Swan v. Hodges
| Decision Date | 30 September 1859 |
| Parties | WILLIAM G. SWAN v. J. C. HODGES. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM KNOX.
This cause was tried before Judge Turley. Verdict and judgment for the plaintiff. Swan, the endorser, appealed.
Crozier & Reese, and King, for the plaintiff in error.
Lyon, Cocke, Scott, and Mynott, for the defendant in error.
This was an action of assumpsit, against the makers and endorsers of a promissory note, made by Castellaw & Marley, payable to William G. Swan, the plaintiff in error, and endorsed by him for the accommodation of the makers; and in like manner endorsed by John Williams and J. L. Dixon.
Judgment was rendered in favor of Williams and Dixon, and against Swan, jointly with the makers. Swan, alone, prosecuted an appeal in error.
The note was for $2,000, payable four months after date at the Branch of the Union Bank at Knoxville, and it matured on the 15th of September, 1857--that being the last day of grace. No sufficient demand of payment was made, or notice of the dishonor of the note, given to the endorsers. It is true, that there is set forth in the bill of exceptions what purports to be a regular protest of the note; together with a certificate of the notary, that he gave due notice to the endorsers, of the dishonor of the note. But, by agreement of the parties, the statement of the notary, in regard to the time and manner of the demand of payment, and notice to the endorsers, was received as evidence to the jury. The notary states, that on the last day of grace, namely, the 15th of September, 1857, after banking hours, the note was placed in his hands, by Hodges, for the purpose of presentment for payment. That on his way to the bank, he saw Mr. Campbell, the teller and acting cashier of the bank, at the window of one of the offices in the court-house, and then and there, without going to the bank, made demand of payment of the note of him, and was answered, that no funds had been provided for the payment thereof. Supposing this to be sufficient, the notary, on the same day, delivered a written notice to Swan, and the other endorsers, informing them, respectively, that the note had been duly protested, on that day, for non-payment.
It is clear that this demand was not sufficient to charge the indorsers. Presentment for payment must be made within reasonable hours during the day, and should be made during the usual hours of business. Business hours, however, except in the case of banks, include the whole day, unless there be some known custom or usage of trade to the contrary. And as the general usage of banks is, to limit their business transactions to certain hours, a presentment, or demand, out of banking hours, is not sufficient. Byles on Bills (Ed. of 1855), 278, top. Story on Prom. Notes, 226.
Such is the weight of authority, though there are some American cases at variance with the rule as above stated. See Byles on Bills, 278, note 1.
It was conceded, on the trial in the Circuit Court, that the note was not duly dishonored, and on this ground the two last endorsers were held to be discharged. But as to Swan, it was held, that there had been a waiver of demand and notice, by force of an indemnity alleged to have been taken from the makers, by him.
It appears that a deed of trust was executed by Castellaw & Marley, by which they assigned property and effects, therein described, to J. C. Ramsey, as trustee. It is recited in the deed, that William G. Swan was the accommodation endorser, for the makers of said deed, of three several notes, one of which is the note sued on, and in describing said note it is stated, that it “became due yesterday and was protested.”
The trustee is required to proceed forthwith to make sale of the property, and to collect the debts assigned to him, “with a view to pay up and discharge the liabilities of the said Castellaw & Marley above mentioned, endorsed as hereinbefore stated, by the said William G. Swan.”
It appears that the assignment was made at the instance, and with the approbation of Swan, and that he was present when...
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...and the proceedings incident to Thompson's arrest and incident to his making bond are not rendered invalid because of it. Swan v. Hodges, 40 Tenn. 251 (1859). In State v. McCoy, 60 Tenn. 111 (1873), the Court 'There had been no examination of the case and no commitment at the time the bail-......
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