Alexander Dennistoun, John Dennistoun, William Myline, and William Wood, Partners Under the Style of Dennistoun and Co Plaintiffs v. Roger Stewart

• Decision Date: 01 December 1855
• Citation: 59 U.S. 565,15 L.Ed. 489,18 How. 565
• Parties: ALEXANDER DENNISTOUN, JOHN DENNISTOUN, WILLIAM MYLINE, AND WILLIAM WOOD, PARTNERS, UNDER THE STYLE OF A. DENNISTOUN AND CO., PLAINTIFFS, v. ROGER STEWART
• Court: U.S. Supreme Court

59 U.S. 565

18 How. 565

15 L.Ed. 489

ALEXANDER DENNISTOUN, JOHN DENNISTOUN, WILLIAM

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

A. DENNISTOUN AND CO., PLAINTIFFS,

v. ROGER STEWART.

December Term, 1855

The case was before the court at the preceding term, and is reported in 17 How. 606.

The certificate of division commenced as follows, namely:——

Certificate of Division of Opinion.

CIRCUIT COURT OF THE U. S., Southern Dist. of Ala.

A. DENNISTOUN AND CO. }

v. }

JAMES REID AND CO. }

Upon the trial of this cause in the circuit court aforesaid, the defendant, among other defences to the case of the plaintiffs, insisted that the plaintiffs had surrendered, to one Byrne, a bill of lading for ten hundred and fifty-eight bales of cotton on The Windsor Castle, whereby the said Byrne was enabled to dispose of the said cotton, and apply the proceeds otherwise than for the payment of the bill upon which this suit was brought, against the rights and interests of the said defendant, whereby he was injured to the whole amount of the bill. And upon the point of this defence the depositions of Joseph Bramwell, Robert Barrett, Robert Winthrop, A. E. Byrne, Orlando Jones, Andrew Stewart, Charles Livingston, Moses Joynson, T. D. Anderson, and Wm. Moreland, which are hereunto attached, were read to the jury, and formed the testimony relied on by the parties in reference to such defence. And upon the instructions proper to be given to the jury upon the said defence, the following questions arose, and upon which the members of the court were opposed and divided in opinion:——

(Then followed the questions as they are stated in the opinion of the court.)

The case was argued by Mr. Phillips, for the plaintiffs, and submitted on a printed argument by Mr. Stewart, for himself.

Mr. Justice DANIEL delivered the opinion of the court.

This cause comes before us upon a certificate of division in opinion between the judges of the circuit court of the United States for the 5th circuit and southern district of Alabama.

The evidence before the circuit court on which the division in opinion arose was of the following character:——

The defendant, on the 9th day of September, 1850, at Mobile, in the names of James Reid and Co., of which firm the defendant was a member, drew a bill on Henry Goa Booth, at Liverpool, for the sum of forty-four hundred and seventeen pounds fourteen shillings and eleven pence sterling, payable at sixty days sight, to the order of the drawers in London, on account of 1,058 bales of cotton, shipped by the drawers to the drawee by the ship Windsor Castle.

This bill was indorsed by the defendant, by the name and style of his firm, to the plaintiffs, and, after acceptance, having been returned protested for non-payment, an action of assumpsit was brought for the amount of the bill and charges by the indorsees against the defendant as drawer.

Upon the trial before the circuit court there were introduced and read the testimony of sundry witnesses, examined on the part both of the plaintiffs and the defendant.

The object of the plaintiffs was to sustain their right of recovery upon the bill, by showing that this right had not been lost or impaired by any irregularity or delinquency of the plaintiffs as indorsees and holders of the bill for value.

By the evidence adduced by the defendant it was designed to show that, previously to the purchase of the 1,058 bales of cotton, and as a part of the agreement on which the purchase was to be made, the defendant, or the person or persons by whom the funds for that purchase should be advanced, should hold the bill of lading of the cargo as security for such advances; that this agreement was adopted by the plaintiffs, who required and received the bill of lading as a precedent condition to their purchase of the bills drawn on Booth by the defendant; that the bill of lading thus received as a security, was transmitted by the plaintiffs to a branch of their firm in Liverpool, and by the Liverpool branch, with the knowledge and in violation of that ageement, was surrendered to one Byrne, a creditor of Boothe, and thus diverted from the purposes it was intended to secure.

Upon the instructions prayed from the court to the jury, the court were divided in opinion upon the following questions:——

1. Whether the firm of Dennistoun, Wood, and Co., of New York, or the plaintiffs, were bound to hold the said bill of lading for the shipment on the said Windsor Castle as a security for the bill of exchange described in the declaration, and whether any amount of loss arising to the said defendant from their failure to hold the said bill for the purpose of securing the proceeds of the cotton specified therein, for the payment of the bill of exchange described in the declaration, can be used as a defence against the bill, or any part thereof.

2. Whether the said Dennistoun and Co. were required to hold the said bill of lading as a security for any bill of exchange drawn by the defendant or his agents upon the said shipment of cotton, other than those to which the same was attached, or of which they, the said plaintiffs, had specific and direct notice at the time of the settlement with Byrne in the manner stated in the depositions; and whether notice to Dennistoun, Wood, and Co., in New York, was operative as a notice to the plaintiffs in Liverpool, though no notice was received by the...