Miller v. Hackley

5 Johns. 375 | N.Y. Sup. Ct. | 1810

Van Ness, J.

delivered the opinion of the court. By an agreement of counsel, the motion on the part of the defendant, for a new trial, and in arrest of judgment, came on together. This suit is to charge the defendant, as endorsor of a bill, drawn in New-York, on Baltimore, for 250 dollars, and of two bills drawn in NewTork, on Charleston, the one for 310 dollars, and the other for 315 dollars.

With respect to the first bill, I do not perceive any objection to the right of recovery. The bill, when presented for acceptance, was refused, and due notice, , given to the defendant. The evidence to this point con» • sisted of the deposition of a notary, who stated that he presented the bill for acceptance, and protested it for non-acceptance. That it was his usual practice, as notary, on the evening of the day of the protest, and in all cases of protest, to give notice, in writing, to the endorsors residing at a distance, by putting such notice in the post-office, directed to the party, at his place of residence ; and he had no doubt notice in this case was duly given, though, at that distance of time, he could not recollect positively ; and that it was possible he might have given the notice to the holder to be forwarded.

This evidence was certainly sufficient, in the first instance, to support the averment of due notice, and there being nothing to affect it,, it will support the verdict.

It was objected by the defendant, and urged as a reason, in arrest of judgment, that in the counts upon this bill, and in the proof, the demand, and protest for nonpayment, were made a day too late, by which neglect the holder made the bill his own, and discharged the endorsor. The answer to this objection is, that the endorser, being fixed by the non-acceptance and notice of it, it is perfectly immaterial whether the demand of payment was or was not a day too late ; because no demand was necessary, and so it was held in the case of Welden and Furniss v. Buck. (4 Johns. Rep. 144.)

As to the Charleston bills, I am of opinion that the plaintiff has not shown enough to entitle him to recover. A protest for non-acceptance need not have been produced ; for I consider a bill of exchange made here, and drawn upon a person within the United States, though not in the same state with the drawer, as an inland bill; and, assuming it to be such, no protest was requisite ; for we have not adopted the statute of 9 and 10 Wm. III. requiring a protest on such bills. But the great defect in the plaintiff’s case is the want of notice to the defendant of the non-acceptance of the bills. None was given, or attempted to be given, and he was consequently discharged. A subsequent promise to pay, under a knowledge of the fact of want of notice, would be a waiver of notice ; but I think there was not the requisite evidence of such promise. It ought to have been made out clearly and unequivocally. The defendant only said to a third person, when talking generally of all the bills, (that on Baltimore as well as those on Charleston,) that he would take care of the bills, or see them paid. Whether he used the one phrase or the other, is left in doubt; and if the first phrase was used, it was altogether uncertain whether he meant to be understood that he would resist, or would pay the bills.

It would be dangerous to fix an endorsor without notice, and perhaps without knowledge of the laches of the holder, upon such loose conversation with a third person. No case has ever gone so far. Unless, therefore, the plaintiff will consent to reduce the verdict to the amount of damages on the Baltimore bill, there must be a new trial, with costs, to abide the event.

There were some other questions raised as to '■ the counts and the proof relative to the Charleston bills ; but the want of notice being a decisive objection to the right of recovery, I need not now take notice of them.

Judgment accordingly.