Page:United States Reports, Volume 1.djvu/266

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1788. the acceptor of the bill, or the drawer of the note, fhall pay the money ; and, therefore, if the holder is guilty of any neglect in endeavouring to recover it, that will certainly be an implied difcharge of the indorfor. If, for inftance, the holder takes upon himfelf to give further time for payment, or, receives a part of the money, and gives time for the reft, the nature of the transfaction is effentially changed, and the indorfor is no longer refponfible. The fame principle applies to the ʃecond point; for, if the holder of a note, without giving notice to the indorfor of its being difhonored, retains it fo long in his hands, after the day of payment, as to creat a prefumption that he means to take upon himfelf to give a new credit to the drawer, the want of notice in this cafe, will likewife operate as a difcharge.

This, however, cannot be determined in the fame manner here, that it is in England. In that country, regular pofts are eftablifhed, the correfpondence between the great commercial towns punctually maintained ; and the communication, throughout the kingdom, is commodious, certain, and uninterrupted. Thefe circumftances, therefore, render it eafy to make a general rule ; − of which the cafe cited for the Defendant from Term Reports, exprefsly fpeaks. But in Pennʃylvania there are fome roads which the pofts never travels, and fome feafons in which the communication, between the different part of the State, it exceedingly difficult and precarious : How then can a general rule be made, fo as to afcertain every where, and at all times, the reafonable time of the notice? The attempt, if not totally impracticable, would, in its confequences, be dangerous and inconvenient.

But, with regard to the particular cafe before us, there can be no doubt, that the right of Indorfees to call upon the Indorfors, muft be founded upon the Cuʃtness oƒ Merchants: for, the indorfement, confidered at common law, amounts only to an affignment of all the property in the bill, or note, without making the affignor refponfible in the event of a non-payment. How far, however, promiffory notes are in this State upon the fame footing with bills of exchange, is a queftion ʃub judice in the Supreme Court; and, therefore, it would be going out of our duty to give a decifion upon it at this time. Yet, it muft be obferved, that the ftatute of Anne has, in fame refpects been extended to this country. For, the uniform practice has been to bring actions upon promiffory notes, as fuch; and not actions of Indebitutus aʃʃfumpʃit, which was the proper action, according to the opinion of HOLT, Chieƒ Juʃtice,  before the paffing of the ftatute. The Legiflature, likewife, when regulating the affignment of bonds and notes, though they did not exprefsly put them on the fame footing with bills of exchange, muft, from the terms of the act, have taken it for granted, that an action might be brought upon a promiffory note, confidered as an inftrument. ‘Till, therefore, a contrary decifion is pronounced, we muft proceed as in the cafe of a bill of exchange, under the ftatute of  Anne; and there it appears, that a very trifling negligence, on the part of the holder, will In the cafe of McCullough vs Houʃton