Mallory versus Kirwan

Mallory versus Kirwan. THIS was an action on a bill of exchange, against the drawer. The bill was dated the 29th of September, 1781 and was drawn on the defendant’s tenant for £50, “ being my part of the rent of Black Rock estate.” It was presented for acceptance and refused, some time previously to the 19th of November, 1781 ; but it was not protested ’till the 5th of August 1782. No notice of the protest was given, nor was any personal application made to the defendant, ’till sometime in the beginning of the year 1790 ; though, it appeared, that in the year 1790, he acknowledged having heard that the bill was not paid, so far back as the year 1783. When the bill was presented, the drawee had funds belonging to the drawer, in his hands ; but he had paid the amount to the drawer’s attorney in fact, who soon afterwards died, and the money was lost by his wife, to whom he had intrusted it, just before his death. For the defendant, Serjeant contended, that the want of notice was a compleat discharge. The money was in the hands of the drawee when the bill was presented ; and, therefore, the plaintiff has no excuse in law or equity, for the gross negligence of which he has been guilty. Esp. 47 Bull. N. P. 271. 3. 4. Esp. 54. 55. 2 Wils. 353. 1 Dall. Rep. 234. 270. 252. For the plaintiff, Morgan urged, that the loss had not happened from the negligence of the plaintiff; that the fund on which the bill had been drawn was virtually paid to the defendant himself, since it was paid to his authorised attorney ; that, therefore, the case should be considered as if no effects had been in the hands of the drawee, when no protest, or notice, is necessary ; Esp. 51. and that no particular form of notice ought to be enforced, if it appears, as it does appear, that the defendant had an early knowledge of the fact. [MAJORITY — By the Court:] By the Court: —The sole question is, whether the defendant is bound to pay the bill, under the circumstances of this particular case? It was drawn in September 1781; it was presented, and refused acceptance, in November 1781 ; and yet it was never protested till August, 1782. This is, in our opinion, a fatal delay. The protest and notice are required upon principles of convenience; and it is not necessary that there should appear to be an actual loss, in consequence of neglecting them. Though what shall constitute a reasonable time for giving notice is a matter to be left to the Jury, under the peculiar situation of our country ; yet the rule is a general one, that reasonable notice of protesting a bill shall be given to the drawer. We think the rule has been grossly violated in the present cafe ; and, of course, that there ought to be a verdict for the defendant. Verdict for the defendant.