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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.

VOL. II.-14

So, likewise, the New York statute, relative to proof of notice by certificate, applies to none other than notaries of that state. Bank of Rochester v. Gray, 2 Hill 231; Acts of 1833, p. 395, § 8. Under this act the notary's certificate is proof of the service of notice upon any or all of the parties to the bill or note; the certificate specifying the mode of giving it. Bank of U. S. v. Davis, 2 Hill 456. It is not necessary for the certificate to set out a copy of the notice or the whole contents thereof. Seneca Co. Bank v. Neass, 3 Comstock 445.

By the Virginia act of January 28, 1829, it was provided as follows:

That when any bill, draft, note or check, shall be protested for nonacceptance or non-payment, a protest made by a notary public, stating the time, place and manner of presenting the same, and of giving notice of the protest thereof, verified by the affidavit or solemn affirmation of such notary public, made before any justice of the peace of this commonwealth, on the same day, or next day after such protest made and notice given, may be read as evidence in any suit founded upon such bill, draft, note or check, unless the court, in which the suit may be depending, shall be satisfied, by the affidavit of the defendant or otherwise, that the personal attendance of such notary, or his deposition taken according to law, would be necessary in order to a fair trial or just decision of the cause. Sess. Acts 1828, 9, p. 27, ch. 24, §2.

In lieu of the words in italics, the act of February 3, 1834, substituted the words, at any time. Sess. Acts 1833, 4, p. 75, ch. 62, § 1.

The holder was not bound to pursue the mode prescribed by this law. He might still prove the notice by competent testimony. But if he relied on the act, he was required to bring himself within its terms; he was to see that the protest stated the facts which the law requires. If the protest stated that notice had been forwarded to the maker, but omitted to state that notice had been forwarded to the endorser, it was not evidence of notice to the endorser; nor was it made so by an ex parte affidavit. Such affidavit was entitled to no higher respect than an ex parte affidavit of any other fact necessary to be proved at the trial. Walker v. Turner, 2 Grat. 534.

This decision upon the statutes of 1829 and 1834, also applies to the existing provision in the Code of 1849. The 7th section of chap. 144, p. 581, declaring that certain instruments shall be deemed negotiable, is followed by this section.

The protest both in the case of a foreign bill, and in the other cases mentioned in the preceding section, shall be prima facie evidence of what is stated therein, or at the foot, or on the back thereof, in relation to presentment, dishonour and notice thereof.

Statutes on this subject have also been passed in Maryland, 1837, c. 253; 1 Gill 149, 4 Id. 201; and in North Carolina, 2 R. S., c. 13, § 10; 10 Iredell 388.

11. How proof of notice is dispensed with on proof of promise to pay.

It seems to have been early laid down that "if an endorsee has neglected to demand of the drawer in a convenient time, a subsequent promise to pay by the endorser will cure this laches." Lord Raymond, C. J. in Haddock v. Bury, Middlesex Term, 3 Geo. 2, MS., Burnet, J. cited in 7 East 236, note a. The laches in not giving notice of dishonour was considered to be waived by the defendant's promise, Anson v. Bailey, Bull. N. P. 277; and sometimes by other conduct, Whitaker v. Morris, 1 Esp. Dig. 58; Vaughan v. Fuller, 2 Str. 1246.

The party's promise to pay did away the necesssity of considering the question relative to the want of notice. Ashurst, J. in Rogers v. Stephens, 1 T. R. 719. It was an admission that the holder had a right to resort to him. Ld. Kenyon, S. C. 718; Hopes v. Alder, 6 East 17, note; Wilkes &c. v. Jacks, 1 Peake's N. P. Cas. 202.

From the promise of an endorser to pay, Lord Ellenborough presumed that the bill had been presented for payment in due time and dishonoured, and that due notice had been given to him. Lundie v. Robertson, 7 East 235; Taylor v. Jones, 2 Camp. 105; Gibbon v. Coggon, Id. 188; Jones v. Morgan &c. Id. 474; Stephens v. Lynch, 2 Camp. 332, 12 East 38; Porter v. Rayworth, 13 East 417; Horford v. Wilson, 1 Taunt. 12; Greenway &c. v. Handley, 4 Camp. 51. He treated it as a question whether the defendant had notice. Hopley v. Dufresne, 15 East 274. And so it has been treated in England since. Gunson &c. v. Metz, 1 Barn. & Cress. 193, 8 Eng. Com. Law Rep. 58; Margetson v. Aitken, C. & P. 338, 14 Eng. Com. Law Rep. 336, Standage &c. v. Creighton, 5 C. & P. 406; Dixon &c. v. Elliott, Id. 437, 24 Eng. Com. Law Rep. 383, 400. These last three cases being at nisi prius, do not indicate the principle on which the English decisions proceed so clearly as is done in Perkins v. Graham, 1 C. & M. 725, and Hicks v. Beaufort, 4 Bing. N. C. 229, 33 Eng. Com. Law Rep. 237. These cases shew that when after the dishonour the drawer distinctly promises to pay, that is considered evidence from which it may be inferred he has received notice of the dishonour; because men are not prone to make admissions against themselves; and therefore when the drawer

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