Thompson v. Robertson

4 Johns. 27

• Court: New York Supreme Court
• Decided: February 15, 1809
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. The case of Kenworthy v. Hopkins, is an authority for saying, that the person to whom a bill is remitted for the purpose of paying a precedent debt, cannot recover against the remitter, the 20 per cent, damages. I am satisfied that this decision is correct, because in such case, as the bill never was taken in the usual course of trade, the right of the party to whom the bill was remitted, extended only to the receiving the money due, or, in case of non-payment, of returning the bill. It was not his but for special qualified purposes. In the present case the suit is not against the remitting merchant, but the objection comes from indorsers.

This case, then, must turn, not upon any right which the defendants have to make the objection to the payment of the damages, but upon the plaintiff’s title to them, as against the defendants. The bill in question having been remitted at the risk of James Thompson, I consider him, in law and justice, as entitled to the damages, he having encountered all the hazard and inconvenience of the remittance. There is no doubt that on the protest of a bill for non-payment, it may be paid by any one, supra protest, for the honour of the drawer or indorser, and such person thereby acquires all the rights that the proprietor of the bill had.

* Accordingly it was ruled by Lord Kenyon in the case of Mestens v. Winnington,† that where a bill is so taken up, the party who does so, is to be considered an indorsee paying full value for the bill, and as such is entitled to all the remedies to which an indorsee would be entitled, that is, to sue all the parties to the bill. In the present case, James Thompson, the remitter of the bill, made a special indorsement, by which he directed the bill to be paid to James Palmer, to be placed to the credit of John M'Call or order. This indorsement the plaintiff, who came by the bill by indorsement from James Palmer, and, after it was protested for non-payment, struck out, and thereby sets up a title as the immediate indorsee of the defendants, whose indorsement was in blank. When the plaintiff took this bill, he must have seen that it was in the possession of Palmer, merely as agent for James Thompson, and, in fact, that Palmer had no right to negotiate it. Without giving any opinion upon the question, whether a person who gets possession of a bill, at first indorsed in blank, and afterwards specially indorsed, may strike out such special indorsement, it appears very evident in this case, that the plaintiff came to the possession of this bill collusively, and with full knowledge that Palmer had no right to raise money on it: And it is very certain, that the plaintiff paid the bill for the honour of no one. Under these circumstances, we are satisfied, that the plaintiff has

received all that he is entitled to on the bill; and that, with regard to the 20 per cent, the plaintiff has shown no right to those damages, his payment not being the ordinary payment of a bill supra protest, for the honour of the parties on the bill, but evidently in concert with Palmer to gain a right to the damages. We, therefore, refuse a new trial.

New trial refused»--

Chitty, 162.

1 Exp. Rep. 118