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notice. The party was informed that on the 22d of September, a note endorsed by him, payable in 60 days, was protested for non-payment; and yet the note itself was stated to be dated on the 20th of the same month. Under these circumstances the court directed the jury to find the notice good if there was no other note drawn and endorsed by the parties mentioned in the notice, payable at the office there described.
The case of Bank of Alexandria v. Swann, 9 Peters 47, fell within the same rule. Though the note was for $1400, and the notice described it as for $1457, this was considered not such a variance as might reasonably mislead the endorser; there being no other note of the same maker endorsed by the defendant, discounted by the bank, or placed therein for collection or otherwise.
Notwithstanding the judgment in Donner v. Remer, 21 Wend. 13, was reversed in Remer v. Donner, 23 Id. 626, 7, a variance as to the amount was under circumstances somewhat similar to those in Bank of Alexandria v. Swann, held immaterial in Cayuga Co. Bank v. Warden, 1 Comstock 417. In this case, which was a case of a note payable to, and endorsed by, two persons jointly, it was farther held that the notice was not defective because it was addressed to each of them severally, and mentioned the note as "endorsed by you." The supreme court of Massachusetts considers that no misdescription will render the notice insufficient if it is not of a character to mislead the endorser, and if upon the whole the notice is such as to carry home to him knowledge that the note in suit is the note intended. Housatonic Bank v. Laflin, 5 Cush. 549.
The English decisions proceed on similar grounds. In Lewis v. Gompertz, 6 M. & W. 403, though the bill was described not by its precise date, yet the court would not suppose the existence of another bill drawn and accepted by the same parties and for the same amount; and it considered that if there were but one bill, the defendant must have known at what time it would be due.
So in other cases of misdescription, it has been considered there was sufficient evidence of identity to go to the jury; there being an absence of proof of the existence of any other bill. Stockman v. Pair, 11 M. & W. 809; Rowlands v. Springett, 14 Id. 7. Where the notice to the defendant was of his acceptance drawn by J. H. when the bill was drawn by the defendant and accepted by J. H., the notice was nevertheless held quite sufficient; it not being possible that the defendant could have been misled by it. Mellersh v. Rippen, 7 W. H. & G. 588.
In Pennsylvania and New York, there has been difficulty when the notice states the protest to have been made on a wrong day. Whether the day so stated be one day too soon or one day too late, no doubt, in either case, if the protest was in fact not made on the proper day, the endorser of the note or the drawer or endorser of the bill would be discharged. But if the protest was in fact made on the proper day, and there is only a mistake in the notice in its statement of the day, the question is different.
In one case of this kind in New York it was left to the jury to say whether the endorser had been misled by the notice, and a verdict having been found against him a new trial was denied. Ontario Bank v. Petrie, 3 Wend. 456. But the judgment in Donner v. Remer, 21 Wend. 10, having been reversed in Remer v. Donner, 23 Id. 620, the supreme court of New York, notwithstanding what is said in 25 Wend. 277, has regarded the reversal as proceeding on the ground that the sufficiency of the notice was a question of law about which the jury had nothing to say. It, therefore, considers that the case of the Ontario Bank v. Petrie cannot now be supported; and that, as a matter of law, the endorser is not well charged by a notice which informed him that the demand had been made on the wrong day. Ransom v. Mack, 2 Hill 595.
The supreme court of Pennsylvania made a similar decision in Etting v. Schuylkill Bank, 2 Barr 356, 7. And yet, where the notice was by mistake dated the 26th instead of the 25th, the court, considering that by this mistake the endorser could not have been misled, held it immaterial. Tobey v. Lennig, 2 Harris 483. The court seems to think these
two cases entirely consistent.
It has sometimes been contended that notice of dishonour should be accompanied with a copy of the protest; but this is not necessary. Cromwell &c. v. Hynson, 2 Esp. 511. Whether the bill be a foreign or an inland bill-whether the party to whom notice is to be given be resident in England or not, it is sufficient that the bill is protested and that he has notice of the fact of its dishonour; without communicating to him the protest or a copy of it. Robins v. Gibson, 3 Camp. 334, 1 M. & S. 288; Goodman v. Harvey &c. 4 Adol. & El. 870, 31 Eng. Com. Law Rep. 212; Kenworthy v. Hopkins, 1 Johns. Cas. 109; Wells v. Whitehead, 15 Wend. 530; Dennistoun &c. v. Stewart, 17 How. 608.
10. How notice of dishonour is proved.
It lies upon the holder to shew the fact that notice was
given in due time. Lawson &c. v. Sherwood, 1 Starkie 314, 2 Eng. Com. Law Rep. 405; U. S. v. Barker's adm'x, 4 Wash. C. C. R. 464; Friend v. Wilkinson &c. 9 Grat. 34. Shewing knowledge of the fact of dishonour may not always be equivalent to notice. But it is sometimes. When the drawers are sued on a bill accepted by one of their firm, there is no occasion to prove express notice to them of dishonour, as this must necessarily have been known to one of them, and the knowledge of one is the knowledge of all. Porthouse v. Parker &c. 1 Camp. 82; Rhett v. Poe, 2 How.
The like rule holds when the acceptance is by a firm of a bill drawn in the name of one of them who is alone sued on it: the transaction being a partnership transaction, knowledge by one of the firm of the dishonour is all that is required. Gowan v. Jackson, 20 Johns. 179. This necessarily proceeds on the assumption that the general firm continues when the bill is drawn. Taylor v. Young, 3 Watts 344. The principle of Porthouse v. Parker equally applies when endorsers are sued on a note made by a firm composed of themselves. and others. West Branch Bank v. Fulmer, 3 Barr 399.
Before a bill became due, the acceptor died having made the drawer his executor; he proved the will. When the bill became due, an agent of the holder went to the acceptor's house to present the bill. He there saw the drawer, to whom he presented the bill, saying,-"I have brought a bill from C.'s; you know what it is." Thereupon the drawer said: "I am executor of W; you must persuade C to let the bill stand over a few days, because W has only been dead a few days; I shall see the bill paid." In an action against the drawer, it was considered that notice to him was established. Caunt v. Thompson, 7 Man. Grang. & Scott 411, 62 Eng. Com. Law Rep. 411. As where the acceptor is one of the drawers, there is no occasion to prove that they had received express notice of the dishonour,-so in such a case as Caunt v. Thompson, the court might well say that a formal notice to the drawer that the bill had been dishonoured would be absurd, when he knew the fact full well and knew it from the best source, namely, his own personal act in dishonouring it when presented by the holder; and he knew from the same source that time had not been given to the acceptor. He had, therefore, all the information which the notice ought to convey; and having that he knew that the holder had placed himself in a situation to call upon him (the drawer) for payment, from which-to adopt the view of the modern decisions he might infer that he would be called upon. There was at least as much notice as the knowledge spoken of by Alderson, B. in Miers v. Brown, 11 M. & W. 372.
But, generally, neither a drawer of a bill nor an endorser of a bill or note can be rendered liable unless due diligence appear at the trial, either by exact proof of the time when notice was received and forwarded or by proof of facts authorizing the presumption that it was forwarded in due time. On this point the proof failed in Triplett v. Hunt, 3 Dana 127. The bill was protested at Richmond, Va. on Saturday, the 4th of May 1833; and it did not appear when the notice. of protest was put into the mail there nor to whom the holder gave notice. As the 5th was Sunday the holder was not bound to give notice until the 6th. If he had done so, it should, according to the evidence, have arrived at Philadelphia on the 8th; whereas N & Co., the parties there did not receive it until the 9th, and it did not appear that they received it then from an intermediate party.
So in Friend v. Wilkinson &c. 9 Grat. 32, the bill was protested at Cincinnati on the 1st of February 1850, and there was a want of sufficient evidence of the time of the transmission of the notice from that city to Charleston, Kanawha county, Va. It was dated on the 1st, and received at Charleston on the night of the 7th of February; and the proof was that a letter would arrive at Charleston in 4 or 5 days after it was mailed at Cincinnati if it came by the direct route. The court said, "the notice may have been put in the office to be mailed on the 2d, and not have been received until the night of the 7th; if so, it would have been sufficient; but it might have been put in the office and mailed on the 3d or 4th, and received at the same time; if so it was too late, unless that was the first mail after the dishonour of the bill. And these
were matters which the plaintiff was bound to prove."
The cases shew that it is often material to have evidence in relation to the course of the mail, the usage of the post office, and other facts. Dickins v. Beal, 10 Peters 578.
When a notary presents a bill for acceptance, or a bill or note for payment, and the acceptance or payment is refused, the notary is only bound to protest; and his protest, though in the case of a foreign bill evidence of dishonour, is not evidence of notice unless a statute has made it so. Independently of statute, the giving notice is no part of his official duty. Brooke's office of notary, p. 79, 139; Morgan v. Van Ingen, 2 Johns. 204; Bank of Rochester v. Gray, 2 Hill 231; Lloyd v. McGair, 3 Barr 482. It is a fact to be proved by the notary or other witnesses, in depositions duly taken, Miller v. Hackley, 5 Johns. 384; or upon examination at the trial, Dickins v. Beal, 10 Peters 582; Lloyd v. McGair, 3 Barr 482; Walker v. Turner, 2 Grat. 536. But it is not a
fact which can be proved by the notary's ex parte certificate or ex parte affidavit unless a statute has so provided. S. C.; Fitler v. Morris, 6 Whart. 415. So far as a different opinion was intimated in the Cape Fear Bank v. Steinmetz, 1 Hill S. C. Rep. 45, it is disapproved in Bank of Rochester v. Gray, 2 Hill's N. Y. Rep. 231.
When notice of dishonour is by letter, its date and the time when it was sent are often important; and to ascertain the time the post mark may be material. Notice is often given to produce the letter. Lord Kenyon, and after him Lord Ellenborough, was of opinion that without such notice the plaintiff could not give evidence of the contents of the letter. Shaw &c. v. Markham, 1 Peake's N. P. Cas. 165; Langdon v. Hulls, 5 Esp. 156. But LeBlanc, J. after argument, ruled that secondary evidence of the contents of the notice might be given, without notice to produce it; comparing it to notice to quit. And when the case came before the court in term, this ruling is said not to have been questioned. Ackland v. Pearce, 2 Camp. 601. Lord Ellenborough seems to have changed his opinion. Roberts v. Bradshaw, 1 Stark. 28, 2 Eng. Com. Law Rep. 281. When the question came before the common pleas, it being a matter of general practice, Dallas, C. J. collected the opinion of other judges, and the result is that the copy of an original letter, giving notice of the dishonour of a bill, is admissible, without notice to produce the original letter. Kine v. Beaumont, 3 Brod. & Bingh. 288, 7 Eng. Com. Law Rep. 440. A copy of the notice was produced in Johnson v. Haight &c. 13 Johns. 470. But there have been several cases in the United States where this was not done. Evidence of the letter containing notice having been put into the post office, duly directed, has been admitted as sufficient proof of the notice to be left to the jury, although there was no notice to the defendant to produce the letter. Lindenberger &c. v. Beall, 6 Wheat. 104; Eagle Bank v. Chapin, 3 Pick. 180; Dickins v. Beal, 10 Peters 580; Smith v. Hawthorn, 3 Rawle 358.
Under the Pennsylvania act of 2d of January 1815, the protest under hand and seal of a notary acting by authority of the commonwealth is considered as establishing the fact of notice when recited in it, unless it be disproved by other evidence. Stewart v. Allison, 6 S. & R. 324; Browne v. Phila. Bank, Id. 484; Jenks v. Doylestown Bank, 4 W. & S. 510. But that act does not make the certificates of other notaries evidence of notice; they are often evidence only of the protest. Etting v. Schuylkill Bank, 2 Barr 356; Schoneman v. Figley, 7 Id. 437.