There is no cause of action against the drawer of a protested
bill of exchange, acting as the consul general of France and where
the bill purports to be a contract on the part of the
government.
This was an action brought originally in the Supreme Court by
John Coffin Jones, a citizen of Massachusetts, as endorsee of James
Swan, against the defendant, the Consul General of the French
Republic, as drawer of a number of protested bills of exchange (for
the aggregate amount of 385,964 livres turnois, 3 sols, 8 den.,
equal to $70,052.46) corresponding with the following form:
[omission]
Page 3 U. S. 385
At the opening of the term Dallas and Du Ponceau had obtained a
rule that the plaintiff show his cause of action, and why the
defendant should not be discharged on filing a common appearance,
and now Ingersoll and E. Tilghman showed cause, produced the bills
of exchange, and the plaintiff's positive affidavit of a subsisting
debt, including a declaration
"that he was induced, principally, to purchase the bills, in
consideration of the character and private fortune of the
defendant, and that without the fullest confidence in the personal
credit and responsibility of the defendant, he verily believed he
would not have purchased them."
They then contended that the positive affidavit was sufficient
in this Court for holding the defendant to bail; that it was not
incumbent on them to show to whose use the money was applied, since
it was paid to the defendant; that when a consul acts as a merchant
and draws bills for cash advanced, he is not entitled to any
privilege; that the defendant must prove that he had a right to
draw the bills as consul; that even if he had the right to draw, he
might pledge his private credit in aid of his official function;
and that the critical situation of the French Republic raises a
presumption that the reliance was placed on the private credit of
the defendant. The cases heretofore decided in the English courts
are perfectly distinguishable from the present case. 1 T. 174. They
occurred between parties belonging to the same government, and
there was no proof of credit being given to the individual. In
support of these positions were cited 2 H.Bl. 554; Vatt. b. 4. c, 6
s. 74, p. 139, s. 114; 2 Dall. 247. 2 Stra. 955.
The counsel for the defendant were stopped when they rose to
reply, and the Court was unanimously and clearly of opinion that
the contract was made on account of the government, that the credit
was given to it as an official engagement, and that therefore there
was no cause of action against the present defendant.
The rule was accordingly made absolute, and the plaintiff soon
afterwards discontinued the action.
