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as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor. 4 Barn. & Cress. 339; 10 Eng. Com. Law Rep. 350. This short judgment, in which the whole court concurred, Lord Denman, many years afterwards, (in 1841) pronounced to be perfectly correct in its statement of the fact and the law, and to have the merit of adhering closely to the point raised in argument. "It has," he said, "never been questioned by any judicial authority." 3 Adol. & El. N. S. 410.
Upon the authority of that case the court of exchequer chamber and the house of lords decided Solarte &c. v. Palmer &c. and held the notice there given insufficient. 7 Bingh. 530, 1 Bingh. N. C. 194, 20 Eng. Com. Law Rep. 226, 27 Id. 351, 8 Bligh's Par. Cas. N. S. 874. In delivering the judgment in the exchequer chamber, Tindal, C. J. said the notice should at least inform the party to whom it is addressed, either in express terms or by necessary implication, that the bill has been dishonoured, and that the holder looks to him for payment of the amount. Park, J. when delivering the judges' opinion to the lords, omits the latter clause, and merely says that "such a notice ought in express terms, or by necessary implication, to convey full information that the bill had been dishonoured."
In truth, the decision did not turn upon or require any allusion to the doctrine of Ashurst and Buller, J's. in Tindal v. Brown, 1 T. R. 167, as to the necessity of stating that the holder looks to the party addressed. 2 Adol. & El. Ñ. S. 411. N. The controversy was, and for a long time it continued, on that branch of the notice as to which Tindal, C. J. and Sir James Allan Park (of the common pleas) agreed, requiring notice of dishonour in express terms or by necessary implication. Phillips v. Gould, 8 C. & P. 355, 34 Eng. Com. Law Rep. 425.
The court of king's bench held the dishonour of a bill to be sufficiently notified by the phrase, "the bill is this day returned with charges." Grugeon v. Smith, 6 Adol. & El. 499, 33 Eng. Com. Law Rep. 128. A few days after, but without being aware of this decision, the court of common pleas held insufficient a notice, saying the note "became due yesterday and is returned to me unpaid;" Tindal, C. J. observing that he did not see how it was "possible to escape from the rule established by the two decided cases, without resorting to such subtle distinctions as would make the rule itself useless in practice." Boulton v. Welsh, 3 Bingh. N. C. 688, 32 Eng. Com. Law Rep. 293. Lord Denman thinks these cases (Grugeon v. Smith and Boulton v. Welsh) indi
cate no necessary difference of opinion between the two courts. 2 Adol. & El. N. S. 412; but a different view was taken in the court of exchequer by Sir James Parke. Subscribing to the decision in Grugeon v. Smith, and considering Boulton v. Welsh not rightly determined, the court held sufficient a notice to the endorser of a note that it "has been returned unpaid" the notice requesting him to "remit the amount thereof with 1s. 6d. noting." Hedger v. Steavenson, 2 M.
& W. 805.
Adverting to the decision in Solarte v. Palmer, Parke, B. (2 M. & W. 805) said: "By that decision we are bound, though I am not prepared to say that I am bound by all the reasoning or language of the learned judges in giving their opinion, and therefore should myself doubt whether we could go so far as to say that it ought to appear upon the face of the instrument, by express terms or necessary implication,' that the bill was presented and dishonoured; it seems to me enough if it appear by reasonable intendment, and would be inferred by any man of business, that the bill has been presented to the acceptor and not paid by him. However, supposing that we are bound by the precise expression of Tindal, C. J. in delivering judgment in the exchequer chamber, we ought not to put a strict construction on the term 'necessary implication;'" a sentiment concurred in by Barons Bolland and Alderson, two of the judges consulted by the Lords, in Solarte v. Palmer.
In the common pleas, Tindal, C. J. saw no reason for saying that the judgment in Boulton v. Welsh is not law: though it had gone the full length of Solarte v. Palmer, he thought it had not exceeded that case. The charges for noting in Grugeon v. Smith and Hedger v. Steavenson, he observed, were circumstances which did not exist in Boulton v. Welsh, and which shewed, by necessary inference, that the bill had been dishonoured. Houlditch v. Cauty, 4 Bingh. N. C. 411, 33 Eng. Com. Law Rep. 396.
The notice was held insufficient by the queen's bench in Strange &c. v. Price, 2 Per. & Dav. 278, 10 Adol. & El. 125, 37 Eng. Com. Law Rep. 71; and by the common pleas in Messenger v. Southey, 1 Man. & Grang. 76, 39 Eng. Com. Law Rep. 363; Tindal, C. J. in delivering the judgment in the last case, entirely agreeing "that the rule laid down by the house of lords is not to be extended, and that any case to be governed by it should fall clearly within the principle."
Baron Parke adhered to his opinion in Hedger v. Steavenson. Understanding the term "necessary implication," with the latitude recognized in that case, and taking the rule to be
that the three facts, required to be conveyed in every notice of dishonour, must be conveyed to the mind of the person to whom it is addressed in a written or verbal notice, either expressly or so connected with each other as to leave no reasonable doubt upon his mind as to their meaning, viz: first, that the bill was presented when due; secondly, that it was dishonoured; and thirdly, that the party addressed is to be held liable for the payment of it;-Baron Parke thought, in Lewis v. Gompertz, 6 M. & W. 403, that any mercantile man who read the document there in question, could not fail to come to the conclusion that those three requisites had been complied
In the queen's bench, on a review of the cases, Lord Denman considered the rule to require "that the court must see that, by some words or other, notice of dishonour has been given." Furze v. Sharwood, 2 Adol. & El. N. S. 416, 42 Eng. Com. Law Rep. 739. It was considered that there was sufficient notice in Cooke v. French, 3 Per. & Dav. 596, 10 Adol. & El. 131, note; Stocken v. Collins, 9 C. & P. 653, 38 Eng. Com. Law Rep. 273; Robson &c. v. Curlewis, 1 Car. & Marsh 378, 2 Adol. & El. N. S. 421, 41 Eng. Com. Law Rep. 209, 42 Id. 421; King v. Bickley, 2 Adol. & El. N. S. 419, 42 Eng. Com. Law Rep. 419; Miers v. Brown, 11 M. & W. 372; Rowlands v. Springett, 14 Id. 7; Bailey &c. v. Porter, 14 Id. 44; Armstrong v. Christiani, 5 Man. Grang. & Scott 687, 57 Eng. Com. Law Rep. 687; Mellersh v. Rippen, 7 W. H. & G. 578.
Though these cases have modified the strictness of the rule laid down in Solarte v. Palmer, still a notice of dishonour requires a certain formal intimation that the bill has been duly presented and not honoured. Allen v. Edmundson, 2 W. H. & G. 719. Lord Campbell has confessed his regret at the decision of Solarte v. Palmer. He considers that it has caused much confusion; and expresses a wish that it were reversed by act of parliament, so as to relieve the commercial world from the risk of misconceiving the law. Everard v. Watson, 1 El. & Black. 801, 72 Eng. Com. Law Rep. 801; 18 Eng. Law & Eq. 194. Here, however, said Lord Campbell, the words are not the same as those in Solarte v. Palmer; and that being so, I am not restrained from applying to the question before me such understanding as I may possess." The endorser was made acquainted with the non-payment, and that 5s. 1d. expenses had been incurred; and he was desired to remit the money, or pay it to a party named. This notice was considered to convey all the requisite information.
In substance the English cases establish that in order to make a prior holder responsible, he must derive from some person entitled to call for payment, information that the bill has been dishonoured, and that the party is in a condition to sue him, from which he may infer that he will be held responsible. Cresswell, J., 7 Man. Grang. & Scott 411. In Miers v. Brown, 11 M. & W. 372, Alderson, B. describes what is needful in these terms: "Knowledge of the dishonour obtained from a communication by the holder of the bill, amounts to notice."
In the United States it has been determined that the notice is not defective because it does not state at whose request it is given, or who is the owner of the note. Shed v. Brett, 1 Pick. 404. The supreme court of the United States considers it no valid objection to the notice that it does not state who was the holder, Mills v. Bank U. S. 11 Wheat. 436; nor that it does not specify the time and place of demand. S. C.
The supreme court of Massachusetts thinks that the notice should be such that it will inform the endorser that the note has become due and been dishonoured, and that the holder relies on the endorser for payment; that this information may be express, or may be inferred, by necessary implication, or reasonable intendment from the language; construing such language in reference to its accustomed meaning, when applied to similar objects and with reference to the terms of the note, the time and place at which the note is to be paid as fixed by express or tacit agreement, or inferred from general or particular usages. Gilbert v. Dennis, 3 Metcalf 499. The notice in this case-delivered at about 11 o'clock in the morning of the day on which the note fell due-was held insufficient. The notice in a subsequent case-Pinkham v. Macy, 9 Metcalf 174-is perhaps liable to a like objection, that the demand and notice were too soon.
A notice in New York was in this form: "Cayuga County Bank, May 3d, 1845. Sir: Take notice that S. W.'s note for $300, payable at this bank, endorsed by you, was this evening protested for non-payment, and the holders look to you for the payment thereof. Your ob't serv't, P. B. E., Notary public." This notice was addressed to and served on each of the endorsers. The court of appeals, very properly, held it to be sufficient. Cayuga Co. Bank v. Warden &c. 1 Comstock 413. A notice, in similar terms, is sufficient in Massachusetts. Housatonic Bank v. Laflin, 5 Cush. 546; Clark v. Eldridge, 13 Metcalf 96.
Where notice has been given by another party than the holder, there may be good sense in requiring that it shall be
accompanied by a direct demand of payment or a statement that it will be required of the party addressed; but in no English case has the absence of such information been held to vitiate a notice, in other respects complete, and which has come directly from the holder. Furze v. Sharwood, 2 Adol. & El. N. S. 416, 42 Eng. Com. Law Rep. 739. Notwithstanding the position of Ashurst and Buller, J's. in 1 T. R. 167-a position unnecessary for the case before them-it may be regarded as established in England that the holder of a bill or note need not in terms inform the party to whom he gives notice of its dishonour that he looks to him for payment. Miers v. Brown, 11 M. & W. 372.
In the United States, there are decisions on the same principle. Conter v. Harts &c. 3 Conn. 516; Shrieve &c. v. Duckham, 1 Littell 104; Bank of U. S. v. Norwood, 1 Har. & Johns. 423. When, in the supreme court of the United States, it was suggested that a letter stating the demand and dishonour is not sufficient unless it also inform the endorser that he is looked to for payment, Story, J. answered, that when such notice is sent by the holder, or by his order, it necessarily implies such a responsibility over. Bank of U. S. v. Carneal, 2 Peters 553.
A trifling error in the description of a note should not discharge the endorser. In New York, it has been left to a jury to say whether the note produced and the one intended by the notice were the same, Reedy v. Seixas, 2 Johns. Cas. 337; or whether the endorser was or was not misled by the notice. Bank of Rochester v. Gould, 9 Wend. 279. So in Massachusetts, a jury has been charged that if they believed the notice was intended for the note sued on, and the endorser must necessarily have known it, they should find against him. Thus was gotten over the objection that the notice, dated and given on the last day of grace, January 6th, described the note as having become due January 3d. Smith v. Whiting, 12 Mass. 6.
It cannot, says Story, J., be for a moment maintained that every variance, however immaterial, is fatal to the notice. It must be such a variance as conveys no sufficient knowledge to the party of the particular note which has been dishonoured. If it does not mislead him, if it conveys to him the real fact without any doubt, the variance cannot be material either to guard his rights or avoid his responsibility. Mills v. Bank U. S. 11 Wheat. 436. In this case the misdescription was merely in the date. The sum, the parties, the time and place of payment, and the endorsement were truly and accurately described. The error, too, was apparent on the face of the