inftance of a promiffory note the drawer ftands in the place of an acceptor. 2 Wils. 263. But an indorfor is only a fecurity that the See paʃt. See alfo Chapman verfus Stainmoic poft.