Robinson v. Ames

20 Johns. 146 | N.Y. Sup. Ct. | 1822

Spencer, Ch. J.,

delivered the opinion of the Court

The questions in this case are, 1. Whether the bill wa» transmitted in due time; and, 2. Whether the want of funds in the hands of the drawees, will excuse the delay in presenting the bill, or the irregularity in the notice of the non-payment of it.

I am entirely satisfied that there is no foundation for saying, the defendants are precluded from setting up laches, because they had no right to draw the bill. The case of Bickerdike v. Bollmar, (1 Term Rep. 405.) is considered the first case deciding that notice to the drawer of the dishonour of the bill was unnecessary 5 and in that case the drawer had no funds, and knew he had none, in the hands °f die drawee. The drawing the bill was considered a fraud, and it was held that he was not entitled to notice, and could not be injured by the want of it. It has, however, since that case, repeatedly been decided, that where there are any funds in the hands of the drawee, so that the drawer has a right to expect the bill will be paid, or where there are not any funds, yet, if the bill was drawn under such circumstances as induced the drawer to entertain a reasonable expectation that the bill would be accepted and paid, the person so drawing it, is entitled to notice ; and, a fortiori, he is entitled to have the bill duly presented. The rule is correctly laid down in Claridge v. Dalton, (4 Maule and Selw. 229.) by Lord Ellenborough. The principle which has been stated, is very ably supported by Chief Justice Marshall, in French v. The Bank of Columbia, (4 Cranch’s Rep. 153.) where the principal authorities are reviewed. There is nothing more important, than that, in questions of a general mercantile nature, there should be a uniformity of decision; and, although the justice and equity of this rule may not, in some cases, be perceived, where the payee has purchased a bill, and it is drawn in good faith, and no conceivable loss has happened by the want of notice; yet, as there may be cases where, though there were no funds in the hands of the drawee, the drawer may be injured by the want of notice, it is better that the rule on the subject should be general and uniform throughout the mercantile world.

In the case of Miller v. Hackley, (5 Johns. Rep. 375.) Weldon and Furniss v. Buck and another, (4 Johns. Rep. 144.) and Mason and Smedes v. Franklin, (3 Johns. Rep. 202.) it was decided, that if a bill was presented for acceptance, and the drawee refused to accept it, and notice thereof was duly given, a demand of payment, and notice of a refusal to pay, was unnecessary, because the drawer was fixed already.

2. The only remaining question, then, is, whether there was laches in presenting the bill for acceptance $ for there is no doubt that regular notice was given of the refusal to accept the bill, the day subsequent to the demand. I do not find, that where a bill of exchange has been drawn payable at sight, or any specified number of days after sight, that there is any definite or 'fixed rule when the bill shall be presented for acceptance, other than this, that due diligence must be used. And it is certain, that with respect to such bills, and particularly where they are negotiated by the payee, there Is much more latitude, as to the time of presentment, than where the bill has a fixed period of payment. In the case of Muiliman v. D'Eguino, (2 H. Bl. Rep. 565.) which is a very leading case on this subject, the Judges felt the difficulty of saying at what time such a bill should be presented for payment. Ch. J, Eyre observed, that the Courts had been very cautious in fixing any time for an inland bill, payable at a certain period after sight, to be presented for acceptance. He said, that if, instead of drawing their foreign bills payable at usances, in the old way, merchants chose, for their own convenience, to draw them in this manner, and to make the time commence when the holder pleases, lie did not see how the Courts could lay down any precise rule on the subject. But he thought the holder was bound to present the bill in a reasonable time, in order that the period might commence from which the payment was to take place j and that what was reasonable time must depend on the particular circumstances of the case. Buller, J., said, that he thought a rule might, thus far, be laid down as to laches, with regard to bills payable at sight, or a certain time after sight, namely, that they ought to be put in circulation. If they are circulated, he said, the parties are known to the world, and their credit is looked to; and if a bill, drawn at three days sight, was kept out in that way for a year, he could not say there would, be laches: but further than that, no rule could be laid down. Heath, J., observed, that no rule could be laid down as to the time for presenting bills, payable at sight, or a given time after; that in the French ordinance of 1673, (Postlethwaite’s Dict. tit. Bills of Exchange,) it is said, that a bill, payable at sight, or at will, is the same thing, and that this agreed with Marius.

Now, here, the bill was put in circulation by Ross and Starr; and, although it is probable, that the first of exchange was lost, by the loss of the mail, we are not authorized to consider that as a fact in the case; but, I cannot say, that upon such a bill there has been laches. We perceive how extremely cautious the Judges were, in the case cited, in laying down any rule. The evident inclination of their minds was, that when the payee put the bill in circulation, the subsequent holder was not bound to any strict presentment. The drawers of the bill evidently did not mean to limit the time of presentment, by making the bill payable at sixty days after sight. They meant to give a latitude, as to time, to the holder; and my conclusion is, that there is not such laches as will discharge the drawers.

Judgment for the plaintiff.