Munroe v. Easton

2 Johns. Cas. 75 | N.Y. Sup. Ct. | 1800

Kent, J.

delivered the opinion of the court. I have always understood the law to be well settled, that the drawer of a bill is only responsible after a default on the part of the acceptor; and that the holder must first demand payment, or use due diligence to demand it of the acceptor, before he can resort to the drawer. (2 Burr. 674.) Nothing of this kind having been done in the present case, I consider the drawer as discharged. No change in the form of the *action can alter the respective rights of the parties in relation to the bill. This must be considered as a suit by the payee of a bill of exchange against the drawer* and the law is too well settled to admit of a doubt.

If this was to be considered on the ground of an equitable action for money laid out and expended to another's use, and had no reference to the bill, yet the evidence in the case shows that the money was advanced for the use of the acceptor, and not of the drawer. The letter and the account current of the plaintiffs is deeisite proof against them.

The verdict, therefore, ought to be set aside, as against law and evidence;

New trial granted.(^a)

a (a) Mr. Justice Story, in bis Commentaries on Bills of Exchange, remarks “thecontraét of the acceptor, by his acceptance, is, that he will pay the bill, upon due presentment thereof, at its maturity, or its becoming due. The contract of the drawer, and of the indorsers also, respectively is, not only, that the bill shall be duly accepted, but, that the bill shall be duly paid by the acJ ceptor, upon due presentment for payment; and, if not then paid, and due protest is made, and due notice of dishonor is given to them respectively, they will, upon demand, pay the bill, and also the damages and expenses accruing to the holder thereby. It is obvious, from this statement, that, while the contract of the acceptor, is absolute, that of the drawer and indorsers is conditional.” Story on Bills, § 323, id. 113, 108, 109. Chitty on Bills, ch. 9, p.384, 385, 8th ed. 1833. 1 Bell Comm. B. 3, ch. 2, § 4, p. 409, 5th ed.