1828.

excepted, on the faith of funds, which are afterwards to come to August Term the hands of the drawee, or in pursuance of a previous agreement of the drawee to accept.

The true rule is that laid down by Chief Justice Marshall in French v. The Bank of Columbia [4 Cranch, 141.] If the drawer, at the time of drawing, has a right to expect, that his bill will be honoured (or in other words, if the bill be drawn in good faith) he is entitled to strict notice of its dishonour.

This qualification of the rule has been also made in several cases in the English Courts: [Legg v. Thorpe, 12 East, 170. Cory v. Scott 3 Barn, & Ald. 619. Brown, v. Maffey, 15 East, 221. Claridge v. Dalton 4, Mau. & Sel. 226.] And its correctness has been fully recognized by the Supreme Court of this state, [Robinson v. Ames, 20 J. R. 150.]

This seems to be admitted to be the rule as to the want of notice of non-acceptance or non-payment; but it is said not to be applicable to the omission of a demand of payment. It is not perceived, on what ground any distinction between the two cases can be raised. It is as much a part of the contract created by a bill of exchange, that the payee shall give notice of its dishonour, as that he shall present it for acceptance. And every reason, which upholds the rule, that the want of funds of the drawer in the hands of the drawee, or the drawing in bad faith, will dispense with the performance of one part of the contract, applies equally to the other. When a drawer has no reason to expect, that his bill will be accepted, it is an idle ceremony to require it to be presented; nor can the drawer be injured by the omission to do so.

Chitty in his treatise on Bills [248.] lays down the rule, that "the neglect to make a proper presentment, may, so far as respects "the drawer's liability be excused, by the drawee's not having "had effects of the drawer in his hands, from the time of draw"ing the bill to the time when it became due."

In Legge v. Thorpe, [12 East, 170.] it was decided, that a protest for non-acceptance of a foreign bill, need not be made or proved in an action against the drawer, if it appear, that he had no effects in the hands of the drawee, or no reason to ex

Franklin and
Smith

V.

Vanderpool.

Smith

V.

Vanderpool.

August Term pect, that his bill would be accepted. In the case of foreign bills, 1828. it is a part of the contract arising from the Law Merchant, Franklin and that a protest for non acceptance must be made. It is indispensably necessary, and cannot be supplied by any other proof. [Chit. 216. Gale v. Walsh, 5 T. R. 239. Rogers v. Stephens, 2 T. R. 713.] The protest is a formal declaration, that the bill has been presented and acceptance refused: and it is the usual, and indeed, the only evidence of the presentment of the bill, either for acceptance or payment. [1. Phil. Ev. 321. note. 2 Phil. Ev. 36. 6 Wheat. 574.] If then, in the case of a foreign bill, drawn under the circumstances before mentioned, a protest may be omitted, it would seem clearly to follow, that the presentment to the drawee (of which the protest is the only legal evidence) may also be omitted. The result of this reasoning is directly applicable to inland bills; for although no protest is necessary as to them, and they in that respect differ from foreign bills, as to the mode of proving a presentment, there is no difference between them, as to the necessity of making a presentment.

The rule, as thus derived from the English authorities, has received the express sanction of Chief Justice Parsons, in Bond v. Farnham, [5 Mass. 174.] In that case, that very learned Judge lays it down clearly, that when the drawer has no effects in the hands of the drawee, he cannot insist on a demand upon the drawee: for, says he, "he could not expect "an acceptance, and suffers no injury by the want of it."

I am of opinion from this view of the subject, that there is no ground for any distinction, in the present case, between an omission to give notice of the non-payment of the check, and an omission to present it to the bank. Upon principal and upon authority they stand upon the same footing.

It has been suggested, that if the want of funds in bank, at the time of drawing the check, is to be considered only as evidence, that it was drawn fraudulently or in bad faith, it ought to have been left to the jury to pass upon the fact of fraud. If the defendant had offered any proof to rebut the inference of fraud, arising from the circumstances of the

1828.

Franklin and
Smith

v.

Vanderpool.

case, as they were in evidence, it would, no doubt, have been August Term received. None such was offered. 'The defendant insisted, that upon the evidence, as it stood, the plaintiffs were bound to prove a presentment of the check, at the bank; and he now insists, that he was entitled to the verdict of the jury. The Judge was clearly right in holding, that it was not necessary, as the proof stood, to show a presentment of the check. And there being no question as to the facts of the case, the jury would have been bound to find, that the check was drawn in bad faith. It is not important, therefore, to consider in what form the matter was left to the jury. ury. The motion for a new trial must be denied.

Motion for a new trial denied.

E. Curtis, atty. for deft. B. Clark, atty. for piffs.]

1

A commission merchant, having in his possession the goods of his principal er consignee, deposited with him for sale, has an interest in the property which entitles him to insure the same against fire, in his own name, to the full value of the goods.

In declaring upon such a policy, the pleader may set forth the facts as to the ownership according to the truth of the case, and conclude, "to the damage of the plaintiff."

A commission merchant is, to all intents, the owner of the goods in his possession as to all the world, except his principal.

An insurance effected by a commission merchant upon goods "as well the pro"perty of the assured, as held by them in trust or on commission," covers the whole value of the property, and not the mere interest of the party effecting the insurance.

At the trial, the Judge permitted the plantiffs to prove, that it was the usage of commission merchants in the City of New-York, to effect insurance on goods consigned to them for sale, on commission, without express orders from their consignors. Held, that the proof of such usage was rightly admitted.

THIS was an action of assumpsit, upon three several policies of insurance against fire, tried before Mr. Justice HOFFMAN, on the 10th day of July, 1828.

The declaration contained a count upon each of the policies. The first was upon a policy for $10,000, against loss or damage by fire, made by the defendants, and dated the 30th of April, 1827, upon goods and morchandise, hazardous and not hazardous, as well the property of the assured, as held by them in trust or on commission, contained in the four-story brick store and cellar, No. 82 South-street, in the City of New-York, for one year from the first day of May, 1827.

The second count was upon another policy of the defendants for $5,000, against loss or damage by fire, dated the 5th day of February, 1828, upon goods and merchandise, hazardous and not hazardous, as well the property of the assured, as held by them in trust or on commission, contained in the store, No. 82. South-street, for one year two months and twenty six days, from the 5th day of February, 1828.

1828.

De Forest v.

The third count was upon another policy of the defendants, for August Term $2,500, against loss or damage by fire, dated the 5th day of Feburary, 1828, upon merchandise, hazardous and not hazardous, the property of the assured, or held by them in trust or on commis- The Fulton sion, contained in the brick store, No. 81 South-street, in the City of New-York, for four months from the date of the policy.

The averments, relative to the interest of the plantiffs in the property insured and the damage sustained by them, were as follows: "And the said plaintiffs aver, that from the time of the "making of the policy of insurance aforesaid, and the promise and " undertaking aforesaid until and at the time of the loss herein "after mentioned, the said plantiffs were possesed of divers goods " and merchandise, hazardous and not hazardous, as well the "property of the assured, as held by them in trust or on commission, "which were contained in the store and cellar, in the said policy "of insurance mentioned, to a large amount, to wit, to the a"mount of all the several sums in and by the said policy, and the "several policies herein after mentioned, insured thereon, or so "mentioned to be," &c.

" And the said plaintiffs aver, that after the making of the said "policy of the defendants, and during the time therein insured," &c., "the said goods and merchandise, in the said policy of in"insurance of the defendants mentioned, were by misfortune, " without fraud or evil practice on the part of the plantiffs, burnt, "damaged, consumed and lost by fire," &c. "and that by such " fire the plaintiffs sustained loss and damage," &c. " to the amount "of all the sums insured on said goods and merchandise.

The defendants pleaded the general issue.

Upon the trial, several questions of law were raised by the counsel for the parties, which were reserved for the consideration of all the Judges upou a case to be made. Such facts, as are deemed material to a clear understanding of the points of law discussed, are extracted from the case, and make part of the history of the

cause.

The execution of the policies, set forth in the declaration, was admitted by the defendants, and they were read in evidence. The two policies on property in the store, No. 82 South-street, contain

Fire Ins. Co.