Dickins v. Beal,
35 U.S. 572 (1836)

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U.S. Supreme Court

Dickins v. Beal, 35 U.S. 10 Pet. 572 572 (1836)

Dickins v. Beal

35 U.S. (10 Pet.) 572


Bills of exchange were drawn and dated at Hazelwood, Madison County, Tennessee, by D. and T., on W. and F. at New Orleans, the drawers having no funds in the hands of the drawers or authority from them to draw such bills. W. and F. had written to the cashier of the Branch Bank of the United States at Nashville informing him that D. and T. were authorized to make negotiations, by bills on them, with the bank, and that such bills would be honored, but the bills on which this suit was instituted by the holder and endorser,

residing in New Orleans, were not negotiated with the bank. The bills were refused acceptance by W. and F.; were protested for nonacceptance on the same day, and notice of the same was given by the notary to the drawers and endorser by letters put into the post office, addressed to them at Hazelwood, Madison County, Tennessee, the notary, as was testified, not knowing of any other residence of the parties than that designated in the caption of the bill, and that he made inquiry for further information of persons likely to know. Evidence was given to show that letters from New Orleans for Hazelwood, in Madison County, West Tennessee, were sent to Nashville, and that from that

post office they were sent to Spring Creek Post Office. That D., the drawer of the bills and the endorser of the other, was the postmaster at Spring Creek, Madison County, Tennessee. Hazelwood was near Spring Creek Post Office. It was also testified that letters from New Orleans, for the Western District of Tennessee, came to Nashville for distribution unless there was a river mail, in which case they would be delivered at Memphis and be distributed thence. The letters of W. and F. to the cashier of the Branch Bank of the United States at Nashville were offered in evidence by the drawers of the bills to show that

they were entitled to regular notice of the protest of the bills. It was held that the circuit court properly rejected this evidence, as the letters did not apply to and had no connection with the bills which were the subject of this suit.

An established exception to the general rule that notice of the dishonor of a bill must be given to the drawer is where he has no funds in the hands of the drawee, but of this exception there are some modifications. If the drawer has made or is making a consignment to the drawee, and draws before the consignment comes to hand. If the goods are in transitu, but the bill of lading is omitted to be sent to the consignee or the goods were lost. If the drawer has any funds or property in the hands of the drawee, or there is a fluctuating balance between them in the course of their transactions, or a reasonable expectation that the bill would be paid. Or if the drawee has been in the habit of accepting the bills of the drawer without regard to the state of their accounts, this would be deemed equivalent to effects. Or if there was a running account between them. In all such cases, the drawer is considered as justified in drawing, so far as his having a right to draw, that

"the transaction cannot be denominated a fraud, for in such case it is a fair commercial transaction in which the drawer has a reasonable expectation that his bill will be honored, and he is entitled to the same notice as a drawer with funds, or authority to draw without funds."

But unless he draws under some such circumstances, his drawing without funds,

Page 35 U. S. 573

property or authority puts the transaction out of the pale of commercial usage and law, and as he can in no wise suffer by the want of notice of the dishonor of his drafts, that it is deemed an useless form.

Notice of the dishonor of bills of exchange must be made out in two ways: 1, that the bills had been duly protested for nonacceptance, and due and legal diligence used in giving notice thereof to the parties on the bills, in which case the legal presumption of its receipt in time would attach; 2, by proof that the notice actually came to hand in proper time, though the letter containing the notice was not properly directed or sent by the most expeditious or direct

route. The facts of notice and its reception in due time are the only matters material to the drawer or endorser of a dishonored bill; the manner or place in which they receive such notice is immaterial; for all the objects to be answered by its reception, it is equally available to them. To the bolder it is immaterial whether the evidence of notice consists in the legal presumption arising from due diligence, which supplies the place of specific evidence and is binding on a jury as proof of the fact of its reception, or it is established by direct evidence or such circumstance as will in law justify them in drawing the inference.

Since the case of Buckner v. Findley & Van Lear, 2 Pet. 589, 27 U. S. 591, decided on great consideration, it has been the established doctrine of this Court that a bill of exchange drawn on one of the states of this Union on a person in another, is a foreign bill, and to be treated as such, and that in this respect they are to be considered as states foreign to each other, though they are otherwise as to all the purposes of their federal Constitution. Among these purposes are the establishment of post offices and post roads. The usage of the officers employed in the various details of the operations of the department, when acting within the line of their duty as prescribed by law and regulations, becomes all-important to a court and jury in deciding on what is legal diligence in giving notice or what is evidence of its reception.

It is legal diligence in the holder of a bill if he avails himself in time of the means of communicating notice which are thus afforded, but he is not answerable for any defects in the outlines or details of the regulation of the mails, for the route in which the letter is carried, the time which elapses from its deposit in the office and delivery, or the mode of carrying or distributing the mails; but it is proper that he should give evidence of all these matters, as well to repel the imputation of laches if the letter does not come to hand or not in due time as to prove its regular delivery if there should be any doubt as to the use of diligence in the direction or deposit of the letter. Such evidence is uniformly received in cases arising on the notice of dishonored bills.

It is sufficient proof that bills of exchange were protested for nonacceptance or nonpayment if the notary testifies he put notice thereof into the post office, without producing a copy of the notice or proving its contents.

What will be considered as due diligence in giving notice of the dishonor of a bill of exchange as between the holder and the drawer or endorsee of a dishonored bill. The question of their liability depends not on actual notice, but on reasonable diligence, which is in all cases tantamount to actual notice, whether given or not.

As the bills on which this suit was brought were foreign bills, the protests produced at the trial were in themselves evidence of the demand and protest. The oath of the notary that he put the notice into the post office on the day of protest is competent and sufficient in law to prove the fact.

Page 35 U. S. 574

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