Norris v. Despard

Stewart, J., delivered the opinion of the Court. The appellee in this Court, having'abandoned his appeal from the ruling below, striking out the plea of limitation, the only question for our review is as to the instruction upon the appellee’s prayer, that there was no evidence in the cause upon which the plaintiffs could recover. The cause of action was described in the short note-required, in a proceeding originating in attachment, which substantially alleged the non-payment of a check, for the sum of $128, bearing date at Clarksburg, West Virginia, 22nd May, 1861, drawn by the appellee, on the Bank of Phillippi, Virginia, and payable to John J. Davis, or order, and by him endorsed to the plaintiffs, for value, and which was unpaid by the Bank. The defendant denied any indebtedness.

There was evidence that the check was drawn and endorsed, as alleged, and that the same was never paid by the defendant; that it was never presented to the Bank for payment, because the Bank, about the time the check was given, had been removed, and that by reason of the civil war at the time and the interruption of mail communication between Baltimore and Phillippi, the check could not be presented — that the check was given in payment of a debt due by the defendant’s brother, of whom he was said to be executor, with assets. There was no proof that the Bank had not resumed business after the termination of the war, and might not have paid the check, but there was no evidence that the plaintiffs ever afterwards made any presentation of the check to the Bank, or that the defendant had no funds there to meet the check; nor was there any proof that notice of any sort was given to the defendant of the nonpayment. In Moses vs. Franklin Bank of Baltimore, 34 Md., 574 , it was decided that a check of this description possesses ⁴⁹¹ properly certain incidents of an inland bill of exchange, and could be protested for non-payment. Notice.of non-acceptance and non-payment is required to be given that the drawer may take any necessary steps to protect his interest, under the circumstances, and if notice be not given, it is the presumption of lav? that he is injured by the omission.

In the application of the principle Courts must enquire into the liabilities of the respective parties to the check, for the purpose of ascertaining whether this injury, either actual or presumptive, could take place. The drawer who has no effects in the hands of the drawee, is not entitled to notice.