CHAPTER Description ment. The following form was drawn out by the author as applicable to the case of holder giving notice to an indorser: 1, FLEET STREET, LONDON. Sir, 26 Sept., 1842. I hereby give you notice that the bill of exchange dated 22nd ult., drawn by A. B. of on C. D. of for 100l., 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. Such a notice may easily be altered and adapted to circumstances (i). The notice must not so misdescribe the instrument that of the instru- 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 (j). 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 1 M. & G. 76; 1 Scott, N. R. 180; Caunt v. Thompson, 18 L. J., C. P. 125; 7 C. B. 400; Everard v. Watson, 1 E. & B. 801; in which case Lord Campbell expressed regret at the decision in Solarte v. Palmer. (i) The construction of all written documents is for the Court, but the meaning of peculiar expressions, which in particular places or trades have a known meaning, is for the jury. Hutchinson v. Bowker, 5 M. & W. 542. (j) Beauchamp v. Cash, 1 D. & R., N. P. C. 3. Though every indorser is in the nature of a new drawer, ante, p. 168. 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. 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. CHAPTER It has been held that notice of dishonour need not state Statement of on whose behalf payment is applied for, nor where the bill the party on is lying (p), and a misdescription of the place where the whose behalf bill is lying is immaterial (4), unless, perhaps, a tender piece is were made there. 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 bill (r). on the notice given. It is not necessary that a copy of the protest should ac- Notice of company notice of the dishonour of a foreign bill (s). But protest. 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. MODE OF TRANSMIT Putting a letter into the post is the most common and TING NOTICE. the safest mode of giving notice. It is not necessary to By post. prove that the letter was received, and any miscarriage will not prejudice the party giving (m) Stockman v. Parr, 11 M. & W. 809. (n) Mellersh v. Rippen, 7 Exch. 578. (0) Code, s. 49 (7); Bromage v. Vaughan, 9 Q. B. 608; Mellersh v. Rippen, supra; Dennistoun v. Stewart, 17 Howard, American Rep. 606; Harphan 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; Maxwell v. Brain, 10 L. T., N S. 381. (q) Rowlands v. Spri jett, 1i notice (x). It has been L. J., Exch. 227; 14 M. & W. 7. (s) Goodman v. Harvey, 4 Ad. (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 Esp. 511; Robins v. Gibson, 3 Camp. 334; 1 M. & Sel. 288; B. N. P. 271. (u) See the Chapter on PROTEST. (x) Code, s. 49 (15); Saunderson v. Judge, 2 H. Bl. 509; Kufh v. Weston, 3 Esp. 54; Parker v. Gordon, 7 East, 385; 3 Smith, XV. CHAPTER 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 authorizel receiving-house (y). Direction of he letter. Evidence of notice by post. It is not sufficient that the letter be directed, generally, to a person at a large town; as, for example, to "Mr. Haynes, Bristol " (2), 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 sending 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). Where a witness said that the letter, containing notice of dishonour, was put on a table to be carried to the postoffice, 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 358; Langdon v. Hulls, 5 Esp. (y) Hawkins v. Rutt, Peake's (z) Walter v. Haynes, R. & M. (a) Mann v. Moors, 1 R. & M. 249; Clarke v. Sharpe, 3 M. & W. 166; 1 Hor. & H. 35; Siggers v. Browne, 1 Moo. & Rob. 520; Burmester v. Barron, 17 Q. B. 828. (b) Ibid. (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. (f) Hetherington v. Kemp, 4 XV. town or country, proved to be such, are evidence that the CHAPTER 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 (¿). Though there be a general post, the holder may send Special mesnotice by a special messenger (k); but if the notice be not senger. communicated by the special messenger till after the day when it would have been conveyed by the post, it is insufficient (). 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 How to be the first mail or regular ship bound for the place to which sent in case of foreign bill. 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). We have already seen, in what cases a copy or notice of Camp. 194; Hawkes v. Salter, 4 (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. (i) Acland v. Pierce, 2 Camp. 601; Roberts v. Bradshaw, 1 Stark. 28; Kine v. Beaumont, 3 B. & B. 288; 7 Moore, 112; secus as to a notice of the dishonour of a bill, not being the bill sued B.B.E. on: Lanauze v. Palmer, 1 Moo. & (k) Dobree v. Eastwood, 3 C. & (1) Darbishire v. Parker, 6 East, 3; 2 Smith, 195. 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, 6 Smith, 404. (n) Housego v. Coune, 2 M. & W. 348. (0) Muilman v. D'Eguino, 2 H. Bl. 565. CHAPTER the protest must accompany notice of the dishonour of a foreign bill. XV. AT WHAT 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). If a party, whose name is on a bill, direct a notice to be sent to him when absent at a distance from his residence, so that its transmission thither, and thence to the prior parties, will occupy more time than if the notice had passed through the ordinary place of residence, a notice to him at the substituted and more distant place will, it seems, not only be a good notice as against him, but also a good notice as against prior parties (2). A message sent to a counting-house within the usual hours of business has been held sufficient, though no person be in attendance. Thus, where the holder sent to a counting-house, and the messenger knocked at the outer door on two successive days, making noise sufficient to be heard by persons within, Lord Ellenborough said (r): "The counting-house is a place where all appointments respecting the business, and all notices, should be addressed; and it is the duty of the merchant to take care that a proper person be in attendance. It has, however, been argued, that notice in writing left at the countinghouse, or put into the post, was necessary, but the law does not require it, and with whom was it to be left? Putting a letter into the post is only one mode of giving notice; but, where both parties are residing in the same town, sending a clerk is a more regular and less exceptionable mode" (s). But the mere act of going and knocking at (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 6th American ed. of Byles on Bills, p. 424. (q) Shelton v. Braithwaite, 8 M. & W. 252. (r) But this case was decided before Solarte v. Palmer, and when the form of pleading made it unnecessary to distinguish between actual notice and a dispensation with notice. (s) Cross v. Smith, 1 M. & S. 545; Goldsmith v. Bland, Chit. 10th ed. 319; Bayley, 6th ed. 276; Bancroft v. Hall, Holt's N. P. C. 476. |