Steinmetz et al. v. Currie

Steinmetz et al. v. Currie. Notice of non-payment.— Witness. Notice of the dishonor of a bill of exchange must be given within a reasonable time. An indorser ruled not to be a competent witness, although the plaintiff offered to strike his name off the 1st and 3d bills of the set; the second not being produced. This action, brought by the indorsees of a bill of exchange, against one of the indorsers, now came on for a second trial {ante, p. 234). It was very ably discussed by Ingersoll, for the plaintiff, and Sergeant and Bradford, for the defendant; [MAJORITY — McKean, Chief Justice.] but, as the circumstances and principles of the case are accurately preserved in the charge of the court, it is unnecessary to give any other statement of the facts or arguments, than that delivered by the Chief Justice. McKean, Chief Justice. This is an action of very considerable importance, not only as it affects the present parties, but as it affects every holder, drawer or indorser of a bill of exchange. The honor and justice of the state are, indeed, likewise interested, that the decision should be conformable to the general mercantile law of nations, lest a deviation should be imputed to our ignorance or disrespect of what is right and proper. It should be remembered too, that tbe defendant is a stranger, and, that tbe event o f this suit can be no further obligatory elsewhere, than as it corresponds with the universal and established usage of all countries ; for, upon the pi'esent question, that, and not the local regulations of Pennsylvania, must fnrnish the rule of determination. It appears, then, that one Whitelaw, on the 30th of October 1775, drew a bill of exchange for 3397. 18s. sterling, upon William Houston & Co., malsters, in Refrew, near Glasgow, in favor of James Witherspoon, or order, and payable on the 1st day of August 1776. This bill, afterwards, but it is not certain at what period, Witherspoon indorsed to Currie, the defendant, who, sometime in the year 1777, indorsed it to Messrs. Archibald and John Blair, and those gentlemen, before the month of October 1778, indorsed it to John Pringle, by whose subsequent indorsement, it became the property of Steinmetz & Bell, the plaintiffs in this cause. It appears further, that Steinmetz & Bell, on the 19th of October 1778, indorsed the bill of exchange to Mr. Freeman, who is now dead, and by whom, in his lifetime, it was transmitted to William Cowpland, of London. The bill seems to have been speedily and regularly indorsed, after it came into the hands of the plaintiffs; and Cowpland, having duly x-eceived it fx-om Mr. Freeman, demanded payment of the persons upon whom it was drawn, on the 30th of December 1778, when it was protested, on account of their refusal, for which they assigned ^reasons, that can have no effect or relation to the cause. The notice of this protest was received by Freeman’s executor, William [*271 Sitgreaves, on the 13th of April 1780, and he gave notice to Messrs. Steinmetz & Bell, on the 28th of the same month ; but those gentlemen did not, until the 16th of October 1782, give any notice to Cux-x-ie, the defendant, who was ax-rested the day following, to answer in this action. These are the material facts ; and, on them, we are now to inquire, how it hapj>ened that the bill lay three years, from the time of drawing to the time of protesting it : for, as between indorser and indorsee, every indorser is considered as a new drawer. The defence, however-, is on this single point, that the plaintiffs had notice on the 28th of April 1780, and yet gave none to the defendant, until the 17th of October 1782, a period of two yeax-s and a half, except twelve days. Whether that was a reasonable time, will depend upon the circumstances of the case. It appears, that the plaintiffs lived in Philadelphia, and the defendant, when 'he sold the bill, lived at Fishkill, in the state of New York, about 130 miles off. This, in point of distance, is not so great, but that he might have been found, or, at least, some inquiry made after him, much sooner.- We are, therefore, unanimously of opinion, that the delay has been unreasonable ; but if they have satisfactorily accounted to the jury for that delay, their verdict will be in favor of the plaintiffs. Were it, however, before us, on a special verdict, we should certainly determine, that it is an unreasonable time. It is alleged, that the difficulties of the war prevented the giving notice, and that the plaintiffs could not bring their action, until they were in possession of the bill. But is that true ? Could not xxotice be given, notwithstanding the war ? They saw the bill and protest in the hands of Sitgreaves, and they knew they became responsible. It was, therefore, their duty t© provide for their indemnification, and to give immediate notice. Nor could there be any great difficulty in'finding the defendant, for he appears to hav« been a man of note, in extensive business, and dealt, at' the very time, with Pringle, another indorser of the bill, who lived in Philadelphia, and from whom information might have been obtained. There is, perhaps, an honest and a reasonable gi’ound for not giving notice until after the 20th of May 1780, lest the money should be paid in depx-eciated paper. But two years more elapsed, when that danger was over, by the extinguishment of continental money. It has been said, likewise, that when the drawer has no effects in hand, no notice is necessary ; but it has been determined otherwise, as between indorser and indorsee, upon the clearest prixxciples. What is it to the indorsee, whether the drawer has effects or not ? Every indorser is in law a new drawer, and he may be compelled to pay a bill, even where the name of the dx-awer has been forged. Every day’s experience shows that bills are taken on the credit of the indorser alone — sometimes, when the drawer is *2721 tota^7 unknown. Nor *can it be alleged, that no injury has been J sustained, since, in the course of things, all the prior indorsers might have failed. Upon the whole, we think, the strength of the evidence is against the plaintiffs ; and if the jury are of the same opinion, they will find a verdict accordingly. But if, on the contrary, they are satisfied with the reasons given for not making an earlier demand, they will find for them. The opinion of the Court being so unfavorable to the plaintiffs, they voluntarily suffered a nonsuit, when the juxy wex’e at the bar ready to return their verdict. In the course of the trial, the plaintiffs offered John Pringle (their immediate preceding indorser) as a witness ; and, in order to do away his interest in the action, they proposed striking his xxame off the first and third bills of the set; which wex’e the only bills in their possession, the second, on which the protest was made, being, as they alleged, lost in its passage from England to America. It was objected by the defendant, that Prixxgle’s name would still remain upon the second bill (which, for anything that appeared to the contrary, might be in the hands of a tlxix’d person), and oxx the records of the notary, who made the protest; so that he could not be effectually discharged in the way proposed. To this, the plaintiff’s counsel replied, that where there are several securities for the same thing, a discharge of one is a discharge of the whole ; and they instanced the case of a master of a ship, who usually signs three bills of lading, of the same tenor and date. Bxxt— By the Court. — In that case, if the master takes a receipt, he would certainly be discharged. In the instance befox-e us, however, the second bill may be in the possession of a bond fide purchaser, who will be entitled to sue Pringle upon it, notwithstanding any act of the plaintiffs on this occasion. We are of opinion, that Pringle is clearly interested in the cause, and therefore, inadmissible as a witness, It was suggested, that if the plaintiffs executed a release to Pringle, he might be made a witness ; but Ingersoll, doubting whether a release to one indorser would not be a release to all, did not choose to adopt this measure. It was also ruled in this cause, that the case in Term Reports (Tindall v. Brown, 1 T. R. 68) being a determination upon general mercantile law, was of authority here ; and that it would have been so, if it had been determined in France, Spain or Holland, as well as in England. See Steinmetz v. Currie, ante, p. 234, and Robertson v. Vogle, p. 252, and the notes to those cases. а) Cropper v. Nelson, 3 W. C. C. 125; Juniata Bank v. Browne, 5 S. & R. 226; Sterling v. Marietta Co., 11 Id. 179; Zeigler v. Gray, 12 Id. 42. See McFadden v. Parker, 4 Dall. 275; 3 Yeates 496.