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Richie v. McCoy.

on the day of the maturity of the bill, he had no funds in the hands of the acceptor to meet it; in such case, to excuse notice to the drawer, it must be shown, that, from the time of making the bill to its maturity, the drawer had no property or effects whatever in the hands of the acceptor, and had no right

upon other grounds to expect that the bill would be paid by him. Nor does the proof of want of funds of the drawer, in the hands of the acceptor

on the day of maturity, throw upon the drawer the onus of proving that he had reasonable grounds to expect that the bill would be paid on presentation ; the fact of the bill being accepted raises such presumption in the drawer's behalf.

In error from the circuit court of Kawamba county; Hon. Hugh R. Miller, judge.

The facts will be found in the opinion.

Lindsay, for plaintiff in error, contended,

1. That the court erred in refusing the charges asked by plaintiff in error.

2. In giving the charges as asked by defendant in error. 3. In the charges given by the court.

Goodwin and Sale, for defendant in error.

Mr. Justice Smith delivered the opinion of the court.

This was an action of assumpsit brought in the circuit court of Kawamba by the defendant in error, who was the payee, against the plaintiff as drawer. The bill was accepted by the drawee, Thomas B. Richards of Mobile, who refusing to pay it when it became due, notice of the dishonor was sent by post to Aberdeen

On the trial, the grounds relied on by the defendant were want of presentment of the bill for payment, and of sufficient notice to the drawer of its dishonor.

After the evidence was closed, several instructions were given to the jury in regard to the principles of law applicable to the issue between the parties. These instructions present the only questions which it will be necessary for us to decide.

The first instruction given at the request of the plaintiff, was in the following words, viz. : “ If the jury believe from the evi

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Richie v. McCoy. dence that Richie had no funds on the 4th day of March, 1844, (the day on which the draft became due,) in the hands of Richards, the acceptor, to meet the bill, then in that case Richie was not entitled to notice, but was liable without it.”

In order to charge the drawer or indorser of a bill of exchange, it is necessary that the holder should give him due notice of the refusal of the drawee to pay the same on presentation. This is the general rule, but to it there are certain recognized exceptions. In an action against the drawer of a bill which has been dishonored, in order to relieve against the consequences of a failure to give notice of such dishonor, the plaintiff may show that defendant, from the time of making it, to the time when it was due, had no property or effects whatever in the hands of the drawee or acceptor, and had no right upon any other ground to expect that the bill would be paid by him.” Chitty on Bills, 468; Cook v. Martin, 5 S. & M. 379; Dickens v. Beal, 10 Peters, 572. This instruction was therefore manifestly erroneous.

The first instruction requested by the defendant was improperly refused by the court.

In this case the bill was accepted by the drawee, who thereby became primarily liable. Heylyn v. Adamson, 2 Burr. 674; Smith v. Knox, 3 Esp. Rep. 47. The acceptance of the bill raised the presumption that the drawee had funds in his hands belonging to the drawer.

But it is insisted that these charges were modified by those subsequently given by the court, and that the whole taken together presented the principles of law, applicable to the case, properly to the jury.

The first of these lays down the rule that the drawer of a protested bill of exchange is not entitled to notice of non-payment; unless he had funds in the hands of the acceptor at the time it became due, or unless he had good reason to believe that he would have funds at that time.

The second, that if the drawer had no funds in the hands of the acceptor at the time the bill was due, it was incumbent on him, in order to avail himself of the consequences of a want of notice, to show that he had reasonable grounds to expect that he

Walker v. Shotwell et al.

would have funds in the hands of the acceptor at the maturity of the bill.

And the third charge states the rule to be, that if the drawer had reasonable grounds to expect that he would have funds in the hands of the acceptor at the maturity of the bill, he was entitled to notice of its non-payment by the acceptor.

The two first of these charges are incorrect. Proof that the defendant had no funds in the possession of the acceptor, at the time the bill was payable, did not dispense with the want of notice, nor throw upon him the onus of proving that he had reasonable grounds to expect that the bill would be paid on presentation.

The last charge was intended as a modification of the previous instructions, and could not have been understood by the jury as a direct or virtual denial of the principles of law therein stated. This charge, unconnected with the preceding instructions, was not obnoxious on the part of the defendant, but, connected with them, it did not exclude the assumption that it was incumbent on the defendant, upon proof being made that he had no funds in the hands of the acceptor at the maturity of the bill, to show that he had a right to expect that it would be paid. This the defendant was not bound to do, to make his defence, for want of notice, available, especially as the evidence showed that the drawee had accepted the bill, which primâ fucie entitled him to notice.

The judgment must be reversed and a new trial granted.

21 514 72 272

James WALKER vs. ROBERT SHOTWELL ET AL.

It is not a fatal objection to a forthcoming bond, that it recites that the execu

tion, under which the levy was made and the bond taken, was against S. and W., when, in fact, it was against S. alone ; S. and his sureties for the forth

coming of the property being the only parties to the bond. Nor, in such case, will it make any difference that the party against whom the

Walker v. Shotwell et al.

execution was, was insolvent, and the other against whom it was not was solvent; the sureties on the bond were sureties of the party whose property

was levied on, and who was the principal in the bond, and not of the other. It is a sufficient levy to uphold a forthcoming bond, that, without an actual

seizure of the property by the sheriff, the principal in the bond inserts in it the description of the property, procures the signatures of the sureties with

his own, and in that condition delivers the bond to the sheriff. A forthcoming bond is not void, because the property levied on was under

mortgage at the time of the levy ; though it seems, if the obligors in the bond were prevented from delivering it according to the terms of the bond, by reason of the action of the mortgage creditor, they would be released

from their liability. It seems it would be a fraud upon the creditor to allow parties to a forthcoming

bond, who had themselves voluntarily filled up the bond with property not

liable to sale, to set up this as an excuse for a failure to deliver the property. It is not a fraud upon the sureties to a forthcoming bond, given by S. as prin

cipal, that the bond recited that the execution was against W. and S., and the sheriff did not disclose the fact that it was against S. alone ; yet if such omission were a fraud, without proof that the creditor was implicated in it, it would not discharge the bond.

On appeal from the circuit court of Madison county, on the chancery side thereof; Hon. Robert C. Perry, judge.

Robert Shotwell, John R. B. Jones, and Jackson Smith, filed their bill against James Walker and the administrators of Williamson Smith and Jesse Brown, in which they allege, that on the 28th day of February, 1844, they executed, as securities for Williamson Smith, a bond, purporting to be a forthcoming bond, and delivered it to Brown as deputy sheriff. That said bond recites the service of an execution in favor of James Walker against Williamson Smith and John Webb, on the property of Smith, to wit, two slaves, Jordan and Ellen; that, at the time of the execution and delivery of said supposed bond, said Brown did not inform them that the execution was not in fact against Webb and Smith, and against Smith alone, and that they were ignorant that it was against Smith alone; that Webb was solvent and Smith insolvent; that no actual levy was made on said slaves by the sheriff; that when the supposed bond was executed the sheriff had never seen them, but that their names had been previously inserted in it by Smith; and that the fact

Walker v. Shotwell et al.

that no levy had been made, was not made known to them by Brown, but concealed from them by him when they executed the supposed bond, and they were ignorant of the fact that no levy had been made ; that this was a fraud on them; they did not know the above fact until after the return term of the execution, under color of which, said supposed bond was taken.

That, in 1842, Williamson Smith and Gabriel C. Smith executed a mortgage to the bank of Tennessee and others, to secure the payment of divers sums of money on said slaves and other property; that this mortgage remains undischarged to a large amount, exceeding ten times the value of said two slaves.

That an execution issued on said forthcoming bond, and other executions against Smith, has been lately levied by the sheriff on said slaves and other slaves embraced in said mortgage, as the property of Williamson Smith; and that some of the mortgagees, to prevent a sale, had filed their bill in the superior court of chancery against Walker and others, and that an injunction had been awarded, and was then in full force.

That after this last levy on said two slaves, and after the emanation of the injunction, and after the same came into the hands of the sheriff, he proceeded to levy said execution on four slaves of the complainant, Jones, which slaves are of peculiar value to him above a mere compensation in damages; that, although the levy was made on said four slaves under other executions, as well as the execution of Walker, yet these other executions have been settled in such way, that the present beneficiaries in them have directed, or will direct, (as complainants believe,) the sheriff to redeliver them to Jones; and that the sheriff now holds them under pretence alone of the execution of Walker, which issued on said supposed forthcoming bond.

Jones and Jackson Smith charge, that at the time they executed said forthcoming bond, they did not know of the existence of said mortgage, and that they were ignorant of it at the return term of the execution under which it was taken.

Shotwell charges, that, although he knew at that time that such a mortgage had been written, (and written by himself,) yet he did not know that it had been executed and deliv

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