Mason v. Franklin

3 Johns. 202 | N.Y. Sup. Ct. | 1808

Kent, Ch. J.

delivered the opinion of the court. This is a suit upon a foreign bill of exchange, drawn in this city, upon Rathbone, Hughes & Duncan, merchants at Liverpool, and payable sixty days after sight in London. The declaration states, that the bill being regularly indorsed to the plaintiffs, was presented to the drawees for acceptance, but that they refused, and that the same was accordingly protested at Liverpool for non-ac - ceptance, and notice given to the defendants ; that the bill when due and payable, was presented to the drawees at Liverpool for payment, who refused to pay the same, and that it was then protested at Liverpool for non-payment, and notice thereof also given. To this declaration, the defendants demurred specially, and stated for causes of demurrer, that the declaration does not allege that the bill was presented in London for payment, or that the plaintiffs made inquiry, or used diligence to find any person in London, to whom to present the bill for payment,, or that the said bill was, according to the custom of mer■chants, protested in London.

& ! Upon this record, we are of opinion that a good cause of action arose upon the protest for non-acceptance, and were we to admit that the subsequent demand of payment and protest for non-payment were void acts, by being made at Liverpool, they would not destroy the right to recover which had previously vested ; utile per inutile non vitiatur; that part of the declaration containing the subsequent demand and protest might in such case be rejected upon demurrer, as surplusage. But we are of opinion, that as no place of payment in London was designated, the demand for payment and protest for non-payment, were well made upon the drawees personally, at Liverpool. It would have been a very idle act for the holder to have gone into London to make inquiry, when no place in London was pointed out in the bill, and when the drawees resided at Liverpool, and had refused to accept the bill. The law-merchant has not pointed out any particular spot in London for such inquiries* and to have attempted it at large would have been the heighth of absurdity. The common law in general, and especially the commercial law, which forms a distinguished branch of ' it, is founded on the principles of utility and common sense ; and it would be truly surprising, and repugnant to the very spirit of the system, If an inquiry so senseless was requisite to consummate the right of the holder of the bill. It must be a sound rule, that where no particular place of payment is fixed, a demand upon the drawee personally, is good. A general refusal to pay, was a refusal to pay according to the face of the bill. It was equivalent to a refusal to pay in London. We' do not mean to say, that the demand of payment at Liverpool was indispensable, The bill being payable at London, it would have been suf- , ficient for the holder to have been there when the bill fell due, ready to receive payment. In the present case, -a protest at London, or a demand and protest at Liverpool were sufficient, and the holder might take either course. The holders elected to demand payment of the drawers personally, at Liverpool, and to cause the bill to be protested there, and the plaintiffs accordingly did all that" in reason or law can be required to fix the antecedent parties to the bill.

We are, therefore, of Opinion that the plaintiffs are entitled to judgment.

Judgment for the plaintiffs.