Ramdulollday v. Darieux , 4 Wash. C. C. 61 ( 1821 )

WASHINGTON, Circuit Justice.

The naked question presented to the court is, whether in an action upon a protested bill of exchange against an innocent indorser, who paid full value for the bill, notice to him of the dishonour of the bill can be dispensed with, upon proof being made that the drawer had no effects in the hands of the drawee when the bill was drawn, nor a reasonable ground to expect that it would be paid? The general rule in respect both to the drawer and in-dorsers, is, .that notice to them or such of them as the holder means to look to is an essential condition which he is bound to perform to entitle him to recover against them. The reason is, that those persons may respectively have an opportunity to obtain payment or security from those to whom they have a right to look for indemnity. That the drawer and indorsers are prejudiced by an omission to give such notice, is a presumption of law. The case of Bickerdike v. Bollman, 1 Term R. 405, for the first time made an exception to the rule, whilst it admitted the rule itself. That was an action against the drawer, and the court decided that if it appeared , in evidence that he had no effects in the hands of the drawee at the time he drew the bill, notice was not necessary. This exception was qualified by subsequent cases so as to entitle even the drawer to notice if he had a reasonable ground to expect that his bill would be honoured, although he had no effects in the hands of the drawee. But no case has ever yet gone so far as to dispense with notice to the indorsers. And it is most obvious that the reason upon which the rule in Bickerdike v. Bollman proceeded, is inapplicable to the case of an indorser. A man who draws a bill when he knows that he has no right to do so, and then parts with it for a valuable consideration, is, to say the ■least of him, guilty of legal fraud, and consequently is not entitled to the benefit of notice.' Besides, he cannot be injured from the want of it, as he has no person to look to but the drawee, and therefore cannot suffer if he had nothing in his hands on which to draw. But what is all this to an indorser who has committed no fraud, actual or constructive; and who, having a claim to indemnity against every person upon the bill above himself, ought to be placed in a situation to secure himself if he can. Nevertheless, whilst the judges of England have been, and from the latest case, we find, are still murmuring at the decision in Bickerdike v. Bollman, which is confined to drawers, an attempt is now made to extend the exception to indorsers. In the case of Wilkes v. Jacks, Peake, 202, the existence of such an exception is denied, and that case, so far as we know, has never been overruled. It is true that in Sisson v. Tomlinson, 1 Selw. N. P. 291, Lord Ellenborough ruled, at nisi prius, that where the indorser has not given consideration for the bill, and knows at the time that the drawer has not effects in the hands of the drawee, he is not entitled to notice, as a bona.fide holder for valuable consideration woüld be. This decision obviously proceeded on the ground of constructive fraud in the indorser, arid would therefore be wholly inapplicable to this or similar cases; even if the authority of that case had not been shaken by the subsequent one of Brown v. Maffey, 15 East, 216. But the case of Leach v. Hewitt, 4. Taunt. 731, is-still.more in point; by deciding that though the indorser pay no consideration'for the bill, but indorsed it merely ás an. accommodation to the drawer, he is nevertheless entitled to-notice. Such too is the decision of the supreme court of the United States in the case of French v. Bank of Columbia, 4 Cranch [8 U. S.] 161. We are therefore of opinion that •the law is in favour of the defendant