Pleas, amongst others,-first, that the defendant had no notice of the dishonour of the bill by the drawee; secondly, that Lysaght & Smithett did not endorse the bill, in manner and form as in the first count alleged.

The cause was tried before WILDE, C. J., at the sittings in London after the last term. It appeared that James Lysaght and William Smithett had carried on business in partnership together, as East India merchants; and that the firm being indebted to the plaintiff, Admiral Lysaght, the father of James Lysaght, in the sum of 6000l., James Lysaght, in July or August, 1847, with Smithett's concurrence, and in his presence, endorsed the bill in question to the plaintiff. To prove this, James Lysaght was called. He stated, that, after he had so endorsed the bill, he held it as his father's agent, keeping it either in a separate part of the cash-box, or at his chambers in Regent Street. It did not appear *that the fact of the endorsement had been communicated by the son to the father.

*47]

The bill was duly presented on the 10th of November, when it became due, but was not paid; whereupon Lysaght & Smithett, on the 11th of November, gave the defendant the following notice of dishonour :

"Sir,-We beg to inform you that your draft on Mr. Matthews, dated the 7th of May last, at six months' date, for 8007., was duly presented, at, &c., for payment, when the answer given to the notary was, no effects.' The bill is now in our possession, and we require you to take it up immediately. Meanwhile, we request you to take notice, we do not release you from responsibility by holding it over.

Yours, &c., LYSAGHT, SMITHETT, & Co." On the part of the defendant, it was proved that it was the custom of notaries in London to keep copies of all bills that pass through their hands, with all endorsements thereon, and that this practice was observed at the office of Duff, the notary by whom the bill was presented. And the notary's book was produced, and the clerk who entered the bill therein, called: and from these it appeared, assuming the entry to have been correctly made, that there was no endorsement by Lysaght & Smithett upon the bill at the time of its present

ment.

It was then submitted that the notice of dishonour was insufficient. The lord chief justice reserving that point, left it to the jury to say whether the endorsement by Lysaght & Smithett was made before or after the bill arrived at maturity.

A verdict having been found for the plaintiff,

Byles, Serjeant, pursuant to the leave reserved to him at the trial, moved for a rule nisi to enter the *verdict for the defendant, or *48] for a new trial on the ground that the verdict was against evidence. Assuming that the jury were justified in giving credit to the

witness James Lysaght, rather than to the entry in the notary's book, there was no proof of the endorsement, to constitute which there must be something more than mere writing on the back of the instrument. there must be a delivery, actual or constructive, to the endorsee. [WILDE, C. J.-There was evidence that James Lysaght acted as his father's agent; and he swore that he had appropriated and set apart this bill, after it had been endorsed, for his father.]

Assuming, then, that Admiral Lysaght was the holder of the bill at the time it became due, the notice of dishonour given by Lysaght & Smithett did not enure as a notice from him. The object of the notice of dishonour is twofold: not only must it show that the bill has been presented and refused payment, but it must also contain a notification of the fact that the party who gives the notice, looks to the party who receives it, for payment of the amount. Three cases have occurred that are somewhat like the present. In Woodthorpe v. Lawes, 2 M. & W. 109,† a bill of exchange endorsed in blank was left by the endorsee at the office of R., an attorney, to be presented by him. The bill being dishonoured, R. sent the following notice to the drawer:-"A bill drawn by you upon, and accepted by, Mr. J. W., for 311. 38., due yesterday, is dishonoured and unpaid; and I am desired to give you notice thereof, and to request that the same may be immediately taken up" and this was held to be a sufficient notice, although the attorney did not state on whose behalf he applied, or where the bill was lying. The expression, however, "I am desired to give you *notice," was equivalent to saying that the person giving the [*49 notice did so as agent for the holder. In Chapman v. Keane, 2 Ad. & E. 193 (E. C. L. R. vol. 29), 4 N. & M. 607 (E. C. L. R. vol. 30), it was held that the holder of a bill is entitled to avail himself of notice of dishonour given by any party to the bill; and, therefore, that an endorsee, who has endorsed over, and is not the holder at the time of the maturity and dishonour, may give notice at such time to an earlier party, and, upon afterwards taking up the bill, and suing such party, may avail himself of such notice. In Harrison v. Ruscoe, 15 M. & W. 231,† a bill of exchange was drawn by A., endorsed by him to B., and by B. to C., in whose hands it was dishonoured. C.'s attor ney gave notice of dishonour in due time to A., but stated therein, by mistake, that he was directed by B. (from whom he had no authority) to apply for payment of the bill: and it was held that the notice of dishonour was sufficient, notwithstanding the misrepresentation, the only effect of which was to give A. every defence against C. that he could have had if the notice had really been given by B. That case is the converse of this,-the notice being given by the party coming after the plaintiff on the bill. [WILLIAMS, J.-PARKE, B., in that case says. "Since the case of Chapman v. Keane, it must be considered as per fectly settled, that a notice of dishonour need not be given by the

holder, but that he may avail himself of notice given in due time, by any party to the bill. The decision in that case is referred to and adopted by Chancellor Kent,(a) and Mr. Justice Story on Bills of Exchange.(6) The former states the rule to be, that the notice may be given by any one who is a party to the bill: the latter states it more fully, and says that the notice will be sufficient, although not given by the holder or his *agent, if it comes from some person *50] who holds the bill when it is dishonoured, or is a party to the bill, or who would, on the same being returned to him, and after payment, be entitled to require reimbursement thereof."] The party who avails himself of a notice so given, must stand in the same position as the person whose notice he avails himself of. [MAULE, J.-Has this defendant any defence against Lysaght & Smithett? A notice by an intermediate party, is a good notice by the plaintiff, but it lets in a setoff or other defence which the defendant would have had against the person who actually gives the notice.] The defendant has not had such a notice as to entitle the present plaintiff to sue him upon the bill. [CRESSWELL, J.-I find the rule thus laid down in Byles on Bills: (c) "The object of notice is two-fold; first, to apprise the party to whom it is addressed, of the dishonour; and, secondly, to inform him that the holder, or party giving the notice, looks to him for payment.(d) Hence, it follows that notice can only be given by some party to the instrument, though he need not be the actual holder of the bill at the time, (e) but that a stranger is incompetent to give it.(g) And it has been held by Lord ELDON, that notice by the first endorsee, who had not himself received notice from the second endorsee, and who was not, therefore, obliged to take back the bill, was insufficient as between the second endorsee and the drawer.(h) And it seems clear, that even a party to the bill, who has been already discharged by laches, or who could not in any event sue, is incompetent to give notice.() But *51] a prior endorsee, who has himself received due notice, may transmit it.(k) And notice by the holder, or by a party who is liable to be sued, and may be entitled to sue, will enure to the benefit of all antecedent or subsequent parties. So that a notice by the last endorsee to the drawer, will operate as a notice from each endorsee to the drawer; and, if the payee, or first endorsee, has duly received notice, a notice

(a) 3 Kent's Comm. p. 100.

(b) Sect. 304.

(c) 5th edit. p. 214.

(d) Citing Tindal v. Brown, 1 T. R. 167.

(e) Citing Chapman v. Keane, 3 Ad. & E. 193, 4 N. & M. 607, and Harrison v. Ruscoe, 15 M. W. 231.†

(g) Citing Stewart v. Kennett, 2 Campb. 177. Vide tamen Abel v. Potts, 3 Esp. N. P. C. 242. (h) Citing Ex parte Barclay, 7 Ves. 597; but quære, since the case of Chapman v. Keane. (i) Citing Harrison v. Ruscoe, 15 M. & W. 231,† and Miers v. Brown, 11 M. & W. 372.† (k) Citing Jameson v. Swinton, 2 Campb. 373, 2 Taunt. 224, and Wilson v. Swabey, 1 Stark. N P. C. 34 (E. C. L. R. vol. 2).

by him to the drawer will be equivalent to a notice from each endorsee, and from the holder to the drawer. (a) And a notice from an intermediate party may, in pleading, be described as a notice from the plaintiff.(b)] That is not quite accurate.

MAULE, J.-I am of opinion that the notice of dishonour that was given in this case, was sufficient. Lysaght the younger appears to have acted as the agent of his father, the plaintiff. In that character, he received the bill from Lysaght & Smithett, by whom it was sworn to have been endorsed before it became due; and Lysaght the younger proved that it had ever since been kept by him amongst the documents which were held by him for his father. It was undoubtedly his duty to see that his father should have all proper remedies upon the bill. The bill, it seems, was presented on the day it became due, and was dishonoured; and due notice of dishonour was given by Lysaght & Smithett to the defendant, as drawer. *Lysaght the younger [*52 having due notice of the dishonour, which operated as a notice to Lysaght & Smithett, it was clearly competent to the latter, according to the decided cases, to give notice to all prior parties to the bill; and a notice so given would enure as a notice by the party who had given notice to them. I therefore think the defendant has had a sufficient notice of dishonour. Then, as to the other point,-there was evidence on both sides. It was for the jury to say whether the plaintiff's witness was perjured or the defendant's mistaken. The former stated positively that the endorsement was made before the bill became due; the latter, not professing to have any special recollection on the subject, merely stated that it was the usual course of his office to copy all endorsements into the book which he produced, and that no such endorsement was entered therein. I think it is impossible for us to say that the jury, in giving credit to the positive statement, rather than to the inference arising from the statement, on the other side, came to a wrong conclusion.

CRESSWELL, J.-I am of the same opinion. Two questions arose in this case-first, whether the defendant had received a sufficient notice. of dishonour, secondly, whether Lysaght & Smithett endorsed the bill before it became due. The decision of the first question depends in some degree upon the second; because, whether the notice was sufficient or not, may depend upon whether there was a proper endorsement. Mere writing on the back of the bill is not enough to constitute an endorsement; there must be a delivery, or something equivalent to a delivery, of the bill to the endorsee. Here, the fact has been disposed of by the jury; and I think there was evidence enough to justify the conclusion they came to. James Lysaght swore positively that the bill was endorsed in the name, and with the *concurrence of the firm, in July or August: and he further stated, that ever since the (b) Citing Newen v. Gill, S C. & P. 367 (E. C. L. R. vol. 34).

(a) Citing Bayley on Bills, 209.

[*53

endorsement, it had been kept by him, as his father's agent, apart from the securities of the firm. That being so, it seems, from the cases, that the holder of a bill may avail himself of a notice of dishonour given in due time by a prior endorsee, provided he himself is in a condition to sue the party by whom the notice was given. Here, Lysaght the younger, holding the bill as his father's agent, duly presented it, and had it returned to him dishonoured. Notice of that fact to him, therefore, operating as notice to the firm, the present plaintiff was entitled to sue them, and, consequently, is in a condition to avail himself of the notice of dishonour given by them to the defendant.

WILLIAMS, J.-I am of the same opinion. The evidence established the whole case, if the jury were right in the conclusion to which they came and I am not prepared to say that they were wrong.

WILDE, C. J.-I certainly was not dissatisfied with the verdict. Lysaght the younger swore positively that the security in question was appropriated by him, with Smithett's assent, in part discharge of the debt due to the plaintiff. He was very strictly cross-examined as to the period at which the endorsement took place: he distinctly swore that it was before the bill became due: he believed it was in July or August. If Lysaght & Smithett intended to act honestly, they were bound to make the endorsement; and there is no reason for supposing that they did not, or that James Lysaght stated that which was untrue. On the other hand, there can be as little doubt that the notary's clerk meant correctly to copy the endorsements into the book. It was for the jury to decide between the conflicting statements. As to the *54] notice of dishonour, the case seems to fall within the authorities. The facts show that Lysaght & Smithett had due notice of the dishonour of the bill,—one of them having caused it to be presented, and having had it returned to him. A notice, therefore, by Lysaght & Smithett, then being under a liability to the present plaintiff, according to the authorities, enures as a notice to the defendant.

A notice given by the holder to the several endorsers enures to the benefit of the endorsers or preceding parties, so that the first endorser who has received notice of its non-payment from the holder, but not from the second endorser, is liable to the second endorser in the same manner as though notice had been received from him: Marr v. Johnson, 9 Yerger, 1. A

Rule refused.

notice, however, given by the holder of a promissory note to the second endorser too late to fix his responsibility to the holder, will not enure to the benefit of the third endorser, though in due time if given by him to the second: Simpson v. Turney, 5 Humphreys, 419. See Brown v. Ferguson, 4 Leigh, 37.