Burnham v. Webster , 19 Me. 232 ( 1841 )

The opinion of the Court was delivered by

Tenney J.

This, suit is against the defendant as the indorser of the promissory note declared on. He defends on the ground, that no legal demand was made upon .the makers. The note is dated July 10, 1835, payable in three years, and purports to have been made in Massachusetts. On the 13th day of July, 1838, John Andrews, Jr. cashier of the Mechanics’ Bank in Newburyport, put it into the hands of a notary, that a demand might be made upon the makers — a demand was made by the notary on that day, conformably to law. It was indorsed by S. S. Fairfield, cashier, to said Andrews, cashier.

For the purpose of rendering bills of exchange and promissory notes negotiable, the right of property passes with the bills themselves, if taken in the course of trade, when not over due or otherwise dishonored by any thing apparent on the face. The possession and property are inseparable. Collins v. Martin, 1 Bos. & Pul. 648. The cashier of a bank is the regularly authorized organ thereof, and whatever is done by him in that capacity is the act of the bank. When a bill is left in a bank for collection, although the bank has no interest in it, yet for the purposes of receiving and transmitting notices, they are to be considered the real holders. Warren v. Gilman, 17 Maine R. 360; Freeman’s Bank v. Perkins, 18 ib. 292. The note in question was not only holden by the Mechanics’ Bank for the purposes of collection on the 13th of July, 1838, but may be regarded as their property ; it came by regular negotiation into their hands. But it is insisted that there is nothing which shows this note to have been in a bank previous to that time ; and if suffered to expire without a demand upon the makers, it could not be revived by being negotiated to a bank. The date of the note is the only date upon it. The indorsements are to be considered as made at that time, unless proved to have been made subsequently; this note is to be treated as having been in the bank from its origin ; and the demand was conformable to the laws of this state.

But this note was made in Massachusetts; and it is there that the makers are to be regarded as undertaking to pay it. Story’s Conflict of Laws, 263. By the laws of that State, we are to be governed in ascertaining when it fell due, and the days of grace belonging to it, whether for the benefit of the holder, or the debtor ; in one word, every thing which relates to the right of requiring payment of the debt. Story’s Conflict of Laws, 289-299. By the laws of Massachusetts the note was not due till the expiration of the three days of grace and the makers were not bound to pay it till that time; consequently the holder could make no legal demand for payment before. Mass. St. 1825, c. 130; Rev. St. Mass. 303.

The default must stand.