Walsh v. Blatchley, 6 Wis. 422

Walsh v. Blatchley

6 Wis. 422 | Wis. | 1858

By the Oowt,

Cole, J.

This case was tried by the court without the intervention of a jury, and the judge found the following facts:

*424First, That tlie action is brought upon the Bill of Exchange introduced in evidence, and described in the plaintiff’s declaration. That this bill, which is the second of the set, was endorsed by the defendants on a Sunday.

Second, That the first of the set was sold by defendants to plaintiff about the 1st of January, 1855. That the plaintiff without delay, sent the same by mail to his correspondent in New York city, the residence of the drawee, for presentation for payment. That by some delay in the mail the letter did not reach New York until the 9th of April following, at which time, the letter, with enclosure was duly received by the said correspondent. That the bill was uot presented for payment.

Third, That in the last of March, the plaintiff, fearing the said first bill was lost, procured the defendants to endorse and deliver to him the second of this set, and had it presented on the third day of April following for payment, to the drawee, and payment was refused. The bill was duly protested, and proper notice given to the defendants -who -were endorsers.

The conclusions of law which the court drew from these facts, were, “ 1st, That the liability in this action, if any at all, is upon the second bill of the set, and not on the first; 2d, That because the said bill was endorsed on Sunday, that therefore such endorsement was absolutely void.”

We have examined with considerable care the authorities, and have not been able to find a case precisely like the present, although it would seem as if the point must have frequently arisen in the courts in this country, and in England. The case of Perreira vs. Jepp, et. al., cited in a note on page 449, B. and C., would seem to have a strong bearing upon the case at bar. It was there held that he to whom any part of the set is first transferred, acquires a property in all the other par*-", anmay maintain trover even against a bona fide holder, who subsequently, by transfer, or otherwise, gets possession of another part of the set. That is, deciding that the first endorsement oi one of the set vests in the endorsee the absolute right to the possession of the whole set. And we suppose it would follow, from this doctrine that the endorsement of the second in this *425case -was entirely unnecessary. The liability of the indorser arose from endorsing the first of the set for value- We think her liability was not increased one jot or tittle by endorsing the second of the set. Suppose she had endorsed all of them in January, at the time she endorsed the first, is it not obvious that her liability would not have been different from what it is ? It is conceded that the endorsement of the first was good, and this endorsement was entirely adequate to carry with it the second and third. (See Edwards on bills, 304 and 162; Holdworth vs. Hunter, 10 B. C., 449; Kenworthy vs. Hopkins, 1 John. Cas., 107.) Either of the set may be presented for acceptance, and if not accepted, a right of action arises upon due notice, against the endorser. Downes and Co. vs. Churchy 13 Peters, 205. The bill upon which the protest was made, was declared on and produced, and it also appeared that the first had not been presented for payment. The court says, and we think properly and correctly, that if the first had been pr< - sented for payment and protested, even as late as April 9th, that upon proper notice the endorser would have been held, for the delay in the mail would have been a sufficient excuse for the apparent neglect in not presenting it for acceptance before. The case might have been relieved from all doubt or difficulty, had the endorsee declared upon the first of the set, and produced on the trial'the second, which had been presented for acceptance and dishonored. Wells vs. Whitehead, 15 Wend., 527. This he did not see fit to do, but we think he was entitled to recover even as the facts appeared before the COUlt. v

The iudginent is reversed, and a new trial ordored.