Konig v. Bayard/Opinion of the Court

by John Marshall

THIS was an action of assumpsit, instituted in the Circuit Court of the United States, for the southern Circuit of New-York; by William Konig, a merchant of Amsterdam, carrying on business under the firm of William Konig & Co. against the defendants, merchants in New-York, trading under the firm of Le Roy, Bayard & Co.

The action was upon a foreign bill of exchange, and the declaration charges, that the same was drawn at Baltimore, on the 2d day of September, 1822, by John C. Delprat, on N. & J. & R. Van Staphorst, of Amsterdam, in Holland, at sixty days sight, for 21,500 florins, in favour of the defendants, and made payable to them, or order. That the defendants, on the fourth of September, in the same year, endorsed the same to L. H. Huder, who endorsed it to Rougemont & Behrends-and that they, on the 25th of November, 1822, presented the bill, (the same being unaccepted and unpaid,) to the drawees, for acceptance, by whom acceptance was refused, and the bill protested for non-acceptance; and that the plaintiff on the same day, at Amsterdam, to prevent the bill from being sent back to the defendants, did, under that protest, and for the honour and account of the defendants, accept the bill, in writing, and gave notice thereof to the defendants.

That the bill was afterwards, and before payment, endorsed by Rougemont & Behrends to N. M. Rothschild, who endorsed it to M. Rothschild & Sons, who endorsed it to B. J. De Jongh & Fils; and the last endorsees, when the bill became due and payable, viz. on the 25th of January, 1823, at Amsterdam, presented it to the drawees for payment; that payment was refused; and the holders, being the last endorsees aforesaid, caused the bill to be protested for non-payment; and the plaintiff thereupon, upon the protest, and for the honour and account of the defendants, the first endorsers, paid the bill to B. J. De Jongh & Fils, together with two thousand guilders for the cost of the protest, and other charges, and gave due notice thereof to the defendants.

The declaration also contained the usual money counts; upon which the general issue was pleaded; and upon the trial of the cause, a verdict was taken for the plaintiff, for 9852 dollars 78 cents; subject to the opinion of the Court on the following case; with liberty to either party to turn the same into a special verdict, or bill of exceptions.

It was admitted that the bill was drawn by John C. Delprat, in favour of defendants; and that on the 18th day of October, 1822, the defendants endorsed it, and transmitted it to Messrs. Rougemont & Behrends, at London; and that afterwards the bill was endorsed by Messrs. Rougement & Behrends to N. M. Rothschild, who endorsed it to M. Rothschild & Sons, who endorsed it to B. J. De Jongh & Fils, as charged in the declaration. And in order to prove that the bill was duly protested for non-acceptance and non-payment, and that after the same was so protested for non-acceptance, the same was accepted, supra protest, by the plaintiff, for the honour and account of the defendants, the endorsers; and that after the said bill was protested for non-payment, the same was paid, supra protest, by the plaintiff, for the honour and account of the defendants, the endorsers; the plaintiff read in evidence the protest for non-acceptance and non-payment, which were admitted by the counsel of the defendants to be read in evidence for that purpose.

Pay Mr. L. Huder, or order, value received. New-York, 4th Sept. 1822. Signed, LE ROY, BAYARD & CO. Pay to the order of Messrs. Rougement & Behrends, of London, value in account. New-York, 1st October, 1822. Signed, L. H. HUDER. Dec. 28, No. 279, presented for stamp at Amsterdam, 22d Nov. 1822. Received with the augmentation, fl. 13 75. Signed, ELVESTER.

The protest for non-acceptance, stated, that on the application of the notary to the drawees, N. & J. & R. Van Staphorst, Amsterdam, they refused to accept the bill, stating, 'that whereas the drawer has quite wrongfully drawn his bill, we, therefore, cannot accept the same, and moreover regret, that in order to preserve our just rights against him, (meaning the drawer,) we cannot even interfere in behalf of those to whom this bill was passed.'

The protest also stated the following 'Act of Intervention:'

And forthwith appeared and came forward, those same gentlemen, Messrs. Wm. Konig & Co., who declared that they were actually ready, on account, anf for the honour of the firm of Messrs. Le Roy, Bayard & Co. as endorsers upon this same bill of exchange, to accept the said bill, and for the purpose of paying the amount thereof on the day of its maturity; and accordingly, the same gentlemen, Messrs. Wm. Konig & Co., in fact did, and have signed the same.

The protest for non-payment, stated the same answer to have been given by the drawees, when payment of the bill was demanded, as made when acceptance was applied for, and also that, after the protest for non-payment.

Subsequently, the gentlemen, Messrs. Konig & Co. commission merchants, residing in this city, at the Cloveniers Burgwal, duly patented for the past year, as appears by their certificate, dated 24th June, No. 1333, to us the Notaries exhibited, who, after having previously examined and read the aforecopied bill of exchange, as likewise this present protest, declared, that they, in consequence of their acceptance, under protest, should honour and pay this bill of exchange, and which, in fact, they have done, for the honour and on account of Messrs. Le Roy, Bayard & Co., as the first endorsers thereon, reserving, at the same time, their right against them, and all the others thereby interested.

The following letters were offered in evidence on the part of the defendants, and objected to on the part of the plaintiff; but the objection being overruled by the Court, they were read in evidence as follows:--

Messrs. ROUGEMONT & BEHRENDS, London.

New-York, 18th October 1822.

Gentlemen-We have now simply to request you to obtain acceptance of the enclosed draft; we do not wish it negotiated until it should be first accepted, either for the honour of the drawer, or for ours and endorsers; we only wish that it may appear as having been sent to you for negotiation by the last endorser. It is drawn by the agent of the Amsterdam house, and as we enclose it as such, we wish it to be returned with the regular formality of law, should it not, contrary to our expectations, be accepted.

With respect, we are, &c.

LE ROY, BAYARD & CO.

It was admitted, that the above letter was not transmitted, nor the contents thereof communicated by Messrs. Rougemont and Behrends, to the plaintiff.

ROUGEMONT & BEHRENDS to Messrs. WILLIAM KONIG & CO. Amsterdam.

London, 19th November 1822.

We beg you to have the enclosed accepted 1st of fl. 21,500, 60 days on N. & J. & R. Van Staphorst, and hold the same to the disposal of the 2d, 3d, and 4th. You will oblige me by mentioning the day of acceptance, and, in case of refusal, you will have the bill protested. If accepted, please let us know the amount of stamp duties, &c.

The defendants also read in evidence the following extracts of letters from the plaintiff to Rougemont & Behrends.

Amsterdam, 22d November 1822.

Messrs. ROUGEMONT & BEHRENDS, London.

We had this pleasure 19th instant, and are to-day in possession of your favour. The enclosed fl. 21,500 on N. & J. & R. Van Staphorst, will be presented for acceptance, and kept to the disposal of duplicate; for stamp duty we debit you in postage account, which is fl. 14. 5s. Messrs. Van Staphorst have defeerred the answer whether they will accept said bill till tomorrow. We cannot inform you of the result until Tuesday, and in case of refusal will forward you the protest.

Amsterdam, 26th of November 1822.

Messrs. ROUGEMONT & BEHRENDS, London.

We refer to our respects of the 22d instant. Messrs. N. & J. & R. Van Staphorst, after having deferred the acceptance of the bill of fl. 21,500, 60 days, till yesterday, now refuse to accept; we had also the bill presented for non-acceptance, at the same time honouring it for account of Le Roy, Bayard & Co. in New-York. The bill has also been accepted on the 25th of November, and will be due on the 24th of January next. We will keep it at the disposition of the 1st, 3d, or 4th, or any copy authenticated by your endorsement.

They also read in evidence the following letters from the plaintiff to the defendants.

Amsterdam, 26th of November 1822.

Messrs. LE ROY, BAYARD & CO. New-York.

Gentlemen-Having been charged by Messrs. Rougemont & Behrends of London, to procure the acceptance of a second of exchange of bill of fl. 21,500, Mr. John C. Delprat at Baltimore, of 2d September, to your order, on Messrs. N. & J. & R. Van Staphorst. These gentlemen have refused to accept it, expressing their regret at being unable on this occasion even to protect your signature, and save you heavy damages. We have determined to offer it, on the assurance that this intervention would be agreeable to you, and we remit you annexed, in consequence, the protest for non-acceptance, and the act of intervention for the fl.21,500, becoming due 24th January-accepted 25th November for your account. At maturity we will send you all the papers in order, and as it appears certain that Messrs. Van Staphorst will not pay the draft of Mr. Delprat, you can at present admit that you will leave it to reimburse us this intervention, with commission, expenses, and interest. We renew, gentlemen, on this occasion, the offer of our services, desirous that it may be agreeable to you to require them.

Amsterdam, 28th January 1823.

Messrs. LE ROY, BAYARD & CO. New-York.

Gentlemen-We have the honour to confirm our letter of 26th November, of which a triplicate is annexed, and to inform you that Messrs. N. & J. & R. Van Staphorst, having persisted in their refusal to pay the bill of exchange of fl.21,500, of Mr. John C. Delprat to your order upon them, we have paid it under protest, and act of intervention, for your honour.

Accompanying this you receive the papers consisting of first draft in first and second. 2. Protest of act of intervention. 3. Amount relative thereto. Will you, gentlemen, please to acknowledge the accuracy of this amount, on 24th January, fl.21,647, and credit us the amount.

Amsterdam, 2d September 1823.

Messrs. LE ROY, BAYARD & CO. New-York.

Gentlemen-On the 26th of November past year, we informed you of our having intervened with acceptance, for your honour and account, as endorsers, a draft of fl.21,500, John C. Delprat's draft 60 ds. sight, Baltimore, 2d September, in your favour, protested for non-acceptance against the said drawer, while on the 28th January we had the honour to inform you that we had paid the above bill, by intervention, for your account; handing you, at the same time, the original bill duly discharged, together with necessary protest and act of intervention. Since that time we have only received your lines of the 31st January last, by which you thank us for the intervention made by us, but observe, that Messrs. N. & J. & R. Van Staphorst had, at the same time, informed you, that they had guarantied to us the reimbursement of that draft, for which reason you refer us to these gentlemen.

To our letter returning to you duly discharged, and paid by us for your account, the aforementioned bill, you did not give us any reply. Messrs. N. & J. & R. Van Staphorst have only guarantied us in case we should not be able to recover our reimbursement from you, for whose account we intervened; and they are thus entitled to ask from us, that we enforce that payment from you, to which measure that guarantee obliges us, and the effect of which we cannot but maintain, so that, in order the obtain that payment which you owe us, we have now valued this day on you at sixty days; $3,600, $3,400, $1,932.80, order Gulian Ludlow, Esq. at the exchange of 50 stg.-fl.22,332, being the exact amount of our intervention, together with interest and charges to this day, as per note annexed, which we recommend to your protection, and request you to honour in payment of the amount expended by us for your account. If you, against our expectation, refuse to pay this bill, we must inform you, that we have given our most strict and precise order immediately to enforce payment by force of law, to which purpose we must then demand from you the original bill paid, with protest, &c. which we request and authorize you, by the present, to deliver to Gulian Ludlow, Esq. of your city, whom we have empowered to give receipt for these documents; which are our property till you have paid us for them. We are obliged to do this act of devoir; in order to obtain final reimbursement; while we hope and trust you cannot take this measure, necessary to us, in any evil light.

We remain, very sincerely, gentlemen,

Your most obedient servants,

WILLIAM KONIG & CO.

The following letter from N. & J. & R. Van Staphorst to the defendants, was also offered in evidence, and objected to on the part of the plaintiff, but the objection being overruled by the Court, was read, as follows:--

Messrs. LE ROY, BAYARD & CO. New-York.

Amsterdam, 25th November 1822.

Gentlemen-We confirm our last respects of 12th inst. and have since received your esteemed letters of the 4th and 5th ult. first of which accuses receipt of our sundry letters up to the 23d of July, inclusive.

The draft advised in your esteemed favour of 5th ult. 60 days sight-No. 368-fl.7,000-favour John Telfair, meets due honour at presentation to the debit of your account. We have yesterday received letters from Mr. Deiprat, dated 10th, 11th, and 15th of October, of which we cannot fail to communicate in a few words the purport. It is such as we might expect; instead of attempting to clear up any of the distressing items alluded to in our letters to him, or to refute any of the arguments which founded our conduct, Mr. D. merely falls on our circulars, as he calls them, (written at the time to only four of those who were owing us moneys at Baltimore, and of which we annex copy in our defence,) as having injured his credit; and further declaims against an answer, which he had been erroneously informed that we had given in the protest of one of his bills; further, Mr. Delprat chiefly writes, that he is very desirous to have his accounts closed, and sent up to him; so that, all items being properly brought therein, it may be approved by him, and our intercourse finally closed. We, of course, shall not be backward in complying with that wish; and, on correctness and justice, you will easily believe that Mr. Delprat can safely calculate. When we wrote to you our last letters, and therein stated the amount drawn by Mr. Delprat, so much above any thing that prudence or correctness warranted, we were indeed far from prepared for the appearance of a fresh draft of Mr. D., valued (as the French term it) de but enblanc, without any light being spread by the letter of advice attached to it.

Fl.21,500-Baltimore, 2d September, at 60 ds. sight in your favour. This draft, confirmed in no letter of Mr. Delprat, and dated at such an ominous time, was calculated to yield much matter to think on. If Mr. Delprat knew of the protests of his former drafts, to what ought this new flourish to serve; if not, what was his intention by drawing such a large sum again over and above all his former dispositions; a valuation which, placing all possible folly and imprudence on our side, it could not yet possibly be thought that we should honour without attempting to explain the matter. We have merely to express our regret at observing again your endorsement on the bill, and notwithstanding your silence in your last favour of 4th and 5th instant, with regard to former interventions, in fact rather disagreeable to us, and whatever might be the intentions of Mr. D. at drawing the bill, we were too much your friends, my dear sirs, not immediately to come forward on account of your signature; but consulting our legal adviser on this so strange and surprising incident, we were sorry to find that it was his positive opinion, that in this peculiar case we ought not to value at all this draft, nor in the least manner to allow that such a draft might properly have been issued by the drawer, and thus that we ought not to consider it at all, nor to meddle with it in the least. So firm was our counsel in that idea, that he was completely against our intervening on behalf of any endorser, as being prejudicial to the system we ought to follow with regard to this bill; but he thought that it was proper to note in the protest our reason for non-acceptance and non-intervention. We were thus put in a disagreeable position; as on the one side we did not wish to act contrary to his advice, and to depart from a system which he though necessary to us; and, on the other, we were fully determined, at all events, not to suffer your signature to go back without being honoured. In this predicament, we applied to our friends Messrs. Wm. Konig & Co. who had the said bill in hand, informed them of the whole case, and requested these gentlemen, under our guarantee, to intervene on behalf of your signature, with acceptance and payment of above bill; which favour these gentlemen have not refused to us, so that, without our prejudice, and completely without yours, we have duly protected your interest. We are well persuaded you would not wish us to have done any act which we might think detrimental to us, and we thus are confident, that you will duly appreciate our conduct in this truly awkward affair.

The defendants also read in evidence the following letter from them to the plaintiff:--

New-York, January 31st, 1823.

Messrs. WM. KONIG & CO. in Amsterdam.

Gentlemen-We are favoured with your letters of the 26th November, apprizing us that Messrs. Rougemont & Behrends of London, had sent you for acceptance, a draft for fl.21,500, drawn at Baltimore, by Mr. John C. Delprat, in our favour, at 60 days sight, upon Messrs. N. & J. & R. Van Staphorst, that these gentlemen had refused the acceptance, and that you had intervened for our honour as endorsers; that you had no reason to believe that it would at maturity be paid by the drawers, and that you would thus be called upon to discharge it. Messrs. N. & J. & R. Van Staphorst inform us, under the date of the 25th of November, that they had informed you of the whole case, (in relation to this draft,) and had requested you, under their guarantee, to intervene. It remains, therefore, but for us to thank you for the honour which you purposed doing us, and to refer you to Messrs. N. & J. & R. Van Staphorst for a release from the responsibility assumed under their guarantee, and for them.

We have the honour to be, Gentlemen,

Your humble servants,

LE ROY, BAYARD & CO.

It was admitted, that the said bill, for fl.21,500, was drawn serveral days after the date of it. That the same was drawn by the said John C. Delprat, on his own account generally, and not on any shipment; and that the said bill was drawn after the said J. C. Delprat heard from the defendants, that his bills on Messrs. N. & J. & R. Van Staphorst had been protested. That the said J. C. Delprat sent to the defendants, an order on Messrs. N. & J. & R. Van Staphorst, dated 4th September 1822; (a copy of which order is hereunto annexed;) and that the said bill was sent therewith to the defendants; that there were other dealings between the defendants and the said John C. Delprat, besides those growing out of the agency of the said John C. Delprat for the Messrs. N. & J. & R. Van Staphorst; that the defendants, in the course of those dealings, during the summer of 1822, loaned to the said John C. Delprat, a large sum of money on his own account, which loans were carried by them into their general account with the said John C. Delprat; and that the said bill was given to the defendants, by the said John C. Delprat, to repay them for the said advances to him, as far as the same would go.

Messrs. N. & J. & R. VAN STAPHORST, Amsterdam.

Baltimore, Sept. 4th 1822.

Gentlemen-You will please hold all balances due to me by you; all the proceeds of goods sold or unsold, shipped in my name, per Virgin and other vessels, to the order and for the use of Messrs. Le Roy, Bayard & Co., and for which this letter will be your sufficient authority.

I remain, with esteem,

Your obedient servant,

JOHN C. DELPRAT.

The Judges of the Circuit Court divided in opinion upon the following points, which were certified to this Court.--

1. Whether the letters offered in evidence by the defendants, and objected to, ought to have been admitted.

2. Whether the plaintiff had a right, under the circumstances, to accept and pay the bill, upon which the suit was brought, for the honour of the defendants; and is entitled to receive the amount thereof, with charges and interest.

The first point was waived by the counsel for the plaintiff; and the whole argument was directed to the second point.

The cause was argued by Mr. Webster, and Mr. Ogden Hoffman, for the plaintiff, and by Mr. D. B. Ogden, and Mr. Oakley, for the defendants.

For the plaintiff.

The contents of the letter of instructions from Van Staphorsts to J. C. Delprat, not having been communicated to the plaintiff, ought not to affect him in any manner. Any stranger has a right to intervene in case of the non-acceptance, or non-payment of a bill of exchange. This is an established usage in commercial operations, and contributes essentially to their safety and certainty. To the drawer and endorsers, it saves the damages on the bill, which would be payable on its return, and prevents other heavy expenses.

The guarantee of the drawees, in favour of the plaintiff, was an arrangement exclusively between the parties; and the defendants have no right to look to it in the transaction.

On the part of the Van Staphorsts, there was no obligation to give the guarantee, and it was an act for the eventual protection of the plaintiff, in case of the inability of the defendants to repay the amount of the bill; and was not given under any supposition of the liability of the drawees to accept or pay the bill.

If either the plaintiff or the Van Staphorsts, could pay the bill separately, both might pay jointly. The person who pays for the honour of another, may look to all the parties to the bill, as well as to the person for whose honour he pays it.

The payment of a protested bill for the honour of another, is only a mode of becoming the holder, and although against the will of the parties to it, they thus become debtors to the payer.

The Common Law, and the law merchant, as part of the Common Law, presumes a general standing request to be made by the drawer and endorsers of an unpaid bill, to every friend, to prevent the dishonour of the bill, and the burthen of heavy damages in consequence of this. If acceptor, supra protest, for the honour of an endorser, pays the bill, he may sue the endorser, as he is to be considered as an endorser paying full value for the bill. 1 Esp. Rep. 112. Chitty on Bills, 441.

For the defendants.--

This mode of proceeding, by the intervention of a third person, prevents and disables the defendants from proving that the Van Staphorsts were bound to accept, and ought to have paid the bill. This action is not upon the bill strictly, but it is for money paid for the use of the defendants, by one who was an entire stranger to them, and had not right to intervene. A suit cannot be brought upon the bill, because by its payment it is extinct.

The plaintiff interfered, not for the honour of the drawer or endorser, but for that of the drawees. Laying aside his agency, he undertakes to pay the bill, at the request of the drawees, and they are liable to him, and have stipulated for his protection.

The general rule of law is, that no man can constitute himself the creditor of another, without his consent, express or implied. 6 Term Rep. 310. 1 Beawe's Lex Merc. 63-4. The only exception to this rule is, the case of acceptance of a bill, supra protest.

The reasons for this rule are-1. The law implies consent of the party for whose honour acceptance is made, from the nature of the favour conferred-being gratuitous, and incurring hazard, for the purpose of rendering a service, an acceptor, supra protest, may demand recompense for the credit given, for whose benefit acceptance is made. And in case he re-draws on such person, his bill ought to be promptly complied with, besides a grateful acknowledgment of the favour. Beawe's Lex Merc. pl. 44. 63, 64.

Thus it appears, that the motive of the acceptor must be such as to entitle him to gratitude.

2. The consideration in the implied contract, in this case, cannot be solely the benefit conferred on the endorser; as voluntary services may be rendered in all other cases, and no contract will be implied.

Can there be an acceptance for the honour of an endorser, under the guarantee of a third person? 1. It confers no honour. 2. Gives no credit. 3. It is not gratuitous or voluntary. 4. It is not founded on a consideration, which can alone lay the foundation of such a contract.

Can there be an acceptance for the honour of the payee or endorser, under a guarantee of the drawee of the bill?

1. The drawee cannot do indirectly, what he cannot do directly. The law is settled, that, if the drawee has accepted, supra protest, for want of advice of effects, and before the bill is payable he receives effects, he is bound to discharge the endorser, and advise him that he will pay the bill; 1 Beawe's Lex Merc. 109. Thus, if the Van Staphorsts had accepted, supra protest, for the honour of the defendants, and had afterwards received remittances from Delprat, they could not have paid the bill, supra protest, for the honour of the defendants; and by the acceptance, under guarantee, is intended to deprive the defendants of the benefit of those principles of law.

An acceptor for the honour of the drawer, must do it before he accepts generally, 'or any ways engages or obliges himself thereto.' Marius Ex. 30, 31. Malyn Lex Merc. vol. 1.

By parity of reasoning, a person under any obligation to pay, cannot pay a bill, supra protest, for the honour of another. 1 Lord Ray. 88.

The consequence of such proceedings might be, that, under a secret guarantee, the drawee might avoid the fulfilment of his obligation to pay the bill. Another objection is, that the endorser has imposed upon him a contract, without his knowledge or consent, and this the law will not permit, under circumstances exposing him to injury.

The party affected by this intervention, cannot have the same defence, or the means of the same defence, against a stranger, as against the drawee, as the guarantee may be, and is, generally, secret.

The evidence in this case shows, that the defendants did not desire to have the bill paid by any one but the drawees. Rougement & Behrends of London, were the agents of the defendants, and they write to the Van Staphorsts, that the holders of the bill desire that it may be protested, if not paid. The plaintiff, therefore, knew that it was not the desire of the defendants to save the bill from dishonour. The plaintiff was the agent of the defendants to have the bill accepted, if not dishonoured. This is shown by the letter of 19th November 1822. He could not, therefore, interfere to pay the bill. It was against the nature of his agency.

Mr. Chief Justice MARSHALL delivered the opinion of the Court:--

This suit was brought in the Court of the United States, for the second Circuit and district of New-York, on a bill of exchange, drawn by John C. Delprat, of Baltimore, on Messrs. N. & J. & R. Van Staphorst, of Amsterdam, in favour of Le Roy, Bayard & Co. of New-York, and endorsed by them. The bill was regularly presented and protested, after which it was accepted and paid by the plaintiff, for the honour of the defendants. The jury found a verdict for the plaintiff, subject to the opinion of the Court, on a case stated by the parties. The Judges of the Circuit Court were divided in opinion, on the following points:

1. Whether the letters offered in evidence by the defendants, and objected to, ought to have been admitted.

2. Whether the plaintiff had a right, under the cicumstances, to accept and pay the bill in question, under protest, for the honour of the defendants; and is entitled to recover the amount, with charges and interest.

The first question is understood to be waived. It is a question which was decided by the Court, at the trial, and could not arise after verdict, unless a motion had been made for a new trial.

The second requires an examination of the case stated by counsel. The bill was transmitted by Roy, Bayard & Co. to Messrs. Rougemont & Bebrings, of London, to have it presented for acceptance, who enclosed it to the plaintiff, in a letter, from which the following is an extract: 'We beg you to have the enclosed accepted; 1st, of fl. 21,500, 60 days, on N. & J. & R. Van Staphorst, and hold the same to the disposal of 2d, 3d, and 4th. You will oblige me by mentioning the day of acceptance, and in case of refusal, you will have the bill protested.'

The plaintiff gave immediate notice of the dishonour of the bill, and of their intervention, for the honour of the defendants.

Messrs. N. & J. & R. Van Staphorst addressed a letter to the defendants, dated the 26th of November, 1822, giving notice that the bill was dishonoured; the drawer having no right to draw, and that they were advised by counsel not to interpose, in their own names, for the honour of the defendants. The letter adds, 'In this predicament, we applied to our friends, William Konig & Co. who had the said bill in hand, informed them of the whole case, and requested these gentlemen, under our guarantee, to intervene on behalf of your signature, with acceptance and payment of the above bill; which favour these gentlemen have not refused to us; so that, without our prejudice, and completely without yours, we have duly protected your interest.'

The defendants also gave in evidence, a letter from the plaintiff, stating that he had intervened, at the request of N. & J. & R. Van Staphorst, and under their guarantee; but that they required him to proceed against the defendants, as preliminary to the performance of that guarantee.

It was admitted that the bill was drawn by J. C. Delprat, on his own account, and not on any shipment for a debt due from him to the defendants, for advances previously made to him; and that he had given to the defendants an order on N. & J. & R. Van Staphorst, for all balances due from them to him.

It is not alleged that the drawees had any funds of the drawer in their hands.

The plaintiff in this case must be considered as the agent of N. & J. & R. Van Staphorst, and as having paid the bill at their instance. All parties concur in stating this fact. The Van Staphorsts adopted this circuitous course, instead of interposing directly in their own names, under the advice of counsel. They however immediately stated the transaction in its genuine colours, to the defendants. It is impossible to doubt, that a person may thus intervene, through an agent, if it be his will to do so. The suspicion which might be excited by proceeding, unnecessarily, in this circuitous manner, cannot affect a transaction, which was immediately communicated, with all its circumstances, to the persons in whose behalf the intervention had been made; unless those persons were exposed to some inconvenience, to which they would not have been exposed, had the interposition been direct. This is not the case in the present instance, since it cannot be doubted that the defendants might have availed themselves of every defence in this action, of which they could have availed themselves, had N. & J. & R. Van Staphorst been plaintiffs. The case shows plainly, that the bill was not drawn on funds, and that the drawees were not bound to accept or pay it. No reason, therefore, can be assigned, why the person who has made himself the holder of the bill, by accepting and paying it under protest, should not recover its amount from the drawer and endorsers.

This cause came on to be heard, on a certificate of division of opinion of the Judges of the Circuit Court of the United States, for the southern district of New-York, and on the points on which the said Judges were divided in opinion, and was argued by counsel, on consideration whereof, This Court is of opinion, that the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under protest, for the honour of the defendants, and is entitled to recover the amount, with charges and interest; which is ordered to be certified to the said Circuit Court.

Notes