Kenworthy v. Hopkins — 1 Johns. Cas. 107

Majority

p. 125

Kenworthy against Hopkins.

Headnote

Where one of a set of three bills of exchange on London, was protested for non-payment; it was held, that an action might be maintained here against the endorser, on one of the set not protested, with the protest of the other ;

That a proceeding against the acceptor under a commission of bankruptcy in London, did not discharge the right of action against the endorser ;

That where a bill, remitted to pay an antecedent debt, is returned protested no damages are recoverable.

This was an action on a bill of exchange by the' endorsee, against the endorser. On the trial, the case appeared to, be as follows: The bill was drawn by Robert Murray ,& - Go., on James V., Murray on London, in favor of the defendant. It was accepted by the' drawee, and fell due or the 23d May, 1796, and was protested for non-payment on that day. The bill declared on and produced in evidence, was the second of a set of three bills. The hand-writiag of the drawees and of - the acceptor and endorser were proved or admitted. Buckley was called as a witness to, prove notice to the endorser, and testified, that on che.20th August, 1796, he received from the plaintiff ’s agent the first of the said set of bills (which had not been accepted or protested) with the protest of the second of the set, in a letter dated 1st June, 1796, which bill and protest he presented to the defendant, on the day he received them, and requested payment of him ; that #the defendant refused to pay, and as- [*108]

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signed as a reason, that the bill which had been accepted and protested, ought to have been returned. The witness, therefore, wrote to the plaintiff’s agent for the protested bill, and on the third day of February, 1797, received it, and presented it to the defendant for payment, who refused to pay it, alleging that it had been kept too' long.-

It also appeared, that the bill had been remitted by the defendant for the payment of goods which had been purchased from the plaintiff, and that the bill had been proved by the plaintiff, under a commission of bankruptcy against the acceptor in England.

On the part of the defendant it was proved, that the drawers of the bill had become insolvent before the 3d February, 1797, and evidence was -also given tending to show, that if the protested bill had in the first instance been returned, the defendant after;paying it would probably have been abld to recover the amount from the drawers, which on account of their insolvency he was afterwards unable to do.

A verdict was found for the plaintiff for the amount oí" the bill, with twenty per cent damages, subject to the opinion, of the court, Whether the plaintiff was entitled to recover, and if so, whether he was entitled to - the 20 per cent damages. It was agreed that judgment for the plaintiff, or a nonsuit against him, should be entered, or the verdict should be reduced as the court might direct.

Harison, for the plaintiff,

contended that the notice to- the defendant was sufficient. He said that it was not necessary to return the protested bill, which it may be essential to the holder to keep, in order to pursue his remedy against the acceptor. His proceeding against the acceptor under the commission of bankruptcy, was also for the benefit of all the previous parties to the bill, and could not operate to his prejudice, or make the bill, his own, any more than a suit against the acceptor would have done. Qn the point of damages, he submitted to the court, whether-this was a case to be excepted out of the general rule. ■ ,

* Riggs, for the defendant,

contended that the plaintiff ought not to recover-, 1. Because he had

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been guilty of neglect in not returning the protested bill within a reasonable time; and the defendant was not bound to pay on the return of the unaccepted bill and protest as above mentioned.

2d. Because the plaintiff had made1 the bill his own, by-proving it under a commission of bankruptcy against the acceptor after it had been dishonored; and

3d. He insisted, that if the plaintiff could recover, he was not entitled to the 20 per cent damages, on a bill remitted by the defendant, to pay an antecedent debt due to the plaintiff.

We think the protest and notice of nonpayment to the defendant, were sufficient. It was not incumbent on the plaintiff to transmit the bill itself which was protested. He had a right to proceed against the acceptor in England, as well as against the drawer and endorser here, and it might be essential to retain the. bill for that purpose.. If a different rule were to prevail, the security of such paper would be greatly impaired; for the holder of a bill in every case, where several parties living at a remote distance from each other should be liable upon it, would be driven to the necessity of electing to sénd it to one only, and of relinquishing his demand against the others. The passage in Beawes, (Lex. Her. 460; Kyd, 87,) which.was cited on the argument, relates to the transmission of a bill by an agent or correspondent to his principal, the holder, and it is also qualified with the remark, “ unless he (the agent) shall be. ordered by him (the holder) to retain the bill, with a prospect of obtaining a discharge from the acceptor.” In the other passage cited from the same book, (Beawes Lex. Her. 461,) it is said, that “ no drawer or endorser is bound to make restitution on sight of the protest alone, nor where one of the set has been accepted, on sight of the protest and unaccepted bill; but he must give satisfactory security to the remitter, on his producing the protest only to make payment, when that and the accepted bill shall be presented.” The security *here required shows the immediate responsibility of [*110] the drawer and endorser, and hnplies that the production of the accepted bill is necessary only when actual payment is demanded.

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The proceeding under the commission against the accept- or, could not discharge the responsibility of the antecedent parties. It was an act for the benefit of all concerned, and the pursuit of á remedy to which the plaintiff was entitled; Whether the money was sought to.be recovered in that or-in any other Way,, the effect must be the same,, and cannot vary the rights of the parties.^[1]

But the plaintiff -ought not to be allowed the 20 per cent damages: the practice on this point we believe to be settled. The reason for that allowance does not apply where a bill- is remitted to pay an antecedent, debt.

Judgment for the plaintiff.

(a) (a) а) S. P. Per Lord Eldon in English v. Darley, 3 Bos. & Pul. 61. And see Ex parte Wilson, 11 Ves. 412. Stock v. Mawson, 1 Bos. & Pul. 286. Langdalc v. Parry; 2 D. & R. 337. Pothier de change, n. 179. Chit. on Bills, 301, arid n. Story on Bills, §. 435.