Guarantee-Action against guarantor-Reasonable time rule for bringing suit.
Negotiable instrument-Promissory note-Payment by-Conditional only-Liability
of endorser-Reasonable time within which to make claim

°Court: Wasey Sterry, Acting J.C.
Reception-Guarantee-Liability ~f guarantor-English law-Comparison _ with
French, Egyptian, and ~erman law.

Sale of goods-Payment by negotiable instrument

1. The ordinary presumption of law is that payment by a cheque,
bill or promissory note is conditional only, and that if the negotiable
instrument is dishonoured. the debt revives.

2. The endorser of a bill is not in a position difierent from that of
any other guarantor, and cannot claim' the right to be sued within a
"reasonable time" as is the case under French, German and Egyptian law .

..

Appeal

The facts of this case as they appear from Ihe case record are
shortly as follows:

On August 9, 1908, the respondent went to the appellants' office
to settle an account due from him in respect of goods supplied to
him by the appellants. 'While 'the res'pondent was at the appellants'
office he was told by them that they had some goods which he might
be interested in. The respondent said that he was prepared to take
the goods provided that they were prepared to accept a bill drawn
against a certain Constantinopulo In payment for the goods and were
prepared to pay him the balance on that bill. The appellants accepted
and paid the respondent £E25 and' promised to pay him the balance,
aftet deducting the price of the goods supplied, at maturity. The
bill, which was endorsed by' the respondent to the appellants, was
presented for payment several times and rejected. The respondent
kept asking for payment of' the balance and was each time asked to
wait. On at least one occasion-he asked the·appellants to hand over
the 'bill to him for collection if they were unable to collect. The bill
was not given to the respondent. '.

Finally, early in 1910, when the appellants realized that it was
not possible for them to collect the value of the bill from Constan-
tinopulo, they brought an action against the respondent for the price
of goods supplied and money advanced or; alternatively, on the bill
as endorsed. The respondent based his defense on two grounds'

( 1 ) He denied the claim in debt on the ground that the
appellants had accepted the bill in full, settlement for the price of
goods supplied and money paid.

(2) As regards the claim under the bill. he admitted having
endorsed the bill to the appellants, but denied liability on the ground
that the appellants were bound to sue within a reasonable time cUterdishonor of the bill and that they failed to do so. The respondent
further demanded, by way of counter claim, payment of the balance
due to him under the bill.

Mr. Drower: The appellants have discharged the duty of a
holder as regards the notice of dishonour. The civil judge by insist-
ing that they should have sued the respondent within a reasonable
time had imposed upon them an additional burden which exists
neither by the common law nor by the ordinances of this country.
The duty of, an - endorser at common law is the same as that of a
guarantor. There is no statutory limitation under English law and
therefore the only limitation would be that which exists in the case
of simple contracts, i.e., six years. A rule of German, French or
Egyptian Law which says that delay would defeat the endorser cannot

, be imported into this country without legislation. But even if it was
possible to import such a rule the court should not apply it because
it does not accord with justice, equity and good conscience.

May 28, 1910. Wasey Sterry, Acting J.e.: This is an appeal
from the decision of Mr. Nigel G. Davidson, civil judge, Khartoum
in civil suits Nos. 81 and 165, dated March 21 and April 30, 1910.

In my opinion the' appellants are entitled 'to succeed in their
consolidated appeals. They put their claim on two grounds Car
a simple claim in debt for goods received and money lent" and
(b) a claim against the respondent as endorser of a promissory note
to them.

The respondent's answer is: as to (a) you accepted the promis-
sory note in full discharge, as to (b) you are bound to sue within
a reasonable time and you have not done so. Now as to these
defences to the claim in debt if -it was satisfactorily proved. But I
do not think it is. The ordinary presumption of law is that a
payment by a cheque, bill or promissory note is conditional only,
and that if the negotiable instrument is dishonoured the debt revives.
I see nothing in the conduct of the parties or otherwise here to
rebut that presumption.

In any event, however, whatever view may be the right one
as to, this defence of fact, it does not concern me greatly to give
a positive finding in it as I am against the respondent on the
second defence,' that of law. I am not prepared to admit, in the
absence of statutory provision to the contrary, that the guarantor of