Barnwell v. Mitchell

Hosmsr, Ch. J. The hill of exchange, in this case, has been denominated an accommodation bill; but on this point the facts have been misconceived. The defendant had funds in the hands of Osborn & Reynolds, and drew on them in favour of the plaintiffs. This is the whole transaction, as relative to the question, whether the drawees were in the nature of sureties for the drawer. Then, viewing the bill as a common mercantile draft, accepted, and not paid, the only obligation, in any event, resting on Osborn & Reynolds, was to pay the holder the sum for which it was drawn ; and any interest that should accrue. This, by the acceptance of the bill, they have expressly contracted to do to the payees; and by construction of law, to the drawer, should he be obliged to take it up; but the measure of damages, in both cases, is equal. Staples v. Okines, 1 Esp. 332. Simmonds v. Parminter & al. 1 Wils. 185. Simpson v. Griffin, 9 Johns. Rep. 131. It was the fault, or misfortune of the drawer, in permitting himself to be subjected to costs; and he has no contract of indemnity, on the part of Osborn & Reynolds, to which he can resort. Were the facts so, that he, in one event, would be obliged to pay the debt only, and in another, the debt and costs, it would be his interest, most unquestionably, to exonerate himself from the greater sum. The cases of Ilderton v. Atkinson, 7 Term Rep. 476. and Birt & al. v. Kershaw, 2 East. 458. have been considered as establishing a different principle; but they have been overruled, by the recent case of Townend & al. v. Downing, 14 East, 565. And how this could have ever become a question, after 'the numerous decisions, which have determined, (what the common sense of every person of sound mind is equal to) that liability to the costs of an action, is an immediate interest, it is difficult to conceive. Vansant v. Boileau & al. 1 Binn. Rep. 444. Ball v. Bostock, 1 Stra. 575. Cheek v. Roper, 5 Esp. Rep. 174. The King v. The Governors &c. of the poor of St. [106] Mary Magdalen, &c. 3 East, 7. Butler v. Warren, 11 Johns. Rep. 57. Owen v. Mann, 2 Day, 403. Trelawney v. Thomas, 1 H. Bla. Rep. 506. The interest of Osborn was equally balanced; and the court werecorrectin receiving his testimony. Whether due notice of non-payment was given, is a question of great importance to the mercantile world. It strikes at the root of bills of exchange. If courts will indulge a lax- ■ ity of practise on this subject, and by means of it, the drawers of bills are rendered less secure, this species of commercial currency must be.partially affected. The payees were bound to use due diligence. They had every inducement to make enquiry relative to the drawer’s residence ; as the various notices, sent in different directions, abundantly testify. His place of abode, it is said, was publicly known; by which I understand, that it was known by many in the city of New-York, where the enquiry must necessarily have been made. Now, in the midst of light, surrounded by persons who could give the requisite information, the plaintiffs thought proper to fold •their arms in silence, and send their notices in such directions, as that they could not reasonably anticipate they would ever be received. This is not due diligence. It is no sufficient reply, that they did not know from whom the desired information might be obtained. They had reasonable grounds to believe, that the master of the vessel, navigated from New-York, whose draft Osborn Reynolds had accepted, was known by them, and by other persons in the place. The case of Chapman v. Lipscombe & al. 1 Johns. Rep. 294. is no authority for the plaintiffs. The holder of the bill was ignorant of the defendants’ place of residence, and “ made diligent enquiry after them, at the banks in New-York, and elsewhere, and the information was, that they resided at Norfolk.''’ Pursuant to the information acquired, a notice was sent, and, with certain correctness, it was held sufficient. The other Jndges were of the same opinion. New trial not to be granted*