Harder v. Boyce

59 Barb. 425 | N.Y. Sup. Ct. | 1870

By the Court, Brady, J.

At the time the notice of dishonor was deposited in the post office in this city, addressed to the defendant, at his residence in Greenville, South Carolina, that State, with others, had seceded from the United States; the federal representatives therein had either' suecumbéd to the rebellious movement, or been supplanted; the political and judicial power of the federal government had been set at defiance, and' the insurgents were in actual possession of the territory embraced within the State, by force of arms. The President, under the authority conferred by the act of congress passed July 13, 1861, (12 Stat. at Large, p. 257,) had declared that the inhabitants of that State and others were in a state of insurrection against the United States, and had proclaimed that all commercial communication between the citizens of that State and others named, and the citizens of the United States, was unlawful. (Proclamation, app. No. 9, 12 Stat. at Large.) The government established by the Confederate States was one called by publicists a government defacto, but which might, perhaps, be more aptly, termed a government of paramount force, the existence of which was maintained by active military power within the territories, and against the rightful authority of an established and lawful government, and to that government, thus created, the rights and obligations of a belligerent were conceded in its military character, soon after the war began. (Per Ch. J. Chase, in Thorington v. Smith and Hartley, decided Dec. 1868, 8 Wall. 1.)

"When a war is commenced between nations, it arrests, eo instanti, all commercial intercourse and voluntary communication with the enemy, without the permission of the government; and the citizens or subjects of one belligerent become the enemies of the other, and of all its citizens or subjects. (Griswold v. Waddington, 16 John. 438, and cases cited. The Rapid, 8 Cranch, 161. The Julia, Id. 193.) And these results of war, inter gentes, were substantially applied to the citizens of the Confederate States during the late conflict. The following cases establish the proposition that in the late rebellion there existed between the government of the United States and the Confederate States, a state of civil war in the sense of international law, which brought with it the common incidents of war, and arrested all commercial intercourse and communication between the citizens of those States, respectively. (The Prize Cases, 2 Blatch. 635. The Venice, 2 Wall. 258. The Wm. Bagaly, 5 id. 377. Hanger v. Abbott, 6 id. 532. Allen v. Russell, 12 Am. Law Reg. 362. Billgay v. Branch, 17 id. 33. Coppell v. Hall, 7 Wall. 555.) The existence and character of the hostilities mentioned, and the consequences flowing therefrom, rendered the attempted service of notice of protest on the defendant a nullity. The defendant’s engagement was a conditional one, to be made absolute upon the observance of such formulas as are-prescribed by law, unless waived or rendered unnecessary by facts and circumstances attending the maturity, demand and refusal of payment recognized by commercial law. In this case, there was no pretense that notice of dishonor had been waived, or was necessary; and the defendant was therefore entitled to it. The plaintiff was under no obligation to send it, as long as the impediment occasioned by war existed. (Edwards on Bills and Notes, 458, 459. Hopkirk v. Page, 2 Brock. 20, 34) It may be at least questionable whether he would be justified, after the President’s proclamation, in thus communicating with an enemy. It was his duty to send it, however, when the interruption of intercourse ceased. If, at the time the notice was deposited, the mail communication between the defendant’s State and this was continued, it rested with him to show that fact, to overcome the presumption to the contrary, or, as held in the case of Billgay v. Branch, (supra,) to have proven that the general usage required that the letter containing the notice should be preserved by the postmaster until the restoration of intercourse, and then forwarded to its destination. In that case, the notice of dishonor was deposited .in the post office at New Orleans, in October, 1863, when that city was in possession of the federal forces, addressed to the defendant, then in a rebel State. By the act of congress passed February 28, 1861, the postmaster-general was authorized to discontinue the postal service on any route where it could not, in his opinion, be safely continued; and we are not going too far in presuming that the mail communication could not be safely carried on while the hostilities between the insurgents and the government of the United States continued, or that communication interdicted by law would not be permitted by the government without its permission.. The plaintiff must be held to have known of the existing condition of the country, and the prohibition of intercourse. He could not-, therefore, cast upon the government the burden of preserving his letter or its contents until the termination of hostilities; and it follows that when he deposited the notice he did not put it in such course of transportation and delivery as would accomplish the duty imposed on him by law. The. verdict must, for these reasons, be set aside, and a new trial granted, costs to abide the event.

[New York General Term, January 3, 1870.

Ingraham, Geo. G. Barnard and Brady, Justices.]