Brailsford v. Williams

Tuck, J., delivered the opinion of this court. This is an action of assumpsit by the endorsee against the ■drawer of a bill of exchange. The questions for consideration relate to the notice of dishonor of the bill; and these are: 1st, whether such notice, if in due time, from the acceptor to the drawer, binds the latter in an action against him? 2nd, whether the letter in this case is not sufficient, notwithstanding the imperfections of the copy? 3rd, whether there }S evidence that the letter was mailed? Treating the first of these propositions with reference to the purposes for which the law requires notice to parties to bills of exchange, there would seem to be no reason to doubt the sufficiency of notice from the acceptor. A prudent man would need no more authoritative information than a letter from the party, primarily liable, that, being due and payment demanded, the bill had been dishonored. It was once held that no party could give a valid notice, unless he Avas the holder at time. Tindal vs. Brown, 1 Term Rep., 167. Rut this doctrine after having been follotved in other cases (Ex-parte, Barclay, 7 Ves,, 597; Stewart vs. Kennett, 2 Camp,, 177) was expressly overruled in the case of Chapman vs. Keane, 3 Adol. & Ellis, 193, (30 Eng. C. L. Rep., 69,) in which most of the preAÚous decisions Avere retdeAved. Nothing can be more emphatic than the language of Lord D.epman, in pronouncing judgment. After referring to Tindal [157] vs. Brown, and Ex-parte Barclay, he says: “Notwithstanding these high authorities, it is clear, from Jameson vs. Swinton, 2 Camp., 373; Wilson vs. Swabey, 1 Stark., N.P. C., 34; and also from the learned treatises on bills of exchange, that the contrary doctrine has prevailed in the profession, and we must presume’ a contrary practice in the commercial world. • It is universally considered that the party entitled, as holder, to sue upon the bill, may avail himself of notice given in due time by any party to it. * ° * We are now compelled to determine whether the case of Tindal vs. Brown, as to this point, be good law. We think that it is not. ” This case has been so generally accepted by the profession, that we may consider the doctrine there announced as the established law. Chitty on Bills, 527. Story on Bills, sec. 304. Byles on Bills, 225. 15 Mees. & Welsby, 231. But it is contended here, that the notice must come from some party to the bill, who can, by receiving payment from the party notified, give him an immediate remedy on the bill, and that, as the acceptor does not hold the bill, and cannot give such remedy, the doctrine of the above case does not apply. It is true that it was so decided in Stewart vs. Kennett, 2 Camp., 177, and the same, perhaps, may be inferred from oilier cases; but, we cannot doubt that all such were virtually overruled by Chapman vs. Keane; as well as by other decisions. In Jameson vs. Swinton, 2 Camp., 373, where the notice was not given by the holder of the bill, but by his immediate endorser, who had received notice, the court said: “The drawer or endorser is liable to all subsequent endorsers, if he had due notice of the dishonor of the liill from any person who is a party to it. Such a notice must serve all the purposes for which the giving of notice is required. The drawer or endorser is authoritatively informed that the bill is dishonored; he is enabled to take it up, if he pleases, and may immediately proceed against tile acceptor or prior endorsers.” There is, besides, express authority ontbe very question before us. In Shaw vs. Croft, M. S., 1793, cited in Chilly on Bills, 527, Lord Kenyon lield, that notice by the' acceptor to the drawer was sufficient; and the [158] same point was ruled by Lord Ellenborougb in Rosher vs. Kieran, 4 Camp., 87, where the drawer was notified by a letter from the acceptor, stating, “that he had not been able to pay it, and that it was then in the hands of the plaintiffs.” We are not aware that these cases have been expressly overruled, or even questioned, except in 3 Wendell, 173, Chanvine vs. Fowler, where the bill had not been accepted, and of course the point could not arise, and, on which it may be observed, that the learned judge, in quoting Chittyon Bills, has undoubtedly misstated his doctrine, by using and for or,. (see page 179.) Park, B., also, in Harrison vs. Ruscoe, 15 Mees. Welsby, 231, where the question was not presented in the case before him, said, that the rule as to notice excluded notice, given by an acceptor, who never could sue himself on taking up the bill. He disposes of the cqses where the point was presented and expressly decided, by adopting a suggestion in Bayley on Bills, ch. 7, sec. 2, that perhaps the acceptor had a special authority to do so. But the reports of these decisions furnish no pretence for any such supposition. They are express rulings on the very point, without any qualification, and appear to have been recognized by the elementary writers. From an examination of the question, we are of opinion, that this branch of the law-merchant is correctly stated in Chitty on Bills, 527, where it is said: “It suffices if notice be given, after the bill is dishonored, by any person who is a party to the bill, or who would, on the'Same being returned to him, and. after paying it, be entitled to require reimbursement, and such notice will in general enure to the benefit of all the antecedent parties, and render a further notice from any of those parties unnecessary, because it makes no difference who gives the information, since the object of the notice is that the parties may have recourse to the acceptor. ’ ’ This, however, must be taken with the qualification, elsewhere stated, that a stranger to the bill cannot give the notice. 2 Camp., 177. Any party may do so, by which is meant, any person whose name appears on the bill. Flack vs. Green, 3 G. & J., 474. It has been also decided (14 Mass., 116) that a drawee who has not accepted‘cannot notify the parties.* [159] Upon the second inquiry, we are of opinion, that the letter from the acceptor to the drawer conveyed sufficient intelligence of the dishonor of the bill. The blank is clearly not the result of a design to keep back part of the letter, but owing to some defect in the letter-press copy. The part omitted does not appear to have any connection with the fact of non-payment and notice, except in excuse for the writer’s failure to pay the bill. Whether wo attempt to supply words for the blank, or treat the copy in evidence as a true transcript of an imperfect letter, received by the defendant with tile blank in it, its effect must bo the same. It was impossible for ¡he drawer not to have known from it that the bill was unpaid, and that it had been protested by the holder for the purpose of holding the parties liable. We think, however, that the evidence offered for the purpose of showing that the letter had been mailed, was not legally sufficient. The fact was to be found by the jury from the custom prevailing in the counting-room of the writer; but compliance with the custom had not been fully proved. The person whose duty it was to deposit letters in the post-office should have been called, or his absence accounted for. A similar question arose in Bell vs. Hagerstown Bank, 7 Gill, 216, where the law was fully discussed. We perceive no sufficient ground for applying different rules to banks and commercial houses. The object here is, to arrive at a particular fact, not by express proof, that the very thing was done, but by a train of circumstances from which the inference of the fact was to be drawn, and we think there ought to bo no defect ill the chain of evidence. The case of Flack vs. Green, 3 G. & J., 474, cannot serve the appellant, as is explained in Bell vs. Hagerstown Bank. .It follows, as the result of these views, that the letter was properly admitted in evidence; but, as there was not sufficient proof of its having been sent to the office, the second prayer, which embraces that point, was improperly refused. The ruling of ¡be court below on the third, fourth and fifth .prayers, was also correct. The third and fourth required .a [160] modo of transmitting notice which, according to the proof, was not necessary, and, as to the fifth, there was no question on the pleadings to authorize such an instruction. (Decided February 24th, 1860.) Judgment reversed and procedendo ordered.