Alexander Dennistoun, John Dennistoun, William Craig Mylne, and William Wood, Partners Under the Style of Dennistoun and Company, Plaintiffs In Error v. Roger Stewart

• Decision Date: 01 December 1854
• Citation: 15 L.Ed. 228,17 How. 606,58 U.S. 606
• Parties: ALEXANDER DENNISTOUN, JOHN DENNISTOUN, WILLIAM CRAIG MYLNE, AND WILLIAM WOOD, PARTNERS, UNDER THE STYLE OF A. DENNISTOUN AND COMPANY, PLAINTIFFS IN ERROR, v. ROGER STEWART
• Court: U.S. Supreme Court

58 U.S. 606

17 How. 606

15 L.Ed. 228

ALEXANDER DENNISTOUN, JOHN DENNISTOUN, WILLIAM CRAIG

MYLNE, AND WILLIAM WOOD, PARTNERS, UNDER THE STYLE OF

A. DENNISTOUN AND COMPANY, PLAINTIFFS IN ERROR,

v. ROGER STEWART.

December Term, 1854

THIS case was brought up, by writ of error, from the circuit court of the United States for the southern district of Alabama.

The case is stated in the opinion of the court.

It was argued by Mr. Phillips, for the plaintiffs in error, no counsel appearing for the defendant.

Mr. Justice GRIER delivered the opinion of the court.

The plaintiffs declared against the defendant, as drawer of a bill of exchange, by the name and style of James Reid and Co., of which the following is a copy:——

'No. ___. 4,417 14s. 11d. st'g.

Mobile, Sept. 9, 1850.

'Sixty days after sight of this first of exchange, (second and third unpaid,) pay to the order of ourselves, in London, forty-four hundred and seventeen pounds, 14s. 11d. st'g, value received,

and charge the same to account of 1,058 bales cottom per 'Windsor Castle.'

'Your obedient servants,

'Pr. pro JAMES REID AND CO.,

'WM. MOULT, JR.

'To HY. GORE BOOTH, ESQ., Liverpool.

'Acceptance across the face of the bill.

'Seventh October, 1850. Accepted for two thousand five hundred and seventy-one pounds eighteen shillings and seven pence, being balance unaccepted for acpt. 1,058 bf. cotton, pr. Windsor Castle, payable at Glyn and Co.

'Pr. pro HENRY GORE BOOTH,

'AND. E. BYRNE.

'Due 9 Decem.

'Indorsed:

'Pay Messrs. A. Dennistoun and Co., or order,

'Pr. pro JAMES REID AND CO.,

'WM. MOULT, JR.'

After reading this bill, with its indorsements, the plaintiff offered in evidence a regular protest; indorsed on a copy of a bill agreeing in every particular with the above, except that for 'And. E. Byrne' was written 'Chas. Byrne.'

The defendant objected to the reading of the protest in evidence, because it did not describe the bill of exchange produced by the plaintiffs, but a different bill. The court sustained this objection, and excluded the protest from the jury, which is the subject of the first bill of exceptions.

A protest is necessary by the custom of merchants in case of a foreign bill, in order to charge the drawer. It is defined to be in form 'a solemn declaration written by the notary under a fair copy of the bill, stating that the payment or acceptance has been demanded and refused, the reason, if any, assigned, and that the bill is, therefore, protested.'

A copy of the bill, it is said, should be prefixed to all protests, with the indorsements transcribed verbatim. 1 Pardess. 444; Chitty on Bills, 458.

However stringent the law concerning mercantile paper, with regard to protest, demand, and notice, may appear, it is nevertheless founded on reason and the necessities of trade. It exacts nothing harsh, unjust, or unreasonable. A protest, though necessary, need only be noted on the day on which payment was refused. It may be drawn and completed at any time before the commencement of the suit, or even before the trial, and consequently may be amended according to the truth, if any mistake has been made.

The copy of the bill is connected with the instrument certifying the formal demand by the public officer, as the easiest and best mode of identifying it with the original. Mercantile paper is generally brief, and without the verbiage which extends and enlarges more formal legal instruments. Hence, it is much easier to give a literal copy of...