Wilkings v. . McKinsie

1 N.C. 570

Opinions

McKinsie had money in the hands of John Barclay, and applied to him for $1,000. Barclay could not raise the money, but could draw bills on New York. McK. did not want money in New York, but undertook to sell B.'s bills, and applied to Wilkings, who said he wanted a bill on New York and would pay $500 down, and give his note for the balance, payable in a short time, if the bills were drawn in sixty days. McK. agreed. Wilkings paid the $500, and gave his note to McK. for the balance; McK. gave an order to W. on B. for $1,000. W. applied and got B.'s bill for $1,000, which was returned protested for nonpayment. McK. sued W. and recovered the amount of the note; and now this suit is brought to recover back the $1,000, being the amount paid by W. to McK. The bill was in due time forwarded to New York, protested, and returned; of which due notice was given to McK., and also notice that the order was not satisfied; which was protested as appears by the written protest. The notice was given immediately after the bill was returned. But before the return of the bill, B. committed an act of bankruptcy, to wit, on the 26th January, 1802, and was declared a bankrupt some time about the latter end of February or beginning of March. That the order was drawn for money, and was retained by W.; but it was understood by the parties that W. was to receive a bill of exchange. From the case stated, it appears to me that McK. sold the bill of exchange to the plaintiff, and received the money as to the price thereof; and that Wilkings took upon himself all the consequences. In this point of view, the law is settled. 3 Term, 757; Andrews, 108; 1 Salk., 124; 12 Mod., 408. And, therefore, a new trial ought to be granted.