Freeman's Bank v. Perkins

The opinion of the Court was drawn up by

Weston C. J.

This being a bill drawn in one State, and payable in another, is a foreign bill, so as to make the protest admissible in evidence. Buckner v. Finley & al. 2 Peters, 586, ibid. 688, opinion of Washington J. Phœnix Bank v. Hussey, 12 Pick. 483; Green v. Jackson, 15 Maine R. 136. The bills under consideration in those cases, were drawn by persons in one State upon persons resident in another. But the principle which governed those decisions, applies with equal force to bills drawm in one State and payable in another; although all the parties might be residents in the same State. The statute of 1821, c. 88, allows damages on such bills, upon protest.

From the protest in the case it may be understood, that the ■cashier of the Suffolk Bank, as such, was resorted to by the plaintiffs, to obtain payment of the bill. He is to be considered then, as it respects the time of causing a protest to be made and of giving notice, as a distinct holder or party to the instrument. Chitty on Bills, 521, 9th Am. from 8th London Edition, and the cases there cited. On the day of the maturity of the bill, he caused it to be protested for non-payment and notices to be forwarded to the drawer, indorser and acceptor, which were mailed the next day. And this was using all the diligence, which the law requires. Chitty, 513.

The cashier of the Suffolk Bank would have done his duty, if he had caused notice to be given to the plaintiffs, of whom he received the bill. And upon the receipt of such notice by them, the defendant, the indorser, living in another town, notice from them to him would have been seasonable by the mail of the succeeding day. This rule, for the sake of uniformity, has generally been adopted; although it might be hazardous to neglect to send by the next convenient or practicable mail. Mitchell v. Degrand, 1 Mason, 176. In this case two hours only elapsed, between the receipt of the notice and the close of the next mail. To hold that the plaintiffs, by their president, who it appears acted also as cashier, should give notice by that mail would be requiring a degree of strictness, not warranted by the decisions. But the plaintiffs gave no notice of their own to the defendant. They only forwarded the notice prepared for him by the notary at Boston, at the instance of the cashier of the Suffolk Bank.

If either knew the residence of the indorser, his notice should have been sent to him directly at Hallowell, through which the mail passes in its transit to Augusta. But if the cashier of the Suffolk Bank was ignorant of his residence, which may have been the fact, his notice was properly enclosed to the president and acting cashier of the Freeman's Bank. He knew the indorser’s residence ; and he had nothing to do but to put the proper direction upon his notice, and to leave it in the post office. Sending no notice of his own, but merely forwarding that, which was prepared by the notary, it appears to us that it should have been sent by the mail of that day. There was ample time for this purpose. This not having been proved, due diligence by the holder is not made out.

Exceptions sustained.