Green v. Goings

7 Barb. 652

• Court: New York Supreme Court
• Decided: January 7, 1850
• Status: Published

Opinion

By the Court, Hand, J.

I do not think the record of the judgment in favor of the Lewis County Bank against the parties to the draft was evidence of presentment, demand, and notice, for one of the parties to the draft against another. In connection with the execution and other proof it was not admissible to show that the plaintiff had paid the draft after it was in judgment. The 7th section of 11 An act regulating suits on bills of exchange and promissory notes,” passed April 25, 1832, (Laws of 1832, p. 489,) declares that “ the rights and responsibilities of the several parties to any such bill or note, as between each other, shall remain the same as though this act had not been passed; saving only the rights of the plaintiff so far as they may have been determined by the judgment.” And the statute amending that act seems to have treated the parties as several, throughout. (Laws of 1835, p. 248. And see 1 Hill, 371; 4 Id. 35 ; 3 Barb. S. C. Rep. 12.) If the record of the judgment be considered as evidence, between the defendants it must be conclusive, and great injustice may be done.

But the defendant was the acceptor; and from his own admission had the funds of R. Green, for whose benefit the draft was given, in his hands to meet it; so no damage could be sustained by him. Besides, as between him and the indorser, the acceptor is liable without demand of payment, although the draft was accepted payable at a particular place. The rule fluctuated in England until it was finally settled by the case of Rowe v. Young, (2 B. & B. 165,) in the house of lords, that when the acceptance was to pay at a particular place, demand at that place must be averred and proved. (See the opinions of the judges in this case, Id. 180, App.) This decision was followed by the act 1 and 2 Geo. 4, ch. 7, 8, which made the acceptor liable without demand, unless he accepted payable at a particular place “ only and not otherwise or elsewhere.” But the rule here seems to be, that where the drawee accepts payable at a particular place, he is considered the principal debtor, liable without demand; a suit, as in other cases of a precedent debt or duty, being a sufficient demand; though he may defeat a suit by showing that he was at the place, ready to pay according to his acceptance. (Foden v. Sharp, 4 John. 183. Wolcott v. Van Santvoord, 17 Id. 248. Caldwell v. Cassidy, 8 Cowen, 271. And see Fullerton v. Bank U. S. 1 Peters, 604; Bank U. S. v. Smith, 11 Wheat. 171; Haxtun v. Bishop, 3 Wend, 20; Story on Bills, § 325, n. 113, 343; Chit, on Bills, 362, ed. 1842; Fenton v. Goundry, 13 East, 459.)

Payment of the judgment and possession of the bill by the plaintiff were sufficient evidence of ownership.

One partner can not bind the firm of which he is a member, as sureties or accommodation indorsers, without the. consent of his copartners. Consequently Lucius Green was not liable on the draft, particularly to those knowing the facts; and had no interest therein.

New trial denied.