Matthew Watson, Plaintiff In Error v. Colin Tarpley
| Decision Date | 01 December 1855 |
| Citation | 15 L.Ed. 509,18 How. 517,59 U.S. 517 |
| Parties | MATTHEW WATSON, PLAINTIFF IN ERROR, v. COLIN S. TARPLEY |
| Court | U.S. Supreme Court |
THIS case came up, by writ of error, from the circuit court of the United States for the southern district of Mississippi.
The facts are stated in the opinion of the court.
It was argued by Mr. Badger, for the plaintiff in error, no counsel appearing for the defendant.
On the 29th April, 1850, the plaintiff in error, a citizen of Tennessee, brought this action of assumpsit against the defendant, a citizen of Mississippi, in the circuit court of the United States for the southern district of Mississippi, upon a bill of exchange, dated 4th April, 1850, drawn by the defendant upon Messrs. McKee, Bulkely, and Co., of New Orleans, Louisiana, for $2,327.49, payable twelve months after date, in favor of James Bankhead, and by him indorsed to the plaintiff, and declared in two counts—one on the non-acceptance and the other on the non-payment of the said bill. Pr. Rec., p. 4. The defendant pleaded 'non assumpsit,' and on this plea issue was joined, (page six,) and the action tried on the 11th of January, 1855 when a verdict was found for the defendant. On the trial, a bill of exceptions was taken by the plaintiff in error, from which it appears that the plaintiff read in evidence the bill of exchange, and proved the presentment thereof to the drawers, at their office in New Orleans, for acceptance on the 27th of April, 1850, the due protest thereof for non-acceptance, and a notification of its dishonor given the same day by letter addressed to the defendant at his residence in Mississippi. See Notarial Protest and Depositions, 17-22.
The plaintiff also proved the presentment of the said bill for payment on the 7th April, 1851, the refusal of payment, the due protest thereof, and notice to the defendant. See Notarial Protest and Depositions of H. B. Cenas, A. Commandeur, and Charles F. Barry, 7-15.
The defendant then offered to read in evidence a certificate, set out on the 23d page of the Record; and which being read, after objection taken thereto by the plaintiff, the judge instructed the jury. Record, 23.
'That the plaintiff was not entitled to recover on the count in the declaration on the protest of the bill for non-acceptance, unless due and regular notice was proved of the protest of the bill for non-payment, though the jury might be satisfied from the proof, that the bill had been regularly protested for non-acceptance, and due notice thereof given to the defendant; that, to entitle the plaintiff to recover, notwithstanding the proof of protest for non-acceptance and due notice thereof, the plaintiff must prove protest for non-payment and due notice thereof, to the defendant; and that the jury were the judges of the testimony, and could give to the witnesses such credit as they thought them entitled to, looking to all the circumstances of the case.'
The material question involved in this case are comprised within a comparatively narrow compass, and present themselves prominently out upon the face of the record. On each of the questions thus deemed material, we think that the circuit court has erred.
Upon the relevancy or effect of the certificate of H. B. Cenas, under date of the 7th of April, 1851, and which was under an exception by the plaintiff permitted to be read in evidence with the view of impairing the previous statement of this witness as to the regularity of his proceedings upon the dishonor of the bill, we do not think it necessary to express an opinion. Our views of the law of this case as applicable to the instruction given by the circuit court, are in no degree affected by the character of the statements in that certificate.
We think that the instruction of the court was erroneous in committing it to the jury to determine whether the proceedings as to protest and notice upon the dishonor of the bill for non-payment were regular and legal. This is a matter which must, upon the facts given in evidence, be determined by the court as a question of law, and which cannot be regularly submitted to the jury. Such is the doctrine uniformly ruled by this court; we mention the cases of the Bank of Columbia v. Lawrence, 1 Pet. 578; Dickins v. Beale, 10 Ib. 572; Rhett v. Poe, 2 How. 457; Camden v. Doremus et al. 3 Ib. 515; Harris v. Robinson, 4 Ib. 336; Lambert v. Ghiselin, 9 Ib. 552. To the same point might be cited the several English decisions referred to in the case of Rhett v. Poe, already mentioned.
We also hold to be erroneous the instruction of the court declaring that after presentment of the bill for acceptance, and after regular protest and notice for non-acceptance, an action could not be maintained by the payee or indorsee until after the maturity of the bill, and then only upon proof of demand for payment, and of a regular protest and notice founded upon the refusal to pay.
It is a rule of commercial law, too familiarly known to...
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