Henderson v. Pope

Warner, J. .This was an action by the plaintiff in the Court below against the defendant as indorser upon the following described written paper : “ Atlanta, Geo., August 4th, 1866. Georgia National Banlc of Atlanta, Geo. Ninety days after date pay to F. R. Bell, or order, one thousand dollars. Signed Massey & ITerty.” The paper was endorsed by F. R. Bell and John D. Pope, the defendant. The paper was protested for non-payment on the 2d day of November, 1866, and the question in the ease is, whether the paper sued on is, in law, an inland bill of exchange, and therefore entitled to the days of grace allowed by law on paper of that description before protest for the non-payment thereof. According to the legal definition of a bill of exchange, the paper set forth in the record comes fully within that definition, and as such was entitled to the days of grace allowed by law before being protested for non-payment. A bill of exchange, as defined by Blackstone, “ is an open letter of request from one man to another, desiring him to pay a sum named therein to a third person on his account.” 2d Bl. Com., 466. In the case of Harker vs. Anderson, (21st Wendell’s Rep., 372,) the authorities bearing on the question whether a check is a bill of exchange, were elaborately examined and reviewed by Mr. Justice Cowen. Chancellor Kent defines a bill of exchange to be “ a written order, or request, by one person to another, for the payment of money absolutely and at all events.” 3d Kent’s Com., 74. A check, he says, partakes more of the character of a bill of exchange than of a promissory note. It is in form and effect a hill of exchange. Ibid, 75. When a bill is payable at a certain time after date or sight, or after demand, it is not payable at the precise time mentioned in the bill, days of grace being allowed, but in the case of bills payable on demand, no such days are allowed: Chitty on Bills, 263. The 2749th section of the Revised Code declares that “bills, notes, or other paper, payable on demand, are due immediately. [364] When no time is specified for the payment of a bill, or order, it is due as soon as presented and accepted.” The 2742d section of the Code declares that “ three days generally known as days of grace, and by custom allowed on papers payable at banks or brokers’ offices, shall not be allowed upon any bill or draft payable at sight.” A bill, check, or draft, drawn upon a bank, payable at sight, is not entitled to the days of grace, under this provision of the Code, and it would seem that bills, notes, checks and drafts, payable on demand at a banh, would come within the reason of the rule prescribed for paper payable at sight, as such paper is made due immediately by the 2749th section of the Code. In our judgment, the paper sued on in this case is a bill of exchange, and not being payable either at sight or on demand, was entitled to the three days of grace before being protested for non-payment. Let the judgment of the Court below be affirmed by the unanimous judgment of this Court upon this branch of the case. When this case was called upon the docket, a motion was made to dismiss it for want of jurisdiction. Upon that question this Court are not unanimous, the majority of the Court being of the opinion the motion to dismiss should be overruled. The 340th section of the Code declares that “ when from any cause the Judge of the Superior Court is disqualified from presiding he shall procure the services of a J udge of another circuit to try said cause, if he has to appoint an adjourned term for that purpose. If the parties litigant consent thereto, and select any attorney practicing in the Court, to preside in such a case, the Judge shall have such consent entered on the minutes, and the attorney so selected shall exercise all the fimetions of a Judge in that case.” The defendant in this case was a Judge of the Superior Court, duly commissioned and qualified as such, according to the Constitution and laws of the State, and was in the discharge of, and performing the duties and functions of such Judge in holding the Superior Court of Fulton county, in which Court this suit was instituted by plaintiff against the defendant. It is a fundamental principle of the law that no man can be a judge in his own ease. This is a case in which the [365] Judge of the Superior Court of Fulton county was a party, and therefore disqualified from presiding on the trial thereof in that Court. In all such cases the Code makes provision for an attorney of the Court practicing therein, the parties litigant consenting thereto, to preside therein on the trial thereof, and for that purpose only, invests such attorney with all the functions of a Judge in that case. But it is contended that the Court which tried this case, and certified the bill of exceptions to this Court, was not the Superior Court, as contemplated by the second section of the fifth article of the State Constitution, which confers jurisdiction upon this Court to correct errors from the Superior Courts. The Court in which this case was tried was organized and being held as a Superior Court in accordance with the Constitution and laws of the State, and by the proper officer appointed and commissioned by the Governor for that purpose. When this case was called upon the docket of that Court the presiding Judge was a party defendant thereto. Being disqualified from presiding on the trial thereof, he left the bench, and a practicing attorney of the Court was selected to preside on the trial of that case — the Superior Court, which had been duly organized by the proper officers, being in open session. It cannot be questioned, that when the presiding Judge, (who is the party defendant in this case) left the bench, the Superior Court of Fulton County was in legal session as a Court; nor can it be questioned, that when the presiding Judge resumed his seat upon the bench, after the trial of this case, the Superior Court of Fulton county was in legal session as a Court. The simple truth is, that this section of the Code does not conflict with any provision of the State Constitution, either as it regards the appointment of judicial officers, or in regard to the jurisdiction of this Court for the correction of errors from the Superior Courts, notwithstanding the circumlocution of argument, assumptions and plausible reasons which have been or may be offered to the contrary. The General Assembly had the power to make all laws and ordinances consistent with the State Constitution, and [366] not repugnant to the Constitution of the United States, which they might deem necessary and proper for the welfare of the State. The Code provides for the selection of a practicing attorney of the Court to preside in the Superior Court in cases in which the presiding Judge of that Court is disqualified by law, and the attorney so selected shall exercise all the junctions of Judge in that ease. The selected attorney is not clothed with general powers to act as a Judge in all cases, as contemplated by the Constitution, but is simply clothed with the functions of a Judge to try a special case in the Superior Court, in which the Judge, who holds his office under the Constitution, is disqualified from trying. Is there anything in this provision of the Code inconsistent with either the letter or spirit of the State Constitution ? The attorney selected is not a Judge of the Superior Court as contemplated by the Constitution, but simply performs the functions of a Judge in the Superior Court in a special case, in which the constitutional Judge is disqualified from trying in that Court, and his judgment in that special case is the judgment of the Superior Court, and this Court has jurisdiction to correct the errors of the Superior Court. In Taylor vs. Smith, 4th Ga. Rep., 133, this Court held that the Act of 1801, which provided that three or more of the Justices of the Inferior Court should preside at the trial of cases in which the Judges of the Superior Courts were parties or interested, to be constitutional. It is true the reason given for the decision in that case was that the Constitution vested the judicial powers of this State in the Supreme, Superior, Inferior, and Justices Courts, and such other Courts as the Legislature shall from time to time ordain and establish, but it does not follow that that was the only reason that might have been given for sustaining the constitutionality of the Act in that case. Besides, the Act of 1801 did not clothe the Justices of the Inferior Court with all the functions of a Judge in that case,” as the Code now does. The case of Taylor vs. Smith is however a precedent for sustaining the jurisdiction of this Court in the case now before us, for in that case the writ of error was considered and adjudicated, and the judgment of [367] the Court below was affirmed. The judgment of the Court in that case (no matter what reasons were given for it) sustained the wu’it of error to the Court below from this Court, and is therefore a decision of this Court upon the question of jurisdiction, when the Superior Court was held by three Justices of the Inferior Court presiding therein, in a case in which the Judge of the Superior Court was a party. This Court must have considered that the Court in which the three Justices of the Inferior Court presided was the Superior Court, otherwise they would not have heard the cause and rendered a verdict therein. In the case of Walton vs. Bethune, 37th Ga. Rep., 319, this Court held jurisdiction of a case, decided by an attorney, in which the Judge of the Superior Court was interested, as provided by the 240th section of the Code, and affirmed the judgment of the Court below in that case upon a writ of error to the decision of a pro hoc vice Judge. See the case of Vischer vs. The Talbotton R. R. Co., 34 Ga. Rep., 536. For the reasons given, I am of the opinion that his Court has jurisdiction to hear and determine the writ of error to the Court below in this case.