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