Cowles v. Harts

Hosmer, Ch. J. 1. The rejection of BidweWs testimony, on the ground of a supposed interest in the event of the suit, was, manifestly, incorrect. [522] The indorsement is prima facie evidence of its having been made for full value. Riddle v. Mandeville, 5 Cranch, 332. And the indorser is liable, if the money be not paid, and due diligence has been used. But this rule is applicable only to those cases, where the presumption of liability is not repelled, by the express contract of the parties. When a bill is indorsed, like the present, “ without recourse,” the indorsement contains a contract, that the indorser shall not be liable in any event; and the payee receives it, on this explicit understanding, that he is never to call on the indorser for payment. The only effect of such indorsement, is, to transfer the bill without warranty ; and it is merely equivalent to a release of the property. To support the indorsee’s title, the indorser is a competent witness, as he has entirely divested himself of all interest in the event. The general principle is too firmly established to require the citation of cases ; and the indorsee of a bill “ at his risk,” or with an expression that “ the indorsee is not to be holden,” or “ without recourse,” has been adjudged to be without right of iecovery, in any event, against the indorser. Rice v. Stearnes & al. 3 Mass. Rep. 225. Parker v. Hanson, 7 Mass. Rep. 470. Welch v. Lindo, 7 Cranch, 159. Barker v. Prentiss, 6 Mass. Rep. 430. The reason of the determination is invincible. The contract, which otherwise would be implied, is repelled, by an express engagement; and all liability is thus excluded, by an explicit provision. Had Bidwell fraudulently misrepresented the condition of the bill, an interest in behalf of the plaintiff might have been fixed upon him ; but on this subject the motion is silent, and fraud is never to be presumed. 2. The judgment admitted in evidence by the judge, was legally incompetent. First, it was not between parties or privies. On a subject so trite, I will confine myself to the citation of the cases, which have been determined by this court. Ryer v. Atwater, 4 Day, 433. Sturges v. Beach, 1 Conn. Rep. 509. Sécondly, the record has no relevancy to the case now in question ; and “ to make a record evidence to conclude any matter, it should appear, that the matter was in issue, which should appear from the record itself, nor should evidence be admitted, that under such a record, any particular matter came in question.” Sintzenick v. Lucas, 1 Esp. Rep. 43. [523] Manny v. Harris, 2 Johns. Rep. 24. Church v. Leavenworth, 4 Day, 274. Ryer v. Atwater, 4 Day, 431. 3. The charge to the jury, requiring the notice to contain certain information, that the holders looked to the defendants for payment, cannot be supported. From the nature of the transaction, a notice implies, that the holder means to insist on the liability of the person notified, and not to give credit to the acceptor of the bill; and it is universally understood to be equivalent to a demand of payment. Chitt. Bills, 234. 239. If this is not the language of the transaction, why is such a notice ever transmitted ? The drawer, or indorser of a bill, who receives due notice of its dishonour, from any party to it, is held liable to a subsequent indorsee, from whom no notice had been received, because it “ serves all the purposes for which notice was required.” Jameson & al. v. Swinton, 2 Campb. 373. And yet the subsequent indorsee, in the case supposed, whose claim is preserved, by the notice of another person, has given no intimation, that he looked to him for payment ! I would advise a new trial. Peters, J. concurred, except as to the direction to the jury, which was conformable to the rule in Tindall v. Brown, and was rendered proper, by the circumstances of the case. Chapman, Brainard, and Bristol, Js., concurred with the Chief Justice, on all the pbints. New trial to be granted.