Randolph v. Parish , 9 Port. 76 ( 1839 )

COLLIER, C. J.

1. In regard to the first question — in the case of Malone & Co. vs. Hathaway, (3 Stew. R. 29,) it was decided, that where the indorser of a promissory note suffered a judgment by default, there was no' necessity for submitting the case to a jury to assess damages. That the judgment was an admission, that the steps necessary to fix his liability, had all been taken, and that he was chargable for the amount of the note. The practice, as settled by the case cited, is coeval with the statute on which it is founded, and, we think, fully authorised by it.

■ 2. It was competent for the defendant, had he thought proper, to have treated the bill as a promissory note (in legal operation,) against the plaintiff, and thus to have sued it — (Roach vs. Ostler, 1 Man. <fc Ity. 120; Chitty on Bills, 8Amer. (from 8 Eng. Ed.) 28) Yet, he was not obliged thus to consider it; for it has been long settled, that it is not necessary to constitute a bill, that there should be three distinct parties. There are sometimes only two, as, where a party draws on another, payable to his own order, — and it has been said, that a party may draw on himself, payable to his own order, — and such a paper, when negotiated, will be a bill, in the hands of an indorsee — (8 Chitty on Bills, 28 — and cases there cited.) Among commercial men, it is not unusual for them to be concerned in mercantile establishments, at different places, at the same time, and for the house at one place, to draw on the house at the other, and if a bill drawn under such circumstances is dishonored, it never has been questioned but the drawers were liable to damages, and we think cannot be, upon any just principles of reasoning or analogy. . Now, if a drawer is chargable with damages, who draws his bill on himself, payable at some other place than that in which it is negotiated, we cannot conceive why a different rule should be adopted, where it is payable at the same place. In our opinion, the law furnishes no warrant for the distinction: in both instances, the holder of the bill may treat him as a drawer.

We have looked into the judgment, with the view to ascertain whether it exceeds the amount of the bill, damages and interest, and find that it actually falls short of the aggregate of these several items. There is, then, no error in the record — and the judgment is affirmed.