Hoffman v. Smith

1 Cai. Cas. 157

• Court: New York Supreme Court
• Decided: August 15, 1803
• Status: Published

Opinion

Thompson, J.,

delivered the opinion of the [*160] court. *The notice to the drawer of non-payment, although in general requisite, was not necessary in this case, because the drawer had no effects in the hands of the drawee, and, therefore, could receive no injury from the want of it. The reason for notice failing, the necessity of giving it is superseded. The acceptance by the drawer made no alteration in the rule. Notice of nonpayment was not necessary because of no use to the drawer. Walwyn v. St. Quintin, 1 B. & P. 652. The proof of the want of funds was conclusive; it arose from the repeated confession of the defendant himself. Hor was there anj weight in the objection to the competency of Mr. Troup’s testimony, his information being received in the character of a friend, and not in that of counsel. The want of funds in the hands of Mr. Burrows was sufficiently proved, independent of any facts contained in the plaintiffs’ answer- to the defendant’s bill in chancery. Wilson v. Rastall, 4 D. & E. 759.

It is, therefore, unnecessary to say, whether the whole answer ought to have been received as evidence or not.

(a)

Motion denied.

The rule dispensing with notice where there are no funds, was introduced for the purpose of defeating speculations on the chance of an exoneration in law, from the want of notice, by a set of men who drew bills without having any funds to answer them in the hands of the drawee. That it was ever adopted has been a source of frequent regret, though it has, by successive decisions, been fully established. But any effects in the hands of the drawee, at the time of drawing, entitle to notice, Orr v. M'Ginnis,7 East, 359, though the drawer be indebted to him more than the amount o! the bill. Blackhan v. Doren, 2 Camp. 503. See Rogers v. Stephens, 2 D. & E. 713. Wilkes v. Jacks, Peake, 202. De Berdt.v. Atkinson, 2 II. Black. 336. Corney v. Da Costa, 1 Esp. Rep. 302. Nicholson v. Gouthit, 2 H. Black. 609. Staples v. Okines, 1 Esp. Rep. 332. Dennis v. Morris, 3 Esp. Rep. 158. Legge v. Thorpe, 2 Camp. 310. S. C. 12 East, 171. Robinson v. Ames, 20 J. R. 146. Agon v. McManus, 11 Id. 180. Cruger v. Armstrong 3 J. C. 5. Anth. N. P. 55, n, [a].