Fenwick in their hands, he virtually had notice of the non-ac Sears's Admi- ceptance and non-payment. The rule which requires V.. nistrators. * 272 notice to an endorsor, is made for his protection and benefit; and ought not to be converted into the means of enabling him to practise a fraud. The opinion of the court below, that although notice might be necessary in order to support an action on the bill upon the first count, yet it was not necessary to maintain the count for money had and received, was certainly correct, and fully warranted by the case of Bickerdike v. Bollman, 1 Term Rep. 408,409, 410. In that case Ashhurst, justice, says, that notice is not necessary to the drawer when he has no effects in the hands of the drawee; "for it is a fraud in itself, and if that can be proved, the notice may be dispensed with." Kyd, 129. (82.) Evans, 59. Every endorsor is, to his endorsee, as the drawer of a new bill. Kyd, 113. (72.) 1 Salk. 133. Harry v. Perrit, 2 Show. 501. Claxton v. Swift, and in Heylin v. Adamson, 2 Burr. 674. Lord Mansfield, says, "that when a bill of exchange is endorsed, by the person to whom it was payable; as between the endorsor and endorsee, it is a new bill of exchange, and the endorsor *stands in the place of the drawer." If, therefore, the endorsor, at the time he transfers a bill, knows that the drawer has no effects in the hands of the drawee, he is as guilty of fraud as the drawer himself; and in all cases where money is obtained from another by fraud of any kind, it may be recovered back in an action for money had and received. 2 Burr. 1012. Moses v. Macferlan. Salk. 28. Hasser v. Wallis. And in the case before cited, of Bickerdike v. Bollman, 1 Term Rep. 410. Buller, justice, says, "Besides, in the present case, as the plaintiff's counsel have truly argued, that the question is not whether an action could be maintained on the bill itself, but whether the want of notice extinguishes the debt. As to which the case is this; A. not having any effects in C.'s hands draws a bill of exchange for 100%. on him, in favour of B. for value received. Now if C. does not accept, and B. does not give notice to A. there is an end of the bill. Then how does the case stand? A. has 100%. of B.'s in his hands, without any consideration, which, therefore, B. may un doubtedly recover in an action for money had and received." Fenwick V. Sears's Admi The reasoning in that case applies exactly to the nistrators. present. Here the defendant Fenwick, by his endorsement of the bill, acknowledges that he has received its amount. He has received of the intestate 350 dollars, without any consideration, and, therefore, even although the remedy on the bill might have been lost, he ought to recover the amount of the consideration on the count for money had and received. It is true, that in the case of Goodall v. Dolley, 1 Term Rep. 712. it is said that the fact of the drawer's having no funds in the hands of the drawee, would not discharge the obligation of the holder to give notice to the endorsor, to whom he meant to resort; yet it is also expressly stated that the endorsor was ignorant of all the circumstances of the case. That opinion, therefore, cannot affect the present case, in which the endorsor knew the circumstances. As to the question whether reasonable notice is matter of law to be determined by the court, or matter of fact to be determined by the jury; the practice in England, until lately, was for the jury to determine, by the circumstances of each particular case, what time was reasonably to be allowed either for making demand, or giving notice. Kyd, 127. (77.) Doug. 515. (497.) Russel v. Langstaffe. Doug. 681. Rushton v. Aspinall. In the case of Tindall v. Brown, 1 Term Rep. 167. Lord Mansfield says, that "what is reasonable notice is partly a question of fact, and partly a question of law. It may depend in some measure on facts; such as the distance at which the parties live from each other, the course of the posts, &c. But whenever a rule can be laid down with respect to this reasonableness, that should be decided by the court, and adhered to by every one for the sake of certainty." And Ashhurst, justice, said it was "of dangerous consequence to lay it down as a general rule, that the jury should judge of the reasonableness of time. It ought to be settled as a question of law. If the jury were to determine this question in all cases, it would be productive of endless uncertainty." It appears to have been the opinion of both these *273 Fenwick V. judges, that there were certain cases in which it was Sears's Admi- proper for the jury to determine on the reasonableness nistrators. of notice; but that in cases where a rule can be laid down, the court ought to decide the question. No certain rule can be laid down, except in cases where the parties live in the same place, or where there is a constant and regular communication by post between them. * 274 In a much later case, 2 H. Bl. Rep. 569. it was determined that what was reasonable time must depend on the particular circumstances, and it must be always for the jury to determine whether any laches is to be imputed to the plaintiff. In the case of Mackie v. Davis, 2 Wash. 231. Carrington, justice, says, "whether due diligence had been used by the assignee to recover against the obligor would necessarily be a matter in issue between the parties; and would, upon all the circumstances of the case, be decided by the jury." 1 Dal. 252. is to the same effect. A case to the same effect also has been mentioned as having been decided in the circuit court of the United States, in Virginia, by Judge Wilson. The instruction of the court below to the jury, that reasonable notice was necessary to charge the defendant on the first count, was not objected to by the plaintiffs' counsel; but the court not having instructed them whether the notice was or was not reasonable, and a general verdict for the plaintiffs having been given, it is to be presumed that the jury thought the notice was reasonable under all the circumstances; and they were certainly competent to decide that ques tion. The decisions, that notice must come only from the endorsee or the holder, have been since overruled. Evans, 57. 3. As to the letters of administration. An administrator, in the United States, ought not to be considered precisely in the same point of view as in England. In England, he is the servant or agent of the ordinary, and acts in his place and stead. In the United States, he is the representative of the intestate; and all the rights and credits of the intestate are vested in him. Formerly, in England, the goods of an intestate were disposed of by the bishop or ordinary to pious uses. It was not until the statute of 13 Edw. I. c. 19. that the bishop or ordinary was compelled to satisfy the debts of the intestate as far as the goods, which came to his hands, would extend. After this statute, an action might be brought against the ordinary in the same manner as against an executor; but he was not compellable to grant administration until the statute of 31 Edw. III. c. 11. From this relation between the ordinary and the administrator, the power of the latter was necessarily limited by the jurisdiction of the former. But the act of congress concerning the district of Columbia puts the question out of doubt. By that act, the laws of Maryland are continued in force in this part of the district; of course, all rights acquired under the laws of Maryland remained valid. It was not the intention of congress to devest any rights which had been acquired under those laws. If the separation of the district from Maryland took away the right which the plaintiffs before possessed of taking possession of the property, and collecting the debts of the intestate, in this part of the district, under their letters of administration granted in Baltimore county, it would have the same effect upon letters granted by the orphans' courts of Montgomery and Prince George's counties, before the separation, to persons resident in the district, so that their acts, done since the separation, are unauthorized, and they cannot lawfully act until new administration has been taken out from the orphans' court within the district. The inconvenience, expense and oppression of such a construction, are too obvious to admit the supposition that it was within the intention of congress. These letters were taken out from the proper authority, and at the time vested a right in the plaintiffs to administer the assets within this part of the district. C. Lee, on the same side. 1st. As to the letters of administration. Fenwick V. Admitting that letters of administration, granted out Sears's Admi- of the state of Maryland, will not authorize an administrators. nistration of assets within the state, yet in this case the letters were granted in Maryland, while this district was part of Maryland, before the 1st Monday of December, 1800, and did once authorize an administration of the assets here. A right was completely vested in the plaintiffs. The laws of Maryland are as fully in operation in this district as they were or are in the state of Maryland. Congress could not mean to devest rights completely * 276 vested. 2d. As to the second bill of exceptions. It is admitted that Hanson was duly appointed notary, but the objection is, that he had not taken the oath. The *exception is not to the opinion of the court that he was not duly qualified to act; but simply that it was not competent for the defendant to give the evidence offered to prove that he had not taken the oaths. The intention of an oath is only to impose an additional obligation on the officer. It is a matter between the officer and the government; and generally a penalty is imposed for not taking it; but the not taking the oath does not make the act void. Suppose a member of the legislature should not take the oath prescribed; this would not vacate a law to which he had given his assent. Such a doctrine would produce infinite inconvenience. No time is limited for making the objection; and twenty years after an act has been done, it may be offered to be proved that the officer did not take the oath; if the court would do right in refusing such evidence in that case, they were right in refusing it in the present. 3d. The third bill of exceptions is, that the court admitted the protest for non-payment to go to the jury, when it was not made in due time. The action being for non-acceptance, and not on the protest for non-payment, it was not necessary to produce that protest at all. The objection is, that it was not made on the last day of grace, but on the day after. The custom is different in different countries. From the general practice of the banks, it may be considered as the general rule in this country to protest on the day after the last day of grace. The protest for non-acceptance is not objected to; it was made on the day on which the bill was presented. |