Smyth v. Hawthorn

The opinion of the court was delivered by Rogers, J. The possession of the note was prima facie, sufficient to entitle the plaintiff to recover; and we fully agree with the District Court, that no circumstances of suspicion were exhibited, which would make it necessary to prove the consideration paid, or the manner in which the note came into the possession of the plaintiff This was the case of a note, endorsed in blank, which passes by delivery, so that possession is such evidence of title as to authorise a payment to the holder. This is a singular defence;' the indorser undertakes to contest title to the note, when so far as we judicially know, the administrators of M‘Clintock do not pretend to deny, that the interest is vested in the plaintiff as the surviving partner of the firm of M‘Clintock, Hawthorn & Co. Even, if the note did belong to M‘Clintock, in his individual capacity, (which is at least doubtful,) we are bound to presume, in the absence of a shadow of proof to the contrary, that Hawthorn came honestly by it for a full and valuable consideration. It is sufficient proof of the delivery of a notice to show, that it was sent in a letter by the post, without proving that the letter was received, provided the delivery be on the day on which notice should be given. Saunderson v. Judge, 2 H. B. 509. Scott v. Lifford, 9 East, 347. Smith v. Mullet, 2 Camp. 208. The presumption is a fair one, that the letter reaches its destination in due time; and whether it does or not, this is all the law requires; it would be extremely inconvenient to require more. This has been admitted, and it has .also been conceded, that where a duplicate original or copy of the notice has been kept, it is good evidence without a notice to produce it. Kine v. Beaumont, 3 B. & B. 288. ‘And where a written notice has been given, but no duplicate or copy kept, it is not requisite to give a notice to produce the notice of dishonour, in Ackland v. Pearce, 2 Campb. 601, Le Blanc, J. admitted parol evidence of the contents of the notice, without a notice to produce it, and the court refused a new trial. 7 B. Moore, 112. Colling v. Treweek, 6. B & C. 394. It is true that in Langdon v. Hulls, 5 Esp. 156, a contrary doctrine was held, but I think, upon insufficient reasons. Where the letter has been received, there can be no danger in admitting parol evidence, without notice, as any mistake in the proof may be corrected by production of the original, and as notice is part of the plaintiff’s [359] title, an indispensable prerequisite to recovery, in most cases, he may be presumed to be ready to do so. Le Blanc compares it with a notice by a landlord to his tenant to quit, which may be always proved, without notice to produce the original notice. If fraud is intended, this can be as well asserted by a simulated copy as by any other species of proof. Of this the must But it is said, that the notice was not in time to fix the indorser. The facts were these. This was a note dated New York, February 9th 1826, at six months for three hundred and sixteen dollars, and twenty-five cents, drawn by John G. Gannon in favour of, and indorsed by John Smyth. The note passed into the hands of M‘Clintock and then to M‘Quade; it was then deposited in bank for collection, and by them was presented for payment. The last day of grace was Saturday, the 12th August, when it was protested; the 13th was Sunday. On Monday the 14th the notary enquired of M‘Quade, who was an indorser, and of course liable to the bank, where the defendant Smyth resided. M‘Quade only knew, that he resided out of the city of New York, and went to receive information from M‘Clintock. The next day, the 15th, he put the notice into the post office at New York. The law is founded in reason, and does not require impossibilities; M‘Quade could not give notice to Smith until he had himself notice of the dishonour of the bill. The next day after he received the necessary information, notice was sent by the post to the defendant. It is of great consequence to the commercial world, that there should be some certain, precise and fixed rule in relation to the time, when notice should be given. The general rule with regard to inland bills is, that where the parties do not reside in the same town, it is sufficient to send notice by the post of the day following that on which the party receives intelligence of the dishonour. Williams v. Smith, 2 B. & A. 497. 20 John. Rep. 372. 3 Cowan, 662. 4 Wash. C. C. Rep. 469. M‘Quade an indorser, and as such liable to the bank, receives notice on Monday, the note having been protested on Saturday, Sunday intervening, and on the following day he sends by the post notice to Smyth. The holder of a protested bill is not bound to give all the parties to the bill notice ; he may be satisfied with his immediate indorser. The law then allows him to give notice to others, when he may wish to render them liable, and it is in time to do so, the next day after he receives intelligence of the dishonour of the bill. And this is the principle of Wright v. Shawcross, reported in a note to Williams v. Smith, 2. B. & A. 501. The case was this. A bill had been drawn by P. B. on Messrs. L. R. & Co. and was dated the 1st June. It had been delivered without being indorsed by the defendant to the plaintiff. It was presented for payment in London on the 3d of April. On the 4th of April a letter was written to the plaintiff informing him of it, which he received on the 6th of April, being Sunday. On the Tuesday evening notice by the post was sent to the defendant. The court held that the plaintiff was not bound to open the letter from London until Mon [360] day morning, and that taking him to have received notice of the dishonour at that time, he had done quite sufficient in transmitting it to the defendant by the next day’s post. The bill was protested the third, and the notice was not put into the post office until the 8th, notwithstanding which the court held the defendant liable. The evidence in this case furnishes proof that notice of the dishonour of Gannon’s bill was received, which was deemed sufficient. A statement of the accounts in the hand-writing of the defendant shows this fact, which if the case needed it, would show that Smyth here dispensed with notice, and this defence was an afterthought, for which perhaps he is indebted to the ingenuity of his counsel. An acknowledgment by a drawer, who has become bankrupt, made after his bankruptcy that the bill would not be paid, will supercede the proof of notice. 13 East, 213, Brett v. Levett. So. a letter from the drawer of an accommodation bill, stating that it would be paid before next term. Wood v. Brown, 1 Stark. 217. So a promise after dishonour of the bill to pay if the holder would call again. Lundie v. Robertson, 7 East, 231. So where the drawer of a foreign bill of exchange, on being told it was. dishonoured, says that his affairs are at this moment deranged, but that he would be glad to pay it, as soon as his accounts with his agent are cleared, this admission will dispense with proof of a protest. Gibbon v. Coggan, 2 Campb. 188. Greenway v. Hindley, 4 Campb. 52. Besides, the want of due notice is answered by showing the holder’s ignorance of the place of residence of the party whom he sues; and whether he used due diligence to find the place of residence, is a question for the jury. Bateman v. Joseph, 12 East, 433, and Baldwin v. Richardson, 1 B. & C. 245. Inquiry was here made of one of the parties to the bill, which brings it within the case of Beveridge v. Burgis, 3 Campb. 262. And it has even been decided, that calling on the last indorser, and last but one, the day after the bill becomes due, to know where the drawer lives, and on his not being in the way, calling again the next day, may be sufficient. Browning v. Kinnear, 1 Neil Gow. N. P. R. 81. Judgment affirmed.