Campbell v. Pettengill

Weston J. delivered the opinion of the Court in Cumberland, at the adjournment of May term in August following. In the case of Bickerdike v. Bollman, 1 D. & E. 405, it was laid down by the court, that where the drawer has no effects in the hands of the drawee, no notice is necessary. In Blackham v. Doren, 2 Campb. 503, Lord Ellenborough lamented that this exception to the general rule requiring notice, had ever been established. The same-regret had been before expressed by Eyre C. J. in Walwyn v. St. [128] Quintin, 1 Bos. & Pul. 654, and by Lord Alvanley in Clagg v. Cotton, 3 Bos. & Pul. 241. And in Claridge v. Dalton, 4 Maule & Selwyn, 226, Le Blanc J. says “ every new case makes one regret that the rule in Bickerdike v. Bollman, for dispensing with notice, was ever introduced.” The courts in England have frequently refused to extend the principle of that case, and it has been limited and qualified by subsequent decisions. Thus where the drawer has effects when the bill is drawn, but none at the time of its dishonor ; -or where there is a running account, and a fluctuating balance ; or ■a bona fide expectation of assets ; where he has no assets at the time of drawing, but has assets before the bill becomes due, notice is necessary. Orr v. Maginnis, 7 East, 359; Brown v. Massey, 15 East, 221; Rucker v. Hiller, 16 East, 43; Thackray v. Blackett, 3 Campb. 164. In Claridge v. Dalton, Lord Ellenborough says “ even where there are not any funds, if the bill be drawn under such circumstances, as may induce the drawer to entertain a reasonable expectation, that the bill will be accepted and paid, the person so drawing is entitled to notice.” And in the same case, Le Blanc J. remarks, “ I perfectly agree that it is not necessary that the drawer should have effects or money in the hands of the drawee, either at the time when the bill is drawn, or when it becomes due. For if the bill be drawn in the fair and reasonable expectation, that in the ordinary course of mercantile transactions it will be accepted or paid when due, the case does not range itself under that class of cases, of which Bickerdike v. Bollman is the first.” There is certainly ground to contend that the defendants had reasonable expectations that their order would be accepted, of which its actual acceptance, and partial payment, might be regarded as evidence. But we do not place the decision of the cause upon this point. The plaintiff, the payee and holder of the bill, might have required an absolute acceptance, without which- he might have treated the bill as dishonored ; but having received a special and conditional acceptance, he must abide by its terms. Parker v. Gordon, 7 East, 387 ; Gammon v. Schmoll, 5 Taunton, 344 ; Sebag v. Abit [129] bol, 5 Maule & Selw. 462. It does not appear that there has been any failure, on the part of the acceptor, to pay according to the terms of the acceptance. He was to pay, when in funds of the Pe-nobsfiot boom corporation. He had no cash funds at the time, but he had demands which were good and available, and subject to his control as treasurer. But these, until collected, were not funds, within the meaning of the acceptance. He has paid one half the bill; and is holden to pay the residue, when in funds. Under these circumstances, independent of the objection arising from the want of notice, it cannot be pretended that there is any legal ground to charge the drawers, until there has been a violation of the terms of the acceptance. No evidence to this effect has been adduced; but the testimony was, that up to the time of trial, the acceptor had no funds of the boom corporation, with which to pay the bill. Upon this ground we are satisfied that the verdict is right. The exceptions •are accordingly overruled; and there must be Judgment for the defendants»