4 W. Va. 257 | W. Va. | 1870
This was an action of debt, brought in the circuit court of Greenbrier county, by Regnault against Hunter. The declaration avers that, “on the 7th day of August, 1860, the said plaintiff made his bill of exchange in writing, and directed the same to the said defendant, and thereby required the said defendant to pay to the said plaintiff 127 dollars and 13 cents, sixty days after date, which period had elapsed before the commencement of this‘suit. And the said defendant then and there accepted the bill, and delivered the same to the said plaintiff, and then and there agreed to pay the said plaintiff the amount of the bill, according to the tenor and effect thereof, and of the said acceptance thereon. And the said plaintiff avers that after-wards, to wit: on the 9th day of October, 1860, when, according to the tenor and effect thereof, and the usage and custom of 'merchants, the same became due and payable, the same was presented for payment to the said defendant, but the said defendant did not, nor did any other person, pay the same, whereby an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said sum of 127 dollars and 13 cents, above demanded, with interest from the 9th day of October, 1860, until paid. Yet the said defendant, although often requested,” &c. To this declaration there was a demurrer, which -was sustained by the court below, and judgment given for the defendant. There are supposed by counsel to be some other questions in the record, but by an agreement in writing, they expressly agree that this court shall determine the case upon the sole question raised by the demurrer to the declaration.
The first case cited by the counsel for the defendant is the case of Mackie’s Ex’r. vs. Davis, 2 Wash., 219. This was an action on the case brought by the appellees against the appellant, to recover the amount of a bond on another party assigned by Mackie to the appellee, and which they were unable to collect on account of the insolvency of the maker of the bond. The question of the liability of the acceptor of a bill of exchange could not, and did not arise, nor was such a question decided in that case, although one of the judges incidentally referred to the subject in his opinion. The case is, therefore, not to be regarded as authority in this case.
Another case referred to, is that of Smith vs. Segar, 3 H. & M., 394. This was an action of debt by Smith against Segar. The declaration charged that the defendant, Segar, being indebted to a certain Saunderson,in the sum sued for, the said Saunderson, on the 6th of November, 1797, made his request in writing, directed to the defendant, requiring him to pay the amount to the plaintiff, or order, at sixty days after date, which request being afterwards shown and presented to the defendant, he, on the 11th of December, 1797, accepted, in writing, to pay the same, &c. The plea was payment. The judgment of the county court was for the plaintifF, which was reversed by the district court, and the judgment of the district court was affirmed, but it does not appear on what grounds. This was an action in the name of the payee, against the acceptor, and in that respect differs from the case under consideration. Another case referred to by the counsel for the defendant is that of Wilson vs. Crowdhill, 2 Munford, 302. This was an action of debt against the acceptor of a bill of exchange. Judgment was for the plaintiff in the county court, and affirmed by the district court, which was reversed by the court of appeals.
The report of this case does not show what the declaration was, or whether the action was in the name of the maker or payee against the acceptor, and it may have been like the case of Smith vs. Segar, an action in the name of a payee.
The case of Robarg vs. Peyton, 2 Wheat., 385, is referred to by the counsel for the plaintiff. This was an action of debt brought against the defendant as acceptor of a bill of exchange, by the plaintiffs as endorsees. The declaration charged that the bill was drawn, accepted, and endorsed for value received, and the only question was whether debt would lie in such a case?
The court was of opinion that debt lies upon a bill of exchange by an endorsee of the bill against the acceptor, when it is expressed to be for value received. The decision in this case is in conflict with the cases of Smith vs. Segar, and Wilson vs. Crowdhill, and is subsequent to them.
In the case of Cloves vs. Williams, 32, Eng. Com. Law Rep., 360, and in the case of Powell vs. Ancell, 42 Eng. Com. Law Rep., 97, it was held that the endorsee of a bill of exchange cannot maintain an action of debt against the acceptor. These two cases agree with the cases of Smith vs. Segar, and Wilson vs. Crowdhill, but are opposed to the case of Robarg vs. Peyton.
In the case of Priddy, &c., vs. Embry, 8 Eng. Com. Law Rep., 479, it was held that an action of debt would lie in the name of the drawer, who was payee against the acceptor of a bill of exchange. In the case of Watson vs. Kightley, 39 Eng. Com. Law Rep., 207, the declaration charged that plaintiff, on the 10th of January, 1839, made his bill of exchange in writing, and directed the same to defendant, and thereby required defendant to pay to plaintiff or his order, £7. 8s. 10d., one month after date, which period had elapsed .before the commencement of the suit; and defendant, then
The case of Hollingsworth vs. Milton, 8 Leigh, 50, is also cited by the plaintiff. This was debt by the payee, of án order against the acceptor. The declaration averred that the acceptor, by indorsement thereon signed, with the proper name of him, the said IT., the acceptor, by his own hand, accepted the same. It was held that the action could be maintained under the fourth section, of chapter 125, of the 1st Revised Code of "Virginia, page 484, which is the equivalent of the tenth section, of chapter 144 of the Code of Virginia, page 629, in force when the case under review was decided.
Section 10, of chapter 144, Code of Virginia, page 629, provides that, “an action of debt may be maintained upon any note or writing, by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent.”
This section, and the construction of it, given in the case of Hollingsworth vs. Milton, overrules the cases of Smith vs. Segar, Wilson vs. Crowdhill, Cloves vs. Williams, and Powell vs. Ancell, and sustains the case of Robarg vs. Peyton, that an action of debt will lie in the name of the payee of a bill of exchange against the acceptor, provided it be averred in the
The result, therefore, is, that an action of debt will lie in the name of the drawer of a bill of exchange against the acceptor, independently of the statute, and that an action of debt will lie in the name of the endorsee of a bill of exchange against the acceptor under the statute.
The declaration in the case under review is, therefore, good, independently of the statute, but would not be good under it.
The judgment complained of will have to be reversed, with costs, the demurrer overruled, and judgment entered for the plaintiff
Judgment reversed.
