author: The Court

text:
    FENWICK v. SEARS’S ADMINISTRATORS.
    An administrator, having had letters of administration in Maryland before the separation of the district of Columbia from the original states, can not, after that separation, maintain an action in that part of the district ceded by Maryland, by virtue of those letters of administration; but must take out new letters within the district.
    Error from the judgment of the circuit court of the district of Columbia, sitting at Washington, in an action on the case on a foreign bill of exchange, by the administrators of the indorsee against the indorser.
    The case, as it appears in the pleadings and bills exceptions, was as follows:
    Francis Lewis Taney, at Paris, in France, drew the following bill of exchange: “Paris, 5th August, 1797, “Sixty days after sight of this my second of exchange, "(first and third not paid) pay to the order of Mr. Jo-“seph Fenwick the sum of three hundred and fifty dol-“lars, for value received in account, which charge as “ advised by your most obedient servt Fras. Lew. Taney.” “To Messrs. Ben. Stoddert and John Mason, George-"town, Maryland.”
    Quere, whether the acts of a notary public who certifies himself to be duly commissioned and sworn, are valid, if he be duly appointed, but not actually sworn in due form?
    Whether, between contending parties, the certificate of a notary public, that he is “duly “commissioned "and sworn," can be contradicted?
    Whether a protect for non-payment of a bill of exchange must be made on the last day of grace?
    Whether the reasonableness of notice be matter of fact, or matter of law?
    Whether, on a count for money had and received, notice of non-acceptance, and of non-payment be necessary to charge an indorser who knew, at the time of indorsement, that the drawer had no right to draw.
    This bill was indorsed by Fenwick to George Sears, of Baltimore, and on the 30th of March, 1798, it was presented for acceptance, refused, and protested in the usual form for non-acceptance, by Samuel Hanson of Samuel, stiling himself notary public for the county of Montgomery in the state of Maryland, dwelling in George-town, in said county, duly commissioned and sworn.

    On the 2d of June, 1798, payment of the bill was demanded of drawees by the same notary, and refused, whereupon, on the same day he protested it in the usual form for non-payment. Fenwick, the indorser, was at the time of indorsing, and had been for ten years before, a resident of France, but in the year 1800 he came to this country, and on the 4th of April, 1801, the plaintiffs below brought suit against him here upon his indorsement. The declaration had two counts, one upon the non-acceptance of the bill, the other for money had and received.
    The defendant below pleaded,
    1st. Non-assumpsit.

    2d. That the plaintiffs “have not obtained letters of “administration on all and singular the goods and chat-“tels, rights and credits, which were of the said George, “at the time of his decease, to wit, at Washington coun-“ty aforesaid, and this he is ready to verify, wherefore “he prays judgment,” &c. to which the plaintiffs replied, “that the said George Sears, the intestate, departed this “life, in the town of Baltimore, in the county of Bal-“timore, in the state of Maryland, which was at that “time his place of residence, on the day of “in the year of our Lord. 1800, intestate; and after-“wards, to wit, on the 8th day of November, in the “year aforesaid, administration of all and singular the " goods and chattels, rights and credits of the said intes-“tate, was granted to the said John Stricker and Henry "Payson, in due form of law, by William Buchanan, "register of wills for Baltimore county aforesaid; an "exemplification of the letters of administration granted "to the said Stricker and Henry Payson as aforesaid, duly "authenticated, is now here to the court produced; and "this they are ready to verify; wherefore, they pray "judgment," &c. To this replication there was a gene-"ral demurrer and joinder; which demurrer was over-"ruled by the court below.

    On the trial of the issue in fact, five bills of exceptions were taken by the defendant’s counsel.
    The first stated that the defendant objected to the second bill of the set of exchange, going in evidence to the jury, unless the plaintiff first offered evidence to account for the first and third of exchange, and to shew that they or either of them were not paid or passed in the course of business to some other person who still holds the same, but the court over-ruled the objection, and suffered the second bill to be read.
    The second bill of exceptions stated that the defendant objected to the admission of the two protests in evidence, because, as he alleged, Samuel Hanson of Samuel, was not a notary public on the 30th of March, 1798, or on the 2d of June, 1798, and to prove this the defendant offered to give evidence to prove that the said Hanson, previous to the 30th of March, 1798, had been named and appointed by the governor of the state of Maryland, by and with the advice and consent of the council of Maryland, a notary public, but that he never did take the oath or oaths prescribed for a notary public to take, until after the 3d day of June, 1798, but the court were of opinion that the evidence so offered to prove that the said Hanson was not a notary public, was not admissible for that purpose, and refused to let the said evidence be given; and the protests were permitted to be read to the jury.
    3d. That the defendant’s counsel prayed the court to direct the jury that the protest for non-payment is not such a protest as by the law of merchants is required, and was not made within the time by the law and custom of merchants required, and therefore that the plaintiffs cannot in this case recover of the defendant upon the said bill of exchange; but the court refused to give such instruction.
    4th. The fourth bill of exceptions stated at great length the testimony of several witnesses, tending to shew notice of the non-payment given to the defendant in this country some time in 1800 or 1801, and that the defendant had made some propositions for settling the bill. That the drawees had no funds of the drawer in their hands. That the drawees held a deed from the drawer of certain lands in Georgia and North-Carolina, and an assignment of a large demand on the French government, and of another large demand against an individual in France, which they held in trust to pay certain debts due from the drawer, and to pay him the surplus if any. That they had permitted the drawer to go to France and attend to these claims and sell the lands, but that it was understood between them and the drawer that he should bear his own expenses, but that they did not inform the defendant of that circumstance. That at the time he went they thought favourably of the trust and wrote by the drawer to the defendant, expressing their opinion of it, and inclosing to the defendant a power of attorney to act for them in the business and to receive any monies that might be recovered under the trust, and informing him that the drawer would attend and look after the said concerns. That at the time of presenting the bill they had not received any money under the trust, but were in advance on that account. That the bill was endorsed by the defendant to enable the drawer to raise money in France, for the purpose of supporting his necessary expenses whilst he was prosecuting there those claims in which the drawees were interested as trustees, and that the drawer sold them for that purpose. That the defendant came to this country on business in October 1800, and returned to France in May 1802, and during his stay in this country made Georgetown his place of residence.
    That after this bill was drawn, the drawer received in France a sum of between 2000 and 3000 dollars, in the beginning of the year 1798; that during the years 1798, 1799, and 1800, French ships were permitted to sail directly from America to France, for the purpose of carrying Frenchmen home; this happened perhaps twice a year or oftener. That during these years there was a communication between America and France for letters, &c. through the medium of London and Hamburgh. That after the spring of 1798, American vessels were very often captured by the French armed vessels on the high seas; and that at the time previous to the year 1798, American ships were embargoed in France.
    The defendant then prayed the court to instruct the jury that upon the whole evidence, as stated, the plaintiffs, by their neglect in not giving notice to the defendant, the indorser on the said bill, that it was protested for non-acceptance and for non-payment, sooner than they did, had released the defendant from all responsibility on the same, and could not recover thereon; which direction was not given as prayed, the court being divided in opinion whether, in this case, the question of reasonable notice was a matter of law to be determined by the court, or a matter of fact to be determined by the jury. But the court were of opinion, and so directed the jury, that if they should be of opinion from the evidence, that the defendant who indorsed the bill drawn by F. L. Taney in this suit, knew, at the time of such indorsement, that the said Taney had no effects in the hands of the drawers, on which he could draw, notice of the non-payment, or of the protest therefor, was not necessary to enable the plaintiffs to recover, in this action, on the count for money had and received.

    The fifth bill of exceptions, after repeating the evidence at length, stated that the defendant prayed the court to instruct the jury, that although they might be of opinion that Fenwick, the defendant, knew at the time of his indorsement that the drawer had no effects in the hands of the drawees on which he could draw, yet, to support an action, on the bill of exchange, against the defendant, it was necessary for the plaintiffs to give him reasonable notice of the protest of the bill for non-acceptance or non-payment, one or the other; and that under the circumstances of this case, notice to the said Fenwick of such protest for non-acceptance, or non-payment, in October 1800, was not reasonable notice; whereupon the court were of opinion and directed the jury that if they were satisfied from the evidence that the defendant, at the time he endorsed the bill, knew that Taney had no effects in the hands of the drawees, upon which he could draw, still it was necessary for the plaintiffs, in order to support their action against the defendant, upon the first count in the declaration, to give him reasonable notice of the protest for non-acceptance or for non-payment, one or the other; but whether under the circumstances of this case, reasonable notice had been given, to the said Fenwick, of the said protest, the court gave no opinion; being divided in opinion whether the same was matter of law to be determined by the court, or matter of fact to be determined by the jury.
    Verdict for the plaintiff, 439 dollars, and 46 cents, and judgment accordingly, to reverse which the present writ of error was brought by the defendant.
    Mason, for plaintiff in error.

      Simms and C. Lee, for defendants.
    Mason, now waved the consideration of the first bill of exceptions, and relied upon the following points.
    1st. That the protests ought not to have been admitted to be given in evidence, because, Hanson who made them, although he stiles himself notary public, was not a notary public.
    2d. That the protest for non-payment was not a sufficient protest to charge the indorser, because it was not made within the days of grace, but on the day after the last day of grace.
    3d. That the notice of the non-payment given to the defendant was not given in reasonable time; and did not come from an indorsee, but from Judah Hays, for whose use this suit is brought. The court, and not the jury, are to decide what is reasonable notice.

      4th. The letters of administration granted in Maryland, before the jurisdiction over the district of Columbia vested in the United States, do not authorize the plaintiffs to maintain an action, as administrators, within the district, after the transfer of the jurisdiction.
    1st. That Hanson was not a notary public, and therefore the protest void.
    A protest by a person having due authority, is the only evidence which can be received of the non-acceptance or non-payment of a foreign bill, to charge the indorser. Kyd, 136. 142. (87. 91.)

    The only person who can have such due authority is a notary public. Kyd. 137. (87.)
    With regard to inland bills and promissory notes, the statute of Anne is adopted in Maryland, and the courts of Maryland are governed by the same rules, laws and authorities as the English courts.
    By the constitution of Maryland, §. 48, notaries public are to be appointed by the governor and council. The 55th section declares, “that any person appointed to any “office of profit or trust, shall, before he enters on the ex-"ecution
      thereof," take the oath therein prescribed, “and “ shall also subscribe a declaration of his belief in the “Christian religion.”
    The act of assembly of Maryland, Feb. 1777, ch. 5, prescribes an oath of office to be taken before the officer enters into the execution of his office.
    The act of assembly, Nov. 1779, c. 25 §. 2, ascertains his fees, and the 8th section prescribes the form of another oath to be taken, before entering on the duties of his office, under a penalty of £. 150.
    If a man assumes a character which he does not possess, and a seal to which he has no right, his acts are not obligatory. No man can constitute himself a notary public. If not duly appointed and qualified, his protest is not better than the protest of any other person. If Hanson had not taken the oaths, and if he could not act until he had taken them, then the protest is not by a notary; and it was competent to the defendant to give evidence to prove that he had not taken the necessary oaths.
    2d. The protest for non-payment was made a day too late. The bill was presented for acceptance on the 30th of March. The last day of grace was the 1st of June. The protest was on the 2d of June.
    The custom as to the days of grace and the mode of computation of time, is stated in Kyd, 9, (6.)
    The bill must be presented for payment within the days of grace and protested on the last day of grace. Kyd, 136, 142, (87, 97.)
    Although the bill be protested for non-acceptance, yet it must be presented for payment at the time it becomes due and regularly protested for non-payment. And although a right of action accrues upon the protest for non-acceptance, yet the holder is held to have discharged the drawer and indorsers, unless he presents it for payment when due, and regularly protests it for non-payment. Kyd, 117, 120, (76, 79, &c.) 121, 137, 138, 151, 208.
    3d. The defendant had not such notice of the protests for non-acceptance and non-payment, as to render him liable.
    The case of Brown v. Barry, 3 Dallas, 365, has no relation to this case. That was a bill drawn in America upon a person in Europe. This is a bill drawn in Europe on a person in America, and is therefore subject to the laws of the place where drawn and indorsed, as to the liability of the drawer and indorsers. The engagement of Fenwick, the defendant, was made in France, and his liability is to be determined by the laws there. The obligation of the drawer and indorsers is only conditional; the holder must do certain things to entitle him to call upon them. Kyd, 117, (76.) He is bound to give regular notice of non-acceptance to all the preceding parties to whom he means to resort.

      As to the protest being for want of funds in the hands of the drawees, it goes only to discharge the holder from his obligation to give notice to the drawer, but does not supersede the necessity of notice to the indorser. Kyd, 129, 131, (82, 83.) There is reason for this distinction. A drawer may have a good reason for drawing, although he has no effects in the hands of the drawee, but yet no injury can result to him by want of notice. But the indorser may know that the drawer has been in the habit of drawing; but may not know the exact state of the funds upon which he drew. The endorser endorses on the credit of the drawer; and notice is necessary to enable him to take measures to secure himself from the drawer.
    As to the time of notice-the non-acceptance was on the 30th of March, 1798, and on that day the holder's obligation to give notice, accrued, but he did not give it until January or February, 1801. The act of congress did not stop the intercourse between this country and France, until 1st July, 1798. There is no evidence that any attempt was made during this time to send notice. The bill, in seven months, found its way from France to Georgetown, and what prevented its getting back again in seven months more? The evidence stated in the bill of exceptions shews that there was always a circuitous route by which letters and papers might have got to France. There is also evidence that the drawer was able to pay for some time after the drawing the bill, and that he afterwards left France. Notice must be given by the indorsee himself, Kyd, 126, (79, 80.) The only notice which was given in this case, was by Judah Hays, who is not a party on the bill.
    The court, and not the jury, ought to have decided the question of reasonable notice, or due diligence. It is a question of law, Kyd 126, 127, (79, 80,) Notice must be given by the first post. The courts in Maryland have always so decided. If the court have not decided the question of due diligence they have erred. They have also erred in the opinion which they did give. They admit that reasonable notice is necessary to enable the plaintiffs to recover upon the bill on the first count, but that, in case the defendant below knew that the drawer had no funds in the hands of the drawees, it is not necessary to prove such notice in order to enable the plaintiffs to recover on the count for money had and received. It is not known on what grounds the court below could take such a distinction. There was certainly nothing in the evidence which could support such an opinion. If the holder had been guilty of such negligence as to discharge the indorser from his liability upon the bill, he was not entitled to recover upon either count. It was an objection which went to the whole merits of the case; and it is not like the case where a security or instrument may be vacated, but the debt still remain.
    4th. The letters of administration granted in Maryland did not authorize the plaintiffs to administer assets in the district of Columbia.
    The laws of Maryland, which were adopted by congress for this district, do not authorize an administration of assets under letters of administration granted in another state. And such has been the uniform course of decisions in the courts of Maryland; because, by the testamentary laws of Maryland, the administrator is to give bond, and render an account of his administration; and the assets are to be distributed in the manner prescribed by law.
    Although this is the law of Maryland, and the laws of Maryland have been adopted in this district by congress; yet they do not operate as laws of Maryland, but as laws of the United States. And although the law is the same, yet the jurisdiction is different. This district, and the state of Maryland, are to each other as separate states.

      Simms, for defendants in error.

    1st. As to the objection that the notary had not taken the necessary oaths.
    It is believed that no case can be produced to support this exception. It would be extremely inconvenient if the acts of a commissioned ministerial officer, should be considered as invalid, because he had neglected to take an oath prescribed by law.

      By the act of Assembly of 1779, c. 25, §. 8, a penalty is enacted for not taking the oath there mentioned. This does not make void the acts of the officer, if he neglects to take the oath required, but only subjects him to the penalty, for acting without taking it. From this it may be inferred that the legislature considered his acts as valid.
    The court did not err in refusing the evidence offered, because it was an attempt to prove a negative. The oath might have been taken before any judge, or justice of the peace in the state of Maryland, or any alderman in the city of Annapolis. The law does not require such oath to be recorded, or deposited in any particular place. A party can never be called upon to prove that a notary public, who protests a bill of exchange, was duly qualified to make such a protest; consequently the court ought not to admit evidence that he was not, so as to throw the burden of proof upon the other party. There is no penalty prescribed for not taking the oaths required by the constitution of Maryland, and by the act of 1779, but it does not follow from that circumstance, that the acts of the officer, duly appointed and commissioned, would be void by his not having taken the oaths, because he might be indicted and punished for his contempt of the law, and his neglect of duty. Innocent people ought not to suffer by his negligence, especially as they have no means of knowing whether he had taken the oaths or not. The public commission from the proper authority is all that can be required to protect the rights of third persons.
    It is true that in the passage cited from Kyd 136, (87.) it is said, that "the person whose office it is to do these "acts" (that is make protests, &c.) "is in common lan-"guage, termed a public notary," but it is also said in Evans 94, that when there is no public notary in the place, the protest may be made by any other person.
    2d. As to the time of making the protest for non-payment.
    The time when a protest ought to be made depends much on the custom of the place. 4 Bac. ab. Guillim's Ed. 687. The time in England was for a long while unsettled. In Salk. 132, Hill v. Lewis, it was determined that, with respect to foreign bills, the drawee had three days of grace to pay them in, and that no demand need be made till the expiration of the three days, consequently that the protest need not be made till after the third day of grace. But in the case of Tassel v. Lewis, Ld. Ray. 743, it was held that the time of payment is the last of the three days, and that the demand ought to be made on that day. In a late case of Leftly, v. Mills, 4 Term, Rep. 173, Ld. Kenyon held that the acceptor had till the last moment of the last day of grace to pay the bill, consequently the protest could not be made till the day after. But Buller held that the acceptor was bound to pay the bill, on demand, on any part of the third day of grace, and that the bill ought to be protested on that day, and it is believed that such is now the established custom in England. Kyd, 120, 121, (79, 80.)
    But the custom of merchants in the United States differs in some respects from the custom of merchants in England. Brown v. Barry, 3 Dal. 365, 368. It is believed that, in the United States, the custom is to protest on the day after the last day of grace. Such is the custom in the banks of Alexandria and Columbia, in the case of promissory notes; and no difference is known in that respect between promissory notes and bills of exchange, There is no reason why a difference should exist, as the three days of grace are allowed in one as well as in the other.
    But in this case, the bill was protested for non-acceptance and the defendant thereupon became liable to the action of the plaintiff. In an action brought upon the non-acceptance, it is not necessary to aver a demand or protest for non-payment on the day when the bill becomes due; and what it is not necessary to aver, it is not necessary to prove; Lilly's Ent. 55, Dunstar v. Pierce, which was a case on a demurrer to the declaration; demurrer overruled, and judgment affirmed in the exchequer.
    But had the bill been accepted, then a protest for non-payment would have been absolutely necessary. Evans 66, Kyd. 140, Doug. 55, Milford v. Mayer. Buller N. P. 269. Bright v. Purrier. Kyd, 110, 111. 3 Wil. 16, 17.
    3. Under the circumstances of the present case, the plaintiffs were not bound to give the defendant notice at all; the jury having found in substance, that at the time the defendant indorsed the bill, he knew that the drawer had no effects in the hands of the drawees; and was therefore guilty of a fraud on the plaintiff's intestate, in selling him the bill. The plaintiffs therefore had a right to recover on the count for money had and received.
    Besides, the reason of the rule which dispenses with notice to the drawer, when the drawees have no effects, applies as strongly to the indorser who knows that fact, as to the drawer. Notice to such an indorser can be of no benefit, because he knew, at the time of indorsing, that the bill would not be paid, and therefore must have taken security from the drawer, or if he did not, it was his own fault. By knowing at the time of indorsing that the drawees had no funds of the drawer in their hands, he virtually had notice of the non-acceptance and non-payment. The rule, which requires notice to an indorser, is made for his protection and benefit; and ought not to be converted into the means of enabling him to practice a fraud.
    The opinion of the court below, that although notice might be necessary in order to support an action on the bill upon the first count, yet it was not necessary to maintain the count for money had and received, was certainly correct, and fully warranted by the case of Bickerdike v. Bollman, 1 Term rep. 408, 409, 410. In that case Ashhurst, justice, says that notice is not necessary to the drawer when he has no effects in the hands of the drawee; " for it is a fraud in itself, and if that can be " proved, the notice may be dispensed with." Kyad 129 (82) Evans 59. Every indorser is, to his indorsee, as the drawer of a new bill. Kyd 113 (72.) 1 Salk. 133. Harry v. Perrit, 2 Shower 501. Claxton v. Swift, and in Heylin v. Adamson, 2 Burr, 674, Lord Mansfield says, " that when a bill of exchange is indorsed, by the person " to whom it was payable; as between the indorser and " indorsee, it is a new bill of exchange, and the indorser “ stands in the place of the drawer.” If, therefore, the indorser, at the time he transfers a bill, knows that the drawer has no effects in the hands of the drawee, he is as guilty of fraud as the drawer himself; and in all cases where money is obtained from another by fraud of any kind it may be recovered back in an action for money had and received, 2 Bur. 1012. Moses v. Macferlan. Salk, 28. Hasser v. Wallis. And in the case before cited of Bickerdike v. Bollman. 1 Term rep. 410, Buller, justice, says, “ Besides, in the present case, as the plaintiff’s counsel “ have truly argued, the question is not, whether an ac- “ tion could be maintained on the bill itself, but whether “ the want of notice extinguishes the debt. As to which “ the case is this, A. not having any effects in C.’s hands, “ draws a bill of exchange for L.100 on him, in favour “ of B. for value received. Now if C. does not accept, “ and B. does not give notice to A. there is an end of the “ bill. Then how does the case stand ? A. has L.100 of “ B.’s in his hands, without any consideration, which, “ therefore, B. may undoubtedly recover in an action for money had and received.”

    The reasoning in that case applies exactly to the present. Here the defendant Fenwick, by his indorsement of the bill, acknowledges that he has received its amount. He has received of the intestate 350 dollars, without any consideration, and, therefore, even although the remedy on the bill might have been lost, he ought to recover the amount of the consideration on the count for money had and received.
    It is true, that in the case of Goodall v. Dolley. 1 Term rep. 712. It is said that the fact of the drawer’s having no funds in the hands of the drawee, would not discharge the obligation of the holder to give notice to the indorser, to whom he meant to resort; yet it is also expressly stated that the indorser was ignorant of all the circumstances of the case. That opinion, therefore, can not affect the present case in which the indorser knew the circumstances.
    As to the question whether reasonable notice is matter of law to be determined by the court, or matter of fact to be determined by the jury: The practice in England, until lately, was for the jury to determine, by the circumstances of each particular case, what time was reasonably to be allowed either for making demand or giving notice. Kyd, 127. (77.) Doug. 515, (497) Russel v. Langstaffe. Doug. 681. Rushton v. Aspinall.
    In the case of Tindall v. Brown, 1 Term rep. 167. Lord Mansfield says, that "what is reasonable notice is "partly a question of fact, and partly a question of law. "It may depend in some measure on facts; such as the "distance at which the parties live from each other, the "course of the posts, &c. But whenever a rule can be "laid down with respect to this reasonableness, that should "be decided by the court, and adhered to by every one "for the sake of certainty." And Ashhurst, justice, said it was "of dangerous consequence to lay it down as a "general rule, that the jury should judge of the reasona-"bleness of time. It ought to be settled as a question of "law. If the jury were to determine this question in "all cases, it would be productive of endless uncer-"tainty."
    It appears to have been the opinion of both these judges, that there were certain cases in which it was proper for the jury to determine on the reasonableness of notice; but that in cases where a rule can be laid down, the court ought to decide the question. No certain rule can be laid down, except in cases where the parties live in the same place, or where there is a constant and regular communication by post between them.
    In a much later case 2. H. Blackstone's rep. 569, it was determined that what was reasonable time, must depend on the particular circumstances, and it must be always for the jury to determine whether any laches is to be imputed to the plaintiff.
    In the case of Mackie v. Davis, 2. Wash. 231, Carrington, justice, says "whether due diligence had been "used by the assignee to recover against the obligor would " necessarily be a matter in issue between the parties, and "would, upon all the circumstances of the case, be de-"cided by the jury."
    1. Dal. 252, is to the same effect. A case to the same effect also has been mentioned as having been decided in the circuit court of the United States, in Virginia, by judge Wilson.
    The instruction of the court below to the jury, that reasonable notice was necessary to charge the defendant on the first count, was not objected to by the plaintiff's counsel; but the court not having instructed them whether the notice was or was not reasonable, and a general verdict for the plaintiffs having been given, it is to be presumed that the jury thought the notice was reasonable under all the circumstances; and they were certainly competent to decide that question.
    The decisions, that notice must come only from the indorsee or the holder, have been since over-ruled. Evans, 57.
    3. As to the letters of administration.
    An administrator, in the United States, ought not to be considered precisely in the same point of view as in England.
    In England, he is the servant or agent of the ordinary, and acts in his place and stead.
    In the United States, he is the representative of the intestate; and all the rights and credits of the intestate are vested in him.
    Formerly in England, the goods of an intestate were disposed of by the bishop or ordinary to pious uses. It was not until the statute of 13th Ed. 1. c. 19, that the bishop or ordinary was compelled to satisfy the debts of the intestate as far as the goods, which came to his hands, would extend.
    After this statute, an action might be brought against the ordinary in the same manner as against an executor; but he was not compellable to grant administration until the statute of 31st, Ed. 3d. c. 11.
    From this relation between the ordinary and the administrator the power of the latter was necessarily limited by the jurisdiction of the former. But the act of congress concerning the district of Columbia puts the question out of doubt. By that act, the laws of Maryland are continued in force in this part of the district; of course, all rights acquired under the laws of Maryland remained valid. It was not the intention of congress to divest any rights which had been acquired under those laws. If the separation of the district from Maryland took away the right which the plaintiffs before possessed of taking possession of the property and collecting the debts of the intestate, in this part of the district, under their letters of administration granted in Baltimore county, it would have the same effect upon letters granted by the orphan's courts of Montgomery and Prince George's counties, before the separation, to persons resident in the district, so that their acts, done since the separation, are unauthorized, and they cannot lawfully act until new administration has been taken out from the orphan's court within the district. The inconvenience, expense and oppression of such a construction, are too obvious to admit the supposition that it was within the intention of congress.
    These letters were taken out from the proper authority, and at the time, vested a right in the plaintiffs to administer the assets within this part of the district.
    C. Lee, on the same side.
    1st. As to the letters of administration.
    Admitting that letters of administration, granted out of the state of Maryland, will not authorize an administration of assets within the state, yet in this case the letters were granted in Maryland while this district was part of Maryland, before the 1st Monday of December 1800, and did once authorize an administration of the assets here. A right was completely vested in the plaintiffs. The laws of Maryland are as fully in operation in this district as they were or are in the state of Maryland. Congress could not mean to divest rights completely vested.
    2d. As to the second bill of exceptions.
    It is admitted that Hanson was duly appointed notary, but the objection is that he had not taken the oath. The exception is not to the opinion of the court that he was not duly qualified to act; but simply that it was not competent for the defendant to give the evidence offered to prove that he had not taken the oaths. The intention of an oath is only to impose an additional obligation on the officer. It is a matter between the officer and the government; and generally a penalty is imposed for not taking it; but the not taking the oath does not make the act void. Suppose a member of the legislature should not take the oath prescribed; this would not vacate a law to which he had given his assent. Such a doctrine would produce infinite inconvenience. No time is limited for making the objection; and twenty years after an act has been done, it may be offered to be proved that the officer did not take the oath; if the court would do right in refusing such evidence in that case, they were right in refusing it in the present.
    3d. The third bill of exceptions is, that the court admitted the protest for non-payment to go to the jury, when it was not made in due time.
    The action being for non-acceptance, and not on the protest for non-payment; it was not necessary to produce that protest at all. The objection is that it was not made on the last day of grace, but on the day after.
    The custom is different in different countries. From the general practice of the banks, it may be considered as the general rule in this country to protest on the day after the last day of grace.
    The protest for non-acceptance is not objected to; it was made on the day on which the bill was presented.
    The court only refused to give the direction as prayed, but gave no opinion that the protest was a good one.
    4th. As to the fourth bill of exceptions.
    This reccord does not state the whole evidence in the cause. It is true it is said that this is all the evidence given of notice; but it does not state what other evidence there might be to excuse the want of notice. This exception may be divided into three points; first, as to the opinion prayed; second, as to the conduct of the court in not giving an opinion as to part of the prayer, and thirdly, as to the opinion which the court did give.
    The prayer is to instruct the jury that it was necessary to prove notice of non-payment as well as of non-acceptance. The plaintiffs, if any body, had a right to complain of the opinion of the court, in as much as it did not declare notice of non-payment to be unnecessary. But they have waved their right to except. The opinion given is what is excepted to, and that was given only on the count for money had and received.
    The bill and indorsement are stated to have been made in France. The law of France then is the Lex Loci, by which this cause is to be decided, and by which the liability of the indorser is to be ascertained. By that law no notice is necessary to the drawer or indorser, if there are no effects of the drawer, or of the indorser, in the hands of the drawee. Evans 60, 62.
    And what is meant by funds, is not securities lodged for raising money, upon which the money has not been raised; but is money in account. 2 Esp. rep. 515. Evans 62.

      As to the ground of fraud, the court left it to the jury to decide whether the defendant knew that the drawer had no funds in the hands of the drawees. If he did know it, is it not as much a fraud as in the case of a drawer drawing without funds? It is in fact an accumulated fraud. If, according to justice Ashhurst, one is a fraud, the other must be a greater fraud.

      As to due diligence, the exception is not that no notice was given, but that it was not given in due time. No doubt but that by the laws in England, due notice is necessary as a general rule. But to this there are exceptions.
    There is an American law on this subject, which is, that in some cases the jury, and not the court, is to decide what is laches. When a particular case arises, and a variety of circumstances are given in evidence in excuse for not giving notice sooner, there, by the American practice, the jury are to decide. This appears by the decisions in Pennsylvania down to the year 1795. 1 Dallas, Robertson v. Vogle. 2 Dal. 158. Bank of N. America v. M‘Knight. 2 Dal. 192. 233. 1 Call’s rep. 123. M'Williams v. Smith.

    In this country the line is more distinctly drawn between court and jury than it is in England. By the 9th article of the amendments to the constitution, a matter once tried by a jury shall not be otherwise re-examined than by a jury according to the rules of the common law. If the court now make a rule as to what is due diligence in this case, they will without a jury try a fact which has once been decided by the jury in the court below.
    If the question involve matter of fact with the law, the jury must decide the facts; and it is no error in the court to suffer them to decide the law also at the same time.
    When a rule can be laid down, then the court is to state the rule. But where that can not be done then it may be left to the jury. This is all that lord Mansfield says in in the case of Tindall v. Brown.

    5th. The fifth is an exception to the opinion which the court gave, and not to the conduct of the court in not giving an opinion. The opinion given was against the plaintiffs below, and they alone had a right to except to it.
    There was a decision of chief justice Jay, given upon the circuit, similar to that given by judge Wilson, that the jury and not the court were to judge of the validity of excuses for giving notice.
    The judgment ought not to be reversed because the court below did give an improper instruction to the jury.
    It is hoped that the court will decide the question of notice as it is of great importance that a general rule should be established and understood.

      Mason in reply.
    1st. As to the letters testamentary.
    Antecedent to the revolution the testamentary affairs in the state of Maryland were under the superintendance of a commissary general, who had a deputy in each county. If there were bona notabilia in several counties, the administration was granted by the commissary general. But if the goods of the intestate were all in one county it might be granted by the deputy commissary of that county. By the new system of testamentary laws, 1798 ch. 101. § 3. the assets in Maryland connot be administered but by letters of administration granted in Maryland.
    In the district of Columbia, if a man now die intestate, the administration must be granted in the district.
    The laws of Maryland do not operate in the district as laws of Maryland, but as laws of the United States. Their obligatory force is not derived from the state of Maryland, but from the United States.
    Does the fact that the letters were granted before the separation of the district from Maryland, make any difference? If any right had vested, what was it? Was it a right to sue Fenwick who was then in France, and who came to the district after its separation.
    But no right at all had vested in the plaintiffs. If the separation had not taken place, and Fenwick had come, they might have sued; but as it had taken place before he came, they can not.
    By the laws of this part of the district, the administrator must give bond duly to administer the estate, and to pay the debts pari passu. He must advertise in a certain manner, &c. The only evil resulting from this construction of the law is, that plaintiffs must take out letters of administration here.
    2d. As to the second bill of exceptions. The question is, whether Hanson was a notary before he took the oath prescribed by the law of 1779. The constitution says, that before he enters upon the execution of the duties of his office he shall take the oath of allegiance. The law of 1779 says, he shall take the other oath therein prescribed, and if he acts without having taken it he shall be subject to a penalty. The constitution and the law are to be coupled together, and then the taking the oath prescribed by the act of 1779, becomes a pre-requisite to his capacity to act as notary.
    3d. The third bill of exceptions is that the protest for non-payment was not a proper one to go to the jury. It was not in itself evidence. It is no answer to say that no protest for non-payment was necessary; the counsel below did not chuse to risk their cause without it. If the opinion of the court is erroneous, and if the protest was improperly admitted to go to the jury, the judgment must be reversed. It may be a good reason why the court should refuse to let it go to the jury, that it was not necessary. It is therefore unimportant to decide whether it was necessary or not. But that it was necessary appears in Kyd, 120, 137, 138, (77, 87.)
    As to the case of the notary who refused six pence for noting the bill, 4 Term rep. 173. It is the opinion of lord Kenyon only, that the acceptor had till the last moment of the last day of grace to pay the bill; and that was the case of an inland bill, and decided expressly upon the statute of William. But Buller states the law to be otherwise on a foreign bill, and that, by the custom, the bill is payable at any reasonable time of the last day of grace when demanded. And the law is so stated in Kyd, 121, (78.) The practice in Alexandria may be as stated, but in Baltimore they protest on the 3d day, in banking hours. There is a difference between the law respecting inland and foreign bills; and this difference arises from the statute of William, which gives the protest on inland bills and requires it to be made after the expiration of the three days, Kyd, 151, (91.) It is upon this statute, which is in force in Maryland, that the banks have adopted the practice of protesting promissory notes on the day after the expiration of the three days of grace. A promissory note as soon as it is indorsed becomes an inland bill of exchange.

      4th. It is objected to the fourth bill of exceptions that it does not contain the whole evidence. But if a bill of exceptions states evidence, it has been decided by this court that it is presumed to state the whole evidence. 3 Dal. 19, 38, Bingham v. Cabott.

    It is said that the exception is not to the refusal of the prayer, but to the opinion which was given. If the opinion prayed was correct, and the court refused to give it, or, by being divided, failed to give the instruction to the jury as prayed, it is error. The court will disregard the inaccurate form of words, and come at the substance of the exception.

      As to the want of funds in the hands of the drawees, the court are to presume that the whole evidence is stated in the exception. We deny the principle that such funds can be only money in account. There was reason for Fenwick to believe that the drawees had funds, and he ought therefore certainly to have had notice. There is not the least ground for a suspicion of fraud in Fenwick.

      As to the count for money had and received, it is a common law count; but upon that count the plaintiffs can not recover by means of evidence resulting from that bill, unless they have done every thing to entitle them to recover upon the bill itself, by using due diligence, giving due notice, &c.
    It is said that the indorsement was made in France, and therefore the law of France is to decide the responsibility of the indorser; and that by that law notice is not necessary to the indorser, if neither the indorser nor the drawer has funds in the hands of the drawee; and Evans is cited as the authority. It is doubted whether Evans is correct in that position; but whether correct or not, it does not apply, because the money was to be paid here, and the contract is personal. If Fenwick had been sued in France it might have applied; but being sued here, the law of this country must decide his case.
    As to the questions what is due notice, and whether it be a matter of fact or of law, the decisions cited from Dallas are no authorities in this case. They all turned upon the laws of particular states. This court is to be governed by the law of the place where the transaction happened, unless where the laws of the United States apply. The court in this case are to decide by the laws as they exist in Maryland; and there the laws of England respecting bills of exchange and promissory notes have always been the rules of decision. We are not in Maryland to be governed by whimsical opinions drawn from either Pennsylvania or Virginia. Virginia has not been remarkable for her progress in commerce; and were I to form a system of commercial law, I should certainly not draw it from the fantastical opinions adopted in either of those states.
    In England, what is due notice has been and is settled and determined to be matter of law to be decided by the court.
    On the 25th of February,

       The jurisdiction of the several states of Virginia and Maryland over the territory ceded by them to the United States, for the seat of government, ceased on the first Monday of December, 1800.

       See Evans on bills, 62 and 67, Amer. edition.

       Note. See the case of Thurstan v. Slatford in the exchequer, 1 Lutwyche, Rep 377, 3vo edition, 1618, where it was held that the town clerk of Oxford was entitled to recover his fees accruing, before he had taken the oaths.

   The Court

gave the following judgment.

“ It is decreed by the court that the defendants Stricker and Payson, not having obtained letters of administration “ in the district of Columbia, were not competent to main " tain this action; and that the circuit court of the “ United States in and for the said district erred in over- “ ruling the demurrer. It is therefore considered by the “ court, that the judgment of the said circuit court, on “ the said demurrer, be, and the same is hereby reversed, “ and that judgment thereon be rendered for the defend- " ant in the original action.”

       The reporter was not in court when this judgment was entered, but he has understood that the court did not assign the reasons upon which their opinion was grounded; and gave no opinion upon the other points. See Evans on bills, 67, 68, 69, 70, & 71, as to notice.


source: Caselaw Access Project

author: The chief justice

license: Public Domain

text:
    THOMPSON v. JAMESON.
    An action of debt for £. 860 12 1, founded on a decree in chancery, is not supported by a
      decree for £ 860 12 1 with interest from a certain day to the day of rendering the decree. But the variance is fatal. Upon an attachment in chancery under the laws of Virginia, the record stated that "I T. in open court became security that I. H. (the absent debtor) shall perform the decree of this court if against him." Quere Whether an action of debt will lie against I T. for the amount decreed against I. H.?

      Error from the circuit court of the district of Columbia, sitting in Alexandria.

      Thompson, in the year 1795, being indebted to Hadfield, a person residing out of the jurisdiction of the commonwealth of Virginia, and Hadfield being indebted to Jameson and Brown as partners in merchandize, the latter obtained from the county court of Fairfax an attachment in chancery, in the nature of a foreign attachment, to stay the effects of Hadfield in the hands of Thompson, under an act of assembly of Virginia, entitled “ An act directing the method of proceeding in “ courts of equity against absent debtors, or other absent “ defendants, and for settling the proceedings on attach- “ ments against absconding debtors.” Revised code, p. 122, ch. 78. This act directs, “ that if in any suit which “ hath been or hereafter shall be commenced for relief in “ equity, in the high court of chancery, or in any ether “ court, against any defendant or defendants who are out “ of this country, and others within the same, having “ in their hands effects of, or otherwise indebted to, such “ absent defendant or defendants, and the appearances of “ such absentees be not entered, and security given, to the “ satisfaction of the court, for performing the decrees ; up- “ on affidavit that such defendant or defendants are out “ of the country, or that upon enquiry at his, her, or “ their usual place of abode, he, she, or they could not “ be found, so as to be served with process ; in all such “ cases the court may make any order, and require sure- “ ty, if it shall appear necessary, to restrain the defend- " ants in this country from paying, conveying away, or “ secreting the debts by them owing to, or the effects in “ their hands, of such absent defendant or defendants; “ and for that purpose may order such debts to be paid, “ and effects delivered, to the said plaintiff or plaintiffs, “ upon their giving sufficient security for the return there- “ of, to such persons, and in such manner, as the court “ shall direct.” It further provides, that the court shall appoint some day in the succeeding term, for the absent defendant to enter his appearance, and give security for performing the decree; and shall order notice to be published, &c. and if the absent debtor shall not appear and give such security, within the time limited; the court may proceed to take such proof as the complainant shall offer ; and if they shall thereupon be satisfied of the justice of the demand, they may order the bill to be taken as confessed, and make such order and decree therein as to them shall seem just, and may enforce due performance thereof, &c.

      In the record of that case in Fairfax county court, it is stated, “ that at a court continued and held for the said “ county, on the 18th day of June, in the year last men- “ tioned, came the complainants aforesaid, by their attor- “ ney, and thereupon Jonah Thompson, in open court, " became security that the said Joseph Hadfield shall perform “ the decree of this court, if against him; and on motion of “ the said defendant, Joseph Hadfield, by his attorney, “ the attachment is discharged as to the effects in the hands “ of the other defendants.” The court, at a subsequent term, on the 19th of November, 1799, decreed, that “ it “ having appeared to the satisfaction of the court, that “ the complainants bill hath been duly taken for confes- " sed, after his appearance by attorney, and giving secu- “ rity for performing the decree against him, the court “ doth adjudge, order, and decree, that the complainants “ do recover against the said Joseph Hadfield, the sum “ of eight hundred and sixty pounds, twelve shillings “ and one penny, sterling, (to be settled in Virginia cur- “ rency, at the rate of twenty per cent. exchange,) to- “ gether with interest on the same, at the rate of five “ per cent. per annum, from the 8th day of March, 1795, “ until the day of pronouncing this, decree, and also his costs “ by him expended in the prosecution of his bill here.”
    Hadfield having failed to perform this decree, and Brown, the partner of Jameson, being dead, Jameson brought the present action of debt in the circuit court of the district of Columbia, against Thompson, founded upon his responsibility as security for Hadfield’s performing the decree. The declaration was “ of a plea that he ren- “ der unto him the sum of eight hundred and sixty pounds, " twelve shillings and one penny, sterling, of the value “ of one thousand and thirty-two pounds, fourteen shil- “ lings and six pence, Virginia currency, equal to three “ thousand, four hundred and forty-two dollars, and for- “ ty-one cents, United States currency, which to him he “ owes, and from him unjustly detains; for this, that “ whereas,” &c. setting forth the substance of the proceedings on the attachment in Fairfax county court, “ and “ whereas afterwards, that is to say, at a court held for “ the said county of Fairfax, on the 18th day of June, “ 1795, at the county aforesaid, the said Jonah, in open “ court, became security that the said Joseph would perform “ the decree of the said court in the said suit, if against him.
      “ In which said suit such proceedings were had, that the “ said court of the county of Fairfax, on the 19th day “ of November, that is to say, at the county of Alexan- “ dria aforesaid, did adjudge, order and decree, that the “ said Robert B. Jameson and co. should recover from “ the said Joseph, the said sum of £. 860 12 1, sterling, “ (to be settled in Virginia currency, at the rate of twen- “ ty per cent. exchange,) together with interest on the same, “ at the rate of 5 per centum per annum, from the 8th “ day of March, 1795, until the day of pronouncing the “ said decree, and also their costs by them expended in “ the prosecution of the said bill. All which by the re- “ cord thereof, now remaining in the office of the coun- “ ty court of Fairfax, will more fully and at large appear. " And the said Robert B. Jameson, in fact avers, that “ the said Joseph has not in any manner performed the “ decree of the said court of Fairfax county, in the cause “ aforesaid made, in this, that he has not paid to the said “ Jameson and co. in the life time of the said Brown, “ nor to the said Jameson, who has survived the said “Brown, the said sum of £. 860 12 1 sterling, or the “ value thereof in Virginia currency, at the rate of ex- “ change in the said decree mentioned, with interest there- " " on as awarded by the said decree; which said decree, in “ form aforesaid, yet remains in full force and effect, not “ reversed or satisfied; by reason whereof, action accrued “ to the said Jameson and co. to demand and have from “ the said Jonah, the said sum of £. 860 12 1, sterling, of “ the value aforesaid. And the said Jameson further avers, “ that the said Brown, on the day of in “ the year departed this life, to wit: at the county “ of Alexandria aforesaid, whereby the said cause of ac- “ tion survived to the said Jameson. Nevertheless, the “ said Jonah the said sum of £. 860 12 1, sterling, of the “ value aforesaid, or any part thereof, to the said Jameson “ and co. in the life time of the said Brown, or to the “ said Jameson, since his death, has not paid, &c. to the “ damage of the said Jameson five hundred dollars, and “ therefore he brings suit,” &c.
    There was an office judgment at the rules in November, 1801, which was not set aside at the next succeeding court in January, 1802. At April term, 1802, the defendants counsel moved to set aside the office judgment on pleading nil debet. The court being divided on the propriety of that plea to an action founded on the record of a court of one of the states, the plea was not received, and a bill of exceptions was taken by the counsel for the defendant and signed by the judge who was against the admission of the plea. The pleas of nul tiel record and payment were then filed and issues made up, on which the cause went to trial. The verdict upon the issue of payment was in these words, “ we of the jury find for the “ plaintiff the debt in the declaration mentioned, and one “ cent damages, to be discharged by the payment of two “ thousand, five hundred and forty four dollars, forty nine “ cents.”
    And the defendant moved in arrest of judgment for the following reasons,
    1st. Because the action is brought for sterling money, when it appears by the plaintiff’s own shewing in the declaration, that the original sterling debt has been changed by the decree of the county court of Fairfax, into the current money of Virginia.
    2d. Because the plaintiff, in his declaration, declares for a sterling debt, and lays his damages in current money.
    3d. Because the jury have found their damages in current money, and have fixed the sum in current money, at which the said sterling debt might be discharged.
    4th. Because it doth not appear by the plaintiff’s declaration what was the nature of the defendant’s undertaking as security, whether it was by record, by bond, or by parols.
    5th. Because the whole proceedings are irregular informal and erroneous.
    These reasons not being deemed sufficient by the court below, judgment was rendered for the plaintiff for “ £. 861. “ 12. 1. sterling, of the value of £. 1032. 14. 6. Virginia “ currency, equal to three thousand, four hundred, forty “ two dollars and forty one cents, United States currency, “ the debt in the declaration mentioned, and one cent dama- “ ges, by the jurors aforesaid, in form aforesaid assessed, “ and also his costs by him about his suit in this behalf “ expended, and the said defendant in mercy, &c. But “ this judgment (damages and costs excepted,) is to be “ discharged by the payment of 2544 dollars and 49 “ cents.”
    To reverse this judgment, the defendant below sued out the present writ of error.

      Swann, for plaintiff in error.

      E. J. Lee, and Key for defendant.

      Swann.

    1st. The declaration does not shew any obligation on Thompson, upon which this or any other action will lay.
    2d. If it does, it is not such an one as will support an action of debt.
    3d. If an action of debt will lay, still this action will not, because it is brought for part of the debt only.
    4th. The action is brought for sterling money, whereas it ought to have been brought for Virginia currency.
    5th. If properly brought for sterling money, the court below ought to have rated the exchange.
    1st. The record simply states, that “ the said Jonah “ (Thompson) in open court became security;” but does not state how; whether by bond, by parol, or by matter of record. It is only a record declaration that he became security.
    2d. The record states, that he became security that Hadfield would perform the decree of the court, if against him ; and not that Thompson would pay the debt, or that he undertook to pay any sum of money whatever. Nor does it state that he became bound in any particular sum. It does not state that he undertook to pay the debt if Hadfield did not. There is nothing to support an action of debt. It is, if any thing, a collateral undertaking; and if any action will lay, it must be covenant. To support an action of debt, there must be a direct obligation on the part of the defendant, moving to the plaintiff, to pay a certain sum, or a sum which may be rendered certain.
    3d. The declaration is for £.860. 12. 1. sterling of the value of £. 1032. 14. 6. Virginia currency, equal to 3442 dollars and 41 cents, United States currency. This is not the whole debt due by the decree. You must sue for the whole debt, or if you sue for a part, you must state the residue to be satisfied.
    The decree of the court of Fairfax was rendered on the 19th of November, 1799, and was, that the complainants recover against Hadfield the sum of £.860. 12. 1. sterling, (to be settled in Virginia currency at the rate of 20 per cent. exchange) together with interest on the same at the rate of 5 per cent. per annum from the 8th of March, 1795, until the day of pronouncing that decree, (19th November,) 1799, and also his costs by him expended in the prosecution of his bill. The debt was composed of the principal sum reduced to Virginia currency at 20 per cent. exchange, and interest thereon at 5 per cent. per annum, calculated from 8th of March, 1795, to the 19th of November 1799, and costs. But the declaration is only for the principal. It is therefore only for a part of the debt, and does not state the residue to be satisfied. A debt cannot be divided, and the reason of the law is, that a multiplicity of actions may be prevented. 3 Modern 41. Marsh v. Cutler. Cro. Iac. 498, 499, Pemberton v. Shetton.

    4th. The debt was originally due from Hadfield in sterling money, but the debt due by the decree is a current money debt. The decree has changed it from sterling to currency.
    It is an express command that it shall be settled in current money, at a certain rate. It is no longer a sterling debt. If an action of debt will lay for it, it must be laid as a debt due in Virginia currency.
    5th. But if it is a sterling debt, then the court below, ought, under the act of the Virginia assembly (revised code, p. 121. ch. 77. § 6.) to have fixed the rate of exchange. The verdict ought to have been simply for the sterling debt and damages ; but the jury have gone on and said that the debt should be discharged by the payment of 2544 dollars and 49 cents ; and the court have rendered judgment in the same manner, without fixing the rate of exchange.
    6th The declaration states the decree to have been made on the 19th of November, but does not say in what year. This omission was fatal on the plea of nul tiel record.

      E. J. Lee, for defendant in error.

    1st. The record states the obligation of Thompson in the very words of the act of Assembly. It is the highest obligation which he could have entered into. It is an acknowledgment on record, and is stronger than his bond. Its meaning is evident from the intention of the act of Assembly; and is simply this, that Hadfield should pay the money decreed to be due, and if he did not, that Thompson would pay it for him.
    2d. To the objection that this is not such an obligation as will support an action of debt, the answer is, that it is in the nature of a recognizance in chancery, and an action of debt will lie on such a recognizance, 1 Esp. N. P.216.

    3d. The case in 3. Mod. does not apply to the present. There the action was upon a judgment. Here it is upon the obligation or recognizance of Thompson. We have declared for as much as was due from Hadfield and no more. The obligation of Thompson was to pay what Hadfield should fail to pay. Our action is for this. The record of Fairfax court, which is made part of the declaration, shows how the residue was discharged.
    4th. The court of Fairfax did not convert the debt into Virginia currency. They only fixed the principles on which the exchange should be made. The decree is for sterling to be discharged in current money at a certain rate of exchange.

      5th. It is the province of the jury and not of the court to fix the value of sterling money. 1. Wash. 373. 378. Barnet and al. v. Watson and al.

    6th Although the year of the decree is not stated in the declaration, yet enough is stated to render it certain.

      Key was to have argued on the same side, but on examination of the record of the decree in Fairfax, and comparing it with the declaration; and finding the decree to be for £.860. 12. 1. sterling with interest from a certain day to the day of passing the decree, and the declaration being only for the principal, he considered the variance as fatal. He had not before noticed accurately the words of the decree, but had supposed the interest did not stop at any certain day, but was, by the decree, to run till the time of payment. He did not understand that this point had been made in the court below, and therefore had not before examined the record with a view to it.
    The court gave no opinion upon the other points, but considering this variance as fatal,

      Reversed the judgment.

   The chief justice

observed, that there was no clause in the declaration stating that Thompson undertook to pay if Hadfield did not, and therefore an action of debt would not lay.


text:
    MANDEVILLE AND JAMESON v. JOSEPH RIDDLE AND CO.
    In Virginia, an indorsee of a promissory note can not maintain an action against a remote indorser, for want of privity.

    Error from the circuit court of the district of Columbia sitting at Alexandria, in an action on the case brought by the defendant in error for money had and, received, which was the only count in the declaration; and to which the defendant pleaded the general issue.

      The evidence offered and admitted to support the declaration was a promissory note made by Vincent Gray, dated at Alexandria on the 2d of March 1798, by which he promised to pay sixty days after date to the order of Mandeville and Jameson 1500 dollars for value received, negotiable at the bank of Alexandaia. This note was indorsed by Mandeville and Jameson to James M‘Clenachan, and by him to Joseph Riddle and co. the defendants in error. The protest of a notary public made on the fifth May 1798, attesting that he had on that day demanded payment of the note of the maker, who refused, and of Mandeville and Jameson the first indorsers, who also refused, and that James M'Clenachan the other indorser did not dwell in his district. The record of a suit on the same note brought by Joseph Riddle and co. on the 14th of June 1798, against Vincent Gray, the maker, prosecuted to final judgment and execution, upon which execution he was committed to jail and took the oath of an insolvent debtor and was discharged, on the 6th of February 1799.
    The present action was commenced in July 1801.
    A bill of exceptions was taken by the defendants below, stating these facts, and that they prayed the opinion of the court,
    1st. Whether, this action could be sustained by the present “ plaintiffs against the present defendants, there be- “ ing an intermediate indorser between them,” and,
    2dly. “ Whether if the said action is sustainable, the “ said evidence is admissible upon a single count for money “ had and received: ” and that the opinion of the court below was that the action might be sustained, notwithstanding the intermediate indorser ; and that the evidence was admissible upon the single count for money had and received. Verdict and judgment for the plaintiffs for 1919 dollars and costs, to reverse which, the defendants below sued out the present writ of error.

      E. J. Lee and Swann, for plaintiffs in error.

      Simms, for defendants.

      E. J. Lee.

    1st. The action of indebitatus assumpsit will not lay for holder against a remote indorser, because there is no privity of estate or privity of contract. It is an action at common law; and by the common law no action of indebitatus assumpsit for money had and received will lay except between privies. Kyd. 175. (113, 114)

    2d. There being only one count in the declaration, and that being only for money had and received, the note ought not to have been given in evidence, because it must have been a surprise to the defendants. In England it is usual to give notice of the plaintiffs real ground of action either by a special count, or by a formal notice. The defendants could not come prepared to defend the action. The action for money had and received is said to be in the nature of a suit in equity. But here the defendants were in a worse situation, than if a bill in chancery had been filed against them; for in that case the bill must have stated the grounds of the claim and shown the equitable circumstances which entitled the plaintiffs to recover.
    A remote indorser is liable to the holder only upon the custom of merchants, and therefore there ought to have been a special count stating the custom.
    The English statute of Anne respecting promissory notes is not in force in Virginia ; and the act of assembly which supplies its place only allows an assignee to bring an action of debt in his own name against the maker of the note, but gives no remedy against the assignors. Hence it results that the remedy of the assignee against the assignors is either at common law or under the custom of merchants. By the common law the action of indebitatus assumpsit lies only between privies ; and here is no privity. And if resort be had to the custom of merchants; that custom must be averred in the declaration.

      Simms, contra.
    Every indorser is as the maker of a new note. 1 Strange, 479, Smallwood v. Vernon. Esp. N. p. 33. 2 Bur. 674,
      Heylin v. Adamson. He undertakes to pay the sum mentioned in the note, if the original maker does not. As soon as the original maker fails to comply with his engagement, that of the indorser becomes absolute. He then becomes the holder of so much money as is expressed in the note, to the use of his immediate indorsee, or of such person as he shall name.
    It is true the plaintiffs below have fought their remedy at common law; and by common law they are entitled to recover. Every man ought to be compelled to pay money which he has in his hands belonging to another, and which in equity and good conscience he has no right to retain. And the principle is now well established that at common law he may be compelled to pay it, by action for money had and received.
    As to the evidence offered on this count, it was long doubted, before the statute of Anne, whether any other than an action of indebitatus assumpsit for money had and received, or for money lent, would lay upon a note. This was the ground of contention between lord Holt and the merchants of Lombard street; he strenuously contending that the action for money had and received, or for money lent, was the only proper remedy; and they endeavoring to bring into use the form of declaring upon a note as a specialty. Although a note may now, under the statute, be declared upon as a specialty, yet the statute has not taken away the common law remedy which existed before.

      As to surprize, the objection made would go to almost every case where money had and received is the proper action, such as where the consideration happens to fail, or where money has been paid by mistake, &c.
    Indorsement is evidence that the indorser has received money of the indorsee. And at and from the time of the indorsement, the indorser is debtor to the indorsee, and the debt may be proved under a commission of bankruptcy against the indorser before the note is payable.
    In this case however there could be no surprize, the defendants below had notice of the non-payment of the note and that they would be held liable; and it is immaterial by what means notice is given. Doug. 138, Longchamp v. Kenny.

    In the case of Grant v. Vaughan, 3. Bur. 1516, the cases upon promissory notes before the statute of Anne are taken up and considered with great clearness and ability by the court. Every principle established in that case furnishes an argument for the original plaintiffs in this. The case there was, that Vaughan drew a check or order on his banker in these words ( “ pay ship Fortune or bearer “ £.70”) and gave it to Bicknell, who lost it. It was found by some person, and honestly taken in payment for goods by the plaintiff, in his way of trade as a mercer. Payment of the check being stopped at the bankers, the plaintiff brought suit against Vaughan the drawer, and declared upon an inland bill, and for money had and received to his use. It was held that there notes are, by law, negotiable and were so before the statute of Anne, and that the bearer of them might maintain an action as bearer, where he could entitle himself to them on a valuable consideration, and for this was cited Hinton’s case, 2 Shower 235, in the reign of Charles 2d.

      Crawly v. Crowther, 2 Freeman 257, in the year 1702, before the statute of Anne.
    1. Salk. 126 pl. 5. Anonymous, 10th Will. 3d. And Miller v. Race, 1. Bur. 452. 31 Geo. 2.
    That the only dispute before the statute of Anne was as to the mode of declaring: but that it never was disputed “ that an action upon an indebitatus assumpsit generally for “ money lent, might be brought upon a note payable to “ one or order;” and cites 2d lord Ray, 758, Clerke v. Martin. “ That upon the second,” lord Mansfield said, “ the “ present case is quite clear, beyond all dispute. For un- “ doubtedly, an action for money had and received to the “ plaintiff’s use, may be brought by the bona fide bearer of “ a note made payable to bearer. There is no case to the “ contrary. It was certainly money received for the use “ of the original advancer of it; and if so, it is for the use “ of the person, who has the note as bearer.”

    And Wilmot, justice, said, that it was notorious, that such notes were fact and practice negotiated. “ Proba- “ bly, the jury took upon themselves to consider, whether “ such bills or notes as this is, were in their own nature “ negotiable; but this is a point of law; and by law, they “ are negotiable.” And again he says, “ but this is a “ negotiable note; and the action may be brought in the “ name of the bearer. Bearer is descriptio personæ; and “ a person may take by that description, as well as by any “ other. In the nature of the contract, there is no impro- “ priety in his doing so. It is a contract to pay the bearer, “ or to the person to whom he shall deliver it, (whether it be “ a note or a bill of exchange;) and it is repugnant to the “ contract, that the drawer should object that the bearer “ has no right to demand payment from him. The rea-“sons given in the cases that are opposite to this are alto- “ gether unsatisfactory.” Even before the statute of 3 and “ 4 Anne, lord chief justice Holt himself thought, that an “ indebitatus assumpsit for money lent, or for money had and “ received, might be maintained upon such a note.”
    And Yates, justice, said “ Nothing can be more peculi- “ arly negotiable than a draught or bill payable to bearer; “ which is, in its nature, payable from hand to hand, toties “ quoties.” It had been doubted, it is true, whether that “ species of action, where the plaintiff declares upon the “ note itself as upon a specialty, was proper; but here is a “ count upon a general indebitatus assumpsit, for money had “ and received to the plaintiff’s use. The question, whether “ he can maintain this action, depends upon its be- “ ing assignable, or not The original advancer of the “ money manifestly appears to have had the money in the “ hands of the drawer, and therefore he was certainly “ entitled to bring this action. And if he transfers his “ property to another person, that other person may also “ maintain the like action. Whoever has money in the “ hands of another may bring such an action against him. “ This appears from the determination in the case of Ward “ v. Evans, reported in 2 lord Ray, 930; where not a " shilling of money had passed between the plaintiff and defen- “ dant; and yet Holt and Powell both held that an inde- “ bitatus assumpsit for monies received to the plaintiff’s “ use, properly lay.”
    This case clearly shews, that actions upon promissory notes payable to bearer, or order, might have been maintained before the statute of Anne; and that such actions did not depend upon the privity of contract. There certainly is not more privity of contract between the drawer of a note, and the bearer, (especially after that note has been lost by the lawful owner, and comes to the hands of the plaintiff through the finder) than between the maker of a note payable to order, and the indorsee. It also shows, that there are certain instruments, which are negotiable in their own nature by force of the contract itself, independent of statute law; and that a promisee may as well be described by being the bearer of a certain paper, as by being named with his christian and surname. And if he may be designated by the fact of being the bearer of a paper, there is no reason why he may not equally be described by the fact of his being the nominee of a certain other person, and the holder of a certain note.
    There is no doubt that before the statute of Anne notes were passed from one to another, and actions for money had and received were, on common law principles, maintained by the bearers and indorsees. The indorsement was considered as conveying or assigning the money of the payee in the hands of the maker; and the original contract of the maker was, to hold the money to the use of the payee or of such person as he should appoint. Privity of contract is not the ground of the action for money had and received. And among the many cases of that kind, there will be scarcely found one in which such a privity has existed. If I lose money, I may have this action against the finder. If A. delivers money to B. to be paid over to C. the latter may maintain this action against B. If a man, under pretence of authority from me, receive money due to me, I may recover it of him in this form of action. So if I pay money to another by mistake. So if a man obtains money from me by fraud and deceit. So if the consideration of a bargain fail. So if one pretending to a right to an office receive fees, the rightful officer may, by an action for money had and received, recover of him the amount of fees so received.
    The indorser is a new drawer as to all the subsequent parties. He has received money from his indorsee which he engages to hold to his use, or to the use of such person as he shall appoint, in case the maker does not pay
      the note on demand. This principle results from the custom of merchants; for the moment a promissory note payable to order, is indorsed, it becomes, in its nature, independent of any statute, an inland bill of exchange, both in form and substance. The indorser orders the maker to pay to the indorsee, or his order, the sum of money mentioned in the note. The maker by signing the note acknowledges that he has effects of the payee, to the amount of the note, in his hands; and by making the note payable to the order of the payee, he authorizes the payee to draw upon him for that amount, and pledges himself to honour the draft. An acceptance may be made before the bill is issued, and is equally binding as if made after. Kyd. 48. 49. The signature of the maker to the note is an acceptance of the payee’s bill. No part or circumstance of a bill of exchange is wanting.
    The plaintiffs below therefore were clearly entitled to recover the money from the defendants; and therefore the defendants ought not in justice and good faith to withhold it. In such a case there never has been a doubt but that the bill may be given in evidence on the count for money had and received.

      Swann in reply.

    If the indorser is liable, it must be under the act of assembly. But the act of assembly gives an action only against the maker, as is evident from the provision for allowing all just discounts, not only against the holder but against his assignor before notice. No case can be found of an action for money had and received brought by an indorsee against a remote indorser, either before the statute of Anne or after. The cases cited are of a note payable to bearer.

    If any action will lay, it must be on the statute of Virginia.
    Marshall, chief justice.

    It is decided in Virginia that an action is maintainable by the assignee against the assignor, and not under the act of assembly.

      February 26th.
   The chief justice

delivered the opinion of the court.

“ The only question in this case is, Whether an action of indebitatus assumpsit can be maintained by the assignee of a promissory note made in Virginia, against a re- “ mote assignor.

“ The act of the Virginia assembly which makes notes “ assignable, gives the assignee an action of debt in his own “ name against the maker of the note, but is silent with “ respect to the claim of the assignee against the assignor. “ It was therefore long a doubt whether the assignor be- “ came liable on his mere assignment, without any special “ agreement, for the contents of the note, in the event “ of the insolvency of the maker. This doubt has at “ length been settled in Virginia, so far as to declare the “ liability of the assignor on such assignment; but not the “ amount for which he is liable. It seems to be yet a ques- “ tion whether he is answerable for the sum mentioned in “ the note, or for only so much as he received for it, provided he shall be able to prove the sum actually re- “ ceived. It is also a question whether the assignee can “ have recourse to any other than his immediate assignor.

“ As the act of assembly gives no right to sue the as- “ signor, such an action can only be maintained on the “ promise which the law implies from the assignment, and “ consequently can only be sustained by and against the “ persons to and from whom the law implies such a pro- “ mise to have been made. As the assignment is made to “ a particular person, the law implies a promise to that “ person; but it raises no promise to any other. There “ is no fact on which to imply such promise.

“ In the language of the books, there is a privity be- “ tween the assignor and his immediate assignee; but no privity is perceived between the assignor and his remote “ assignee. The implied promise growing out of the in- “ dorsement, is not considered as having been made as- “ signable by the act of assembly, and therefore the as- “ signee of that promise can not maintain an action of “ indebitatus assumpsit on it.

“ It is therefore the opinion of the court that this ac- “ tion is not maintainable and that the judgment ought “ to be reversed.”

         See note (A.) in the appendix to this volume of reports.