R. & W. Gowan against J. Jackson

R. & W. Gowan against J. Jackson. A bill of exchange^drawn chants in London, dated Juwas1 not 1píl-ceptance'untii mst^b t^t had been put tion, anThad several hands’ before it was p"ai°ntbfs:°th<> Held, that under the circumstances, there in^he* holders’ in presenting the bill. Where the drawer of a bill is a partner of the house, or firm, on which it is drawn, it is not necessary for the holder to prove, that notice of its dishonour was given to the drawer. Where the witness, a commission merchant, in New-York, testified, that he became acquainted with, and did much bustness for a merchant of Antigua, and understood, in tlte course of his business, and from general report, that he was a partner in a firm in London, on whom be had drawn a bill of exchange, though the witness had not known, or heard of the .drawer, or of the drawees, until more than six months after the bill was drawn: Held, that this-evidence was sufficient, prima facie, to show that the drawer was a partner in such firm. THIS was an action of assumpsit, brought by the plaint.g.g^ ag en(jorseeS} agajnst the defendant, as drawer of a bill ofexchange. The bill was dated Antigua, July 18, 1817, for £381 16s. 2\d. sterling, on Messrs. Jackson and Brothers, London, payable ninety days after sight, to Hugh Mackay, or order, and endorsed by him, Robert jun. and by George M‘Nish fy Co. At the trial, before Mr. Justice Van Ness, at the New-York Sittings, in November, 1820, the plaintiffs gave in evidence a protest for non-acceptance, dated 16th January, 1818, anda protest for non-payment, dated April 14, 1818. The defendant’s counsel objected to the protests, that they were made after such a length of time, as to show laches on the part of the holders of the bill; and they proved that packets went regularly from Antigua to London, once in every month, or forty days; but the Judge overruled the objection. To excuse the want of proof of notice of the dishonour of the bill, the plaintiffs offered to prove that the defendant was one of the firm of Jackson and Brothers. The defendant’s counsel objected to the admissibility of the evidence, on the ground that the defendant might have separate funds in the partnership concern, if there was one, so as to be entitled to notice, as much as afty third person ; but the Judge overruled the objection. M., a witness for the plaintiffs, testified, that he had been acquainted with the defendant since the autumn of 1817, and being a commission merchant, had done a good deal of business for him 5 and that he had always understood that the two persons connected under the firm of Jackson and Brothers, of London, were Joseph Jackson, the defendant, and Daniel Jackson; and that the firm here was Joseph Jackson, or Joseph Jackson fy Co., but which, he did not recollect. That he understood from common report, that the defendant was a partner of the firm of Jackson and Brothers, in London ¡ and that he had so understood in the course of his business, and in the settlements of accounts made by him with the defendant. The witness further stated, that he did not recollect that the defendant had ever mentioned to him that he was a partner of that house. That at the time the bill was drawn, he did not know the defendant, nor the firm of Jackson and Brothers, nor did he hear of them, until more than six months after, or as late as February or May, 1818 5 and that all that he had heard relative to a partnership between them, was subsequent to that time. The jury found a verdict for the plaintiffs, for 3084 del» lars and 10 cents. H. <Sr R. Sedgwick, for the plaintiffs. They cited 1 Camp. N. P. Rep. 82. 1 Caines' Rep. 184. Whitney v. Sterling, 14 Johns. Rep. 215. T: A. Emmet and Fay, contra. They cited Chitty on Bills, 138. 2 H. Bl. 569. 4 Cranch, 141. [MAJORITY — Spencer, Ch. J.] Spencer, Ch. J. delivered the opinion of the Court: rp|je first p0int arising in this cause, as to the delay in presenting the bill for acceptance, was fully discussed and considered in the case of Robinson v. Ames. This is also a foreign bill, and was payable ninety days after sight, ¿ated Ju¡y is, 1817, and presented for acceptance the 16th January, 1818; and it had been circulated and passed through several hands. For the reasons given in the case of Robinson v. Ames, we are of opinion, that there was no laches in presenting the bill. The next point made by the defendant’s counsel is, that the evidence to show that the defendant was a partner of the house of Jackson and Brothers, the drawees, did not make out the fact, either that the defendant was a partner, or that he was a partner when the bill was drawn. The only witness, to prove the partnership, was P. S', Mills ; and he never heard or knew that there were such persons as the defendant and Jackson and Brothers, until February or May, 1818. Subsequent to these periods, Mills had done a good deal of business for the defendant, and had sold goods to a large amount by his orders., He had always understood there were two brothers connected in the business, the defendant and Daniel Jackson, and that the firm in London, was Jackson and Brothers, and the firm here was either Joseph Jackson, or Joseph Jackson Co.; and which, the witness did not recollect. And the witness had understood, from common report, that the defendant was a partner of the firm of Jackson and Brothers, in London. This is the substance of the evidence. When it is considered, that the bill was drawn in Antigua, and that there is no evidence of the defendant having done business in this country prior to the time spoken of by Mills, I think the evidence sufficient, prima facie ; and that it was thrown on the defendant to show the commencement of the partnership, if it began at a time subsequent to drawing the bill. The interval between drawing the bill, and the period spoken of by the witness, when by common reputation they were partners, was so short, as to render it improbable that the partnership commenced posterior to drawing the bill. Considering it, then, as established,'that the partnership existed when the bill was drawn, and presented, the question arises, whether notice of non-acceptance was required to be given to the defendant. It was proved, that the bill was presented for payment on the 16th of January, 1818, and was then protested for non-acceptance; and it was presented on the 16th of April, 1818, for payment, and protested. In the absence of all other proof, the bill must be considered as drawn by one partner of the firm, on the firm itself, in relation to the partnership business: and if so, then a knowledge by one of the firm of the dishonour of the bill, is, in point of law, knowledge by the whole firm. Daniel Jackson, the partner in London, had notice’ that the bill was refused acceptance and payment, for he was the person who thus refused. In Porthouse v. Parker and others, (1 Camp. N. P. 82.) Lord Ellenborough held, that where a bill had been accepted by one of the defendants, this was sufficient evidence of its having’been regularly drawn ; and that, the acceptor being likewise a drawer, there would be no occasion for the plaintiff to prove, that the defendants had received express notice of the dishonour of the bill, as this must necessarily have been known to one of them, and the knowledge of one was the knowledge of all. This is a very just and reasonable principle, for although Joseph Jackson is alone sued on the bill, yet, as has been already observed, it must be deemed a partnership transaction; and a knowledge by one of the firm of the dishonour of the bill, was all that ought to be required. Judgment for the plaintiffs. Ante, p. 146.