William Johnson

“ Nor does it subject the defendants to any inconvenience, from a joint action; since it secures to each defendant, every privilege of pleading and defence of which he could avail himself if severally sued. The Circuit Court has incorporated the action with all its incidents into its course of practice; and having full power by law to adopt it, we see no legal objection to its doing so, in the prosecution of that system, upon which it has always acted. It cannot be contended that the liabilities of the defendants under their contract, have been increased, or even varied ”

“ The note so charged was of course not protested, and thus Fullerton and his co-endorsers escaped payment of that note; and now they propose to escape the payment of this, by insisting that without a check from Fullerton, authorizing the application of the proceeds as credited to him, to the payment of the previous note, the bank is still indebted to him to that amount. This is an ungracious defence, and one which no Court of justice can feel disposed to sustain. ”

“ If this was the true construction, and the Act gave a joint action, or, quoad the remedy, considered the contract as joint, it would leave the action, when brought, upon the same footing and subject to the same rules as all other actions upon joint contracts, unless otherwise provided by the Act. Does a joint action abate by the death of one of the defendants? ”

“ In the conflicts of power and opinion, inseparable from our very peculiar relations, cases may occur, in which the maintenance of principle, and the administration of justice according to its innate and inseparable attributes, may require a different course ”

“ With a view to that question, the defendants below have introduced thirteen out of sixteen of their prayers. They all go to maintain the single proposition, that Fullerton, as last endorser, was entitled to credit for the proceeds of this note, and is still entitled, if they have not been legally applied to the payment of the note which preceded it. ”

“ Parker, 6 East, 3, Lord Ellenborough says the rule as laid down originally in Marius, is, the notice must be sent by the next post. In one word, it is the next post, and not the next day. Due diligence consists in placing the notice in the office before the post next after the last day of grace leaves town-and not in placing it there, on the day next after the last day of grace. This, although on the next day, might not be in time for the next mail; and due diligence must be proven, affirmatively, by the plaintiffs. ”

“ The Act established a rule of property, construction or evidence, rather than a rule of practice, and therefore could not be applied to a contract entered into before its passage. It was such a rule, as is referred to in 34 sect. Jud. Act, United States, chap. 20.
In general a demand is necessary on the drawer to charge the endorser. It may be dispensed with when the note is payable at the holders; and its place supplied by proof, that the holder was present, ready to receive payment, and the account of the drawer inspected, and no credit found in his favour. United States Bank vs. ”

“ Upon the second bill of exceptions, it was argued-1. That the nature of the case was apparent from the record, and the effort of the defence appeared to have been, to give it a technical complexion different from the reality. ”