Durkin & Henderson v. Cranston

7 Johns. 442 | N.Y. Sup. Ct. | 1811

Lead Opinion

Per Curiam,

When notice was given to McBride of the non-payment of the bill, it had already been paid by the drawees to Pigou & Co. All the three of the set , of exchange formed but one bill, and á payment to the holder is good, whichever of the set he may happen to have in his possession. This must be considered as a valid ; payment by the drawees, although it was after protest for non-payment, because Pigou & Co. were holders of the bill as general endorsees, and the legal title was in them. Miller 8? Co. had a right to consider them as owners of _ t^le kill? and as owners they could waive the default and1 accept the payment. They did not hold the bill under any Spec;al or limited endorsement. The notice to McBride, and the subsequent payment by him, were consequently founded in mistake. It was done upon the assumption of a fact which did not then exist. The bill was not dishonoured when the payment was made by McBrick, as that dishonour had been duly waived by the party competent to waive it. A drawee, as well as a third person, after he has suffered a bill to be protested for non-payment, may pay it supra protest. (Chitty on Bills, 163.) This case then resolves itself into the ordinary case of money paid by mistake of the fact, and the plaintiffs are entitled to recover back the whole sum paid, with the 20 per cent, inclusive, and interest; and judgement must, therefore, be entered upon the verdict as it stands.

---

Dissenting Opinion

•Van Ness, J. dissented.

He thought that after the bill had been protested for non-acceptance and nonpayment, and sent back by the holder in London to the defendants here, the drawees paid the money to the holders in London, at their peril. That the different bills of the set made but one bill of exchange; and when one of the set was received by the defendants here with the protest for non-payment, their right to receive the money from the drawers or the endorsers, the present plaintiffs,’ was complete; and the money having been rightfully received, could not be recovered back by the plaintiffs.

Judgment for the plaintiffs.