Craven County NcArchives Court.....Nathan Smith, State Bank V. 1819 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 13, 2009, 4:53 pm Source: Nc Reports Written: 1819 The President and Directors of the State Bank of North Carolina v. Nathan Smith From Craven May Term 1819 A promissory note drawn by A. and indorsed by B. was made negotiable at the New Bern Branch of the State Bank of North Carolina, and payable on 11 December. B. lived in the Town of New Bern near to the Bank. Notice of non- payment of the note by the drawer, was not given to the indorser until 17 December, this delay of giving notice, discharges the indorser from all liability. This was an action of assumpsit against the Defendant as the indorser of a promissory note, the note was dated on 11 March, 1814, drawn at nine months, and made negotiable and payable at the New Bern Branch of the State Bank of North Carolina. The defendant's indorsement was admitted; and it was proved that previous to the time when the note fell due, it had been offered at the New Bern Branch of the State Bank, for discount, by the Defendant, and had been discounted for his benefit. It was proved that the makers had provided no funds for the payment of the note when due. It was approved by the Clerk of the Bank, that from its establishment, the course of business had been for the President and Directors of the Branch to meet at the Bank on Tuesday and Friday evenings in each week, when all notes offered to the Bank were either discounted or rejected by them - That at the time this not fell due, the debtors to the Bank were permitted to renew their notes by paying an eighth of the debt, and giving a new note for the other seven eights - That on Friday, 16 December, a note for renewal was offered by three of the makers, but without the name of one of the makers, and without the endorsement of the Defendant. This note was not discounted, and on Saturday 17 of December, notice was left at the house of the Defendant as indorser. It was also proved to be the custom of the Bank to retain interest by way of discount for three days beyond that on which the note was payable on its face; and that at the time of this transaction and for some time previous, it had been the custom of the officers of this Branch, to give notice to indorsers within three, four, five or six days, after the day of payment mentioned in the face of the note; and that no order of the Bank at that time existed, fixing a time of giving notice to indorsers; the Cler, whose duty was to give the notice, using his discretion, in some cases delaying the notice longer than in others, that he might not by an early notice of the delinquency of the maker affect his credit with the indorser, nor injure the Bank by what might be deemed a rigorous proceeding. The Defendant resided in the town of New Bern, within three hundred yards of the Bank. Upon the trial of this case, the Court charged the jury that the Defendant was exonerated from his liability as indorser by the delay to give him notice. The jury found a verdict for the Defendant; and a rule for a new trial being obtained, the same was ordered to be sent to this Court. Gaston for the Defendant. By the Court: We think the Court below instructed the jury correctly. The residence of the defendant, within a short distance of the bank, rendered the most prompt notice equally necessary and convenient. Allowing the days of grace, the notice should have been given on the 15th; but it was delayed to the 17th. Let the rule for a new trial be discharged. Cited: Jarvis v. McMain, 10 N.C. 15 File at: http://files.usgwarchives.net/nc/craven/court/nathansm741wl.txt This file has been created by a form at http://www.poppet.org/ncfiles/ File size: 4.1 Kb