CHAPTER House of Lords, and it is to be borne in mind that so far as those expressions go beyond what was necessary to decide the case then under consideration, they are extra-judicial. mains unpaid." Cookev. French, 10 Ad. & Ell. 131; 3 Per. & D. 596, S. C. "Dear Sir, To my surprise I have received an intimation from the Birmingham and Midland Counties Bank that your draft on A. B. is dishonoured, and I have requested them to proceed on the same.' Shelton v. Braithwaite, 7 M. & W. 436. "Sir, I am instructed by Mr. Molineaux to give you notice that a bill (describing it) has been dishonoured," &c. Stocken v. Collin, 9 C. & P. 653; 7 M. & W. 515, S. C. A party sent by the holder of a dishonoured bill of exchange, called at the drawer's house the day after it became due, and there saw his wife, and told her that he had brought back the bill that had been dishonoured. She said that she knew nothing about it, but would tell her husband of it when he came home. The party then went away, not leaving any written notice: held sufficient notice of dishonour. Housego v. Cowne, 2 M. & W. 348. "James Court's acceptance, due this day, is unpaid, and I request your immediate attention to it," was held sufficient. Bailey v, Porter, 14 M. & W. 44. See the observations on this case in Allen v. Edmundson, 17 L. J., Exch. 293; 2 Exch. 719, S. C.; and see Paul v. Joel, 3 H. & N. 455; 28 L. J., Exch. 143; 4 H. & N. 355, affirmed in error. "Your draft upon C. for 50%., due 3rd March, is returned to us unpaid, and if not taken up this day, proceedings will be taken against you for the recovery thereof," was held sufficient. Robson v. Curlewis, 2 Q. B. 421. "A bill, &c. is unpaid, noting 58.," is sufficient, the expression noting indicating a dishonour. Armstrong v. Christiani, 17 L. J., C. P. 181; 5 C. B. 687, S. C. Where the holder, when the bill became due, said to the executor of the acceptor, who was also indorser, "I have brought a bill from the plaintiffs, you know what it is;" and the defendant said, "I am executor of the drawee, you must persuade the plaintiff to let the bill stand over a few days, because the acceptor has been dead only a few days. I shall see the bill paid." Notice of dishonour was held to be proved. Caunt v. Thompson, 18 L. J., C. P. 125; 7 C. B. 400, S. C. "We beg to acquaint you with the non-payment of William Miles's acceptance to James Wright's draft of 29th December last, at four months, 501., amounting, with expenses, to 50l. 58. 1d., which remit us in course of post without fail, to pay to Messrs. Everards & Co., Lynn," was held sufficient. Everard v. Watson, 1 E. & B. 801. In this case Lord Campbell expressed his regret at the decision of Salarte v. Palmer; and see Paul v. Joel, ante. It is conceived that the following is the full form of notice to be given by the holder to an indorser. It may be easily altered and adapted to circumstances: No. 1, Fleet-street, London, 26th Sept. 1842.-Sir, I hereby give you notice that the bill of exchange, dated 22nd ult., drawn by A. B. of, on C. D. of for 1001. payable one month after date to A. B. or his order, and indorsed by you, has been duly presented for payment, but was dishonoured, and is unpaid. I request you to pay me the amount thereof. I am, Sir, your obedient servant, G. H.-To Mr. E. F., of (Merchant)." The construction of all written instruments is for the Court, but the meaning of peculiar expres The decision in Solarte v. Palmer is unquestionably binding to this extent, that a notice in those very terms and under those very circumstances is bad and ought to be withdrawn from the jury. But in strictness this decision is binding no further. Notwithstanding, therefore, the case of Solarte v. Palmer, the true rule in nearly all cases seems now to be this: that where a notice of dishonour conveys expressly or impliedly an intimation intelligible to ordinary understandings of dishonour, and of demand of payment, the notice is sufficient. CHAPTER the instrument. The notice must not so misdescribe the instrument that Description of the defendant may be led to confound it with some other. Thus, a notice in the following terms: "I give you notice, that a bill for, &c., at, &c., drawn by you upon, &c., lies at, &c. dishonoured," has been held insufficient to sustain an action against the indorser, who is not also the drawer (i). But this is only a Nisi Prius decision and doubtful. It has since been held that if there be more than one bill to which the notice may apply, it lies on the defendant to prove that fact (k). And if a note be improperly called a bill it is no objection (1), nor if a bill be improperly called a note (m), nor if the characters of drawers and acceptors of a bill be transposed (n). In short, that a misdescription which does not mislead is immaterial (o), is now the rule of law, as well as of convenience and justice. behalf notice is It has been held that notice of dishonour need not state Statement of the on whose behalf payment is applied for, nor where the bill is party on whose lying (p), and a misdescription of the place where the bill is lying is immaterial (q), unless, perhaps, a tender were made there. sions, which in particular places or trades have a known meaning, is for the jury. Hutchison v. Bowker, 5 M. & W. 542. (i) Beauchamp v. Cash, 1 D. & R., N. P. C. 3. Though every indorser is in the nature of a new drawer, ante, p. 151. But see Mellersh v. Rippen, 7 Exch. 578. (k) Shelton v. Braithwaite, 7 M. & W. 436. (1) Messenger v. Southey, 1 Man. & Gr. 76; 1 Scott, N. R. 180, S. C. (m) Stockman v. Parr, 11 M. & W. 809. (n) Mellersh v. Rippen,7 Exch. 578. (0) Bromage v. Vaughan, 9 Q. B. 608; Mellersh v. Rippen, supra; Dennistoun v. Stewart, 17 Howard, American Rep. 606; Harpham v. Child, 1 F. & F. 652, (p) Woodthorpe v. Lawes, 2 M. & W. 109; Housego v. Cowne, 2 M. & W. 348; Harrison v. Ruscoe, 15 L. J., Exch. 110; 15 M. & W. 231, S. C.; Maxwell v. Brain, Exch. 1866. (q) Rowlands v. Sprinjett, 14 L. J., Exch. 227; 14 M. & W. 7, S. C. given. CHAPTER XXII. Notice of protest. MODE OF TING NOTICE. Direction of the letter. If the notice, by mistake, misdescribe the party giving it, by representing that it is given by or on behalf of A., when in reality it is given by or on behalf of B., it is, nevertheless, good. But the party who receives the notice is to be placed in the same situation as if the notice had really been given by A., and is at liberty to object any inability in A. to give notice; as, for example, that A. had been discharged by laches, or had no right of action on the bill (r). It is not necessary that a copy of the protest should accompany notice of the dishonour of a foreign bill (s). But information of the protest should be sent (t), if the party to whom notice is transmitted reside abroad (u). Secondly. As to the mode of transmitting the notice. Putting a letter into the post is the most common and the safest mode of giving notice. It is not necessary to prove that the letter was received, and any miscarriage will not prejudice the party giving notice (a). It has been ruled that, in London, delivery of a letter to a bellman in the street is not sufficient, and that it should be posted either at the General Post-Office, or at an authorized receivinghouse (y). It is not sufficient that the letter be directed, generally, to a person at a large town; as, for example, to "Mr. Haynes, Bristol" (z), without specifying in what part of it he resides, unless where the person to whom the letter is sent is the drawer of the bill, and has dated it in an equally general manner (a). But if he has done so, then the send (r) Harrison v. Ruscoe, 15 L. J. Exch. 110; 15 M. & W. 231, S. C. (8) Goodman v. Harvey, 4 Ad. & El. 870; 6 N. & M. 372, S. C. (t) Rogers v. Stephens, 2 T. R. 713; Gale v. Walsh, 5 T. R. 239; Brough v. Parkins, 2 Ld. Raym. 993; Cromwell v. Hynson, 2 Ésp. 511; Robins v. Gibson, 3 Camp. 334; 1 M. & Sel. 288, S. C.; B. N. P. 271. (u) See the Chapter on PRO TEST. (x) Saunderson v. Judge, 2 H. Bl. 509; Kufh v. Weston, 3 Esp. 54; Parker v. Gordon, 7 East, 385; 3 Smith, 358, S. C.; Langdon v. Hulls, 5 Esp. 157; Dobree v. Eastwood, 3 C. & P. 250; Stocken v. Collin, 7 M. & W. 515; 9 C. & P. 653, S. C.; Woodcock v. Houldsworth, 16 L. J., Exch. 49; 16 M. & W. 126, S. C.; Mackay v. Judkins, 1 F. & F. 208. (y) Hawkins v. Rutt, Peake's N. P. C. 186; but see Pack v. Alexander, 3 M. & Sco. 789, and Skilbeck v. Garbett, 14 L. J., Q. B. 339; 7 Q. B. 846, S. C. "A bellman," says Lord Denman, "is an ambulatory post office." (z) Walter v. Haynes, R. & M. 149. (a) Mann v. Moors, 1 R. & M. 249; Clarke v. harpe, 3 M. & W. ing of a letter, with an address as general as the drawer's description, as "T. M. Barron, Esq., London," will at least be evidence from which the jury may infer due notice (b). If the notice to the drawer arrive too late, through misdirection, it is for the jury to say, whether the holder used due diligence to discover the drawer's address (c). If the notice miscarry from the indistinctness of the drawer's handwriting on the bill, he will not be discharged (d). CHAPTER tice by post. Where a witness said that the letter, containing notice of Evidence of nodishonour, was put on a table to be carried to the post-office, and that by the course of business all letters deposited on this table were carried to the post-office by a porter, Lord Ellenborough said, "You must go further; some evidence must be given that the letter was taken from the table in the counting-house and put into the post-office. Had you called the porter and he had said that, although he had no recollection of the letter in question, he invariably carried to the post-office all the letters found upon the table, this might have done (e), but I cannot hold this general evidence of the course of business, in the plaintiff's counting-house, to be sufficient" (f). The post marks in town or country, proved to be such, are evidence that the letters, on which they are, were in the office to which those marks belong, at the time of the dates of such marks (g). But they are not conclusive evidence (h). A duplicate original, or an examined copy, or oral evidence of a written notice of dishonour, are admissible without notice to produce the original (i). Though there be a general post, the holder may send Special messen (c)Ibid.; see Esdaile v. Sowerby, 11 East, 114. (d) Hewitt v. Thompson, 1 Moo. & Rob. 543. (e) So held in Skilbeck v. Garbett, 14 L. J., Q. B. 388; 7 Q. B. 846, S. C. (f) Hetherington v. Kemp, 4 Camp. 194; Hawkes v. Salter, 4 Bing. 715; 1 Moo. & P. 750, S. P.; and see Hagedorn v. Reid, 3 Camp. 379; 1 M. & S. 567, S. C. (g) Kent v. Lowen, 1 Camp. 177; Fletcher v. Braddyl, 3 Stark. 64; Rex v. Plumer, R. & R. C. C. 254; Rex v. Watson, 1 Camp. 215; Langdon v. Hulls, 5 Esp. 156; Rex v. Johnson, 7 East, 65. (h) Stocken v. Collin, 7 M. & W. 515; 9 C. & P. 653, S. C. (i) Ackland v. Pierce, 2 Camp. 601; Roberts v. Bradshaw, 1 Stark. 28; Kine v. Beaumont, 3 B. & B. 288; 7 Moore, 112, S. C.; secus as to a notice of the dishonour of a bill, not being the bill sued on; Lanauze v. Palmer, 1 Moo. & Mal. 31. ger. CHAPTER How to be sent bill. notice by a special messenger (k): but if the notice be not communicated by the special messenger till after the day when it would have been conveyed by the post, it is insufficient (1). Where the communication by the post is infrequent, as where the party to whom notice is to be sent lives out of the usual course of the post, so that a letter may, possibly, not reach him for a fortnight, he may be charged a reasonable sum by the holder for the expense of a special messenger (m). Personal service of a written notice is not necessary (n). In the case of a foreign bill, it is sufficient to send it by in case of foreign the first regular ship bound for the place to which it is to be sent; and it is no objection that, if sent by a chance ship, bound elsewhere, it would have arrived sooner. "It is sufficient for a party in India," says Eyre, C. J., "to send notice by the first regular ship going to England, and he is not bound to accept the uncertain conveyance of a foreign ship.""It was enough to do so by the first ship, whether English or foreign, that was going to England in the regular course of conveyance" (o). AT WHAT We have already seen, in what cases a copy or notice of the protest must accompany notice of the dishonour of a foreign bill. Thirdly, as to the place at which notice is to be given. A notice of dishonour should regularly be sent to the place of business, or to the residence of the party for whom it is designed (p). (k) Dobree v. Eastwood, 3 C. & P. 250. (1) Darbishire v. Parker, 6 East, 3; 2 Smith, 195, S. C. It has been held, that it may arrive later during business hours in the same day without discharging the indorser. Bancroft v. Hall, Holt's N. P. C. 476. (m) Pearson v. Crallan, 2 Smith, 404. (n) Housego v. Cowne, 2 M. & W. 348. (0) Muilman v. D'Eguino, 2 H. Bl. 565. (p) It has been held in America that notice put into the post-office, if the parties live in different places, is good. It is otherwise when the parties reside in the same town. Where a person has a dwellinghouse and counting-room in the same town, a notice sent to either place is sufficient. The holder of a bill or note has a right to adopt a private conveyance instead of the mail for the receipt and transmission of notice to a drawer or indorser of the dishonour thereof; but in such case it is incumbent on the holder to show that due diligence was used. If a party receive notice of the dishonour of a bill in due time, he cannot object to the mode of conveyance. See 5th American ed. of Byles on Bills, p. 421. |