Unknown County MsArchives Court.....Offit, Fielder 1834
************************************************
Copyright.  All rights reserved.
http://usgwarchives.net/copyright.htm
http://usgwarchives.net/ms/msfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 9:30 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

FIELDER OFFIT vs. W. B. VICK, EXECUTOR OF N. VICK.

pages 99-104

When the jurors depart from the bar, should they doubt as to the testimony 
given them, they may hear from one of the witnesses again, so it be in open 
court, and in the same manner, propound any question to the court, but this 
cannot be done except in open court.

If a jury examines a witness sworn on the trial, except in open court, though 
he only repeat the same testmony which he gave on the trial, the verdict will 
be set aside.

It is unlawful for the jury to separate before they return their verdict, nor 
will it be any excuse, that a sworn constable attended the juror, when he 
separated from his fellows, unless under the permission of the court.

At common law, the jury could take out no evidence, except certain writings 
under seal, unless by the consent of the parties.

A statute of this State permits the jury to take out papers read in evidence 
on the trial, though not under seal, but we are not willing to go any further 
than the provisions of this statute, in relaxing the rules of the common law.

Notice of protest may be proved without producing the written notice.

An acknowledgement by an endorser of a bill of exchange, that he had received 
notice of the protest, and supposed he should have to provide for the payment 
of the bill, is tantamount to legal notice and to a promise to pay.

If the drawer or endorser of a dishonored bill of exchange, pay the amount to 
the holder, without having received notice, and not knowing the fact, he may 
recover the money back.

But a promise to pay under an ignorance of the facts is not binding.

It is immaterial from whom the notice of protest is received. The holder of a 
bill of exchange, payable at a fixed time after date, should call at the usual 
business hours, and present it for acceptance, if accepted, he should under 
like formalities, call upon the drawee for payment, before the expiration of 
the days of grace, and if payment is refused, protest the bill before the 
expiration of the days of grace, and on the same day, if the mail has not 
left, deposit the notice of protest in the post office.

Quere.-Is a bill of exchange drawn in our State, by one of its citizens upon a 
citizen of another state, and there payable, a foreign or an inland bill of 
exchange?


OPINION OF THE COURT—By THE HON. POWHATTAN ELLIS.

On the trial below, a verdict was taken for the plaintiff, and the defendant, 
by his counsel, moved the court to set it aside and award a new trial.

1st. because the jury found a verdict for the plaintiff without any evidence 
of due notice having been given to the endorser, of the protest of the bill, 
of exchange, upon which the action is founded.

2ndly, because the court suffered, improper evidence to go before the jury, in 
that, parol testimony was admitted to prove a protest, without accounting for 
the absence of the written notice.

3rdly, because the jury found for the plaintiff more than principal, interest 
and ten per cent damages.

4thly, because one of the jurymen left his room, and separated from his fellow-
jurors, without permission of the court, and received papers from the opposite 
party, after the jury had retired to agree upon their verdict; and lastly, the 
jury separated before they agreed upon their verdict. Upon argument, the court 
below, doubting as to the law, refers the motion to this court for decision.

This was an action instituted by Fielder Offit, the endorser of a bill of 
exchange, drawn by Hartwell Vick, on Breedlove Bradford and Robinson of New 
Orleans, and made payable to the order of William Neevit Vick. When this cause 
was tried in the Superior Court of Warren County the plaintiff’s counsel 
introduced H. Offit, a witness, to testify, that the bill had been dishonored, 
and regularly protested, and that the defendant had notice of it. It appears 
from the judge's report who tried the cause, that H. Offit swore he was in New 
Orleans when the protest was made for non payment, and left that place the 
next day on his way to Kentucky, that he fell in company with the endorser, 
who told him in conversation, that he had received the notice of the protest 
from New Orleans, and supposed he should have to provide for the payment of 
the bill. Upon this evidence, the counsel for the defendant urged upon the 
court the want of legal notice—for it was said, the original notice ought to 
be produced, or satisfactorily accounted for.—The court left to the jury, from 
the evidence, whether notice had been received by defendant's testator, and if 
so, was it received in a reasonable time. If they found those facts 
affirmatively, they ought to find for the plaintiff, otherwise, for the 
defendant. There was a verdict for the plaintiff.—The bill upon which this 
suit was brought, may be considered in the nature of a foreign bill of 
exchange, and the parties to it will be entitled to the same rights, and 
subject to the same responsibilities, as if the drawers had resided in London 
or Amsterdam, at the time of the date of said bill, except so far as it 
relates to the recovery. We are not prepared to say at this time, whether in 
the present case, ten or twelve per cent damages should be allowed the holder 
of a dishonored bill, yet the weight of authority seems to place paper of this 
kind, upon the footing of an inland bill of exchange, consequently, only ten 
per cent damages in such cases can be recovered. To settle this point, is not 
material, as it does not fairly coe before us. When a bill of exchange is 
drawn by one person on another, and made payable to A. B. or order, sixty days 
after date, for instance, and endorsed in the usual manner, the holder of the 
bill should call at the usual hours of doing business, and present it for 
acceptance. If it should be accepted, he will, under like formalities, call 
upon the drawee, and demand payment before the expiration of the days of 
grace, and if payment is refused, he must have the bill protested, for non-
payment, before the days of grace have expired, and on the very same day, if 
the mail has not left, he must deposit a letter at notice in the post office, 
directed to those on whom he intends to call for indemnity; and the reason of 
the law for this strictness is “That the parties from whom the holder receives 
the bill, may immediately call on those who are liable to him.” Chitty on 
bills 16. And further, it is perfectly immaterial from whom the notice is 
received, provided it be brought home to the knowledge of the party, entitled 
to insist on a want of it. Shaw vs. Croft.

The objection taken by defendant's counsel in the second clause of the first 
reason, cannot be sustained, as we find evidence of the contents of a notice 
may be given, without notice to produce the original. 2, Campbell 601.—6, 
Wheaton 104.

It was given in evidence, that the defendant acknowledged he had received 
notice of the protest of non-payment, and that he should in all probability 
have, to make provision to take it up. According to a well established 
principle of the law, "that courts will always favor the rights of the holder 
in such cases," therefore it will not be going too far, in our estimation, to 
presume the acknowledgment of the endorser us tantamount to legal notice, 
until the contrary appears. We have no difficulty in acknowledging the 
doctrine contended for by defendant's counsel, that if a party is not advised 
of his legal rights, and under an ignorance the facts, pays money under an 
impression he was bound to do it, he may institute his action, and recover it 
back again—so if a drawer or endorser of a bill of exchange, which has been 
dishonored by the drawee, actually pays the amount to the holder, without 
having received notice, and not knowing the fact, he may maintain an action to 
recover it. Now if the defendant, or the person whom he represents, under an 
ignorance of the facts compromited any of his legal rights, by an 
acknowledgement he had received notice of the protest of the bill of exchange 
from New Orleans, upon which he was sued, he certainly could have made it 
manifest, on the trial, and if he had made out a proper case, the court would 
have protected him, by instructing the jury they were to disregard his 
acknowledgements, which would have put the plaintiff to the proof of his 
written notice. The case of Lundy vs. Robinson, in 7, East, is not directly in 
point: "an indorsee, three months after a bill becomes due, demanded payment 
of the indorser, who first promised to pay it, if he would call again with the 
acconut, and afterwards said, that he had not reguldr notice; but as the debt 
was justly due, he would pay it, held to be a waiver of notice. But in this 
case, when the endorser acknowledged he had received notice of the protest, he 
did not positively promise to pay, but observed he supposed he should have to 
make provisioos to pay it or take it up, which acknowledgement was sufficient 
to fix his liability and tantamount to promise to pay under the exception we 
have already stated. In the second and last place, it is agreed, that the 
verdict cannot stand because one of the jurors separated from his fellows 
(after they had retired to consider of their verdict) under the charge of a 
constable, asking for a paper or document which the jury wanted—which said 
paper went into the possession of the jury, as the deponent Richard Stockton, 
junr. believes.

Let us consider this reason in a two fold point of view. First, will the 
separation of the jury, after the charge of the court, and before the 
rendition of the verdict, avoid said verdict?

Secondly, If the jury receive a paper which was not given in evidence, at the 
instance of either party, and a verdict is given for said party, will the 
court award a new trial?

Upon the first point, I find it is well said, "when the jurors depart from the 
bar, a bailiff ought to be sworn, to keep them together and not to suffer any 
to speak to them," 3 Bacon’s Abridg. p. 768, title, juries, letter (G.) But, 
if after the departure they should feel any doubt in relation to the testimony 
submitted for their consideration, they may desire to hear one of the 
witnesses again, and it shall be granted, so he deliver his testimony in open 
court, and also they may desire to propound questions to the court for their 
satisfaction, and it shall be granted, so it be in open court—the qualifying 
words, "so it be in open court" seem to preclude the admissibility of any 
species of evidence, by any other means, other than that prescribed by the law 
already quoted. It was upon this principle, that the case of Metcalf and Dean 
was decided in Croke, Elizabeth 189. It was this "where the jury withdrew to 
confer about their verdict, one of the witnesses that was before sworn, on the 
part of the defendant, was called by the jurors, and he recited again his 
evidence to them, and they gave their verdict for the defendant, and complaint 
being made to the Judge of assize, of this misdemeanor, he examined the jury, 
who confessed the matter, and that the evidence was the same in effect, that 
was given before, and this matter being returned upon the postea, the opinion 
of the court was, that the verdict was not good, and a veniro facias de novo 
was awared.

Although the facts made out by the showing of the plaintiff, in this motion, 
are not precisely analagous to the case cited, yet they are sufficiently 
strong to produce irresistable convictions upon our minds, that the jury acted 
imprudently and irregularly in their deliberations. They were imprudent in 
separating before they returned their verdict, because such acts are expressly 
forbidden by the law. "The jury must be kept together without meat, drink, 
fire or candles, till they are agreed," unless the court should think proper 
to relax the severity of this rule, in the exercise of a sound discretion. See 
Coke Littleton 227, letter (B.). But if the jury were to take out papers, read 
in evidence in a suit at common law, without the permission of the Judge, and 
the verdict was in all other respects satisfactory, I would not disturb it. It 
will be no excuse that a sworn constable attend the jury, when he separates 
from his fellows, unless it be under the permission of the judge.

Upon the second point of the last question, we are equally clear. At common 
law, the jury could not take out evidence with them, submitted in the cause, 
unless it was done with the approbation of the Judge, and even then, it would 
be confined to letters patent, and under seal, and the exemplification of 
witnesses, in chancery, if dead, but not writings without seal, unless by 
consent of parties, Coke Little. Croke Elizabeth 411—But we have a statute, 
passed the 10th December, 1811 in Turner’s Digest, page 186, courts, sec. 11, 
which says "papers read in evidence to the jury on the trial of any cause, 
though not under seal, may be carried from the bar by the jury; so far as our 
statute relaxes the rigor of the common law rule, we are willing to go, but no 
farther." It has become indispensably necessary to the prompt and salutary 
administration of justice, that the law in regard to the duties of jurors be 
strictly and energetically carried into effect, otherwise instead of being the 
strongest pillar in the fabric of our social edifice, they will become the 
least servicable, and the most dangerous. Upon the two last reasons, as above 
considered,

Let the motion for a new trial be granted, and venire facias de novo awarded.

Note—It will be perceived, that the court in this case, declined deciding the 
much litigated question, whether a bill drawn in one State, upon a person 
residing in another State, is a foreign or inland bill of exchange, although 
they intimate that the right of authority is in favor of regarding it as an 
inland bill. This intimation was certainly true at the date of this decision. 
The Supreme Court of New York, had positively decided that such a bill was an 
inland bill; Miller vs. Hackley. 5 Johnson 375. The same opinion had been 
expressed by Tucker in his edition of Blackstone 2. vol. 467. N. 22. There had 
been then no decision promulgated to the contrary, though an opposite opinion 
was expressed in Swift's essay on bills, 291. The decision of Judge Washington 
has been published in 1829, declaring such bills foreign bills of exchange, 4 
Nash, 148, 157. Lansdale vs. Brown, and this decision has been recently 
sustained by the supreme court of the United States, 2 Peters, 586.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

File at: http://files.usgwarchives.net/ms/unknown/court/offit54gwl.txt

This file has been created by a form at http://www.genrecords.org/msfiles/

File size: 15.4 Kb