Reeside v. Knox

• Decision Date: 07 February 1837
• Citation: 2 Whart. 233,30 Am.Dec. 247
• Parties: REESIDE v. KNOX and Another.
• Court: Pennsylvania Supreme Court

2 Whart. 233

30 Am.Dec. 247

REESIDE v. KNOX and Another.

Supreme Court of Pennsylvania.

February 7, 1837

IN ERROR.

An order drawn by a contractor on the Post Master General, in the following words:

" Sir,--On the first day of January, 1836, pay to my order $5000, for value received, and charge the same to my account, for transporting the U.S. Mail, and oblige

Your friend, J. R."

Was held not to be a negotiable bill of exchange, so as to entitle the holder to sue in his own name.

IN the District Court for the City and County of Philadelphia, John Knox, and James Boggs, trading together under the firm of Knox & Boggs, brought an action on the case, to March term, 1836, against James Reeside. The writ was returnable on the first Monday in May.

On the 9th of May, 1836, the plaintiffs filed a copy of the instrument in writing, on which the suit was brought, in the words and figures following, viz.--

" Copy of the instrument of writing whereon the above action is founded, viz:

Dollars 5000. Washington, 18th April, 1835.

Sir,

On the 1st day of January, 1836, pay to my order, five thousand dollars, for value received, and charge the same to my account for transporting the U.S. Mail, and oblige

Your friend JAMES REESIDE

To Hon Wm. T. Barry,

Post Master General.

Accepted provided the drawer shall perform his contract.

R. C MASON, Treasurer.

Endorsed,

JAS. REESIDE,

ABRAM. HORBACK,

D. B. M'NAIR.

Protested January 4, 1836. See copy of protest annexed, marked A." ) Pay George Thomas, Esq. Cashier, or order."

On the 11th of May, an affidavit of defence was filed as follows:

" James Reeside, the defendant in this case, on oath declares, that he has a just defence against the whole of the said plaintiffs' demand, which is founded, as appears by the copy of the instrument filed by the plaintiff, on this deponent's draft on the Post Master General of the United States, chargeable as the said draft declares, to the drawer's account, for transporting the United States mail. Deponent was a contractor with the Post Master General for transporting the mail; and, as he believed, justly entitled to draw the said draft against the amount due to him on the said account, as was then usual under such contracts. The draft was accordingly drawn the 18th day of April 1835, payable the first day of January 1836, and accepted by a written acceptance on the face thereof, by the Treasurer of the General Post Office Department, provided that the drawer shall perform his contract; which proviso or condition was part of the acceptance. Thus accepted, it was endorsed by this deponent to Abram Horbach, who was concerned with deponent in transporting the mail, and who had full knowledge of all the circumstances connected with the contract, the drawing of the said draft, and with the conditional acceptance thereof on the face as aforesaid. Before the said draft fell due, another Post Master General suspended payments to this deponent, on the plea, as he understands, of his non-compliance with his contract; so that not only has payment of the said draft been refused according to the acceptance, but no money, credit or allowance whatever has been paid, made or credited to this deponent by the Post Master General; and moreover this deponent's instances for settlement of his accounts with the said Post Master General have been refused; and a large sum due to deponent for transporting the mail, is withheld from him by the Post Master General, far beyond the amount of the draft in question. Of said refusal to pay the draft, deponent apprised Abram Horbach long before it was due; and he also gave general notice of these circumstances to the Western Bank of Philadelphia, at which bank the said draft was deposited for collection. Whether it was transferred to the plaintiffs for a valuable consideration, this deponent is not informed; but he has reason to believe, that they hold it as agents for either Abram Horbach or his immediate endorser. Deponent is moreover advised, that besides the defence, the nature and character of which are before stated, he has other ground of legal exoneration arising out of the incapacity of the Post Master General to give such acceptances; and the instrument in question not being negotiable or a bill of exchange.

JAMES REESIDE.

Sworn and subscribed before me,

this 11th day of May.

WILLIAM MILNOR,

Alderman."

On the 21st of May, the Court granted a rule on the defendant to show cause, why judgment should not be entered for want of a sufficient affidavit of defence; which rule after argument was made absolute on the 2d of July. ^[a1] On the 6th of July, the damages were assessed by the prothonotary at $5411 79.

The defendant then took a writ of error; and on the return of the record, assigned the following errors:

1. " The judgment deprived the plaintiff of trial by jury.

2. It adjudged the writing in question to be a bill of exchange.

3. It adjudged a chose in action to be suable contrary to law.

4. It adjudged it to be unconditional."

Mr. C. J. Ingersoll, for the plaintiff in error.

1. The act of the 28th of March, 1835, authorising judgment to be given by the District Court for want of an affidavit of defence, is one of the most important laws which have been passed for many years. It was intended to be a legislative amendment of an old rule of court. I do not dispute the constitutionality of the act: properly construed and administered, it will be found a wise and judicious alteration. The old rule was always considered the ultima ratio of judicial legislation. Vanatta v. Anderson, (3 Binn. 417.) In Snyder v. Bachman, (8 Serg. & Rawle, 336,) the power of the court to make rules for the regulation of its practice was admitted; but there is a proviso that the trial by jury be not interfered with. Barry v. Randall, (3 Binn. 277.) Reist v. Heilbrenner, (11 Serg. & Rawle, 131.) What the legislature intended was, that upon a positive affidavit setting forth the nature and character of his defence, there should be an end to the power of the court to decide upon it. The power is by a supplementary act, lodged in the hands of a single judge, and should be exercised very abstemiously. It never was meant that he was to try the cause without a jury. But if such were the intention of the legislature, this court would not enforce it, because it would be in violation of the constitution; which declares that the right of trial by jury, shall remain as heretofore. In twenty three out of the twenty-four constitutions, governing the several states of the Union, this provision is to be found in almost the same words. The only exception is Louisiana. The case of Emerick v. Harris, (1 Binn. 416,) settles the question as to the constitutionality of an act of assembly interfering with the trial by jury. 3 Blackst. Comm. 349, 379, 386. Debates of the Pennsylvania Convention, 27, 56, 61, 86, 108, 159, 162. Rose v. King, (5 Serg. & Rawle, 241.)

2. This is not a bill of exchange, properly speaking; or at all events, not such as to authorise the holders to sue in their own names. Chitty on Bills. 2 Blackst. 466. 3 Kent's Com. 73-4. Pardessus on Bills. Corser v. Craig, (1 Wash. C. C. R. 424.) Richards v. Richards, (2 Barn. & Adolph. 477; S. C. 22 Eng. Com. Law Rep. 119.) This instrument was drawn at Washington; and the law of that place is to govern the construction, though the law of Pennsylvania is to control in respect to the remedy. This is not a foreign bill, having been drawn at Washington, and accepted and payable there. The affidavit states a case in which, according to the authorities, there was a plain defence. Chitty on Bills, 220, 558. U. States v. Robinson, (9 Peters, 319.) Jackson v. Tilgman, (1 Miles, 35.) Lawrence v. Dougherty, (5 Yerger, 435.) Cook v. Irwin, (5 Serg. & Rawle, 492.) 2 Starkie's Rep. 330. It is settled that if drawn upon a contingency, it is not good as a bill. Chitty, 152. M'Cormick v. Trotter, (10 Serg. & Rawle, 94.) Cook v. Satterlee, (6 Cowen, 108.) Alvez v. Hodgdon, (7 Term Rep. 242.) Palmer v. Pratt, (2 Bingham, 185; S. C. 9 Eng. Com. Law Rep. 373.) Jocelyn v. Lassere, (Fortescue, 281; S. C. 10 Mod. 294, 316.) Haddan v. Lynch, (2 Ld. Raym. 1563.) 2 Blackst. Rep. 782. Carlos v. Fancourt, (5 Term. Rep. 482.) Jenny v. Hurd, (2 Ld. Raym. 1361; S. C. 8 Mod. 265; 1 Str. 591.) Banbury v. Lassalle, (2 Str. 1211.) Williamson v. Bennet, (2 Camp. 418.) Granting however, that this was a bill of exchange and a negotiable instrument, it was drawn and accepted under special circumstances, and the conditional acceptance determines the whole character of the bill.

Mr. Meredith, for the defendant in error.

1. The sufficiency of the affidavit, must necessarily be considered and determined by the court. There is nothing here to raise the constitutional question. There is not a disputed fact on the record. If there be any constitutional difficulty, it must be in the way of the act itself. The decisions under the arbitration law, and upon the jurisdiction of justices of the peace, settle that question. Thompson v. White, (4 Serg. & Rawle, 13.) M'Dowell v. Schell, (6 Serg. & Rawle, 240.) The defence set up in the affidavit is obviously insufficient; and unless the court has authority to decide on the sufficiency of an allegation of law in an affidavit of defence, the provision in the act is worthless. Here the affidavit admits that the money was due. The opinion of the court upon the affidavit, is to be considered in the same light as a charge to the jury upon the law.

2. Was this " an instrument of writing for the payment of money," which authorised a suit in the names of Knox & Boggs? It is said that a bill of exchange must have three requisites. 1st....