Smith v. Harbert's Administrator

30 Tex. 669 | Tex. | 1868

Morrill, C. J.

On the 1st March, 1866, Harbert instituted suit against Smith, based upon a note made by H. D. Rhode, payable to the order of Smith, calling for $1,697 16, six months after the date of 16th Hovember, 1861.

It is alleged in the petition that Smith, for value received, indorsed the note in blank to plaintiff'; that the maker of the note has departed this life; that there is no administrator on his estate, which is insolvent; and that this is the first term of the district court, when there was no legal disability, for the institution of the suit. That the opening of the courts, in part, by the provisional governor, at the last fall term, was without the authority of law, until validated by the late constitutional convention, and it was owing to its doubtful legality that suit was not commenced on said note at the fall term of said court.

The defendant, Smith, admits the execution and indorsement of the note, and pleads, also, that at the fall term, 1865, the district court was legally held in the county of Payette, where the maker of the note resided; and because the plaintiff neglected to institute suit against the maker at the first term of the court in which- suit could be brought after the maturity of the note, that defendant is not liable.'

The plaintiff excepted to the answer of defendant, because it was legally insufficient.

The cause was submitted to the judge on the pleadings, and judgment given for the plaintiff on the note.

It has been brought to this court, and the errors assigned relate to the sufficiency of the answer.

The note, being dated 16th Hovember, 1861, and due at six months, matured on the 16th May, 1862.

By the act of 20th March, 1848, (Paschal’s Dig., Art. 229,) it was provided, that “the holder of any bill of exchange or promissory note, assignable or negotiable by law, may secure and fix the liabilities of any drawer or indorser of such bill of exchange, and every indorser of such promissory note, without protest or notice, by instituting suit against the acceptor of such bill of exchange or against the maker of such promissory note before the first term of the district court to which suit can be brought after the right of action shall accrue, or by instituting suit before the second term of said court after the right of action shall accrue, and showing good cause why suit was not instituted before the first term next after the right of action accrued.”

The 4th section of said act (Paschal’s Dig., Art. 232) provided, “that the holder of any such bill of exchange or promissory note may also secure and fix the liability of any drawer and indorser of such bill of exchange or promissory note, for the payment thereof, without suit against the acceptor, drawer, or maker, by procuring such bill or note to be regularly protested, by some notary public of any county, for non-acceptance or non-payment, and giving notice of such protest to such drawer or indorser, according to the usage and custom of merchants.”

The 6th section of the same act .provided, “that three days of grace shall be allowed on all bills of exchange and promissory notes, assignable and negotiable by law; provided, that the 4th, 5th, and 6th sections of this act shall extend only to contracts between merchant and merchant, their factors and agents.”

On the 7 December, 1861, the legislature passed an act, the 5th section of which provides: “During the time named in this act, (until the 1st January, 1864, or six months after the close of the war,) or until otherwise provided by law, * * * it shall not be necessary for the holder of any bill of exchange or promissory note to bring suit against the acceptor of such bill of exchange, or against the maker of such promissory note, in order to secure and fix the -liability of any drawer or indorser of such bill of" exchange or any indorser of such promissory note.”

On the 11 January, 1862, the legislature further provided, (Paschal’s Dig., Art. 234,) “that the 6th section of an act prescribing the mode of establishing the liabilities of drawers and indorsers of bills of exchange and promissory notes, approved 20 March, 1848, be so amended as to read as follows: Seo. 6. Three days of grace shall be allowed on all bills of exchange and promissory notes assignable and negotiable by law.”-

Thus we perceive that from the 20 March, 1848, until the 7 December, 1861, the only method of fixing the liability of an indorser of a promissory note, except in those cases wherein the contract was between merchant and merchant, was by instituting suit against the maker of such promissory note, before the first term of the district court to which suit could be brought, or before the second term, and showing good cause why suit was not instituted before the first term. And we also see, that from and after the 11 January, 1862, by the repeal of the 6fch section, in part, that the indorser of a promissory note could be fixed in his liability to pay the same by a protest, as provided in Paschal’s Digest, article 232, above quoted. And we also can §ee, that from the 7 December, 1861, to the 11 January, 1862, (a little more than one month,) there was no way or method of fixing the liability of an indorser of a promissory note provided by law, unless the note or bill was between merchant and merchant.

The cause of the repeal of the 6th section of the act of 1848, and thereby declaring no distinction between mercantile and other notes, was evidently brought about from the fact that there was the same necessity that there should be a way provided by which indorsers should be apprized as to their liabilities to pay the note in one case as in the other; and we therefore consider that the legislature required all parties and persons holding notes or bills thus indorsed to have the same protested from and after 11th January, 1862. That the 5th section of the act of 1861, (Paschal’s Dig., Art. 5180,) which dispensed with the necessity of requiring suit to be brought against the maker, in order to hold the indorser of a note liable, during the war, ceased to be of any validity from and after the time that the act, requiring and permitting protests of all notes indiscriminately, took effect.

The note in the case under consideration matured on the 16th May, 1862, and the liability of the indorser could have been fixed, and should have been fixed, if the indorser intended to hold him liable, by having the note protested.

This view of the case renders it unnecessary to discuss the point raised by the pleadings, as to whether the courts that were in existence after the surrender of the confederate armies, and previous to the election of the judges by virtue of the constitution of 1866, were legal or otherwise. But lest it may be supposed that we have any doubt on this point, or that it may be thought that we consider the district judge did not err on the pleadings as presented, we will make a short statement of our views relative thereto.

In the case of Leitensdorfer v. Webb, 20 Howard, 176, the Supreme Court of the United States said: “ Upon the acquisition, in the year 1846, by the arms of the United States, of the territory of Hew Mexico, the civil government of this country having been overthrown, the officer, General Kearney, holding possession for the United States in virtue of the power of conquest and occupancy, and in obedience to maintaining the security of the inhabitants in their persons and property, and under the sanction and authority of the United States, instituted a provisional or temporary government for the acquired country.

“ By this substitution of a new supremacy, although the former political relations of the inhabitants were dissolved, their private relations, their rights vested under the government of their former allegiance, or those arising from contract or usage, remained in full force and unchanged, except so far as they were in their nature and character found to he in conflict with the constitution and laws of the United States, or with any regulations which the conquering and occupying authority should ordain. Amongst the consequences which would be necessarily incident to the change of sovereignty would be the appointment or control of the agents by whom, and the modes in which, the government of the occupant should be administered; this result being indispensable in order to secure those objects for which such a government is usually established.

“This is the principle of the law of nations as expounded by the highest authorities.

“ Accordingly, we find that there was ordained by the provisional government a judicial system, which created a superior or appellate court and circuit courts, in which the laws were to be administered.

“ Of the validity of these ordinances of the provisional government there is made no question with respect to the period during which the territory was held by the United States.”

From the 14 February, 1845, to the 2 March, 1861, Texas was one of the United States, de facto and de jure; but from the last-named period till the 26 day of May, 1865, it was in reality in open war with the United State», and all of its officers swore allegiance to some other supposed government in open warfare to the United States. "When the army of the United States- conquered the armies of this supposed government, of which Texas formed a part, there was not within the length and breadth of the state a civil or military officer whose oath of office required his allegiance to the United States. And so conscious were these officers of this fact, that they did not even pretend to exercise the functions of office, from the governor to constable, and from a supreme judge to a justice'of the peace. In a word, the relative position of Hew Mexico in 1846, and of Texas in 1865, to the United States was similar, saving that the hostile feeling of the latter was more intense to the United States. What General Kearney did in Santa Fé, as hereinbefore stated, Governor Hamilton, for the same reasons, did in Texas. Each had the same authority, emanating from the same source, the commander-in-chief of the army and navy of the United States. And if from this fact the validity of the acts of General Kearney “are to be beyond question,” as is stated by the Supreme Court in the opinion from which we have so largely quoted, with what propriety can the acts of Governor Hamilton be questioned, when, in addition thereto, his acts were ratified by the convention as well as the people of Texas ? We have made an unnecessary digression. The parties in the district court seem to have acted as if they were not aware of the existence of the statute which authorized the protest of the note.

But as the defendant pleaded that he was not liable, because he was not sued till 1866, when there was a court in which suit could have been brought in 1865, and no good cause was shown why he was not sued in 1865, we conceive that the judge erred in not sustaining this defense; and we also consider that as the note was not protested, agreeably to the requirements of the statutes, at the time it was due and payable, the plaintiff had no cause of action against ° defendant at the institution of the suit.

Judgment reversed and cause dismissed. .