Peter Vivian Daniel

“ It is a settled rule of judicial procedure that the courts will never lay down as instructions to a jury, general or abstract positions, such as are not immediately connected with and applicable to the facts of a cause, but require that every prayer for an instruction should be preceded by and based upon a statement of facts upon which the questions of law naturally and properly arise. ”

“ Mr. Rhett contends that the note on which he was endorser was only a collateral security; and if the holder, by any laches, has made the draft his own by discharging any of the parties, he is paid, and the collateral note is discharged; and he charges that D. Timberlake was discharged, as drawer of the bill, by neglect to give him notice of its non-payment. That, as sureties, the parties to the note are entitled to their remedy over against Timberlake, the drawer; and it was the duty of the holder to give him due notice, in order to fix his liability ”

“ The guarantor is bound without notice where the drawer is insolvent, unless he proves that some special damage accrued from the failure to give notice. A distinction is recognized between parties to a bill and guarantors. 2 Pet., 497.
The same strictness of proof is not necessary to charge the guarantor as in an action on the bill itself. 8 East, 245.
In 6 Ves., 734, Lord Ellenborough says, there is no obligation of active diligence on the part of the creditor, as far as the surety is concerned. The law-merchant is confined to papers where all are parties to the bill. ”

“ The first instruction of the court modified the prayer by adding, 'if the fund was raised by Smith's letter of credit to Timberlake;' but, these funds do not appear to have been raised in this way. The evidence is to the contrary. It said also, that if Timberlake failed to take up his share, viz., $13,000, then Smith was exonerated from his agreement as made between them. But suppose this so, does this excuse the bank? A suit would have been necessary, which the bank had no right to anticipate. It is always inferred that a drawer has funds in the hands of a drawee and had a right to draw. ”

“ But if the facts clearly proved do not constitute due diligence, we say: 2. That Timberlake was not entitled to notice. In regard to this transaction, we insist, he is to be considered either as a partner drawing on a partner, or the drawer of a bill for his own accommodation; and in either branch of the alternative he is not entitled to notice.
1st. As a partner; notice to one partner is notice to all. ”

“ He is not discharged of his obligations to Smith or Rhett by want of notice.
If notice had been given to Timberlake, Rhett would have gained no advantage, and by its omission he has sustained no injury.
Considering Rhett as a guarantor.
'Persons whose anmes are not upon the instrument, or who are not parties thereto, but have transferred the instrument by delivery, when payable to bearer, are not within the custom of merchants. Therefore, a party who, by an independent memorandum guaranties the payment of a bill, is not as a matter of absolute right entitled to notice. ”

“ The ground assumed for insisting on notice to Timberlake, is, that he has funds in Smith's hands. If he had no funds he is bound without notice. If he had funds, then Smith the acceptor as the original debtor, was bound to pay the bill, and Rhett is bound to Poe as the guarantor of Smith. ”

“ Is it not to be taken then, that he gave this collateral security, relying on the cotton in the hands of Bayard and Hunter for his indemnity? And now, how does this matter stand upon the very footing claimed for it by the plaintiff in error? What is the justice, equity, and good conscience of the defence, according to our learned adversaries' own statement of it?
Smith obtains the proceeds of the cotton from Bayard and Hunter, and passes them over to Rhett by his general assignment. They go to pay a note of Smith's in bank, with Rhett's endorsement. ”

“ And to this effect he prayed the first and third instructions.
To this it is replied on the part of the defendant in error:
1st. That there was actual notice to Timberlake or, due diligence to give such notice. [Mr. Wilde here entered into a critical review of the testimony, and inferred that,] there were before the jury sufficient facts to warrant them in finding actual notice. If the evidence falls short of establishing actual notice, still due diligence is abundantly proved. When the facts are ascertained and undisputed, what shall constitute due diligence is a question of law. ”

“ To the fifth instruction asked, the court instructed the jury, that the insolvency of the drawer and the acceptor, before the maturity of the bill, did not excuse the holder of the bill from giving notice of non-payment to the drawer. ”

“ Afterwards Timberlake bought stocks on his own account, and permitted Smith to come in.
Mr. Justice DANIEL delivered the opinion of the court.
The instrument upon which this suit was instituted in the Circuit Court, was, as the foregoing statement evinces, in form simply a common promissory note, signed by Benjamin R. Smith, made payable to William E. Haskell, endorsed by Haskell to Robert Barnwell Smith alias Robert Barnwell Rhett, and by this last individual to Robert F. Poe, cashier of the Bank of Augusta, the plaintiff in the action. ”

“ The holder must give notice to all parties. 3 Taunt., 130.
It is true that the cases recognise a distinction between an endorsement upon the bill itself and an engagement in a separate rate contract. But no case justifies the extent of the doctrine which must be contended for by the other side.
As to the second instruction, there was no evidence that Timberlake had made Augusta his residence; and even if there was, the notice should have been sent after him to New York. Another state is not a foreign country. ”

“ No useful or reasonable end could be answered by such a requisition. Where a drawer has no right to expect the payment of a bill by the acceptor, he has no claim to notice of non-payment. This is ruled in the following cases: Sharp v. ”

“ St. Quentin, and de Berst v. Atkinson, which are no longer law, even in England. See 15 East, 216; 3 Barn. & Ald., 619, 623. The case in 4 Cranch, 141, is commented on and sustained, as to the point, in 10 Pet., 578. ”