Corbin v. Planters' Nat. Bank Of Richmond

• Decision Date: 16 April 1891
• Citation: 87 Va. 661,13 S.E. 98
• Parties: Corbin v. Planters' Nat. Bank of Richmond.
• Court: Virginia Supreme Court

13 S.E. 98

87 Va. 661

Corbin

v.Planters' Nat. Bank of Richmond.

Supreme Court of Appeals of Virginia.

April 16, 1891.

Negotiable Instruments — Notice of Protest— Joint Defendants.

1. The maker and indorsers of a promissory note, executed in another state, under the laws of which it is negotiable, are not jointly liable to a holder who discounts it in Virginia, and such holder cannot, therefore, sue the maker and indorsers jointly.

2. The certificate of protest of a note payable in New York, by a notary there, is no evidence of dishonor, in a suit on it in Virginia, since there is no statute in Virginia making such protest evidence.

3. Where it appears that the note was due on the 14th of the month in New York, and that on the 17th the holder received notice of its dishonor in Richmond, Va., which on the same day he forwarded to the indorser, there is no proof of due notice of dishonor, as it does not appear when the notice was mailed in New York.

Error to corporation court of Danville.

This was an action of assumpsit in the corporation court of Dan ville, wherein the Planters' National Bank of Richmond was plaintiff, and T. J. Corbin was defendant. The case, as disclosed by the record, is as follows: On the 13th of July, 1887, one S. F. Cobbs, in the city of New York, executed his promissory note for $3,000, payable 90 days after its date, to his own order, at his office, 48 Broad street, in that city. It is admitted that by the laws of New York this note was negotiable. It does not appear, however, that by those laws it was pro testable. After being indorsed by Cobbs, Corbin, and one T.S. Flournoy, Jr., it was discounted for the latter by the Planters' Bank, two days after its date, and the proceeds put to his credit in the bank. The note was not paid at maturity, and was protested by a New York notary, as appears from his certificate of protest filed with the record. On the 25th of February, 1888, the bank instituted a joint action of debt in the said corporation court against the maker and indorsers of the note, in which action process was duly served on all the defendants. The defendants Corbin and Flournoy, at the April term of the court, 1888, demurred to the declaration and also pleaded ni7 debit; whereupon the court overruled the demurrer, and continued the cause to the following July term. In the mean time— to-wit, on the 26th of May—the defendant Flournoy confessed a judgment in the clerk's office, in the same action, for the debt claimed in the declaration and costs; and at the following July term there was a judgment by default against Cobbs, and a discontinuance as to Corbin. Afterwards the present action was instituted against Corbin alone. The declaration contains the various common counts, and also a count upon the above-mentioned note, and alleges the insolvency of Cobbs and Flournoy. The defendant pleaded non assumpsit, aud a special plea of "former adjudication, " setting up, in a rather informal manner, the defense that the cause of action asserted in the declaration was merged in the judgments above mentioned. And at the April term, 1889, neither party requiring a jury, the court, after hearing the evidence, entered up judgment for the plaintiff for $3,001.41, with interest thereon from the 14th of October, 1887, and costs, which is the judgment complained of.

Berryman Green and Christian & Chris-tian, for plaintiff in error.

Berkeley & Harrison, for defendant in error.

Lewis, P., (after stating the facts as above.) The case involves several important questions of law, but their solution is free from difficulty.

1. The defendant, in support of his special plea, relies upon the decision of this court in Beazley v. Sims, 81 Va. 644. But that case is not in point. The rule, moreover, announced in that case has been changed by the new Code. That was an action against two joint obligors, in which process was served on one of the defendants only, and there was a judgment against that one, and a discontinuance as to the other; and, in a subsequent action against both, it was held that the cause of action was merged in the judgment recovered in the first suit. Afterwards, however, the present Code of Virginia was adopted, section 3396 of which— after providing that where, in any action against two or more defendants, the process is served on part of them, the plaintiff may proceed to judgment as to any so served, and either discontinue it as to the others, or from time to time, as the process is served as to such others, proceed to judgment as to them, until judgments be obtained against all—goes on further to enact that "such discontinuance of the action as to any defendant shall not operate as a bar to any subsequent action which may be brought against him for the same cause." It is obvious that the discontinuance here provided for is a discontinuance as against any one or more defendants upon whom process has not been served. In the present case, however, process in the first action was served on all the defendants, so that the case is not within the statute. And it may be conceded that the principle recognized in Beazley v. Sims would govern this case, if the first action could have been rightly maintained in this state against all the defendants. But clearly it could not, for their liability was not joint but several, and the note sued on was not "payable at a particular bank, or at a particular office thereof for discount and deposit, or the place of business of a savings institution or savings bank, or at the place of business of a licensed banker or broker." Code, § 2853.

2. This being so, the next question is whether upon the evidence, which is set out in the bill of exceptions, the bank was entitled to recover in the present action; and we are of opinion that it was not. In the first place, there was no proof of the dishouor of the note. By the law-merchant, which is a part of the common law, protest of a dishonored foreign bill of exchange is ordinarily indispensable, and the notary's certificate of protest proves itself; that is, it is prima, facie evidence...