Boot v. Franklin

| N.Y. Sup. Ct. | May 15, 1808

Kent, Ch. J.

delivered the opinion of the court. The declaration in this suit varies from the one in the former cause, in these particulars only, viz. it states that after the bill was protested at Liverpool for non-acceptance, it was, when payable, protested at London for non-payment, w’ith an averment that the holders did not know where to present the same for payment in London; and it then avers, that of all the premises the defendant had notice.

The special demurrer to this declaration states that the plaintiffs have not alleged that the bill was presented to the drawees for payment, nor that the plaintiffs endeavoured to find the drawees, or made inquhy, or search for them.

Upon the argument, the declaration was objected to as bad, in matter of substance, for the want of a distinct averment that the defendant had notice of the non-acceptance. The answer to this objection is, that the general averment of notice of all the antecedent premises was sufficient, and is conformable to approved precedents. 7I19 reasonableness of the nptiqe, eithqr of the. ñoñ-ácceptance or non-payment, is a question that canhsi ar;se Upon the pleadings. It depends upon the testimony tó be disclosed at the trial. The other objection stated as a cause of demurrer, has been anticipated, in a great measure, by what was observed in the former case. 1$ was not incumbent upon the plaintiffs to state that inquiry was made in London for the drawees: lex neminem cogit ad vana seu inutilia. No place in London being pointed but to which the holders might resort, and the drawees residing at Liverpool, an attempt to search for them in such a city as London, would have been' without any object or effect. Nor were the holders bound to go elsewhere, to seek the drawees, as the bill had directed the payment tobe in London. They conformed their conduct to the tenor of the bill. They were in London on the day of payment* ready to receive payment* and they did all that they were enabled to do ; they caused the bill to be there protested. The declaration in this case also states suEcient to entitle tlie plaintiffs to recover.

Judgment for the plaintiffs..