Patrick v. Beazley

Mr. Justice Turner

dissenting.

I concur with the court in the reversal of the judgment of the court below in this case. The indorsement sued on was the joint indorsement of the plaintiff in error and one Hiram Coffee; and to entitle the holder of the note to recover against Patrick, I conceive it was equally necessary to show that Coffee had also been legally notified of the non-payment of the note at maturity. In support of this I refer to Bayley on Bills, 285, and Bank of Chenango v. Burt, 4 Cow. Rep. 126.

But I dissent -entirely , frohx the opinion of my brother judges upon the main question in tijjUs case, and upon which their decision is founded. The statement contained in the bill of exceptions, that “the drawers and indorsers will acknowledge notice at Jackson, Mississippi,” would of itself authorize the notice to Patrick through the post office at that place. As it does not appear by the record that under this agreement the notice was to be personal or left at any particular place in Jackson, the jury had a right to conclude that the agreement intended the notice to be left at the post office there: it being the post office where Patrick was in the habit of receiving his letters and papers, and where he was in the constant habit of applying for them.

But independently of these views, I am decidedly of the opinion, that a notice to an indorser of the non-payment of a note or bill of exchange, deposited, after due demand of payment, on the same day or morning following in the post office nearest the indorser’s residence, or where he is in the habit of getting his letters and papers, when he lives without the corporate limits of the city or town, is legal notice to charge him; although the note or bill may be payable and protested in the same city or town. , And, without going into critical review of the authorities which have been cited, I rest my opinion, mainly, upon the decision of ihe supreme court of this state in the year 1832, in the case of Brown against Stamps, reported in Walker’s Reports, 526, the fact of its recognition by the bench and bar ever since, and the usage and rights which have become fixed under that decision. In that case this very question arose directly, and was fully discussed; and it was then solemnly decided by our highest judicial tribunal, that,’where the indorser resides out of the corporate limits of the town where the note is payable or the maker resides, personal notice is not necessary,, but notice through the post office is sufficient. The principle of that decision was fully acquiesced in at the time, and has never been agitated till the present occasion. The law was then definitively settled upon this subject; and the practice or usage of the whole community of merchants,, bankers, planters, mechanics, lawyers, and of every one who had a bill or note to protest or indorser to notify, has been in conformity to that decision from that day to this. To say that this rule shall be now changed, and thereby release every indorser whose liability has been fixed according to the decision mentioned and the practice under it, would require reasons to satisfy my mind which I have not yet heard.

All our rules of law, in fixing the liabilities of parties to bills of exchange and promissory notes, have originated in commercial usage and been finally settled by judicial decisions. These rules are all established upon the ground that the observance of them is most likely to give to those interested'notice of the dishonor of the paper, without too great an inconvenience to the holder. Undoubtedly, personal-notice to the indorser would be the best; but this rule is relaxed so that when the parties reside in the same place, a notice left at his residence or at his place of business is - deemed amply sufficient: when a notice left at the post office is just as likely to reach him as one left at his place of business, and at the same time it would be wholly defective when he resides in the same place. These rules, therefore, in regard to the protest of commercial paper, and the discharge or liability of the parties to it, are arbitrary, dependent upon usage and judicial decisions, as stated; and when once established by judicial decision, ought not, in.my opinion, to be changed, so as' to affect the past, and'destroy rights and liabilities -which have arisen under them.

Even a legislative enactment ought, I-conceive, to act only pro-' spectively in such cases; • When the rights and liabilities of parties have been ascertained and fixed by the adoption of a rule acquiesced in b.y every one, and sanctioned, by our supreme court, it becomes a part of -the common law of the land, and the consequences resulting from a sudden change are just as- serious as if it were founded hi a positive, law; arid rights ought to be as sacredly regarded in the one .case. as in the other. The injuries and mischiefs too, which spring from such sudden changes, (changes resting wholly .with tire court as to’ the requisite diligence to be. used by the holder, of a note or bill,) are incalculable. No one, familiar with the business of this country, and the extent to which the credit system has been carried for the last few years, can doubt that by the decision of my brother judges in this case, indbrsers whose liabilities were fixed by .existing law will be.discharged from those liabilities to an immense amount, indbrsers -who never dreamed of such discharges. Besides, the difficulty, not to say impracticability, of giving personal notice where the indorsers reside ten, fifteen or twenty miles from the place, and on a day when a great deal of paper may be protested, such as occurs on the 4th of January, every year, outweighs with me any .conceivable advantages that might result from the adoption of tire rule now established by the court.

I cannot, therefore, find any principle, upon, which I can subscribe to this,, to me, new doctrine; so inconvenient in practice, and so startling and alarming to the holders of paper, who have done every thing to charge the parties which the law as then known to them — as expounded by the supreme court of this state years ago — required them to do. The most eminent judges in England and America have always felt themselves constrained to bow "to the' supremacy of long established usage, and have considered themselves bound by former judicial decisions upon the same point. See the elaborate and very full opinion of the supreme court of the United States upon the subject of usage generally, in the case of Renner ¶. Bank of Columbia, 9 Wheat. Rep. 581. And this principle, too, for which I contend, is recognized by courts in instances where the usage is in violation of some strict positive law. Such as the taking of interest in advance, and the use of Rowlett’s Tables in computing interest, as decided by this court in the case of the Planters’ Bank v. Snodgrass, 4 How. Rep. 573. And decided in like manner in most of the states of the Union.

Thus, Lord Kenyon, in delivering his opinion in the case of Brown v. Harradin, upon the subject of days of grace being allowable on promissory notes, adverting to the consequences that would result from a contrary doctrine, says: “In addition to these considerations, we are now told that it has been the constant practice at the bank and at the principal bankers, to make this allowance on promissory notes. Then if we were to make a decision in opposition to all this practice, it would be attended with the most serious consequences.” For “if we were to determine that no such allowance (as the three days’ grace) ought to be made, all those parties would be involved in the crime of usury; and again, all the holders of notes who made no demand on the makers till the expiration of the three days, and who afterwards resorted to the indorsers, will have been guilty of laches.” And more expressive language than this may be found in 1 Dev. Rep. 100; 9 Wheat. Rep. 585.

And such is not only the language of judges, but it is the language of reason and experience in the common affairs of life, “that certain rules should be established to govern all cases in future. That pure patriot, and great statesman, and I may say eminent civilian, James Madison, in discussing the obligations we are under to recognize the judicial decisions of our predecessors, even on constitutional questions, uses the following language: “And why are judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions, regarded as of binding influence, or rather of authoritative force, in settling the meaning of a law? It must be answered, first, because it is a reasonable and established axiom that the good of society requires that the rules of conduct of its members should be certain and known, which would not be the case, if any judge, disregarding the decisions of his predecessors, should vary the rule of law according to his individual interpretation of it. Misera est servitus ubijus est aut vagum aut incognitum. Second, because an exposition of the law, publicly made, and repeatedly confirmed by the constituted authority, carries with it by fair inference, the sanction of those who, having made the law through their legislative organ, appear under such circumstances to have determined its meaning through their judiciary organ.”

How forcible, how applicable, or rather how much stronger is the present case in favor of the opinion, to which my mind is irresistibly brought? We are not now construing a clause in the constitution, nor fixing the meaning of a legislative enactment. We are simply determining the rule as to the degree of diligence necessary to be used by the holder of a note to charge an indorser in such a case as the present. The notice given to the indorser was in conformity to a usage so well established and so general in this state that, in my opinion, “courts of justice are bound to notice it ex officio; and, in the absence of any proof to the contrary, will presume that such was the understanding of all the parties to a note when they put their names upon it.” 9 Wheat. 585. And this notice to Patrick, too, was in conformity to the decision in the supreme court in the case of Brown and Stamps, already cited; which decision settled the law of this case as permanently as this court or any other can ever settle it in this state. For we cannot expect our successors to be more regardful of our decisions than we are of those of our predecessors.

If I deemed it necessary, on this occasion, to go beyond the limits of this state for authorities to support my opinion, I would refer to the opinion of the supreme court of the United States, directly and clearly in point, in the case of the Bank of Columbia v. Lawrence, 1 Pet. Rep. 578. And I will barely add, in conclusion, that the general usage upon this question, the decision of our own supreme court, years since, sanctioned by the opinions of our judges and lawyers till the present time, with the consequences that must follow from a contrary decision, and the decision of the supreme court of the United States just referred to, have infinitely more weight with me, in such a case as the present, than any decisions that may have been made in Tennessee, Kentucky, Louisiana, or any other states of the Union.