Wood, Pinson & Hanks v. McMeans , 23 Tex. 481 ( 1859 )

Wheeler, C. J.

The diligence prescribed by the statute, (Hart. Dig., Art. 2528,) to fix the liability of the drawer of a bill of exchange, or draft, is substituted for the diligence required by the law merchant. Consequently, where, by the law merchant, the drawer was not entitled to notice of the dishonor of the bill, the statutory diligence need not be observed. (Durrum v. Hendrick, 4 Texas Rep. 495.)

The drawer is not entitled to notice, by the law merchant, where he has no funds in the hands of the drawee; and no right to draw, or reasonable ground to expect that the bill will be accepted. Nor can he require that the holder shall observe the statutory diligence, to fix his liability. He is rendered primarily liable, by the fact of having drawn when he had no funds in the hands of the drawee, and no reasonable expectation that his draft would be honored. Where the drawee refuses to accept, the drawer is immediately liable for the payment of the draft. (Hart. Dig., Art. 2530.) He, of course, is the only party against whom suit can be brought to enforce payment. If, having drawn when he had no right to draw, he is primarily liable, it cannot be necessary to sue him, to fix his liability. (Insall v. Robson, 16 Texas Rep. 128; Id. 219.)

It was averred and proved, on the part of the plaintiffs, that the drawee had no funds of the drawer in his hands. If, notwithstanding there were circumstances in the dealings of the parties, which afforded the drawer reasonable ground to expect his draft would be accepted, it was incumbent on him to prove them. (4 Texas Rep. 495; Cole v. Wintercost, 12 Id. 118.) This he failed to do. -

The plaintiffs, having shown that they were excused from the use of diligence, to fix the liability of the defendant, no delay, short of the period prescribed by the statute of limitations, would defeat their right to call on the latter for payment. There is no cause to conclude the draft was not presented for payment within a reasonable time. The statute, therefore, did not commence to run until payment was refused, and the right of action was not barred at the time of bringing the suit. Neither the want of diligence, nor the statute of limitations, afforded any impediment to the plaintiffs’ right of action.

But there is an insuperable obstacle in the way of a recovery by the plaintiffs. The drawer departed this life testate, and by his will, made provision for the settlement of his estate as provided in the 110th section of the act relating to the estates of deceased persons, without proceedings for that purpose in the Probate Court. (Dig., Art. 1219.) It was the right of the plaintiffs to have the heirs and distributees of the estate cited to give bond, and thereupon to enforce payment as provided by the statute. But it does not appear, that any citation or other proceeding was taken, as contemplated by the statute, or that there has been any action of the Probate Court, touching the settlement of the estate. This suit is brought against the executor, and it is clearly settled that, under the provisions of the will and the statute, as interpreted by the decisions of this court, the action cannot be maintained. (Hogue v. Sims, 9 Texas Rep. 546; Carroll v. Carroll, 20 Id. 731, 746, 747.)

It is insisted, for the plaintiffs in error, that it was their right to bring this suit to establish their demand against the estate, before proceeding to enforce payment, as provided by the statute. But this would be needlessly to subject the plaintiffs to the delay, and the estate to the expense of two suits, when one will answer the same purpose. The statute does not provide, nor does it seem to contemplate a suit against the executor, to establish the demand. The judgment would be inoperative, since execution could not issue upon it. It could not bind or affect persons not parties to it; but would be merely nugatory, as suit must still be brought upon the bond, or against those having possession of the estate. Suit cannot be maintained for the purpose of deciding a mere abstract question, or of obtaining a judgment, which would not conclude the parties in interest.

If bond be given, as the statute contemplates, the holder of a claim is not required to present it to the executor for allowance. The allowance and approval would be of no avail, unless the Probate Court had jurisdiction, for the purpose of administering the estate, so that the claim could be ranked and paid in due course of administration. As it is not necessary to present it to the executor for allowance, so, neither is it necessary or admissible to sue the executor for its establishment, before proceeding to cite the persons entitled to the estate under the will. We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.