author: Shippen, Justice,

text:
    *SEPTEMBER TERM, 1799.
    Ball v. Dennison.

      Notice of non-payment.

    When a promissory note has been dishonored by the maker, the indorser is not liable to pay it, if the holder neglects to give him due notice of non-payment. What is due notice is, in Pernsylvania, a matter of fact to be decided by the jury.

    This was an action brought by the indorsee against the indorser of a promissory note for $5000, made by Samuel Emory, on the 2Gth of December 1795, and payable 65 days after sight. The maker failing to pay the note, it was regularly protested, on the 3d of March 1796 ; and the only question agitated upon the trial, was, whether reasonable notice of the non-payment was given to the indorser, or due diligence employed to give it ?
    The material facts were these : Emory and Dennison had purchased from the managers of the Schuylkill canal lottery, a number of tickets, for which a note was given to the president, the plaintiff in this action. The purchasers settled their accounts of the speculation, before the note became due, in consequence of which Emmory was bound to pay the note; but when it became due, Dennison agreed to continue his indorsement for the accommodation of Emory, though the joint interest had ceased ; and the plaintiff, by way of renewal, at the instance of Emory, took the note on which the present action was instituted. Dennison was not a permanert inhabitant of Philadelphia, but was domiciled at Havre de Grace, in Maryland. He had, however, an agent in Philadelphia, to whom the banks, in consequence of written instructions, delivered the notices of his paper engagements, payable there, on which he was maker (not indorser), during the years 1795 and 1796 ; and who, constantly, for that period, made the necessary payments ; nor would he have hesitated (he declared) to pay the px-esexxt note, if he had been informed of the default of the maker. It appeared likewise, that Dennison was, occasionally, in the city of Philadelphia, in the months of February, March, April, May, June, August and September 1796 ; and *in the month of May, Emory informed him of the protest; but at the same time, declared that he had made preparation to discharge the note. On the other hand, it was proved, that after the default of the maker, particular and repeated inquiry was'made for the indorsor, by the notary, as well from Emory as others; that the indorser was not then in Philadelphia, and the notary did not himself know that he had an agent hero, for such purposes, though he knew there were transactions of business between him and the person who was said to have been his agent; that the notary heard Dennison lived at Havre de Gx*ace, but at the same time, was told, he had gone to the eastwax-d ; that as soon as the plaintiff undei’stood that Dennison was in the city (about six weeks or two months after the protest), the plaintiff’s clerk called on Dennison, mexxtioned the facts, and demanded payment; when Dennison said, that he had received no pax-t of the proceeds of the lottery-tickets ; but that he would urge Emory to discharge the xxote.
    The defendant's counsel contended,
    on these facts, that there was not reasonable xxotice of the protest of the note, nor due diligence to give it: that under the circumstances of the case, the defendant was not under a moral obligation to pay the note, and might faix-ly take advantage of the strict rule of law, aecox-ding to 1 Dall. 234, 252, 270; 2 Ibid. 158, 192 ; that no notice was given to the indorser, until May 1796, though he was occasionally here, before that time, and subsequent to the protest; though he had an agent here ; and though he lived in a neighboring state, to which the post would have carried notice, in the course of a few days ; and that actual knowledge of non-payment is not sufficient to charge an indorser, xxnless the infox-matioxx is x-cceived px-omptly from the holde, with notice that he looked to the indorser for payment: Kyd on Bills, 79; 1 T. R. 167; 5 Burr. 2670; 1 T. R. 712.
    The plaintiff's counsel insisted,
    that as the private arx-angement between Dennison and Emox-y was unknown to the plaintiff, his claim upon the defendant, in xnorality, as well as law, could not be impaired by it; that, the law was not coixtrovcrtcd, on the authority of the cases cited ; but still it left the matter of fact to be ascertained, what was reasonable notice ol px-otest, under all tlxe circumstances of the case? That the first important feature of the case exhibits the defendant as a non-resident of Philadelphia, a mere transient visiter ; that notice sent south to Havre de Grace, when it was known he had gone north, would have been useless and idle ; that the notary did not know, and the evidence is, otherwise, uncertain, in the instance of the defendant’s being an indorser, that he had any agent in Philadelphia : and that due and diligent inquiry was made for the indorser in Philadelphia, where the consideration arose, and the note was given.
    *As to the cases cited for the defendant, they are susceptible of answers, easily distinguishing them from the present case. Thus, in 1 Dall. 234, 270, the bill was kept two years and a half ; the indorser lived in Poughkeepsie, only 130 miles distant; he was a man of note, in extensive business, and actually had some transactions with another of the indorsers. In 1 Dall. 252, the note was protested for non-payment on the 12th of June 1786 ; on the 5th of July and 23d of August, the plaintiff received partial payments from the maker ; and it was not until after the last date, when the maker had become embarrassed, that notice was given to the indorser ; who, during the whole time, lived and kept a counting-house in Philadelphia. In 2 Dall. 158, both parties lived in Philadelphia; and the jury thought throe or four days was not too late to give notice. In 2 Dall. 192, the bill oi exchange was drawn in September 1781, presented and refused acceptance in November 1781, and protested for non-payment in August 1782 ; but no notice was given to the indorser until the beginning of the year 1790. When the bill was presented, the drawee had funds of the drawer in his hands ; but he had paid the amount to the drawer’s agent, who died, and whose wife had lost the money.

         See Donaldson v. Means, ante, p. 109; Bank of North America v. Pettit, ante, p. 127.

   Shippen, Justice,

— The cause depends upon one point, which is a matter of fact. The general law is, that when a promissory note is dishonored by the maker, the indorser becomes immediately liable; and the holder is entitled to recover the amount from him, unless he is discharged by the áct of the holder, either in giving further time or credit to the maker; or in neglecting to give the indorser due notice of the non-payment. This notice is indispensable: so much so, that it is immaterial, whether the maker becomes insolvent before the notice, or not. Still, however, what constitutes due notice, is a point to be settled. In England (where it is regarded as a question of law), the rule is strict and positive, that the notice must be given on the next day, if the parties live in the same place; and by the next post, if they live in different places. But in Pennsylvania, it has hitherto been regarded as a matter of fact, to be decided by a jury, under all the circumstances of each case, as it arises. In deciding it, however, the jury will always be governed by a sound and reasonable discretion. They will allow but a short time for giving notice, where the parties reside in the sam< town ; for, six weeks, in such a case, would certainly be too long ; and fo giving notice in different parts of the country, they will bring into the calculation of a reasonable time, the facility of the post, the state of the roads, and the dispersion of the inhabitants in relation to the post-towns.

*With these prefatory remarks, let us review the circumstances of the present case. The note was duly protested for non-payment; the notary, at the same time made diligent inquiry after the indorser ; particularly from the maker, who was most likely to possess the necessary information. He heard that the indorser lived at Havre de Grace, but was then gone to the eastward. Proof has also been given of Dennison’s repeatedly visiting Philadelphia, after the protest; but it is not proved, that the plai n tiff was acquainted with the fact; and without that proof, he cannot be legally charged with laohes. It is proved, that J. B. Bond was Dennison’s general agent in Philadelphia ; but it is not proved, that he was a public known agent; nor (which is again essential to affect the plaintiff’s claim) that the plaintiff was apprised of the agency. As to the fact that Dennison lived at Havre de Grace ; and as to the argument, that notice ought to be given, wherever the indorser lives ; it is important to remember, that the commencement of the transaction was in Philadelphia; that the note was dated there ; and that all the parties contemplated Philadelphia as the place of payment. Besides, it would interrupt the negotiability of notes, and greatly embarrass the general operations of commercial credit, if an indorser was entitled to notice, on the strict terms suggested, though he lived in the East, or the West Indies ; or though he was a mere itinerant, constantly shifting the place of his abode, and the scene of his business. It is, therefore, an object of leading influence, in the decision of this cause, to consider whether, under all the circumstances in proof, the plaintiff was bound to inquire for the defendant, beyond the city of Philadelphia ? The case of Steinmetz v. Curry, 1 Dall. 234, 270, ought not to be a guide on the occasion ; for there, the bill was kept by the holder for two years and a half, without giving notice to an indorser, who was known to reside constantly at Poughkeepsie, in New York. But upon the whole, it appears to the court, that the plaintiff did make a prompt inquiry for the indorser, in the city of Philadelphia ; and that the defendant has not sufficiently established those facts, which would have made, it incumbent upon him, either to send notice to Havre de Grace, or to serve notice upon the agent in Philadelphia. If the jury concur in the opinion, they will find for the plaintiff ; but if they do not, it is their right, and their duty, to find for the defendant.

Verdict (delivered without the jury’s retiring from the bar) for the plaintiff, $6051.13, and six cents costs.

         Shippen and Smith, Justices, were the only judges on the bench, at the trial of this cause.


source: Caselaw Access Project

author: The Court declared,

license: Public Domain

text:
    *DECEMBER TERM, 1799.
    Levy v. Wallis.

      Presumption of fraud.

    The act of suffering goods to remain in the hands of the defendant, after they have been levied on, furnishes no presumption of fraud; but if the intention of leaving them is fraudulent, a subsequent execution will be preferred.

    In this case, a testatimfi.fa. issued on the 27th of December 1798,returna-ble to March term 1799, which was levied on twelve horses. A venditioni

      exponas issued to September term 1799 ; and an alias vend. exp. issued to December term 1799. On the last writ, the sheriff returned, that he had sold the horses to the amount of $1021; that Thomas Hamilton had bought seven of the horses for $630 ; but that, both before and after the sale, he had given written notice, that he claimed the money arising on the sales, by virtue of a levy previously made for him, upon an execution, by the former sheriff : and that, therefore, he claimed to retain the amount of his purchases, in part satisfaction of his execution; and the remaining money of the sales aforesaid, the said sheriff has ready, &e.
    From the records, it appeared, that Hamilton had issued a fi. fa. against Wallis, on the 25th of January, returnable to March term 1798, which was levied (inter alia) upon seven horses; and that on the 11th of December 1798, a vend. exp. issued, but was never prosecuted.
    It also appeared, that in the case of Perit, executor, v. Wallis, a testatum fi. fa. had issued to March term 1797, which was levied (inter alia) upon seven horses ; that a vend. exp. issued; that an alias vend. exp. issued to September term 1798, on which the sales were put off, at the risk of the plaintiff ; and that apluries vend. exp. issued to September term 1799.
    The general question was, whether the prior execution-creditors, Hamilton and Perit, had not lost their liens, by allowing the property levied upon to remain in the hands of the defendant ?

         In the United States courts, the decisions all sustain the principle, that when goods, of whatever kind they may be, upon which a levy has been made, are left in the possession of the defendant, by the permission of the plaintiff — or where proceedings are stayed, before a levy is actually made, though after the writ has been placed in the hands of the sheriff, the levy is void, as to a subsequent execution-creditor, or a bond fide purchaser ; and there-is no distinction between a suspension for one day, or one or more months. But the force and effect of the writ or levy may he restored by a countermand. It is not, however, necessary, that the officer should remove or sell the property immediately, but it must be removed or sold within a reasonable time. United States v. Conyngham, Wall. C. C. 178; Barnes v. Billington, 1 W. C. C. 29; Berry v. Smith, 3 Id. 60.
      The rule adopted by the supreme court of Pennsylvania is, that if, after a levy upon goods, other than household furniture, the plaintiff suffers them to remain in the possession of the defendant, while they so remain, the lien of the execution is lost. The exception of household furniture was allowed from sentiments of humanity, and the peculiar necessities of the country at the time. Chancellor v. Phillips, post, p. 213; Eberle v. Mayer, 1 Rawle 366. But this exemption ought not to be extended to all the furniture of an innkeeper; and whether the exception ought to embrace all a debtor’s furniture, however valuable, without limitation, may, perhaps, at some time, be worthy of serious investigation. The exemption of any species of property is to be regretted, as every day’s experience shows, that it tends to produce collusion and fraud. (Rogers, J., 3 Rawle 343.) Even in the case of household furniture, if the plaintiff directs the sheriff to stay proceedings, until further orders, levy to remain, it is a waiver of his priority, in favor of a second execution, received by the sheriff, during the continuance of the stay. Commonwealth v. Strembeck, 3 Rawle 341. It is not necessary that the officer should remove the property, nor put a person in charge of the goods, nor sell them immediately, but this must be done within a reasonable time. Ibid. In general, all executions issued, or kept on foot, with intent to delay, hinder and defraud creditors, are avoided by statute 13 Eliz. If, therefore, the sale of personal property levied on, is hindered by the management of an execution-creditor, he will be postponed to a subsequent one. Snyder v. Kunkleman, 3 P. & W. 487. See also Water’s Executors v. McClellan, post, p. 208, and note.

   The Court declared,

that it had been repeatedly determined, and was become the settled law of Pennsylvania, that the act of ^suffering -* goods to remain in the hands of the defendant,- after they were levied upon, furnished no presumption of fraud here; as it did in England; and that this departure from the English rule arose from sentiments of humanity, and the peculiar necessities of the country. In the interior of the state, particularly, it was the universal practice not to remove the goods, after a levy. If, however, the intention of leaving them with the defendant was fraudulent, a subsequent execution would be preferred, in Pennsylvania, as well as in England. In the present instance, there is no proof of fraud; the first levies are, of course, good; and the sheriff must pay the money arising from the sales accordingly.

       But see Keyser’s Appeal, 13 Penn. St. 412, where it is said by Rogees, J,, that although there is an appearance of contradiction, in the dicta of some of the judges, yet, it is the rule in this state, that merely leaving the property in possession of the defendant, though with the plaintiff’s consent, is not per se fraudulent. Thp rule is, if goods be left in defendant’s possession, even with the plaintiff’s permission, the lien is not lost, unless there be fraud.


text:
    Pemberton’s Lessee v. Hicks.

      Forfeiture.

    A tenant by the curtesy initiate, has not an estate forfeitable upon his attainder for treason.
   This cause (which was argued in December term 1798, 3 Dall. 479) was kept under advisement, until the 23d of December 1799, when Shippen, Chief Justice, and Yeates, Justice, were of opinion with the plaintiff, and Smith, Justice, was of opinion with the defendant.

Judgment for the plaintiff.

         McKean, C. J., presided at the argument of the cause; but being elected governor of the commonwealth, in October 1799, he took no part in the decision. He informed the reporter, however, that his opinion was decidedly in favor of the defendant.


text:
    Kesselman’s Lessee v. Old.

      Collateral warranty.

    A collateral warranty of an ancestor, who had no estate, in possession, of the premises, is an estoppel to his heir.

    The Stat. 4 Anne, c. 16, § 21, is not in force in Pennsylvania.

       s. c. 2 Yeates 509, reported as Lessee of Eshelman et al. v. Hoke.

         It appears in the report by Yeates, that sufficient real assets descended to the heirs.

   By the statute of 4 Anne, c. 16, § 21, it is enacted, that “ all collateral warranties, which shall bo made after the first day of Trinity term, of any lands, .tenements or hereditaments, by any ancestor, who has no estate of inheritance in possession in the same, shall be void against his heir.”

In the present ejectment, the point was, whether the plaintiff was estopped by a collateral warranty of Ms ancestor, who had no estate of inheritance, in possession, of the premises ?

After argument, and taking time to deliberate, the opinion of The Court was delivered by Shippen, Chief Justice, that there was no trace of the extension of the statute of the 4 Anne, c. 16, to Pennsylvania, by legislative oni authority, or judicial practice; and ^‘consequently, that the collateral -* warranty of the ancestor operated as an estoppel to his heir, the plaintiff.

Judgment, for the defendant.

         But the collateral warranty only descends upon the eldest son, the heir at common law. Jourdan v. Jourdan, 9 S. & R. 268.


text:
    Reed v. Ingraham.

      Negotiable mstrument.

    A contract to receive from J. B., or order, certain stocks, is negotiable.

         s. c. 2 Yeates 487, where there is a full report of the case.

   On a motion for a new trial, this cause came again before the court (3 Dali. 505), but after argument, the judges cited 4 T. R.; 2 Bl. 1269; and declared, that they wore confirmed, upon mature deliberation, in the opinion, which had been given in charge to the jury, that the action was well brought in the name of the assignee of the stock-contract, promising to receive a transfer from “ J. B. or order.”

Judgment for the plaintiff.