Davies v. Byrne

• Decision Date: 31 August 1851
• Docket Number: No. 44.,44.
• Citation: 10 Ga. 329
• Parties: James W. Davies, cashier, &c. plaintiff in error. vs. Richard Byrne.
• Court: Georgia Supreme Court

10 Ga. 329

James W. Davies, cashier, &c. plaintiff in error. vs. Richard Byrne.

No. 44.

Supreme Court of the State of Georgia

AUGUST TERM, 1851.

Assumpsit, in Newton Superior Court. Tried before Judge Stark, September Term, 1851.

This was an action of assumpsit, brought by the plaintiff in error, against the defendant in error, upon a bill of exchange, as follows:

" Covington, March 13th, 1849.

Thirty days after date pay to the order of C. D. Pace, agent of the Bank of Augusta, Ga. one thousand dollars, for value received, and charge the same to your obedient servant.

Richard Byrne.

Messrs. Robinson & Caldwell, Charleston, S. C."

The declaration contained three counts—the first founded on the bill of exchange itself. The action was brought in the name of " James W. Davies, Cashier of the President, Directors and Company of the Bank of Augusta, " to whom the bill of exchange, before its maturity, had been indorsed, " as cashier of the Bank of Augusta, " which was averred in the first count. The first count contained no averment of demand, protest, or notice of non-acceptance. The second count in the declaration was founded upon the consideration of the bill of exchange, and was brought in the name of James W. Davies, cashier, &c. It avers that the money was advanced by the Bank of Augusta." The third and last count in the declaration, continues in the name of " James W. Davies, cashier, &c." and is founded upon a special promise of the defendant. It avers that the bill was drawn, dishonored, and that afterwards the defendant promised to pay the plaintiff, &c. After hearing the evidence, which is not material so far as the judgment of this Court is concerned, counsel for the defendant moved for a non-suit, which motion was sustained by the Court, upon the ground " that from the plaintiff's declaration and proof, it is shown that plaintiff had no right of action, and that from the evidence, he was not entitled to recover under any count in the declaration.

Whereupon counsel for plaintiff excepted.

W. W. Clark, for plaintiff in error, presented the following brief of points and authorities:

1st. Had plaintiff such interest in the bill as to bring suit thereon? Rose vs. Loffan &Redmond, 2 Spear\'s R. 424. Story on Promissory Notes, §127.

2d. If the term cashier be improper, should it not have been taken advantage of by plea in abatement? 14 Common Law Rule.

3d. If the declaration was defective, it was cause of demurrer, not non-suit.

4th. If defendant has sustained no damage, we are entitled to recover, though we gave no notice. 17 Wendell R. 94. 3 Johns. Cases, 259.

5th. Bills payable at a certain time, or at a certain number of days from date, need not be presented for acceptance. 1 Peters' R. 25. 2 Peters' R. 170. Chitty on Bills, 272, '73. Prince's Digest, 454, 462.

6th. Notice is unnecessary to charge the drawer of a bill of exchange, when he has withdrawn his funds. 4 Mason's R. 113. 1 Wendell R. 219. 21 Wendell R. 372. 7 Harris & Johnson's R. 381. Chitty on Bills, 449. Baily on Bills, 296.

7th. Want of notice and protest may be waived by the drawer, by subsequent promise. Chilly on Bills, 499, 500, 1, 2, 3, 660. Smith's Mercantile Law, 304.

8th. The Court cannot non-suit when there is evidence on which the Jury might have found. 2 Bays R. 126. 5 Geo. R. 171. Chitty on Bills, 501.

9th. We were entitled to recover, under the money count. Chitty on Bills, 577, '78. 3 Johns. Cases, 5.

John Floyd, for the defendant in error, relied upon the following points and authorities:

1st. That suit must be brought in the name of the party who has the legal interest, which must on the trial, be shown by evidence.

2d. That in order to charge a drawer of a foreign bill of exchange with liability, it must, if due at a certain day after date, be presented at its maturity for payment, and if not paid, it mustbe protested, and notice given to the drawer. Story on Bills, §§323, \'24, \'25, \'26, \'28, 108, \'18, \'19, 227, \'28, \'73, 378, 369. 1 Eng. Com. Law, 626, top page. Chitty, top page, 197 and note.

3d. In order to render the drawer of a bill of exchange liable, the holder must present it for acceptance and payment, and give notice of refusal to the drawer. Story on Bills, §§311, '12, '67, '73, '75, '76, '77. 2 Johns. Cases, 75.

4th. New promise must be conditional, or if conditional, the condition must be performed. Story on Bills, 373.

By the Court.—Nisbet, J. delivering the opinion.

This action is founded on a bill of exchange, drawn by the defendant below, Byrne, upon Robinson & Caldwell, at Charleston, South Carolina, and payable to the order of C. D. Pace, agent of the Bank of Augusta, Ga. It is indorsed by C. D. Pace, agent, to the order of James W. Davies, cashier of Bank of Augusta, Ga. The declaration is in the name of James W. Davis, cashier of the president, directors and company of the Bank of Augusta. He who holds the legal title to the bill is entitled to sue. Judge Story says, that " in cases of indorsement to a cashier of a bank as cashier, as for example, to A B cashier, it is competent for the bank to maintain a suit thereon, as upon an indorsement to the corporation, or for the cashier to maintain a suit thereon in his own name." Story on Prom. Notes, §127. 16 Pick. 381. 2 Scamm. R. 309. S. P. 4 Rand. R. 350.

We recognize this rule upon authority so reliable. It is, however, I have no doubt, better in all such cases, for the corporation to bring the suit. We hold that in this case, the words cashier of the president, directors and company of the Bank of Augusta, are descriptio personœ, and that the action is in the name of James W. Davies. The indorsement was to him, cashier Bank of Augusta, Ga. According to the rule laid down by Judge Story, upon that indorsement, it was competent for him to sue in his own name. He is holder of the legal title for thatpurpose. It is in his own name, too, that he sues in all the counts in this declaration; for the designation with which the count opens, is maintained throughout. There are three counts, upon neither of which, in our judgment, is it possible for the plaintiff to recover.

The first count is on the bill itself against the drawer, and is fatally defective in this, that the plaintiff does not aver that the defendant had notice of the dishonor of the bill; nor does he aver any excuse for not giving notice. Notice of nonpayment is generally indispensable to charge the drawer of a bill of exchange. It is a condition precedent to his liability, and must be averred and proved. And if there is anything in the case that the plaintiff relies upon, as dispensing with demand and notice, as that the drawer had no effects in the hands of the drawee, and is not damaged, that must be averred and proven on the trial. Bayl. 185. Doug. 679. 7 East. 231. 12 East. 171. Chitty on Bills, 197 to 215.

This is a foreign bill, being drawn by a citizen of Georgia, upon a firm resident in the City of Charleston, S. C. A protest for non-payment was, therefore, necessary, and an averment that it was protested, also necessary. Being payable at a time certain, it was not necessary to present it for acceptance or to protest it for non-acceptance. But it was indispensable that the plaintiff plead and show a protest for non-payment, or an excuse which would be good in law, why it was not protested. These are familiar rules of the law merchant, and I shall not dwell...