Dickins v. Beal, 35 U.S. (10 Pet.) 572

*Samuel Dickins, Plaintiff in error, v. William H. Beal. [*572

Bills of exchange were drawn and dated at Hazelwood, Madison county, Tennessee, by D. & T. on W. & F., at New Orleans, the drawers having no funds in the hands of the drawees, or authority from them to draw such bills; W. & F. had written to the cashier of the branch Bank of the United States, at Nashville, informing him, that D. & T. were authorized to make negotiations, by bills on them, with the bank, and that such bills would be honored; but the bills on which this suit was instituted by the holder and indorsee, residing in New Orleans, were not negotiated with the bank; the bills were refused acceptance by W. & F. ; were protested for non-acceptance, on the same day, and notice of the same was given by the notary to the drawers and indorser, by letters put into the post-office, addressed to them at Hazelwood, Madison county, Tennessee; the notary, as was testified, not knowing of any other residence of the parties than that designated in the caption of the bill; and that he made inquiry for further information, of persons likely to know. Evidence was given, to show that letters from New Orleans for Hazelwood, in Madison county, West Tennessee, were sent to Nashville, and that from that post-office they were sent to Spring creek post-office; that D., the drawer of one of the bills, and the indorser of the other, was the post-master at Spring creek, Madison county, Tennessee; Hazelwood was near Spring creek post-office. It was also testified, that letters from New Orleans, for the western district of Tennessee, came to Nashville for distribution, unless there was a 1’iver mail, in which case, they would be delivered at Memphis, and be distributed thence. The letters of W. & F. to the cashier of the branch Bank of the United States, at Nashville, were offered in evidence by the drawers of the bills, to show that they were entitled to regular notice of the protest of the bills: It was held, that the circuit court properly rejected this evidence, as the letters did not apply to, and had no connection with, the bills which were the subject of this suit.

.. ®ut un^ess he draws under some such circumstances, his drawing without funds *prop-> erty or authority, puts the transaction out of the pale of commercial usage and law ;

and as he can in no wise suffer by the want of notice of the dishonor of his drafts, that it is deemed an useless form.1 Notice of the dishonor of bills of exchange must be made out in two ways : 1. That the bills had been duly protested for non-acceptance; and due and legal diligence used in giving notice thereof to the parties on the bills; in which case, the legal presumption of its receipt in time would attach. 2. By proof that the notice actually came to hand in proper time ; though the letter containing the notice was not properly directed, or sent by the most expeditious or direct route. The facts of notice, and its reception in due time, are the only matters material to the drawer or indorser of a dishonored bill; the manner or place in which they receive such notice is immaterial; for all the objects to be answered by its reception, it is equally available to them. To the holder, it is immaterial, whether the evidence of notice consists in the legal presumption arising from due diligence, which supplies the place of specific evidence, and is binding on a jury as proof of the fact of its reception ; or it is established by direct evidence, or such circumstances as will in law justify them in drawing the inference.2 Since the case of Buckner v. Findley, 2 Pet. 589, 591, decided on great consideration, it has been the established doctrine of this court, that a bill of exchange, drawn in one of the states of this Union, on a person in another, is a foreign bill, and to be treated as such ; and that in this respect, they are to be considered as states foreign to each other, though they are otherwise, as to all the purposes of their federal constitution. Among these purposes, are the establishment of post-offices and post-roads; the usage of the officers employed in the various details of the operations of the department, when acting within the line of their duty, as prescribed by law and regulations, becomes all-important to a court and jury, in deciding on what is legal diligence in giving notice, or what is evidence of its reception.

It is legal diligence in the holder of a bill, if he avails himself in time of the means of communicating notice, which are thus afforded; but he is not answerable for any defects in the outlines or details of the regulation of the mails, for the route in which the letter is carried, the time which elapses from its deposit in the office and delivery, or the mode of carrying or distributing the mails ; but it is proper, that he should give evidence of all these matters, as well to repel the imputation of laches, if the letter does not come to hand, or not in due time, as to prove its regular delivery, if there should be any doubt as to the use of diligence, in the direction or deposit of the letter; such evidence is uniformly received, in cases arising on the notice of dishonored bills.

It is sufficient proof that bills of exchange were protested for non-acceptance or non-payment, if the notary testifies he put notice thereof into the post-office, without producing a copy of the notice, or proving its contents.

What will be considered as due diligence in giving notice of the dishonor of a bill of exchange, as between the holder and the drawer or indorser of a dishonored bill. The question of their liability depends not on actual notice, but on reasonable diligence; which is, in all cases, tantamount to actual notice, whether given or not.

As the bills on which this suit was brought were foreign bills, the protests produced at the trial were in themselves evidence of the demand and protest; the oath of the notary, that he put the notice into the post-office, on the day of protest, is competent and sufficient in law, to prove the fact.

*Ebbob to the Circuit Court for the district of West Tennessee. [*574

This case was submitted to the court, without argument, by Porter and Crittenden.

Baldwin, Justice, delivered the opinion of the court.—Samuel Dickins, the defendant, and Jesse Taylor, were partners, transacting business at Hazelwood, Madison county, Tennessee, which was the residence of Dickins. On the 6th of December 1832, Taylor drew a bill of exchange for $1448, on Wilcox & Feron, New Orleans, in favor of Dickins, payable on the 1st of May 1834, which Dickins indorsed to the plaintiff. On the same day, Dickins & Taylor drew two other bills on the former house, in favor of the plaintiff ; one for $2802, payable the 1st of May; the other, for $1590, payable the 1st of April 1834. The three bills were dated at Hazelwood, Madison county, Tennessee ; presented to the drawers, on the 3d of June 1833, for acceptance ; which being refused, they were protested for non-acceptance by a notary-public ; who, on the the same day, gave notice thereof to the drawer and indorser of the first, and the drawers of the other two, by letters put into the post-office, addressed to them at Hazelwood aforesaid. It was testified by the notary, that, not knowing of any other residence of the parties than that designated by the caption of the bill, he forwarded the notices accordingly, after inquiring of persons likely to know.

It appeared, that all the bills were drawn without funds, or authority to draw; nor was any evidence offered, to show that either Dickins or Taylor had any reason to think that their bills on Wilcox & Feron would be honored, except two letters from Wilcox & Feron, dated the 1st of December 1831, addressed to the cashier of the branch Bank of the United States, at Nashville. In one, they say, “Messrs. Dickins & Taylor are authorized, in making negotiations, to value on our house in New Orleans, for say $10,000 ; in such form and at such time as they may think proper, and same will be duly honored.” In the other, “ our friend. Colonel Samuel Dickins, is authorized, in negotiating with your institution, to value on our house in New Orleans, at any time, for such sums as he may think proper ; and same will be duly honored by*W. & F.” *These letters were in „ the handwriting of Wilcox & Feron, and in the possession of Dick- L ms ; they were offered to show that he was entitled to regular notice of the protest of the bills drawn by Dickins & Taylor ; but were rejected by the court as incompetent.

Madison county, Tennessee.” At the trial, the plaintiff offered to prove, by the postmaster at Nashville, and his deputy, that that place was the distributing office for letters from New Orleans, intended for West Tennessee, including the county of Madison ; that in June 1833, they knew defendant was postmaster at Spring Creek ; that if, in distributing the mail, they had seen a letter addressed to defendant at Hazelwood, they would have sent it to Spring Creek post-office. Also, to prove, by the post-office books at Nashville, that on the 13th of June 1833, the New Orleans mail arrived at Nashville ; and on the 14th, a package was sent to Spring Creek post-office, which had come to Nashville for distribution, and was rated at fifty cents postage. To this evidence, it was objected by the defendant, that inasmuch as the putting a letter into the post-office, containing notice of a protest, properly directed, forms a conclusive legal presumption that such notice was duly given and received ; it was also a legal presumption, that the notice went to the place directed, and no other ; and that the plaintiff was concluded from showing, either that the destination of the letter was changed on its passage, or was in point of fact sent to any other place. The court overruled the objection, and the evidence was received.

It was also testified, that letters from New Orleans, for the western district of Tennessee, came to Nashville for distribution, unless there was a river mail, in which case, they would be delivered at Memphis, and be distributed thence ; other evidence was also given, in relation to the course of the mail, and the usage of the post-office at Nashville, which is needless to recite. In their charge to the jury, the court instructed them, that the usaSe a distributing office, in *conformity to law, and the author-

J ized regulations of the department, and in the discharge of the official duties of the officers employed, might properly be taken into their consideration of the question submitted to them ; which was, whether, from the usual course of the mail, and the usage as proved, the notice of the protest would necessarily reach Spring Creek post-office, or would fail to reach it, or be carried to some other office ; in the first case, the court instructed them, that the notice was served on the defendant; but in the other, the drawer was discharged, unless actual notice was served.

Several instructions were prayed by the defendant, which the view taken by the court renders it unnecessary to consider, as they relate to mattersnot material to the cause ; and if given either way, they could not affect the right of either party. One, however, deserves particular notice, which was, “ that the evidence of the notary was not sufficient proof that a’ legal notice was sent; but that he ought to have set out a copy of the notice, or stated its contents, in order that the court might judge whether it was sufficient.” The court refused to give this instruction; but stated, that it might reasonably be inferred from the nature of the notice, and from the fact that notice was given, as stated in the deposition. Exceptions were taken to the decision of the court on the questions of evidence, and the various matters given in charge to the jury.

A mercantile house, conducting operations at Memphis and New Orleans, would, in the course of their business; lend their credit in anticipation of consignments ; while they would refuse it to pay the debts due to other persons; these considerations could not escape the consideration of Dickins & Taylor, when they sought to make Wilcox & Feron their creditor, instead of Beal, by such a fraudulent abuse of the letters of credit. Had these bills come to the hands of an innocent holder, in the course of trade, with a knowledge of these letters, the case would have been different; or if the bank had negotiated them, there would have been a reasonable expectation that they would have been honored ; but Dickins & Taylor could have entertained no such expectation. The letters were, therefore, properly excluded, and the case must be considered as if they had not existed.

under some such circumstances, his. drawing without funds, property or authority, puts the transaction out of the pale of commercial usage and law; and as he can in no wise suffer by the want of notice of the dishonor of his drafts, that it is deemed an useless form. “ Notice, therefore, can amount to nothing, for his situation cannot be changed.” In a case where he has no fair pretence for drawing, there is no person on whom he can have a legal or equitable demand, in consequence of the non-payment or non-acceptance of the bill. This is the rule, as laid down by this court, in French v. Bank of Columbia, 4 Cranch 153, 164, on a very able and elaborate review of the then adjudged cases; which is fully supported by those since decided in England, and in the supreme court of New York. The case of the defendant falls clearly within the rule applicable to bills drawn without funds, or any bond fide, reasonable or just expectation of their being honored ; and notice of their dishonor was not necessary. The case requires no opinion whether notice of the dishonor of Taylor’s bill in favor of Dickins was necessary, and we forbear to express any.

The next question which arises, is, on the admission of the evidence of the postmaster at Nashville, and his deputy, in relation to the course of the mail, the usage of the office, and the facts to which they testify. Weare at a loss to perceive any plausible objection to the evidence which was received by the court, on the assumption that notice of the dishonor of the bills must be made out by the plaintiff ; which could be done in two ways. 1. That the bills had been duly protested for non-acceptance, and due and legal diligence used in giving notice thereof to the parties on the bills ; in which case, the legal presumption of its receipt in time would attach. 2. By proof that the notice actually came to hand in proper time ; though the letter containing the notice was not properly directed, or sent by the most expeditious or direct route. The fact of notice, and its reception in due time, are the only matters material to the drawer or indorser of a dishonored bill; the *»hql manner or place in which he receives *such notice is immaterial; for J all the objects to be answered by its reception, it is equally available to them. To the holder, it is immaterial, whether the evidence of notice consists in the legal presumption arising from due diligence, which supplies the place of specific evidence, and is binding on a jury as proof of the fact of its reception ; or it is established by direct evidence, or such circumstances as will in law justify them in drawing the inference. 2 Pet. 132.

It is legal diligence in the holder of a bill, if he avails himself in time of the means of communicating notice, which are thus afforded ; but he is not answerable for any defects in the outline or details of the regulation of the mails, for the route in which the letter is carried, the time which elapses, from its deposit in the office and delivery, or the mode of carrying or distributing the mails ; but it is proper, that he should give evidence of all these matters, as well to repel the imputation of laches, if the letter does not come to hand, or not in due time ; as to prove its regular delivery, if there should be any doubt as to the use of diligence, in the direction or deposit of the letter. Such evidence is uniformly received, in cases arising on the notice of dishonored bills.

The next question arises on the prayer of the defendant to instruct the jury, that proof that the bills were protested and notice thereof *put

into the post-office, was not sufficient, without producing a copy of L

the notice, or proving its contents. In Lindenberger v. Beall, the notary

testified, that notice of non-payment was inclosed in a letter, addressed to

the defendant at H., and put into the post-office at G.; he had no recollection

of these facts, and only knew them from his notarial book, and the protest

made out at the time ; from which, and his invariable practice, he presumed

he had done so. This was held sufficient proof of such notice, and that it

was unnecessary to give notice to defendant to produce it. 6 Wheat. 104,

106. In Nicholls v. Webb, the notary was dead ; but on a memorandum on

the margin of the protest, it was stated in his handwriting, “ Indorser duly

notified in writing, 19th July 1819, the last day of grace being Sunday, the

18th which was held competent proof of notice. 8 Wheat. 326, 330. In

this case, the protests were produced at the trial, and the oath of the notary

positive as to the fact of notice ; this is entirely equivalent to an entry on

his books, proved only by his handwriting, after his death, or his belief, aris-

ing from the fact of having made such entry, connected with his uniform

usage. It must, therefore, be taken as settled law, that such is sufficient

proof that the notice required by law was given.

Where the parties do not reside in the same place, diligence consists in sending notice by the, first mail of the day of protest. 2 Wheat. 273 ; 9 Pet. 45. This is all that is necessary, if the letter containing the notice is properly directed. 4 Wheat. 438. If the residence of the party appears on the bill, the notice of protest, &c., must be directed there (12 East 433); if it does not so appear, then reasonable diligence must be used in making inquiry for his residence, and a reasonable time will be allowed to give notice, after ascertaining it; this has been held in case of notice to an indorser in April, of a protest in October preceding. Wight wick Exch. 76-7.

When all the facts are ascertained, diligence is a question of law. Wightwick 76 ; 1 Pet. 583. If the evidence is doubtful or contradictory, it is for the jury to decide (7 Ibid. 290) ; but in either case, it turns on what is the usage of the place (9 Wheat. 587), the habits of men of business, the kind and mode of inquiry usually made in similar cases. 2 Burr. 669 ; 2 H. Bl. 565 ; 3 Bos. & Pul. 601 ; 20 Johns. 174. Thus, a bill drawn by persons residing in Petersburgh, Virginia, on a house in New York, and dated there, being protested ; a clerk of the notary made inquiry at the banks and elsewhere ; and on being informed that the drawers resided at Norfolk, directed one notice to them there, and put another into the post-office, in New York, directed to them there; it was held sufficient. Chapman v. Lipscombe, 1 Johns. 294, 296 ; 13 Ibid. 433 ; 16 Ibid. 220; 20 Ibid. 174. If a bill is drawn, dated “ Manchester ” (or “ London,”), without any other direction, notice of protest, directed to the drawer at Manchester, was held good, on the presumption that it would reach him, if so directed. 1 Russ. & M. 249—50. Notice directed to the residence or house of business of the party, is sufficient; the holder is not bound to show that notice is brought home, but only to employ the usual mode of conveyance ; and the rules of diligence to which he is held, ought not to be such as will tend to clog the circulation of commercial or negotiable paper, by impairing the liability of those who have put it into circulation. 1 Pet. 583; 2 Ibid. 102, 129. If an indorser lives within a reasonable distance of a post-office, notice to him, directed to him, at his residence, is good ; as, where * *a was protested at Cincinnati, the notice was directed to

-• T. D. C., Campbell county, Kentucky, though defendant lived on the south side of the Ohio, two miles from Cincinnati and Covington, and three miles from Newport, the county town; in all of which there were post-offices, and his residence was well known to the holder and postmaster. The putting the notice into the post-office, at Cincinnati, was held sufficient. 2 Pet. 549.

The clear and conclusive result of these cases is, that as between the holder and the drawer or indorser of a dishonored bill, the question of their liability depends not on actual notice, but on seasonable diligence, which is in all cases tantamount to actual notice, whether given or not. Hence, it becomes useless to examine into the instructions prayed for by the defendant at the trial, and refused by the court, in relation to the course of the mail, after leaving New Orleans, or the points submitted to the jury ; for they could in no event avail the defendant, if the jury believed the evi-