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Bank of Washington v. Triplett & Neale, 26 U.S. 1 Pet. 25 25 (1828)

Bank of Washington v. Triplett & Neale

26 U.S. (1 Pet.) 25


The deposit of a bill in one bank, to be transmitted to another for collection, is a common usage of great public convenience, the effect of which is well understood, and the duty of a bank receiving such a bill for collection is precisely the same whoever may be, the owner thereof, and if it was unwilling to undertake the collection without precise information on the subject, the duty ought to have been declined.

If in any case in which testimony was offered by the plaintiff the court ought to instruct the jury that he had no right to recover, such instruction certainly ought not to be granted if any possible construction of the testimony would support the action.

By failing to demand payment of a bill held for collection, the bank would make the bill its own and would become liable to its real owner for the amount.

The allowance of days of grace for the payment of a bill of exchange or note is now universally understood to enter into every bill or note of a mercantile character, and so to form a pari of the contract that the bill does not become due until the last day of grace.

It is the usage of the Bank of Washington and of other banks in the District of Columbia to demand payment of a bill on the day after the last day of grace, and this usage has been sanctioned by the decisions of this Court. This usage is equally binding on parties who were not acquainted with its existence but who have resorted to the bank governed by such usage to make the bill negotiable.

The usage of the place on which a bill is drawn or where payment is demanded uniformly regulates the number of days of grace which must be allowed.

The failure of a bank holding a bill payable after date for collection to give notice to the drawer that the drawee was not found at home when called upon to accept the bill is not such negligence as discharges the drawer from his liability.

A bill of exchange payable after elate need not be presented for acceptance before the day of payment, but if presented and acceptance be refused, it is dishonored, and notice must be given. The absence from his home of the drawee of a bill payable after date when the holder of a bill or his agent calls with it for acceptance is not a refusal to accept, but such absence when the bill is due is a refusal to pay, and authorizes a protest.

In a suit instituted by the holder of a bill against the bank for negligence in relation to demand or notice of nonpayment of the bill, the court, although required, is not bound to declare the law as between the holder and the drawer. The bank was the agent of the holder, and not of the drawer, and might consequently so act as to discharge the drawer without becoming liable to its principal.

Triplett & Neale, the appellees, instituted a suit in the Circuit Court for the District of Columbia against the

Page 26 U. S. 26

President and Directors of the Bank of Washington, the appellants; for mal-agency in relation to an inland bill of exchange, dated Alexandria, 19 June, 1817, drawn by W. H. Briscoe, for $625.34 at four months after date in favor of Triplett & Neale upon Peter A. Carnes, Esq., "Washington City." About 19 July, 1817, the plaintiffs, being the holders and the proprietors of the bill, placed it in the hands of the Cashier of the Mechanics bank of Alexandria for the purpose of its being transmitted to a bank in Washington for collection, they endorsing it in blank for that purpose. The bill, after being endorsed by the cashier of the bank to the order of "S. Elliott, Jr. Esq.," was sent by mail to the Bank of Washington, of which Mr. Elliott was then cashier, together with other bills and notes, without any statement of interest or ownership in the same, by Triplett & Neale. On 19 October, 1817, the cashier of the Mechanics bank of Alexandria informed the cashier of the Bank of Washington that

"the holder of the draft desired that if the draft should not be paid, a notary should send a notice to P. A. Carnes, Baltimore, and to Mr. W. H. Briscoe at Lessburgh, provided the bill should not be paid in Washington."

On 24 October, 1817, the draft was returned to the Mechanics bank of Alexandria, it having been protested, for nonpayment on 23 October, the drawer and endorser having been regularly notified of the nonpayment by the notary. When the bill was received in Washington on 21 July, 1817, the drawee was not to be found, one of the officers of the bank having sought him in order to present the bill to him and who was informed that he was in Baltimore. This inquiry was repeated three or four days afterwards with the same results, of which the cashier was informed. No notice of the nonacceptance of the bill was given by the Bank of Washington to the drawer or to the endorser. Evidence was given, by the defendant below of the custom in the banks of the City of Washington, and particularly of the defendants, as to the mode of treating bills when the drawee could not be found and as to the practice of protesting or not protesting such bills for nonacceptance. Evidence was also offered as to the incompetency of Carnes and Briscoe to discharge the bill at the time of its nonpayment, and that since the said period Briscoe had inherited an estate.

The appellants, on the trial of the cause, requested the court to instruct the jury:

1st. That on the evidence, if believed by the jury, the plaintiffs could not recover.

2d. That the plaintiffs are not entitled to recover for and of recourse against Briscoe, the drawer of the bill.

Page 26 U. S. 27

3d. That the failure of the defendants, after having called at the residence of the drawee of said bill, to obtain his acceptance thereof, as stated in the evidence of Reilly, and not finding him or any other person there to accept the said bill, to notify the drawer of that circumstance was not such a negligence as discharged the said drawer from his liability on said bill, and entitles the plaintiffs to recover.

4th. That if it believed from the evidence that the defendants conformed to their former usage in regard to such bills as the one in question in calling on the drawee for acceptance, the said drawee being from home and not noting the same as dishonored and giving notice thereof to the parties on the said bill, then their failure to treat the said bill as dishonored and to give notice accordingly of its nonacceptance did not discharge the drawer thereof from his liability to the plaintiffs.

All of which instructions were refused by the court, and a verdict was given against the Bank of Washington for the whole amount of the claim. The defendants below took a bill of exceptions to the opinion of the court upon the propositions stated and thereupon prosecuted this writ of error.

Page 26 U. S. 28

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