Posey v. Decatur Bank

DARGAN, J. The first question arises on the state of the pleadings. The defendants pleaded the statute of limitations of six years. The plaintiff replied the death of the testator in January, 1841 — the grant of letters testamentary to the defendants on the 25th January, 1841 — and that deducting the six months after the grant of letters to the defendants, during which they could not be sued, the cause of action has not accrued within six years previous to the issuance of the writ. — 814 — To which replication there was a demurrer, and it was overruled. This brings up the question, whether the six months, after the grant of letters testamentary, or of administration to the representatives of a decedent, shall be computed, in calculating the time necessary to the bar of six years. In the ease of Houpt v. Shields, 3 Porter, 247, it was considered as a settled question, that the six months, during which the right to sue was suspended by statute, was not to be computed in calculating the time necessary tO' form the bar. This was considered as decided by the case of Hutchison v. Tolls, 2 Porter, 44; and the Supreme Court of Mississippi has so decided on a similar statute, in the case of Dowell v. Wilcher, 2 Smede & Marshall, 452. And these decisions seem to be in conformity with reason — that if the right of action is suspended by statute for a time, that this time should be deducted, in calculating the time necessary to form the bar. 2. The next question is, whether the debt or claim, was .presented to the defendants as executors, within eighteen months. The evidence on this point is, that the bank made out a list of all claims against the defendant’s testator ; at the foot of which they were informed that the bank looked to them for payment, and the claim sued on was described in this notice, by its date, amount; and also the character that each party bore to the bill, stating that it was payable in New Orleans. This was amply sufficient. It is not' necessary to present to the executor, the piece of paper, on which the bill or note is written ; nor would it be necessary to produce the witnesses who would prove the claim, if it could be proved only by parol. All that is necessary, is to give him notice of the existence of the debt, and that the holder looks to the estate for payment. [See 10 Ala. Rep. 23; also, Boggs, adm’r, v. The Branch Bank at Mobile, 10 Ala. 970.] So it has been held, that suit brought on a claim within eighteen months, against the representative, is a sufficient presentation. [1 Porter, 359.] 3. The next question we propose to examine, is, as to the correctness of the refusal of the court to charge as requested by defendants. After the bill was accepted, but before it fell due, the bank — 815 — by resolution agreed, that under the peculiar circumstances of this case, the credit of the acceptors should not be impair* od in bank, by the' protest of the bill for non-payment; and to carry out this agreement, the bill was not sent to the batik' in New Orleans, with which they usually did business, but was sent to Martin, Pleasants & Co., who were advised of this agreement; but the defendant’s testator had no notice of it. To rebut this proof, the plaintiff offered in evidence a deed executed Uy P. F. Pearson, for whose benefit the bill was drawn, accepted and endorsed, and to whose credit the proceeds was placed, dated the 17th October, 1838, by which he conveyed to Willis Pope, as trustee, all his stock of goods, accounts, &c., to secure the defendant’s testator against all liabilities he had incurred on his account. This deed was signed by the trustee, Pope, and also by the defendant’s testator ; and by the terms thereof, the said Pope was required, in the first place, to pay all debts from the proceeds of the effects, for which Hutchings was liable, for and on account of the said Pearson; and the testimony of the trustee, Pope, shows, that it was ample to pay the debts of Pearson,- on which the defendant’s testator was liable ; and that he had, under the directions of the testator, paid $3,000, to other debts. Under this proof, the court refused to instruct the jury, that the agreement of the bank, before alluded to, discharged Hutchings as the indorser of the bill. The contract of an indorser, is, that if the bill be presented, payment demanded, and it be refused, then, on protest for non-payment and notice, he will pay. The demand of payment is a pre-requisite to his liability, (if it can be made,) and this pre-requisite must be complied within good faith. An agreement made by a bank, with the acceptor of a bill, before its maturity, that if it be not paid, his credit shall not suffer, will, and should discharge an in-dorser. The credit of an acceptor, is the security that the indorser has for the payment of the bill. To preserve his credit unimpaired, is a matter of the highest importance to a merchant; he will, and ought to use all just efforts to protect it ; but this credit is prostrated at once, if he does not meet his bills. An agreement, therefore; with an acceptor, to protect his credit, although he does not meet his bills, takes — 816 — from the indorser his highest security, that the acceptor wilf pay. This interference with the rights of an indorser, will discharge him from all liability on the bill. But the question recurs, if the acceptance be made for the mere accommodation of the drawer, and the indorser has received indemnity from the drawer, to pay this bill, will such an agreement discharge the indorser ? In the case of Stephenson v. Primrose, 8 Porter, 166, this court said, whenever an indorser receives collateral security, to protect him from his indorsement, and the security, whether it be by way of mortgage, or otherwise, is sufficient for that purpose, the maker’s default will fix the liability of the indorser, without demand being made or notice given. So in the case of Chilton v. Robbins, Painter & Co., it was decided, that a security, who was fully indemnified, could not avail himself of the defence that the creditor had given time to the debtor, without his consent, see 4 Ala. Rep. 223; to the same effect see 12 Wend. 123. And in the case of Bradford v. Hubbard, 8 Pick. 155, it was decided, that an indorser who had been fully indemnified, could not maintain an action against an accommodation acceptor. These authorities show, that an indorser who is indemnified, cannot complain, though no demand be made of the acceptor. This proposition however, has been assailed in the argument of the plaintiff’s counsel, and we are referred to the argument of chief justice Gibson, in the case of Kramer v. Sanford, 4 W. & Serg. Rep. 328. He expresses, it is true, strong dislike to the principle, that taking indemnity from the drawer, is a waiver of demand, and notice ; but yet concedes, that if money, or effects, is placed in the hands of the indorser to pay the bill, and sufficient to protect him, that there is no necessity for giving him notice. By this admission, he yields the whole question, for the authorities referred to, hold the indorser liable only when he has received full indemnity. And if he has received full indemnity for the purpose of paying the bill, we cannot see what injustice there is in holding him liable to pay it; nor will any prejudice result to him, or injury to this species of securities, from such a principle. Whenever therefore, an indorser has received full indemnity to pay a bill, he stands as an acceptor, bound — 817 — to pay the bill, whether it has been presented for payment, or not. But it is objected that the deed of trust does not specify this bill, and that it was erroneous to permit jjarol proof to show that this bill was intended to be secured, and was in fact secured, though by an improper description. This is not the law; the deed does not undertake to specify the debt with certainty, and the rule is well established, that if a mortgage is made to secure a debt, and the debt be improperly described in the mortgage deed, yet as between the parties to it, the actual debt may be shown, and the mortgage will be held as a security for it. [Duval’s Heirs v. McLoskey, 1 Ala. Rep. 708.] The court therefore did not err in permitting the witness to testify, that this bill was secured by the deed of trust, nor was it error, under all the evidence, to refuse the charge requested, as the testimony tended to show, that the testator had ample indemnity. 4. The next, and last question we shall notice, is, Vvas it necessary before the suit Was brought, to make the affidavit, required by the statute of 1828 ? The proof on this point is, that the bill after protest, was remitted back to the bank, with the protest. It was drawn in sets, first and second. The first only was accepted, and protested, and the cashier of the bank, thinks it was handed to' the attorneys of the bank, Rice & Lindsay, for suit; and it appears they gave their receipt for it; but they have no knowledge of it, nor are they able to state what has become of it — from this the cashier infers it was lost. Search has been’ made for it, at every place where it would be likely to be found. On this proof; the plaintiff proceeded to read the second of exchange, and to give secondary evidence of the protest of the first' — the protest being lost with the first set. To the admission of this proof, the defendants objected, but the objection was overruled. The statute of 1828, (Clay’s Dig. 382) is in the following language : “ That when any person may have, or own, or may have had, or owned, any bond, bill, note, agreement, or other instrument in writing, the right, or title to the same, remaining in him, her or them, and the same shall be, or shall have been destroyed, by fire, or lost by accident, such person, or persons, shall be authorized, upon first making — 818 — oath in writing, of the loss of such bond, bill, note, agreement, or other instrument, and that the same has not been paid, satisfied, or otherwise discharged, to sue for, and recover the same, at common law.” This statute has received a construction, from which we cannot depart. In the case of the Bank of Mobile v. Tillman, it was decided at the last term, that this statute was cumulative merely; that a plaintiff, notwithstanding this statute, might sue at common law, without making the affidavit, in all cases where he could have sued at common law, before the statute; but if he would sue on any lost instrument at law, since the statute, upon which he could not sue at common law because of the loss, he must first make the affidavit prescribed. It is then necessary to ascertain, if the plaintiffs could have maintained their suit on the evidence, before the passage of this act. If they could, then by the construction given to this act, it may now be done. It was for a long time an unsettled question in England, whether a suit at law could be maintained on a lost note, or bill, that could be passed from hand to hand by delivery, and on which any holder might sue. But in the case of Hansard v. Robinson, 7 B. & C. Rep. 20, Lord Tenterden, after a thorough examination of the question, determined against the right to sue at law, and from that time, the question seems to be settled in England, and the decision in this case has been adopted by the text writers as unexceptionable. [See Chitty on Bills, 297; Story on Bills, —.] And these authorities say, it is not material whether the bill was due, or not, at the time of the loss. The same question arose in 3 Cow. 303, and the same rule was maintained, and the court say, that a suit at law, cannot be maintained on a lost note, that is transferable by delivery, and that the only remedy is in equity, and that the rule is the same, whether it lost before, or after due. Mr. Greenleaf, in his treatise on Evidence, vol. 2, 131, adopts the same rule. I have looked into the authorities, with some wish, to find the rule established to the contrary, but I think I am forced to pronounce, from the weight of authorities, both in England and the United States, that a suit cannot be maintained at law, on a lost bill, or note, that will — 819 — pass by delivery, whether lost before, or after due. The statute, then, not having been complied with, the suit cannot be maintained, for the want of the oath prescribed. The defendant’s counsel, however, has attempted to draw a distinction in this case; he says that the whole bill has not been lost, but only the accepted, and protested part, or set; and that a suit at law can be maintained on the second set, or part which has not been accepted, or protested, on proof of the loss of the accepted part. I have examined the authorities referred to, and they do not bear out the distinction. In 1st Johnson’s Cases, 107, although the court say, that the plaintiff was not bound to transmit the accepted set, but might retain it, to proceed against the acceptor, and at the same time proceed against the indorser. It will be seen, that the question arose merely on a question of notice, and the accepted set was remitted back, before the trial, and was produced. (The head note of that case is incorrect.) And in the case of Wells v. Whitehead, 15 Wend. 528, Nelson, J., reviewed the authorities on this question, and his conclusion is, that the acceptor can require the production of the accepted set, before a recovery can be had against him. So it is said by Chitty on Bills, 175, 9th edition, that if the holder present an unaccepted part of a bill, and suggests that he has lost the accepted part, that the acceptor may require of him, caution, or security against his liability to pay the accepted part. From this it appears, that if the accepted part is lost, that an acceptor may demand security, before he is bound to pay. If the acceptor can demand security, before he is compelled by law to pay, that right of the acceptor is inconsistent with an immediate right of action on the part of the holder; for if the holder could sue at law immediately, without regard to this right of the acceptor, then would the acceptor be bound to pay, without caution, or security. We are therefore brought to the conclusion, that the court erred in admitting the secondary evidence of the bill, and protest, and the judgment is reversed, and the cause remanded. It may be, that the bill will be found, or the testimony may establish the destruction of the bill, in either of which events, the affidavit would be unnecessary.