Taylor & Al. (Eaton vs.)... 54 Whittemore (Cutter vs.) 442

Tucker & Al. (Kimball vs.). 62 Wyman (Cummings vs.)

CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT,

IN THE

COUNTY OF SUFFOLK, MARCH TERM, 1813,
CONTINUED AT BOSTON

PRESENT:

HON. THEOPHILUS PARSONS, Chief Justice.
HON. SAMUEL SEWALL,

HON. GEORGE THATCHER, JUSTICES.

HON. ISAAC PARKER,

ROBERT LENOX versus CHARLOTTE LEVereti,
Administratrix.

When a bill of exchange is protested for non-acceptance, and afterwards taken up and paid, for the honor of a party to the bill, the holder is still bound to the same duties, as to protests and notice, as if the bill had not been paid.

ASSUMPSIT on two bills of exchange, of which William Leverett, the defendant's intestate, was the first endorser.

The action was tried on the general issue, at the last November term in this county, before Parker, J., from whose report of the trial the following facts appear:

The bills in question were drawn by Robert Fields, on the 9th of January, 1809, upon Frederick Dawson, of Mile-End-Road, London, payable, in sixty days after sight, to said William Leverett or order, and, on the 19th of January aforesaid, sold to the plaintiff in New York, through the agency of a Mr. Willard, of Boston, who transmitted them to the plaintiff, the said Leverett having endorsed

[*

[2]

LENOX vs. Leverett.

them, and having received five per cent. advance on the face thereof On the 27th of the same January, the plaintiff remitted the bills to his correspondents in London, who received the same on the 25th of the ensuing March; and on that and the succeeding day, the clerks of the merchants in London made diligent search for Dawson, the drawee, but were unable to gain any intelligence of him: on the contrary, they ascertained that there had been no such person as Frederick Dawson at Mile-End-Road. On the 1st of April, the bills were carried to a notary, who noted the same for non-acceptance; but there was no evidence that any protest for non-acceptance was ever made, except what arises from a letter to the plaintiff from Messrs. Holford & Gonne, merchants of London, to whom the said bills had been remitted, dated the 5th of April, 1809, stating, among other things, that, in the course of their inquiries, they had called on Messrs. Thomas Murdock & Co., who offered to take up the bills, at their maturity, for the honor of the plaintiff, and had delivered to them the protest in form, &c. This letter was received by the plaintiff on the 9th of June, 1809, and the contents thereof immediately communicated to Mr. Willard in Boston, and by him to Leverett, the endorser. On the 3d of June, 1809, the bills were duly protested for non-payment, and were taken up and paid by said Murdock & Co.

On the 19th of June, Murdock & Co. wrote the plaintiff that the bills had been protested for non-payment, and that the bills and protest were forwarded; and upon receipt of this letter, information was immediately communicated to Mr. Willard, and by him to Leverett. No protest came to hand with said letter; and the only evidence that a protest was forwarded, except what arises from said letter, was contained in the deposition of John P. Glen, clerk to Messrs. Murdock & Co., stating that it appeared by their letter-book, and was verily believed by the witness, that on the said 19th of June, a letter was written by them to the plaintiff, enclosing the said bills, and regular protests, and advising that the said bills had been paid by them under protest, for the honor of the plaintiff; and that the

said letter was sent to the general post-office in London, [3] in duplicate, * one to be forwarded by the packet, and the other by a private ship; and that the said Murdock & Co., on the 5th of December, 1809, having learned, by a letter from the plaintiff, that the said bills and protests had not been received by him, duplicates thereof were then immediately forwarded to him by the packet.

It was in evidence that the usual intercourse between the United States and Great Britain was interrupted at the time the bills were taken up as aforesaid; but that a packet, carrying a mail, sailed every

LENOX vs. LEVERETT.

month from England, being advertised for the first Wednesday of each month, and usually sailing within a week or ten days after that time. It was also proved that none of the monthly mails from England by the packets had been missing.

The duplicate of the bills and protest forwarded on the 5th of December, 1809, was received in March, 1810, by the plaintiff, sent to Mr. Willard, and by him communicated to Leverett.

The bills, when drawn by Fields, were negotiated by Benjamin Leverett, brother of the deceased, and one half of the amount was paid to Fields, the other half being retained, with a view to ascertain whether they would be accepted. The money so received had been paid over to the plaintiff, upon an agreement that the payment should not affect the question between the parties.

Fields, the drawer, was insolvent before the drawing of these bills, although at that time he had some property, and a credit at one of the banks in Boston. In November, 1809, his furniture was attached, and his credit totally gone. Soon after the bills were negotiated by Leverett, he expressed some apprehension that they would not be accepted; as other bills drawn by Fields had been returned protested.

The defendant's counsel insisted, 1. That the plaintiff ought not to recover, without producing a protest for non-acceptance, and notice thereof to the endorser; and, 2. That the delay in notifying the endorser of the non-acceptance and non-payment had discharged him from all liability.

*The jury were instructed that any unreasonable delay [* 4 ] in notifying the non-acceptance or non-payment was fatal to the plaintiff's claim, notwithstanding the bill had been taken up for his honor; that a protest for non-acceptance was not necessary to be produced, if the endorser had otherwise due notice that the bills were not accepted; but that the delay from the 3d to the 19th of June, before any letter or other information was sent of the nonpayment, was laches, which discharged the endorser; unless they were satisfied that such delay was occasioned by difficulties in communication, which could not be removed.

The jury returned a verdict for the plaintiff, which the defendant moved to set aside, as being against law and evidence.

Selfridge for the defendant. The holder of these bills was guilty of laches in employing his clerks to present the bill, instead of a Lotary, (1) or in not employing a notary until three days after the bill was received; and the case shows that he then made the protest for facts which were not within his knowledge. There were laches

(1) 4 D. & E. 175.